Wednesday, May 24, 2006

More new developments in the Lubanga Case - Defence Motion for Release of the Accused

Exciting new developments in the trial of Thomas Lubanga – after having hinted at the possibility once or twice before, Jean Flamme, Mr. Lubanga’s Belgian defence lawyer, has yesterday file a motion requesting the release of his client.

To – very, very quickly – summarize the motion, Maitre Flamme claims that the arrest and detention of Thomas Lubanga in the DR Congo (from where he was directly transferred to the ICC) were illegal and that this illegality has tainted the proceedings before the ICC in a way that mandates the immediate release of his client.

I will hopefully find the time to go into some more details regarding this question later. For now, let me only note one interesting fact:
As authority for the notion that the illegality of the detention in the Congo is also opposable to the ICC, the motion refers to three decisions – two decisions of the European Court of Human Rights on the concept of “continuing violations”, as well as the ICTR Appeals Chamber’s 3 November 1999 decision in the Barayagwiza case. There, the Chamber, faced with a claim of illegal rendition, had decided to dismiss the indictment and order the immediate release of the accused (while also directing the registrar to deliver the accused to the authorities of the state where he had originally been held). However, what Maitre Flamme fails to note is that in a later decision of 31 March 2000, based on the Prosecution’s (procedurally rather questionable) “Request for Review or Reconsideration”, the Chamber changed this decision and decided that the trial of Barayagwiza should proceed after all, only instructing the Trial Chamber to take into account the illegal rendition in the sentencing phase or to order financial compensation if the accused was found innocent. In the end, Barayagwiza was found guilty and his sentence was reduced from life imprisonment to 35 years (see the judgment at paras. 1106–07).

AFAIK, the ICTY, while also faced with claims (and acknowledged instances) of illegal rendition, has also not ever ordered the release of an accused. It remains to be seen how Pre-Trial Chamber I will deal with this important question.
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