By Mel O’Brien

This afternoon the Appeals Chamber of the ICC delivered its decision on the Prosecutor’s appeal against two decisions of the Trial Chamber in the Lubanga case. The first appeal was against the Trial Chamber’s decision of 13 June 2008, imposing a stay of proceedings on the case. The Prosecutor argued that the Trial Chamber had misinterpreted and mischaracterized the use of Article 54(3)(e), and that the imposition of a stay of proceedings was premature and excessive. Despite the Prosecutor seeking to amend the appeal to only the third ground, the Appeals Chamber saw all three grounds as inextricably linked and therefore delivered a decision on all three grounds.

With regard to the first two grounds, the Appeals Chamber could not identify any error in the interpretation of Article 54(3)(e) by the Trial Chamber or in its characterization of the Prosecutor’s use of that article. The textual interpretation indicates that the Prosecutor may only rely on the provision for a specific purpose, namely, in order to generate new evidence. This interpretation is confirmed by the context of Article 54(3)(e). It follows from Article 54(1) that the investigatory activities of the Prosecutor must be directed towards the identification of evidence that may eventually be presented in open court to assess whether there is criminal responsibility of the accused under the Rome Statute. It must be emphasized that the use of Article 54(3)e) must not lead to breaches of the Prosecutor’s obligations vis-à-vis the suspect or the accused person. Therefore whenever the Prosecutor relies on Article 54(3)(e) he must bear in mind his obligations under the Rome Statute and apply that provision in a manner that will allow the Court to resolve the potential tension between the potential confidentiality of information provided and the requirements of a fair trial. In the present case, however, the Prosecutor agreed with the information provider that the material would not even be disclosed to the Chambers of the Court, and subsequently obtained large amounts of documents, even though he didn’t know if the material would be potentially exculpatory. In doing so, the Prosecutor prevented the Trial Chamber from examining the material, and determining whether a fair trial can be held even without the examination of the documents. Under Article 67(2) and from the jurisprudence of human rights courts, it must be the Chamber and not the Prosecutor who takes the final decision of potentially exculpatory material. While a Chamber may not order the disclosure to the defense of material without prior consent of the provider, the relevant material must be placed before the Chamber. Under the agreements made by the Prosecutor such a disclosure to the Chamber was not possible, resulting in stay of proceedings in the present case.

With regard to third ground of appeal, that the imposition of a stay of proceedings was premature and excessive, the Appeals Chamber was not persuaded by the arguments of the Prosecutor. It is important to know the character of the stay of proceedings imposed by Trial Chamber. The stay was not absolute & permanent, tantamount to acquittal or complete termination, but a conditional stay of proceedings. The Trial Chamber acknowledged the stay could be lifted if and when a fair trial has become possible in all respects. In the view of the Appeals Chamber, the imposition of such a conditional stay was justified in the circumstances of the case. The proceedings were stayed one week prior to the scheduled start of trial, at a time when a large numbers of documents had not been disclosed to the defense or even to the Chamber. The issue of documents covered by confidentiality had been raised already by the Pre-Trial Chamber, and had been constantly on the agenda of the Trial Chamber since September 2007. Despite assurances by the Prosecutor that the information providers would be willing to provide consent, the lifting of confidentiality proved to be problematic. Several attempts to provide a solution failed. The information provider continued to be reluctant to reveal information even to the Trial Chamber to assess the information under Article 67(2). In such a situation, had the Trial Chamber decided to go ahead with the trial, there would always have been a lurking doubt as to whether the undisclosed material would potentially have changed anything for the outcome of trial.

As a consequence of these findings, the Appeals Chamber dismissed the appeal unanimously.

Judge Pikis delivered a separate opinion:

Disclosure of exculpatory evidence is essential. Time to examine it is also a fundamental right of the accused. Exonerating evidence goes to guilt or innocence of accused. In the absence of such evidence, any verdict would be clouded by knowledge of existing exonerating evidence not before the court and the uncertainty herewith. The exonerating material was received primarily from the UN and some other providers under confidentiality agreements under Article 54(3)(e). A large number of the documents collected were received prior to investigations in June 2004. The Trial Chamber kept pressing for disclosure of exonerating material to accused, but the UN and other information providers refused to give consent to disclosure. They also refused the invitation of the Trial Chamber itself for the purpose of enabling it to evaluate the significance of such evidence. The Trial Chamber held that the Prosecutor wrongly received the documents under consideration pursuant to Article 54(3)(e) which in its view limits material which may be received to what it described as lead material- clues to existence of evidence, not material constituting evidence itself. The Trial Chamber admonished the Prosecutor for collecting material without any certainty that he would be able to use it and present it to the accused. Article 54(3)(e) does not confine the right of the Prosecutor to receive evidence in confidence to lead material. What it allows him to do is seek new evidence reproducing evidence is his possession. The Prosecutor was stranded with evidence he was unable to produce under Article 67(2), a failure not mitigated by the existence of a confidentiality agreement. The failure of the Prosecutor to produce new evidence is enhanced by the failure to produce exonerating evidence as required under Article 54(1)(a). The Prosecutor was also duty bound to disclose exonerating evidence to the accused to allow the accused to present their case to the Pre-Trial Chamber. It is pointed out that the confirmation of charges is neither automatic nor free from evaluation of evidence produced. The right of the accused to trial without delay is assured as a fundamental right of accused. The expeditiousness of proceedings as a distinct element of a trial under Article 64(2) casts a duty on the Trial Chamber. To guard against evidence not being produced, Article 69(3) provides that the court shall have authority to request evidence it considers necessary for determination of truth. In this case, the information wasn’t forthcoming, with the consequence that the truth could not be crystallized at trial. In the Appeals Chamber 14 December 2006 decision, the stay brought proceedings to an end due to impossibility to assure a fair trial. Fair trial is the only means to bring justice. The pertinent question in this appeal is whether the finding of impossibility of fair trial is justified. The answer is in the affirmative. The finding of impossibility to hold fair trial sees the end of the proceedings. The order to stay proceedings is confirmed.

Appeal against 2 July 2008 decision to release Lubanga

The Trial Chamber ordered the release of Lubanga as result of the decision to stay proceedings. The Trial Chamber considered the release of Lubanga was the inevitable consequence of the stay of proceedings because Lubanga cannot be detained for preventive purposes. The Appeals Chamber decided this appeal as follows:

The Pros raised two grounds of appeal in relation to the decision to release. The Appeals Chamber saw merit only in his second ground of appeal.

The first ground of appeal is that the Trial Chamber made a procedural error when deciding on release of Lubanga before the Appeals Chamber had decided on the appeal of the decision to stay proceedings. The Prosecutor argued that this could frustrate the Prosecutor’s appeal in the decision to stay proceedings because the Court may never be able to exercise jurisdiction over Lubanga if he is released. The Appeals Chamber was not persuaded by this argument. Decisions by the Trial Chamber are not merely provisional decisions that require the approval of the Appeals Chamber before they can be enforced. Therefore it was not erroneous of the Trial Chamber to decided on the release of Lubanga before the Appeals Chamber could decide on the appeal of stay of proceedings. The Rome Statute gives an appellant the possibility to apply for suspensive effect of appeal, and the Prosecutor made use of this right and subsequently the Appeals Chamber suspended the effect of decision to release Lubanga.

The Appeals Chamber did see merit in the arguments under the second ground of appeal- that the Trial Chamber should not have ordered unconditional release of Lubanga in the present case. In the view of the Appeals Chamber, the Trial Chamber was wrong in finding that the inevitable consequence of the order to stay proceedings was his unconditional and immediate release. Pre-conviction detention is regulated by Articles 60 and 58(1). Pre-trial detention is only possible if there is reasonable ground to believe that crimes have been committed, and for reasons under Article 58(1). If conditions for detention under Article 58(1) are not fulfilled, the Chamber must, under Article 60(2), order the release of the person, with or without conditions. It follows that, if a Chamber imposes a conditional stay, the unconditional release is not the inevitable consequence or the only correct course to take. A conditional stay can be lifted. If a fair trail later becomes possible, it is not tantamount to an acquittal or a termination of proceedings, so the Court is not permanently barred from exercising jurisdiction in respect of the person concerned. The stay was capable of being lifted in the future. For that reason, if a Chamber imposes a conditional stay of proceedings, it will have to consider all relevant circumstances on release or detention upon criteria of Articles 60 and 58(1), in particular, the necessity of the continued detention will have to be assessed carefully. If the conditions are not met, the Chamber will have to assess whether release should be with or without conditions. In the present case, the Trial Chamber failed to take all relevant factors into consideration. On 29 May 2008 the Trial Chamber had found, in a decision reviewing detention, that the continued detention of Lubanga was necessary, as he was likely to return to the Democratic Republic of Congo (DRC), with the probable consequence that the Court would no longer be able to secure his attendance at trial. The Trial Chamber failed to give proper weight to all factors, including the fact that UN was trying to find a way to disclose documents.

The Appeals Chamber remanded matter to the Trial Chamber to make new decision on release of Lubanga, and reversed the decision of Trial Chamber One of 2 July 2008, the decision on the release of Lubanga. Trial Chamber One was directed to decide anew whether Lubanga should remain in detention or whether he should be released with or without conditions deciding in light of today’s judgment of AC, and will have to take into account all relevant factors.

Judge Pikis dissented:

Judge Pikis saw the lifting of stay of proceedings as an impossibility. Hence the accused should be released, and that release of accused should be inevitable response to stay of proceedings. To order detention of the accused would be tantamount to restricting his liberty for reasons one could not predict they could materialise. There is no authority to order detention of person for preventive or precautionary measure. Pikis stated that he was not overlooking that the accused is facing extremely serious crimes or the situation in DRC, nor overlooking the mission of the ICC. Human rights on the other hand aim to sustain the core of humanity and the right to a fair trial is amongst the most consequential ones. Lack in this protection holds great dangers to humanity. It is worth reminding of a passage of the judgement of 14 Dec 2006, which held that unfairness in process of the accused may rupture the process and make it impossible to have constituent elements of a fair trial. The need to put people on trial for these serious crimes is outweighed by need to ensure fair trial rights. Circumstances, grave as they may be, do not overshadow human rights, including the right to liberty. Liberty cannot be subordinated to anything beyond the need to ensure the attendance of the accused at their trial. A stay of proceedings for impossibility to hold fair trial brings proceedings to an end, and his release is inevitable consequence. The Trial Chamber should release the accused.