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Trial Proceedings
The Prosecution’s disclosure irregularities have
long been an issue in this case, 1267 and the
Defence included them as an allegation in its
abuse of process application. Trial Chamber I
referred to its many decisions on this issue, 1268
including its ‘Decision on Intermediaries’, to hold
that the Prosecution’s disclosure irregularities
did not render the continuation of the trial
odious or repugnant, and that individual
breaches of the accused’s right to disclosure
did not constitute an unfair trial. Recalling the
Appeals Chamber ruling on the previous stay of
proceedings, the Chamber reserved its right to
impose sanctions if deliberate late disclosure on
the part of the Prosecutor is proven. 1269
Trial Chamber I also held it ‘wholly untenable’
to find that a conspiracy between victims,
even with respect to the alleged fabrication of
false evidence and the use of false identities,
would render continuation of the trial odious,
repugnant, or constitute any abrogation of the
accused’s rights. 1270
1267 The first stay of proceedings in the Lubanga trial, in June
2008, was the result of the Prosecution’s non-disclosure
of potentially exculpatory evidence (ICC-01/04-01/06-
1401); the second stay was for its failure to disclose
the identity of an intermediary in contravention of
the Chamber’s order (ICC-01/04-01/06-2517-Red). The
Prosecution has also been repeatedly criticised for late
disclosure. The Defence sought to portray in its abuse of
process application as deliberate. (See, ICC-01/04-01/06-
2690-Red2, para 212). For a more detailed discussion of
these issues, see <strong>Gender</strong> <strong>Report</strong> <strong>Card</strong> 2010, p 147-159.
1268 ICC-01/04-01/06-2434-Red2; ICC-01/04-01/06-2585; ICC-
01/04-01/06-2656-Red.
1269 ICC-01/04-01/06-2690-Red2, para 212.
1270 ICC-01/04-01/06-2690-Red2, paras 217-218. The
witnesses included in this allegation were victims
a/0225/06, a/0229/06, and a/0270/07.
The Defence further alleged a lack of impartiality
on the part of the Prosecution, relying on the
statements made in a March 2010 interview by
Ms Le Fraper du Hellen with lubangatrial.org,
and a novel written by a former consultant for
the Office of the Prosecutor. 1271 The Chamber
noted that it had already issued a decision on
the propriety of out-of-court statements. 1272 It
held that neither incident played any role in its
determination of the substantive issues in the
case, and therefore did not meet the threshold
for imposing a stay of the proceedings. 1273
Significantly, Trial Chamber I’s decision rejecting
the Defence’s abuse of process allegations
and request for a permanent stay followed an
Appeal Chamber’s decision overturning the
Trial Chamber’s prior decision to permanently
stay the proceedings due to the Prosecution’s
failure to obey its order and disclose the name
of intermediary 143. 1274 In its decision overruling
the stay, the Appeals Chamber characterised a
stay of proceedings as a ‘drastic’ remedy. Both
the language of the Appeals Chamber’s decision,
and its holding, were echoed in the Trial
Chamber’s decision not to stay the proceedings
for abuse of process. Throughout its decision,
Trial Chamber I closely adhered to the Appeal’s
Chamber decision by consistently concluding
that the alleged irregularities did not warrant a
‘drastic’ remedy. In response to each of the five
Defence contentions, Trial Chamber I came to the
same conclusion, with minor variations on the
following language:
1271 For a more detailed discussion of these issues, see
<strong>Gender</strong> <strong>Report</strong> <strong>Card</strong> 2010, p 151-152.
1272 ICC-01/04-01/06-2433.
1273 ICC-01/04-01/06-2690-Red2, para 222.
1274 ICC-01/04-01/06-2582.
220