Appeals Chamber of the International Criminal Court reverses the decision on the change of the legal characterisation of the facts in the Lubanga Dyilo case

 

Situation: Democratic Republic of the Congo
Case: The Prosecutor v. Thomas Lubanga Dyilo

Today, on 8 December 2009, Judge Sang-Hyun Song, Presiding Judge of the Appeals Chamber of the International Criminal Court, delivered a summary of the judgment, reversing the decision of Trial Chamber I related to the modification of the legal characterisation of the facts in the case of The Prosecutor v. Thomas Lubanga Dyilo.

Upon a request by 27 victims, Trial Chamber I gave notice, on 14 July 2009, that it was considering modifying the legal characterisation of facts, pursuant to regulation 55 (2) of the Regulations of the Court, so as to include the crimes of sexual slavery and inhuman or cruel treatment. In the opinion of the Trial Chamber, it may use sub-regulations 2 and 3 of regulation 55 to change, in the course of the trial, the legal characterisation of facts without being limited to those described in the charges or any amendment thereto.. The Appeals Chamber found that this interpretation of the provision was flawed.

The Appeals Chamber found that the possibility for a Trial Chamber to modify the legal characterisation of the facts is not inherently incompatible with the Rome Statute or general principles of international law. Furthermore, it is not incompatible with the rights of the accused as long as he is given an adequate opportunity to prepare an effective defence to the new legal characterisation in the charges against him.

However, the Appeals Chamber stressed that when using regulation 55, a Trial Chamber shall not exceed the facts and circumstances described in the charges and any amendments thereto. To do so would result in a breach of article 74 (2) of the Statute. The Appeals Chamber highlighted that it is the Prosecutor who is tasked with the investigation of crimes under the jurisdiction of the Court and to proffer charges against suspects.

According to a decision issued by Trial Chamber I on 30 November, 2009, the trial is set to resume on 6 January 2010. Thomas Lubanga Dyilo is accused of having committed, as co-perpetrator, the war crimes of enlisting and conscripting of children under the age of 15 years into the Forces patriotiques pour la libération du Congo [Patriotic Forces for the Liberation of Congo] (FPLC), and using them to participate actively in hostilities in Ituri, a district of the Eastern Province of the Democratic Republic of the Congo (DRC), between September 2002 and August 2003.



Judgment on the appeals of Mr Lubanga Dyilo and the Prosecutor against the Decision of Trial Chamber I of 14 July 2009 entitled "Decision giving notice to the parties and participants that the legal characterisation of the facts may be subject to change in accordance with Regulation 55(2) of the Regulations of the Court"



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