The Hague: The International Criminal Court ruled on Thursday that Congolese militia chief, Thomas Lubanga, should be freed after his war crimes trial was suspended, unless prosecutors mount an appeal.
Presiding judge Adrian Fulford said Lubanga should be "freed without conditions" as his detention "is no longer fair" given the suspension of the trial last week for what judges called the prosecutor`s “abuse of process".
"According to the judges, an accused cannot be held in preventative custody on a speculative basis, namely that at some stage in the future the proceedings may be resurrected," the ICC said in a statement.
But the court ruled that Lubanga remain behind bars for at least another five days to give the prosecution time to file an appeal against its decision.
If such an appeal bid is accepted, Lubanga will have to stay in prison until that process is finalised.
"We will appeal," prosecution spokeswoman Nicola Fletcher said.
Lubanga cannot be freed until arrangements have been made for his transfer to a country.
Lubanga, 49, has been standing trial since January 2009, accused of using children under the age of 15 to fight for his militia during the 1997-2002 civil war in the Democratic Republic of Congo.
Last week, the ICC suspended his trial after rapping chief prosecutor Luis Moreno-Ocampo for abusing court processes and ignoring judges` orders.
Judges had ordered the prosecutor to disclose to Lubanga`s defence team the name of an "intermediary", but he refused.
The defence claimed that false evidence had been fabricated with the help of intermediaries used by the prosecutor to find witnesses, and that individuals were paid to give false testimony.
The court found that as long as the prosecutor refused to implement judges` orders, Lubanga could not be guaranteed a fair trial.
Fulford, while granting the prosecutor`s application for leave to appeal last week`s decision, reiterated that his actions constituted "a deliberate and in our judgment, wholly unjustified refusal to comply with the directions of the court”.
The office of the prosecutor said in a statement it regretted the "disturbance" caused.
"But this shows that this is a court of justice.
"The victims of Thomas Lubanga`s alleged crimes must remain confident that justice will be done in this case."
Lubanga surrendered to the ICC in March 2006.