Judges reject Prosecution's application to take testimony while proceedings are stayed
28 September 2010- Trial Chamber I at the ICC rejects the Prosecution's application to take testimony while proceedings are stayed pending a final decision by the Appeals Chamber. According to the judges, justice can no longer be done in this case whilst the Prosecutor continues to not implement the Chamber's orders if he is of the view that they conflict with his interpretation of his other obligations.
"This serious infringement of the Rule of Law applies equally to proceedings in which 'provisional' evidence is received as it does to a resumed trial. The guarantees of a fair hearing would be absent in both situations," reads the decision issued by judges Adrian Fulford, Elizabeth Odio Benito and René Blattmann on 24 September 2010.
The Chamber notes that the Prosecution fails to address the principle basis for imposing the stay of proceedings, namely the Prosecutor's clearly evidenced intention not to implement the Chamber's orders if he believes they conflict with this interpretation of his other obligations." The Chamber is unable [to ensure a fair trial of the Accused] whilst the Prosecutor refuses to accept the authority of the Court. Compliance with judicial orders lies at the heart of the principle of the rule of law - it is an irremovable and fundamental ingredient of a fair criminal trial, absent which the proceedings are ipso facto vitiated," state the judges.
On 16 September 2010, the Prosecution asked the Chamber to allow the taking of testimony of Intermediary 143 without lifting the stay, deferring the determination of whether the testimony taken is admissible in Court to a later time. On 13 September 2010, the Prosecution had offered to supply the Defence with the identity of Intermediary 143, the origin of controversy. In the filing, the Prosecution recognised that disclosing the identity of Intermediary 143 did not resolve the concerns that triggered the order to stay proceedings, but that this "provisional action during the pendency of the stay order would serve the interests of the parties, the participants, the witnesses, the Court, and the public."
The Prosecution submitted that the Chamber has the power to allow testimony to be taken even while it continues a stay of proceedings. "The possibility of taking evidence notwithstanding that there is no ongoing trial is sanctioned by the Statute. It also would serve the fundamental rights of the Accused; the taking of steps at this point will shortcut the process if the stay itself is limited, and by shortcutting the proceedings it will reduce the length of his pre-judgment incarceration," reads the application. Accordingly, it is suggested that the Chamber should hear "provisional" evidence, which can later be incorporated into the trial proceedings if the stay is lifted by the Appeals Chamber.
The Defence of Thomas Lubanga dismissed the Prosecution's application, indicating that it is "clearly inadmissible" and that the Prosecution misrepresented the Decision of the Chamber by assuming that the stay of proceedings was related solely to the "temporary" issue of Intermediary 143's identity. The Defense has also indicated that when it was contacted by the Prosecutor on 13 September 2010 by telephone in order to disclose the identity of Intermediary 143, it responded by indicating that it "intends to conform strictly with the terms of the decision of the Trial Chamber, which declared the permanent stay of proceedings". Lubanga's lawyers told the Prosecution that whilst the stay of proceedings is in place, the Prosecutor is disabled from continuing with the proceedings in any way, including by an attempt to disclose fresh items of evidence.
On 8 July 2010, Trial Chamber I imposed an unconditional stay on the proceedings of the Lubanga case and ordered the release of the Accused, as he "cannot be held in preventive custody on a speculative basis, namely that at some stage in the future the proceedings may be resurrected." The Prosecution has appealed both decisions.
