Following its decision, dated 8 July, 2010, imposing an unconditional stay on the proceedings of the case The Prosecutor v. Thomas Lubanga Dyilo, Trial Chamber I of the International Criminal Court (ICC) today ordered the release of the accused. According to the judges, an accused cannot be held in preventative custody on a speculative basis, namely that at some stage in the future the proceedings may be resurrected.
However this order will not be implemented with immediate effect. “This order shall not be enforced until the five day time limit for an appeal has expired”, stated presiding Judge Adrian Fulford in a hearing today. “If an appeal is filed within the five day time limit against this order granting release, and if a request is made to suspend its effect, the accused shall not leave detention until the Appeals Chamber has resolved whether this order granting release is to be suspended”, Judge Fulford continued. The Chamber also noted that an order releasing the accused shall only be put into effect after arrangements have been made for his transfer to a State that is obliged to receive him.
In its oral decision, Trial Chamber I also granted the Prosecutor’s 15 July application for leave to appeal the decision to stay the proceedings. Furthermore, the Chamber decided to adjourn any action under article 71 of the Statute, dealing with misconduct before the Court, until the Appeals Chamber’s judgment on this appeal. “The Prosecutor has failed to implement two of the Chamber's orders; those of 7 July, 2010. For the reasons set out in the decision imposing the stay, this constituted a deliberate and in our judgment, wholly unjustified refusal to comply with the directions of the Court”, explained Judge Fulford. However, “It is fair that the issue of sanctions should await the outcome of the appeal” he concluded.
On 8 July, Trial Chamber I had stayed the proceedings considering that the fair trial of the accused was no longer possible due to non-implementation of the Chamber’s orders by the prosecution. The judges had ordered the Office of the Prosecutor to confidentially disclose to the Defence the names and other necessary identifying information of intermediary 143.
Thomas Lubanga Dyilo is accused of having committed, as co-perpetrator, war crimes of enlisting and conscripting of children under the age of 15 years into the Forces patriotiques pour la libération du Congo (Patriotic Forces for the Liberation of Congo), (FPLC), and using them to participate actively in hostilities in Ituri, a district of the eastern province of the Democratic Republic of the Congo (DRC), between September 2002 and August 2003.
The situation was referred to the Court by the Government of the Democratic Republic of the Congo (DRC) in April 2004. The Prosecutor v. Thomas Lubanga Dyilo is one of the cases that arose from the situation in the Democratic Republic of the Congo; others are The Prosecutor v. Germain Katanga and Mathieu Ngudjolo Chui and The Prosecutor v. Bosco Ntaganda. Bosco Ntaganda remains at large. Investigations are ongoing in the DRC.