The International Bar Association (IBA) today described the decision by the judges of Trial Chamber I of the International Criminal Court (ICC) to stay the proceedings in the case of Thomas Lubanga Dyilo, due to the prosecution’s inability to disclose potentially exonerating confidential material to the defence, as a clear indication of the ICC's commitment to respect the fair trial rights of defendants. While recognising that the decision is likely to be very disappointing for victims, the IBA nevertheless noted that the decision reinforced the fact that the ICC is an independent, impartial institution committed to conducting trials that are fair.
On 13 June 2008, the Trial Chamber decided to halt the Lubanga proceedings just over a week before the trial was due to commence because judges determined that the prosecution had incorrectly applied a provision in the Rome Statute which allows the prosecution to obtain documents from a number of ‘information providers’ on condition of confidentiality for the limited purpose of leading them to new evidence. The judges found that the prosecution had decided to use the information which had been provided, not only to generate new evidence as envisioned by the Statute, but also during the trial. In the Lubanga case, the prosecution admitted that over 200 of the documents that it had obtained confidentially from information providers, such as the United Nations, are potentially exculpatory, that is could show or tend to show the innocence of the defendant, or are material to the defence’s preparation of its case.
In commenting on the Trial Chamber’s decision, Justice Richard Goldstone, former Chief Prosecutor of the International Criminal Tribunal for the former Yugoslavia, and the International Criminal Tribunal for Rwanda, stated: ‘Disclosure of exculpatory evidence in the possession of the prosecution is fundamental to the accused's right to a fair trial. If the way that the prosecution interprets and applies the legal provisions governing the use of material obtained through confidentiality agreements operates to deprive the defendant of potentially exonerating evidence or material necessary for the preparation of his defence, then this would be unfair. In those circumstances the Trial Chamber is quite correct in bringing a halt to the proceedings.’
Although the prosecution made efforts to obtain the consent of the information providers to disclose the exculpatory material, most of them refused. Information providers often restrict the use of material provided confidentially in order to protect their staff, and under the Rome Statute they cannot be forced to allow confidential information to be disclosed.
The decision may have serious implications for the future conduct of some cases before the ICC and the manner in which the prosecution negotiates confidentiality agreements. The greatest impact, however, is likely to be on victims and witnesses in the Democratic Republic of Congo who have been waiting for the opportunity to participate in the proceedings and eventually to obtain reparations for the harm suffered.
In this regard, Justice Goldstone states: ‘It is regrettable that a stay of proceedings will impact negatively on the right of victims to participate in the case and obtain reparations; however, it would be little comfort to victims if the case continued in this vein and was thereafter vitiated due to unfairness. Given the circumstances, the Trial Chamber had a duty to uphold the right of the accused to a fair trial. ’
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Notes for the Editor
Background to the case
The Prosecutor v. Thomas Lubanga Dyilo is the first case to arise from the situation in the Democratic Republic of the Congo (DRC). On 17 March 2006, Thomas Lubanga Dyilo, the founder and leader of the Union des Patriotes Congolais (Union of Congolese Patriots) was arrested and surrendered to the Court upon a warrant of arrest issued by Pre-Trial Chamber I at the request of the Prosecutor.
On 29 January 2007, Pre-Trial Chamber I confirmed the charges brought by the Prosecutor against Thomas Lubanga Dyilo, namely war crimes consisting of conscripting and enlisting children under the age of 15 into the FPLC, the military wing of the Union des Patriotes Congolais (UPC), and using them to participate actively in hostilities in Ituri, from September 2002 to 13 August 2003.
Following the confirmation of the charges, the case was transferred to Trial Chamber I. The first trial date in the case was set for 31 March 2008. The trial was postponed and scheduled to start on 23 June. During a hearing on 11 June 2008, the Trial Chamber indicated that the trial would not start on 23 June as anticipated but declined to give reasons. The written decision, staying the proceedings, was subsequently delivered on 13 June 2008 and made public on 16 June 2008.
Evidence obtained by the prosecution subject to confidentiality restrictions
Article 54(3) (e) of the Rome Statute provides that ‘the Prosecutor may agree not to disclose, at any stage of the proceedings, documents or information that the Prosecutor obtains on the condition of confidentiality and solely for the purpose of generating new evidence, unless the provider of the information consents.’
However, at times the confidential documents may contain material that is potentially exculpatory, that is material which shows or tends to show the innocence of the accused. Under Article 67(2) of the Rome Statute, the prosecution has a duty to disclose as soon as practicable, material which is in the prosecutor’s possession or control which he believes shows or tends to show the innocence of the accused, or may mitigate the guilt of the accused or may affect the credibility of prosecution evidence. Rule 77 of the ICC Rules of Evidence and Procedure (RPE) provides for the defence to be allowed to inspect items in the prosecution’s possession or control that is material for the preparation of the defence case or which the prosecution intends to use at the confirmation of charges hearing or at trial.
Rule 77 is, however, subject to restrictions on disclosure on the basis of confidentiality. Under Rule 82 of the RPE the Prosecutor cannot introduce material or information into evidence that he has obtained under Article 54(3)(e) without first obtaining the consent of the information providers. Even if the information provider gives consent for the use of the material and such material is introduced into evidence, the Chamber is barred from requesting additional evidence or even summoning the information provider or a representative to attend as a witness.
Stay of proceedings
In its decision, the Trial Chamber indicated that imposing a stay on the proceedings does not mean that the Chamber is without any further authority or legal competence in relation to the case. The stay may be lifted either by the Trial Chamber or if the decision is appealed, by the Appeals Chamber.
A hearing is scheduled for Tuesday 24 June 2008 for the Court to consider the release of Mr Lubanga.
The IBA/ICC Monitoring Programme
In 2005, the IBA commenced an ICC Monitoring and Outreach Programme through funding provided by the McArthur Foundation. The monitoring component analyses the developments at the ICC focusing in particular on issues affecting the fair trial rights of the accused, the implementation of the 1998 Rome Statute, the Rules of Procedure and Evidence, and related ICC documents. The Outreach programme works in partnership with bar associations, lawyers and civil society organisations disseminating information and promoting debate on the ICC through the IBA’s membership network, beyond the limits of the ongoing situations and cases.