^* Michela Miraglia Researcher in Criminal Procedure and Professor of Comparative and International Criminal Procedure, University of Genoa, Italy.

^* This text was reproduced and reformatted from the text appearing at the International Criminal Court website: (visited February 10, 2009)< http://www2.icc-cpi.int/iccdocs/doc/doc578365.pdf>

¹ See generally Prosecutor v. Thomas Lubanga Dyilo, Case No. ICC-01/04-01/06. All the documents relating to this case are available through the ICC website, at< http://www2.icc-cpi.int/Menus/ICC/Situations+and+Cases/Situations/Situation+ICC+0104/Related+Cases/ICC+0104+0106>.

² W. A., Schabas & C., Stahn, Introductory Note: Legal Aspects of the Lubanga Case, 19 Crim. L. For. 431, 431 (2008)Google Scholar.

³ Rome Statute of the International Criminal Court, July 17, 1998, 2187 U.N.T.S. 90 [hereinafter ICC Statute].

⁴ Id. Art. 60(3). Art. 55(1)(d) ICC Statute requires that any person in respect of an investigation “[s]hall not be subjected to arbitrary arrest or detention, and shall not be deprived of his or her liberty except on such grounds and in accordance with such procedures as are established in this Statute.”

⁵ Prosecutor v. Thomas Lubanga Dyilo, Case No. ICC-01/04- 01/06, Warrant of Arrest, (Feb. 10, 2006), at< http://www2.icccpi.int/iccdocs/doc/doc191959.PDF>.

⁶ Prosecutor v. Thomas Lubanga Dyilo, Case No. ICC-01/04-01/06, Decision sur la Confirmation des Charges (English translation), (Jan. 29, 2007), at< http://www2.icc-cpi.int/iccdocs/doc/doc266175.PDF>.

⁷ Prosecutor v. Thomas Lubanga Dyilo, Case No. ICC-01/04- 01/06, Decision on the Consequences of Non-Disclosure of Exculpatory Materials Covered by Article (54)(3)(e) Agreements and the Application to Stay the Prosecution of the Accused, Together with Certain Other Issues Raised at the Status Conference on 10 June 2008, (June 13, 2008), at< http://www2.icc-cpi.int/NR/exeres/E9A43552-9F36-4B0D-945F-67A15AC1F74A.htm>.

⁸ Prosecutor v. Thomas Lubanga Dyilo, Case No. ICC-01/04- 01/06, Prosecution’s Application for Leave to Appeal “Decision on the Consequences of Non-Disclosure of Exculpatory Materials Covered by Article (54)(3)(e) Agreements and the Application to Stay the Prosecution of the Accused, Together with Certain Other Issues Raised at the Status Conference on 10 June 2008”, (June 23, 2008), at< http://www.icc-cpi.int/iccdocs/doc/doc511249.PDF>.

⁹ Prosecutor v. Thomas Lubanga Dyilo, Case No. ICC-01/04- 01/06, Decision on the Prosecution’s Application for Leave to Appeal the “Decision on Consequences of Non-Disclosure of Exculpatory Materials Covered by Article (54)(3)(e) Agreements and the Application to Stay the Prosecution of the Accused, Together with Certain Other Issues Raised at the Status Conference on 10 June 2008”, (July 2, 2008), at< http://www.icc-cpi.int/NR/rdonlyres/3A01D0E2-39A2-47A9-82EB-012725EBF91E/277766/ICC010401061417ENG.pdf>.

¹⁰ Prosecutor v. Thomas Lubanga Dyilo, Case No. ICC-01/04-01/06, Decision on the Release of Thomas Lubanga Dyilo, (July 2, 2008), at< http://www.icc-cpi.int/NR/rdonlyres/3A01D0E2-39A2-47A9-82EB-012725EBF91E/277765/ICC010401061418ENG.pdf>.

¹¹ Id. ¶ 35.

¹² Prosecutor v. Thomas Lubanga Dyilo, Case No. ICC-01/04- 01/06, Prosecution’s Appeal Against “Decision on the Release of Thomas Lubanga Dyilo” and Urgent Application for Suspensive Effect, (July 2, 2008), at< http://www2.icc-cpi.int/iccdocs/doc/doc522970.PDF>. The appeal against a decision granting or denying release is provided for in art. 82(1)(b) ICC St. as a matter of right.

¹³ Prosecutor v. Thomas Lubanga Dyilo, Case No. ICC-01/04- 01/06, Decision on the Request of the Prosecutor for Suspensive Effect of His Appeal Against “Decision on the Release of Thomas Lubanga Dyilo”, (July 7, 2008), at<http://www2.icccpi.int/iccdocs/doc/doc524653.PDF>. On July 22, 2008 the Appeals Chamber explained that the suspensive effect was appropriate since the accused’s detention was necessary to ensure his presence at trial and the decision on release was under appeal. See Prosecutor v. Thomas Lubanga Dyilo, Case No. ICC-01/04-01/06, Reasons for the Decision on the Request of the Prosecutor for Suspensive Effect of His Appeal Against the “Decision on the Release of Thomas Lubanga Dyilo,” ¶ 9 (July 22, 2008), at<http://www2.icc-cpi.int/iccdocs/doc/doc533880.PDF>. Afterwards, on July 11, 2008 the Prosecutor applied to the TC-I asking to lift the stay of the proceedings on the basis of the developments that occurred since the TC’s decision. See Prosecutor v. Thomas Lubanga Dyilo, Case No. ICC-01/04-01/06, Prosecution’s Application to Lift the Stay of Proceedings – Public Redacted Version, (July 11, 2008), at< http://www2.icc-cpi.int/iccdocs/doc/doc529029.PDF>. TC-I rejected the request. See Prosecutor v. Thomas Lubanga Dyilo, Case No. ICC-01/04-01/06, Redacted Version of “Decision on the Prosecution’s Application to Lift the Stay of Proceedings,” (Sept. 3, 2008), at< http://www2.icc-cpi.int/iccdocs/doc/doc554218.pdf>.

¹⁴ Prosecutor v. Thomas Lubanga Dyilo, Case No. ICC-01/04- 01/06, Judgement on the Appeal of the Prosecutor Against the Decision of Trial Chamber I Entitled “Decision on the Consequences of Non-Disclosure of Exculpatory Materials Covered by Article 54(3)(e) Agreements and the Application to Stay the Prosecution of the Accused, Together With Certain Other Issues Raised at the Status Conference on 10 June 2008, (Oct. 21, 2008), at < http://www.icc-cpi.int/iccdocs/doc/doc578371.pdf> [hereinafter Judgement on the Appeal Against Decision on the Stay].and Judgement on the Appeal of the Prosecutor Against the Decision of Trial Chamber I Entitled “Decision on the Release of Thomas Lubanga Dyilo”, (Oct. 21, 2008), at< http://www2.icc-cpi.int/iccdocs/doc/doc578365.pdf> [hereinafter Judgement on the Appeal Against Decision on the Release].

¹⁵ Judgement on the Appeal against Decision on the Stay, ¶ 77.

¹⁶ Prosecutor v. Thomas Lubanga Dyilo, Case No. ICC-01/04-01/06, Judgement on the Appeal of Mr. Thomas Lubanga Dyilo Against the Decision on the Defence Challenge to the Jurisdiction of the Court Pursuant to Article 19(2)(a) of the Statute of 3 October 2006, ¶ 37 (Dec. 14, 2006), at< http://www2.icc-cpi.int/iccdocs/doc/doc243774.PDF>.

¹⁷ Judgement on the Appeal Against Decision on the Stay, supra note 14, ¶ 75. The Appeals Chamber based its conclusion on the content of paragraph 94 of the June 13, 2008 decision, where TC-I held that the stay could have been lifted by Trial Chamber itself or by Appeals Chamber.

¹⁸ Judgement on the Appeal Against Decision on the Release, supra note 14, ¶ 81.

¹⁹ Id. (dissenting opinion of Judge G. M. Pikis).

²⁰ Id. ¶ 45.

²¹ The Prosecutor v. Thomas Lubanga Dyilo, Case No. ICC-01/04-01/06, Status Conference Transcript, (Nov. 18, 2008), at< http://www.icc-cpi.int/iccdocs/doc/doc586028.pdf>.

¹ The reasons for that decision were filed on 22 July 2008 (ICC-01/04-01/06-1444).

² See also European Court of Human Rights, Guzzardi v Italy, judgment, 6 November 1980, Application no. 7367/76, paragraph 102.

³ 999 United Nations Treaty Series 14668.

⁴ 213 United Nations Treaty Series 2889

⁵ 1144 United Nations Treaty Series 17955.

⁶ 1520 United Nations Treaty Series 26363

¹ See Prosecutor v Lubanga Dyilo “Decision on the consequences of non-disclosure of exculpatory materials covered by Article 54(3)(e) agreements and the application to stay the prosecution of the accused, together with certain other issues raised at the Status Conference on 10 June 2008” 13 June 2008 (ICC-01/04-01/06-1401).

² See ibid., para. 94; see also transcript of the status conference of 24 June 2008 (ICC-01/04-01/06-T-91-ENG.

³ Prosecutor v Lubanga Dyilo “Decision on the release of Thomas Lubanga Dyilo” 2 July 2008 (1CC-01/04-01/06-1418) (hereinafter the “Impugned Decision”).

⁴ Ibid, para. 30. 5 See Prosecutor v. Lubanga Dyilo “Decision on the consequences of non-disclosure of exculpatory materials covered by Article 54(3)(e) agreements and the application to stay the prosecution of the accused, together with certain other issues raised at the Status Conference on 10 June 2008” 13 June 2008 (ICC-01/04-01/06-1401), confirmed on appeal.

⁶ See Prosecutor v Lubanga Dyilo “Decision on the consequences of non-disclosure of exculpatory materials covered by Article 54(3)(e) agreements and the application to stay the prosecution of the accused, together with certain other issues raised at the Status Conference on 10 June 2008” 13 June 2008 (ICC-01/04-01/06-1401), para. 94.

⁷ See Impugned Decision, para. 30.

⁸ See Impugned Decision, para. 30.

⁹ Prosecutor v Lubanga Dyilo “Prosecution’s Appeal against ‘Decision on the release of Thomas Lubanga Dyilo’ and Urgent Application for Suspensive Effect” 2 July 2008 (ICC-01/04-01/06-1419).

¹⁰ See Prosecutor v Lubanga Dyilo “Prosecution’s Document in Support of Appeal against ‘Decision on the release of Thomas Lubanga Dyilo’” 10 July 2008 (ICC-01/04-01/06-1429), para. 10.

¹¹ See ibid, paras. 13 to 17

¹² See ibid, paras. 28 to 31.

¹³ See also status conference of 24 June 2008 (ICC-01/04-01/06-T-91-ENG).

¹⁴ See See Prosecutor v. Lubanga Dyilo “Prosecution’s Document in Support of Appeal against ‘Decision on the release of Thomas Lubanga Dyilo’” 10 July 2008 (ICC-01/04-01/06-1429), para. 18.

¹⁵ See Prosecutor v Lubanga Dyilo “Defence Response to the ‘Prosecution’s Document in Support of Appeal against ‘Decision on the release of Thomas Lubanga Dyilo’” 15 July 2008 (ICC-01/04-01/06-1437-t-ENG), paras. 7 to 8.

¹⁶ Victims a/0001/06, a/0002/06, a/0003/06 and a/0105/06 were granted leave to participate in the appeal by the decision of the Appeals Chamber “Decision on the participation of victims in the appeal” of 6 August 2008 (ICC-01/04-01/06-1452).

¹⁷ See Prosecutor v. Lubanga Dyilo “Observations on the Prosecutor’s appeal against the Decision of 2 July 2008 ordering the release of the accused” 12 August 2008 (ICC-01/04-01/06-1455-tENG), para. 7; “Observations of the Legal Representative of Victim a/0105/06 Regarding the Release of Thomas Lubanga Dyilo” 12 August 2008 (ICC-01/04-01/06-1457- tENG), para. 17.

¹⁸ See Prosecutor v Lubanga Dyilo “Observations on the Prosecutor’s appeal against the Decision of 2 July 2008 ordering the release of the accused” 12 August 2008 (ICC-01/04-01/06-1455-tENG), paras. 4 to 6, 20.

¹⁹ See Prosecutor v Lubanga Dyilo “Observations of the Legal Representative of Victim a/0105/06 Regarding the Release of Thomas Lubanga Dyilo” 12 August 2008 (ICC-01/04-01/06- 1457), para. 18.

²⁰ Prosecutor v Lubanga Dyilo 21 October 2008 (handed down simultaneously with this judgment on the appeal against the impugned decision).

²¹ See Situation in the Democratic Republic of the Congo “Judgment on the Prosecutor’s Application for Extraordinary Review of Pre-Trial Chamber I’s 31 March 2006 Decision Denying Leave to Appeal” 13 July 2006 (ICC-01/04-168), para. 38; separate opinion of Judge Pikis in Prosecutor v Lubanga Dyilo “Judgment on the appeal of Mr. Thomas Lubanga Dyilo against the decision of Pre-Trial Chamber 1 entitled ‘De´cision sur la demande de mise en liberte´ provisoire de Thomas Lubanga Dyilo’” 13 February 2007 (ICC-01/04-01/06-824).

²² See Article 9 of the International Covenant on Civil and Political Rights, General Assembly Resolution 2200A (XXI), U.N. Document A/6316 (1966), entered into force 23 March 1976, 999 United Nations Treaty Series 171, provides: “2. Anyone who is arrested shall be promptly informed, at the time of arrest, of the reasons for his arrest and shall be promptly informed of any charges against him. [...] 3. Anyone arrested or detained on a criminal charge [...] shall be entitled to trial within a reasonable time or to release.”; Article 5 of the Convention for the Protection of Human Rights and Fundamental Freedoms (4 November 1950), 213 United Nations Treaty Series 221 et seq., registration no 2889, provides “1. [. .] No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law: [...] (c) the lawful arrest and detention of a person effected for the purpose of bringing him before the competent legal authority of reasonable suspicion of having committed an offence [...] 3 Everyone arrested or detained in accordance with the provisions of paragraph 1 (c) [...] shall be entitled to trial within a reasonable time or to release pending trial.”; Article 7 of the American Convention on Human Rights, “Pact of San Jose´, Costa Rica”, signed on 22 November 1969, entered into force on 18 July 1978, 1144 United Nations Treaty Series 17955, provides “4. Anyone who is detained shall be informed of the reasons for his detention and shall be promptly notified of the charge or charges against him. 5. Any person detained [...] shall be entitled to trial within a reasonable time or to be released without prejudice to the continuation of the proceedings.”

²³ See European Court of Human Rights e.g. Case of Lawless v. Ireland, Judgment of 1 July 1961, application no. 332/57, para. 14; Case of De Jong, Baljet and Van Den Brink v The Netherlands, Judgment of 22 May 1984, application no. 8805/79, 8806/79, 9242/81, para. 44.

²⁴ See European Court of Human Rights Case of Wemhoff v Germany, Judgment of 27 June 1968, application no. 2122/64, para. 18.

²⁵ See Article 14 (3) of the International Covenant on Civil and Political Rights, General Assembly Resolution 2200A (XXI), U.N. Document A/6316 (1966), entered into force 23 March 1976, 999 United Nations Treaty Series 171, provides: “In the determination of any criminal charge against him, everyone shall be entitled to the following minimum guarantees, in full equality: [...] 3. To be tried without undue delay”; Article 6 (1) of the Convention for the Protection of Human Rights and Fundamental Freedoms (4 November 1950), 213 United Nations Treaty Series 221 et seq., registration no. 2889, provides “In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law.”; Article 7 of the African Charter on Human and Peoples’ Rights, signed on 27 June 1981, entered into force on 21 October 1986, 1520 United Nations Treaty Series 26363, provides: “Every individual shall have the right to have his cause heard. This comprises.[...] d) the right to be tried within a reasonable time by an impartial court or tribunal.; Article 8(1) of the American Convention on Human Rights, “Pact of San Jose´, Costa Rica”, signed on 22 November 1969, entered into force on 18 July 1978, 1144 United Nations Treaty Series 17955, provides. “Every person has the right to a hearing, with due guarantees and within a reasonable time, by a competent, independent, and impartial tribunal, previously established by law, in the substantiation of any accusation of a criminal nature made against him or for the determination of his rights and obligations of a civil, labor, fiscal, or any other nature.”

²⁶ See separate opinion of Judge Pikis in the Judgment in the parallel appeal OA13.

²⁷ See Judgment in the parallel appeal OA13, para. 49 of the separate opinion of Judge Pikis.

²⁸ See Shorter Oxford English Dictionary on historical principles (Fifth edition, Oxford 2002), Volume l.A-M, page 893.

²⁹ Prosecutor v Lubanga Dyilo “Judgment on the Appeal of Mr. Lubanga Dyilo against the Decision on the Defence Challenge to the Jurisdiction of the Court pursuant to article 19 (2) (a) of the Statute of 3 October 2006” 14 December 2006 (1CC-01/04-01/06-772).

³⁰ Ibid, para. 39.