Yesterday, the Trial Chamber in the Lubanga case held a hearing to follow up on its earlier decision, reported on this blog last week, to grant a stay of proceedings because of the refusal of the Prosecutor to remit potentially exculpatory documents to defense counsel. No decision was made yesterday, but written decisions are promised soon.
The Trial Chamber said it was premature to consider releasing Lubanga. First, the Prosecutor is applying to appeal the decision. Apparently, the Trial Chamber seems to think that leave to appeal must be granted first, although this does not seem obvious to me. The Rome Statute does not provide for a stay of proceedings, and as a result it does not establish the procedure for appealing a judgment granting a stay of proceedings. I would be inclined to treat a stay as analogous to an acquittal or a conviction, and therefore it is a decision that is subject to an appeal of right and not with leave.
They are also talking of releasing the accused. He was brought to The Hague from his cell in Congo, where he was awaiting trial on charges of genocide and crimes against humanity. Rather than be released, it seems to me that he should be returned to Congo for trial on these charges.
According to the press release issued yesterday by the Court, http://www.icc-cpi.int/press/pressreleases/389.html, presiding Judge Fulford said that 'any proposal allowing the judges to view the potentially exculpatory material that forms the basis of the stay must comply with minimum requirements in order to ensure a fair trial. These requirements include the right of both the Trial and Appeals Chambers to view, retain and study the material in question.' I am not sure that this is enough. Can it really be fair for trial judges to see hundreds of documents that are clearly relevant to the criminal responsibility of the accused without the accused also having access to this material? Obviously, the material may include both exculpatory and incriminating information, and it cannot be right that judges see incriminating information without the defense having an opportunity to reply to it.