On 3 September, the Trial Chamber I of the ICC rendered a decision in which it rejected the Prosecutors application to lift the stay of proceedings in the case The Prosecutor v. Thomas Lubanga Dyilo (we reported on this case earlier). The Court had imposed the stay of proceedings on 13 June this year based on the fact that numerous (appr. 200) documents available to the Prosecutor had not been made accessible to the defence or the judges.
The decision is rather interesting which is why a summary of the findings will be cited here.
i) The Application fails to address comprehensively and sufficiently all of the Documents held by the various information-providers, and particularly the NGOs. There is inadequate clarity as to a significant proportion of the Documents along with the position, overall, of the information-providers, as regards disclosure and the opportunity for appellate review;
ii) For the United Nations Documents (i.e. those which are currently to be withheld in their entirety, along with the redacted sections of other Documents), the proposals unacceptably appear to require the Chamber to return the Documents, or the redacted sections, after its initial review and to remove quotations or paraphrases from the judges’ notes, unless and until the Appeals Chamber agrees to the same conditions as the Trial Chamber. These requirements will have the effect of preventing the Chamber from keeping the Documents sufficiently under review during the trial;
iii) The proposals neither allow the Chamber to refer to the detail of the Documents in a written decision nor do they guarantee that any decision by the Chamber will be susceptible to full appellate review. Until the opportunity for the Chamber to issue a full and detailed written decision in respect of which a proper appeal is guaranteed (during which the Appeals Chamber is able to review all of the relevant documentation, along with a non-redacted version of any relevant decision of the Trial Chamber), one of the principal elements of a fair trial will be missing from the proceedings;
iv) The proposals do not provide sufficiently comprehensive information on the redactions required by the providers, nor is a procedure for review of such redactions by both the Trial and – potentially – the Appeals Chambers set out;
v) On the basis of the Application and Supplementary Information, there is a real prospect that the prosecution will not be in a position to effect adequate disclosure to the accused of a significant number of Documents (if the Chamber so orders) because, even at this late stage in the proceedings, there is currently no indication that some of the NGOs will be able to assist with the disclosure orders, whether by way of full disclosure, summaries or otherwise and for the United Nations, it is unclear whether sufficient disclosure, in an adequate form, will be possible. However, the Chamber stresses that if all of the Documents from all the information providers are submitted to the Chamber in a non-redacted form for the entirety of the trial and if the Appeals Chamber is able to consider in a similar, non-redacted form all of the relevant materials and any decision of
the Trial Chamber on the issue, the Bench would be prepared to review all the Documents (prior to lifting the stay) to assess which Documents need to be disclosed and whether the proposed methods of disclosure accord with the accused’s right to a fair trial.
Firstly it should be noted that the judges generally hold that the application by the Prosecutor was insufficient and that it does not in a adequate manner address why the documents could not be revealed. Hereby the judges once again underline that in their view, the underlying problem is caused not by the information-providers (i.e. the UN and several NGOs). As also mentioned in para. 28 of the decision, the judges instead find that the information-providers have entered into agreements (to supply the documents to the Prosecution) in good faith and that the Court is grateful for their attempts to resolve the difficulties in the case. This sounds – although the judges never mention this expressly – like a side blow to the Office of the Prosecutor. And when reading the decision one is time and again receiving the impression that the whole case is nothing but a struggle between the judges and the Prosecution, with the information-providers merely functioning as bystanders.
One of the main problems is that the Prosecutor wants the Trial Chamber not only to return all the documents after the judges have read them but also that the Trial Chamber redacts all notes that the judges may have taken from the UN documents. This would mean that the Chambers decision on the documents and their non-disclosure or partial disclosure only would contain bits and pieces of the relevant information on which the decision is based. Since the Appeals Chamber thus will be able to consider only a redacted version of the Trial Chamber’s decision, lacking all redacted parts, the Court rightfully criticizes this as infringing the principle that these Trial Chamber decisions should be susceptible to appellate review.
Furthermore the Court seems to be open to the Prosecutors suggestion that currently undisclosed UN documents, which could provide exculpatory evidence, may be made available to the defence by “other means”. However, since the Prosecutor (or the UN for that matter) hasn’t made any detailed suggestion as to what these means could entail, the judges are not deciding if this could have meant a lift of the stay of proceedings (at least with regard to the UN documents).
With regard to documents of NGOs (the names of the relevant NGOs have been omitted even in the present decision) the judges find that it is still far to uncertain how and which documents may be disclosed to the defence, although the Court notes that certain (!) measures regarding certain (!) documents have been discussed by the affected Organizations. In essence the Prosecutor – in the opinion of the Trial Chamber – still fails to suggest any real solution to the problem. This also applies to the documents that may be disclosed to the defence after redactions have been made; since the nature and extent of the redactions have not been revealed by the Prosecution, the judges indicate that the accused’s right to have access to exculpatory evidence is not safeguarded.
What is interesting is that the Court on several occasions in the decision emphasizes that if the Prosecution had presented real solutions to the underlying problems and not merely refering to vague possibilities, the Court would have investigated the details of the proposals. Instead, the Court presents its own suggestion on how this issue could be solved. In section V of the conclusions (see above) the judges present their rather uncompromising solution: all of the documents from all providers are to be made available in a non-redacted form for the entire trial, and the Appeals Chamber must be similarly able to consider all the documents in an non-redacted form (including the Trial Chamber’s decision): if these conditions are met, the Trial Chamber would be prepared to review all the documents and assess which ones need to be disclosed, in which way this may happen and if the stay of proceedings can be lifted. Does this sound like something the Prosecutor will accept without opposition? Exactly! So lets get prepared for an additional chapter in this story…