International Criminal Court (ICC)—DRC/Lubanga: Reg. 33 Time Limits

This week, the Pre‑Trial Chamber I, sitting the in the case against Thomas Lubanga Dyilo (Situation in the Democratic Republic of the Congo) at the International Criminal Court (ICC) issued a decision clarifying the Court’s interpretation for calculating time limits under Regulation 33(1)(b) of the Regulations of the Court.^[1] Although the decision applies specifically to requests for interlocutory appeal, the reasoning is applicable to filing deadlines generally. The calculation issue was raised by the Office of the Prosecutor (OTP) in response to a defense request for interlocutory review of a Rule 81 decision concerning redacted evidence.^[2]

Regulation 33(1)(b) excludes the day of notification of a decision or the day of filing a response from the deadline calculation, thus adding an extra day to the applicable filing periods.^[3] The Chamber held that “the object and purpose of regulation 33 of the Regulations is to establish a clear system to calculate all time‑limits in any proceedings before the Court,” and that to interpret different subsections within the regulation as establishing two different systems of calculating those time‑limits would be “contrary to the said object and purpose.”^[4]

In addition, the Pre‑Trial Chamber gave a clear indication of its interpretive stance in rejecting the OTP’s “restrictive approach to the literal interpretation,” as well as its reading of the subsection in isolation from the “systematic interpretation…and the teleological interpretation” of the Regulations.^[5]

In its filing, the Prosecutor had urged that Regulation 33(1)(b) should be read as applying only to “responses or replies filed by participants, and not to court documents generally.”^[6] Excluding the extra day would have forced the Chamber to reject the defense request as untimely filed.^[7] The Prosecutor based this argument on the distinctions drawn in Regulation 22 between different types of documents, declaring that the defense filing qualified only as an “application” and not a response or reply for the purpose of Regulation 33(1)(b).^[8]

Given this week’s decision, the time limit for submitting a request for leave to appeal a ruling under Article 82(1)(d) is five days, understood as “full days,” and not counting the day of notification.^[9] The Prosecution has until the close of business today to file its second substantive response to the defense request.^[10]

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[1] Decision on Prosecution’s Response to Thomas Lubang Dyilo’s 21 September 2006 Request for Leave to Appeal, ICC‑01/04‑01/06‑466, Sept. 25, 2006 [hereinafter Decision].
[2] Prosecution’s Response to Thomas Lubanga Dyilo’s 21 September 2006 Request for Leave to Appeal Request for a Preliminary Ruling and Subsidiary Request for Extension of Time, ICC‑01/04‑01/06‑459, Sept. 22, 2006 [hereinafter Response]. See also Request for Leave to Appeal the First Decision on the Prosecution Requests and Amended Requests for Redactions under Rule 81, ICC‑01/04‑01/06‑456, Sept. 21, 2006.
[3] Regulations of the Court, ICC-BD/01-01-04 [hereinafter Regs or Reg], Reg. 33(1)(b) (“Days shall only be understood as “full days”, the day of notification of a document or the day of filing of a response or a reply by a participant to that document not being taken into consideration for the calculation of the time period available to file a document.”).
[4] Decision supra note 1 at pg. 3.
[5] Decision supra note 1 at pg. 3.
[6] Response supra note 2 at para. 6.
[7] Response supra note 2 at para. 7.
[8] Response supra note 2 at para. 7. See also Regs. 22 and 65(1). See also Rules of Procedure and Evidence, UN Doc. PCNICC/2000/INF/3/Add.3 [hereinafter Rules or Rule], Rule 155(1).
[9] Rome Statute of the International Criminal Court, U.N. Doc. A/CONF.183/9, Art. 82(1)(d). See also Rule 155(1). See also Reg. 33(1)(b).
[10] Decision supra note 1 at pg. 4 (rejecting the request to disallow and permitting an extension of the response deadline for the Prosecution’s showing of good cause).