TRIAL PROCEDURE Dr. KAROLINA KREMENS, LL.M. (Ottawa) International Criminal Procedure

CONTENTS 1. General remarks 2. Commencement of the trial 3. Technical issues 4. Powers of the Trial Chamber 5. Admission of guilt 6. Closing arguments 7. Judgment and sentence

1. GENERAL REMARKS  art of the Rome Statute  Rule RPE  role fo the Court during the trial  basic rights of the accused as well as victims and witnesses  general principles applicable throughout the course of the trial  balance between prosecution of indicted persons, the rights of the victims and the rights of the accused to a fair trial

2. COMMENCEMENT OF THE TRIAL AFTER THE CONFIRMATION OF THE CHARGES  the Presidency constitutes a Trial Chamber, to which it refers the case (art. 61 (11)) (Rule 130))  the Trial Chamber receives the decision of the Pre-Trial Chamber and the record of the proceedings before the Pre-Trial Chamber (Rule 130) – common and civil law approach  the record of the proceedings is kept by the Registrar  records of the Pre-trial proceedings may be consulted by the Prosecutor, the defence, representatives of States and victims with their representatives (Rule 131 (2)) – restrictions (national security and confidentiality)

2. COMMENCEMENT OF THE TRIAL STATUS CONFERENCES  the ICTY and ICTR practice  held promptly after the Trial Chamber has been constituted (Rule 132)  date of the trial  other status conferences – in order to facilitate the fair and expeditious conduct of the proceedings (Rule 132 (2))  rulings on any issue concerning the conduct of the proceedings (Rule 134 (1)) – in writing!  objections concerning the conduct of the proceedings (Rule 134 (2))

3. TECHNICAL ISSUES COMPOSITION OF THE COURT  three judges of the Trial Division (no jury!)  all the judges shall be present at each stage of the proceedings and throughout the deliberations (art. 74 (1)) – alternate judges  Presiding Judge – power to give directions for the conduct of proceedings including to ensure that they are conducted in a fair and impartial manner; parties may submit evidence subject to his directions – art. 64 (8) (b)  all other decisions must be made by the Trial Chamber – the powers of the Chamber and the Presiding Judge are not clearly defined

3. TECHNICAL ISSUES PLACE OF THE TRIAL  the seat of the ICC – the Hague (Netherlands) (art. 3)  the Court may seat elsewhere  the place of the trial should be the seat of the Court, unless otherwise decided (art. 62)  in a particular case when the Court considers that it would be in the interest of justice, it may decide to sit in a state other than the host state (Rule 100)  issue of the interest of justice – expeditious and fair conduct of the proceedings, rights of the defendant safety measures  on-site visits for the evidence of specific witnesses

3. TECHNICAL ISSUES LANGUAGE OF THE PROCEEDINGS  the TC shall determine the language or languages to be used at the trial (art. 64 (3) (b))  the right of the defendant – to receive a competent translation and the right to address the court in language that the accused is comfortable with (art. 67)  official languages of the Court: English, French, Arabic, Chinese, Russian, Spanish  working languages: English and French  Rule 41 – use of another language during proceedings (spoken by the majority involved in a case)

3. TECHNICAL ISSUES PUBLIC TRIAL  the principle: trials at the ICC should be held in public (art. 64 (7))  right of the accused to have a public trial  educational tool; right of the public, right of the victims  exceptions – protection of the victims and witnesses (art. 68) or to protect sensitive or confidential information (art. 64 (7))  allowance for the press to attend – no limitations to the presence, there might be limitations according to take photographs or record the content of the proceedings (Rule 137 (3))

4. POWERS OF THE TRIAL CHAMBER GENERAL POWERS OF THE TRIAL CHAMBER  exercise any functions of the Pre-Trial Chamber  require the attendance and testimony of witnesses and production of documents and other evidence (assistance of States)  provide for the protection of confidential information  order the production of evidence in addition to that already collected prior to the trial or presented during the trial by the parties  provide for the protection of the accused, witnesses and victims (art. 64 (6))  rule on the admissibility or relevance of evidence and take all necessary steps to maintain order in the course of hearing (art. 64 (10))

4. POWERS OF THE TRIAL CHAMBER OFFENCES AGAINST THE ADMINISTRATION OF JUSTICE  the TC has jurisdiction over such offences (art. 70): o giving false testimony o presenting false or forged evidence o corruptly influencing a witness o obstructing or interfering with the witness’ attendance or testimony o retaliating against witness o destroying or tampering with evidence o intimidating Court official to persuade him not to perform his duties properly o soliciting or accepting bribe by a Court official  penalty: maximum 5 years in prison or fine or both

4. POWERS OF THE TRIAL CHAMBER ENSURING FAIR AND EXPEDITIOUS TRIAL  ensuring that ‘the trial is fair and expeditious and is conducted with full respect for the rights of the accused and due regard for the protection of victims and witnesses’ (art. 64 (2))  one of the ways to ensure that is holding ‘status conferences’ according to art. 64 (3) (a) and Rule 132 – decrease disputes over procedures later on in the trial, so that it may focus and deal with substantive matter: the crimes and the role of the accused  provide for disclosure of documents or information not previously disclosed, sufficiently in advance of the commencement of the trial to enable adequate preparation for trial (art. 64 (3) (c))  joinder or severance of the cases (art. 64 (5))

4. POWERS OF THE TRIAL CHAMBER ENSURING FAIR AND EXPEDITIOUS TRIAL  problems with art. 64 (3) (a) – ‘adopt such procedure as are necessary to facilitate the fair and expeditious conduct of the proceedings’  also problematic Rule 140 (1) – if the Presiding Judge does not give a directions under article 64 (8) (power to give directions for the conduct of proceedings including to ensure that they are conducted in a fair and impartial manner; parties may submit evidence subject to his directions) the Prosecutor and defence shall agree on the order and manner in which the evidence shall be submitted to the Trial Chamber  If no agreement can be reached, the Presiding judge shall issue directions  Rule 85 (A) ICTY/ICTR RPE

5. ADMISSION OF GUILT PROCEEDINGS ON AN ADMISSION OF GUILT  at the commencement of the trial the TC shall have read to the accused the charges previously confirmed by the PTC and shall satisfy itself that the accused understands the nature of the charges – opportunity for the accused to admit guilt or plead not guilty (art. 64 (8) (a))  when the accused pleads guilty the TC determines (art. 65): o the accused understands the nature and consequences of the admission of guilt o admission is voluntarily and made after the consultations with the defence lawyer o supported by the facts of the case

5. ADMISSION OF GUILT TRIAL CHAMBER DECISIONS ON ADMISSION  upon determination the Trial Chamber makes the decision (art. 64 (8) (a)):  when the accused pleads guilty the TC determines (art. 65): o the TC is satisfied – shall consider the admission of guilt and may convict the accused (art. 65 (2)) o the TC is not satisfied – considers admission of guilt as not being made and the trial may be continued (art. 65 (3)) o the TC is not sure – request additional evidence, continue the trial (art. 65 (4))  any Prosecution-Defence agreements are not binding the TC (art. 65 (5))

6. CLOSING ARGUMENTS  after the Presiding Judge declares that the submission of evidence is closed (Rule 141 (1))  the Prosecutor and the defence are invited to make their closing statements (Rule 141 (2))  no specific order, the Court will rule on that or parties will decide; but the defence is always speaking last (Rule 141 (2))  a further hearing may be held for the submission of any additional evidence or related to the sentence or reparations before the completion on the trial (Rule 143)

7. JUDGMENT AND SENTENCE DECISION  the TC decision shall be base on its evaluation of the evidence and the entire proceedings (art. 74 (2))  the decision shall not exceed the facts and circumstances described in the charges and any amendments to the charges; the Court may base its decision only on evidence submitted and discussed before it at the trial (art. 74 (2))  deliberations are secret (art. 74 (4)) (Rule 142)  the decision should be unanimous or made by the majority of votes (art. 74 (3)  elements of the decision (art. 74 (5))  the decision or the summary shall be delivered in the open court (art. 74 (5)) (Rule 144 (1))  copies of the decision (Rule 144 (2))

7. JUDGMENT AND SENTENCE SENTENCING PROCEDURE  judgment and sentence - two stages or one? (common and civil law approach)  ICC – not obligatory two stages  in case of convictions the TC will consider the appropriate sentence to be imposed on the accused and take into account the evidence presented and submission made by the parties during the trial (art. 76 (1))  additional hearing (art. 76 (2)) (Rule 143)  sentence made in public and in presence of the accused (art. 76 (4))

Thank You!