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July 14, 2010

Proceedings in the Lubanga case are stayed for a third time since the opening of the case

By Gaelle Carayon

On 8 July 2010, Trial Chamber 1 ordered a stay of proceedings in the Lubanga case due to the repeated refusal by the Prosecution to comply with a Court order requesting the disclosure to the Defence of the identity of an intermediary.[1] This is the third time that proceedings in the Lubanga case are stayed.

 **Note: This is not an official summary, this is a general summary provided for information by REDRESS (www.redress.org)

Link to decision: http://www.icc-cpi.int/iccdocs/doc/doc906146.pdf 

[Background] Following allegations by the Defence that various intermediaries working for the prosecution had coached prosecution witnesses and fabricated evidence, on 12 May Trial Chamber 1 ordered that two prosecution intermediaries (321 and 316) be called to testify and that the identity of a third intermediary (143) be disclosed to the defence.[2] This was to occur after necessary protection measures were in place. Protection measures were thus proposed by the Victim and Witness Unit (VWU) and agreed upon with intermediary 143, and were due to be implemented in early July.

However, on 6 July, the Chamber was informed that the protection package put forward by VWU could no longer be implemented as intermediary 143 had rejected them outright and requested certain adjustments to be made (including a significant financial component). After hearing submissions on the issue, the Chamber ruled on 6 July that disclosure should go ahead with the identity to be revealed only to members of the Defence team present in Court, the accused, and their long term resource person in the field. On the same day, the Office of the Prosecutor indicated its intent to appeal the decision and refused to undertake disclosure.

On 7 July the Chamber ruled again that disclosure should occur. In doing so it considered the Defence’s argument that they needed the name in order to proceed with their questioning of intermediary 321, currently before the Chamber; the Defence’s reassurance that they would not divulge the name further nor use it for investigation purposes; and the fact that there was no reason to doubt the Defence’s good faith in the matter. The prosecution went on to file an urgent request to vary the time limit for disclosure or, in the alternative, a stay of proceedings until further consultation with VWU occurs. The prosecution stated that it had an autonomous statutory duty of protection and that it would rather “face adverse consequences in its litigation than expose a person to risk on account of prior interaction with its office.”

On 8 July Trial Chamber 1 ruled that the prosecution’s submission was unsustainable. The Chamber had two concerns. First, should there be no agreement with intermediary 143 on protection measures offered, the fairness of the proceedings would potentially be impaired and this would likely affect the Chamber’s assessment of the evidence heard so far. Second, the Chamber was greatly concerned by the Office of the Prosecutor’s position that it might have autonomy to decide whether or not to comply with a Court order relating to protection measures.

Trial Chamber 1 ruled that Article 68 did not give the prosecution licence, discretion or autonomy to disregard judicial orders, in particular taking into account the overall duty of the Chamber to ensure a fair and impartial trial. It concluded that it was not in a position to allow further evidence to be heard without the right of the accused to a fair trial being breached and that a stay of proceedings was thus necessary whilst the current circumstances (regarded by the Court as an abuse of process) endure.

Q: What are the issues?

As pointed out by the Chamber there are two issues: a) the current refusal by the Office of the Prosecutor to disclose information resulting in a breach of fair trial rights b) whether the prosecution has a separate duty related to protection issues which entitles it not to comply with a court order.

       a)      The current refusal by the Office of the Prosecutor to disclose information resulting in a breach of fair trial procedure

If an agreement is found with intermediary 143 on protection measures, once these are implemented and his identity is disclosed to the Defence, the trial could then continue if the Chamber ruled that the reasons for the stay have “fallen away”.[3] However, it is not clear what would happen if intermediary 143 refuses the protection measures and the prosecution persists in not disclosing his identity. Proceedings against the Office of the Prosecutor for misconduct could be undertaken under art 71.

Furthermore, as pointed out by the Chamber, the Defence’s evidence so far has highlighted potential abuse of process by the Prosecution and the persons with whom it worked. Refusal to reveal information that the Chamber has ruled necessary would potentially affect the Chamber’s assessment of the evidence heard so far.

      b)      Whether the Office of the Prosecutor has a separate duty related to protection issues which entitles it not to comply with a court order.

The issue that has now arisen is broader than disclosure. What is now in question is whether the prosecution has a separate duty under Article 68 in relation to protection of persons in contact with its office that could allow it not to comply with a Court order.

Generally, the party or participant in contact with a person will be the one requesting protection measures for that person. However it is the Chamber which ultimately grants and varies protection measures. In the case at hand, the prosecution seems to have indicated its intention not to implement the Chamber's orders that are made in an Article 68 context, which it considers conflict with its interpretation of the Prosecution's other obligations. Trial Chamber 1 opposes this view and states that it is ultimately for the Chamber to rule on the issue. A request for leave to appeal the decision imposing the stay of proceedings thus seems likely (not least because the Office of the Prosecutor had already indicated its intent to appeal the original disclosure order).

If leave to appeal is granted, the impact of appeal proceedings on the timing of the case would most likely depend on whether the prosecution agrees to the disclosure of intermediary 143’s identity. Indeed, should the issue go on appeal but disclosure occur, it is not clear whether a stay of proceedings until determination by the Appeals Chamber would still be warranted.

Q: When are testimonies likely to resume?

As it stands and with the Court’s recess starting on 16 July, testimonies related to the abuse of process are unlikely to resume before mid-August at the earliest and only then if the identity of intermediary 143 is disclosed to the Defence and the stay of proceedings lifted.

Q: Does that mean that Lubanga could be released?

The accused has now been in preventive detention for over 4 years and the Chamber has indicated that it would hear submissions on his continued detention on 15 July. This is the third time that proceedings in the Lubanga case have been stayed. The current stay of proceedings is reminiscent of the stay imposed by Trial Chamber 1 in June 2008 when the Prosecution was unable to make available to the defence potentially exculpatory material.  On that occasion, the Chamber had ordered the release of the accused, though this was subsequently reversed by the Appeals Chamber. The Appeals Chamber ruled that “if a Chamber imposes a conditional stay of the proceedings, the unconditional release of the accused person is not the "inevitable" consequence and "the only correct course" to take. Instead, the Chamber will have to consider all relevant circumstances and base its decision on release or detention on the criteria in articles 60 and 58 (1) of the Statute.”[4] Thus this new stay of proceedings does not automatically warrant the release of Lubanga.

 

[1] ICC-01/04-01/06-2517-Red, Redacted Decision on the Prosecution's Urgent Request for  Variation of the Time- Limit to Disclose the Identity of Intermediary 143 or Alternatively to Stay Proceedings Pending Further Consultations with the VWU, 08/07/2010

[2] Decision on Intermediaries, 12 May 2010, ICC-01/04-01/06-2434-Conf-Exp. A Public redacted version was issued on 31 May 2010, ICC-01/04-01/06-2434-Red2.

[3] This is what occurred in 2008 when a stay of proceedings was imposed following the prosecution’s inability to disclose potentially exculpatory documents obtained subject to confidentiality agreements concluded with third party information providers such as the United Nations. Once conditions for lifting the restriction on the use of the documents were addressed and agreed by the information provider, the Chamber ruled that the reasons for the stay of proceedings had fallen away and the trial could thus start. ICC-01/04-01/06-1644, 23/01/2009, Reasons for Oral Decision lifting the stay of proceedings

[4]  ICC-01/04-01/06-1487, Judgment of the Appeals Chamber, 21/10/2008

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