1. PRE-TRIAL PROCEDURE KAROLINA KREMENS, LL.M. (Ottawa), Ph.D. International Criminal Procedure

2. CONTENTS 1. General remarks 2. Arrest and surrender 3. Appearance before the Court and interim release 4. Confirmation hearing

3. 1. GENERAL REMARKS  Pre-trial stage is a stage of the criminal proceedings in which the Pre-Trial Chamber exercise its role assuring the control of the judicial element over prosecutorial action  common and civil law systems  actions of the Prosecutor and actions of the Pre-Trial Chamber  ad hoc tribunals – two distinct stages  ICC – Investigation and Prosecution  my opinion

4. 2. ARREST AND SURRENDER APPLICATION FOR THE WARRANT OF ARREST  at any time after the initiation of the investigation (art. 58 (1))  Prosecutor applies for a warrant providing evidence and information confirming grounds for arrest warrant  elements of the application for the warrant (art. 58 (2)) o name and identyfing information o specific reference to the crimes that the person allegedly committed and concise statement of the facts o summary of the evidence o reasons why the Prosecutor believes that the arrest is necessary

5. 2. ARREST AND SURRENDER THE WARRANT OF ARREST  issued by the Pre-Trial Chamber  grounds for warrant of arrest (art. 58 (1)) o reasonable grounds to believe that the person has committed a crime within the jurisdiction of the ICC o necessity to ensure the person’s appearance at the trial o necessity to ensure that the person doesn’t obstruct or endanger the investigation or the court proceedings o necessity to prevent the person from continuing with the commission of that crime or a related crime which is within the jurisdiction of the Court and which arises out of the same circumstances

6. 2. ARREST AND SURRENDER THE WARRANT OF ARREST  the warrant shall remain in effect until othwerwise decided by the Court (art. 58 (4))  ammendments (art. 58 (6))  elements of warrant of arrest (art. 58 (3)) o the name of the person and any other relevant identifying information o specific reference to the crimes within the jurisdiction of the Court for which the person’s arrest is sought o a concise statement of the facts which are alleged to constitute those crimes

7. 2. ARREST AND SURRENDER ARREST PROCEEDINGS IN THE CUSTODIAL STATE  the Court sends request for arrest  State should immediately arrest the requested person (art. 59 (1))  the person is brought promptly before the judicial authroity in the custodial State (art. 59 (2))  judicial authority in that State shall determine in accordance to its law that (art. 59 (2) (a)-(c)): o the warrant applies to the person o the person was arrested in accordance with the proper process o the person’s rights has been respected

8. 2. ARREST AND SURRENDER ARREST PROCEEDINGS IN THE CUSTODIAL STATE  the person may apply for interim release pending surrender (art. 59 (3)-(4))  application to judicial authority of the custodial State  presumption in favour of detention (sic!)  the Pre-Trial Chamber has the supervisory role in the area of interim release (art. 59 (5)) o must be informed o may make the recommendations to the competent authorities of the custodial State o periodic reports on the status of a person must be made to the PTC if a person was granted interim release

9. 2. ARREST AND SURRENDER REQUEST FOR SURRENDER  issue of extradition (transfer and surrender)  the Court transmits request for surrender to the custodial State (art. 89 (1))  the person sought for surrender may bring a challenge to the Courts decision (art. 89 (2))  procedure for transfer and transportation (art. 89 (3))  competing requests for surrender (art. 90) o from the ICC and State (issue of complementarity) o the State should wait until the ICC rules the case inadmissible

10. 3. APPEARANCE BEFORE THE COURT APPEARANCE HEARING  ways of appearance of person before the Court: 1. surrender – pursuant to warrant of arrest and request of surrender 2. voluntary appearance – pursuant to summons  appearance hearing (art. 61 (2)) o hold by the Pre-Trial Chamber o PTC confirms that the accused was informed about the charges properly and understands them and about his or her rights

11. 3. APPEARANCE BEFORE THE COURT INTERIM RELEASE  International Human Rights Law and detention - art. 9 (3) of the ICCPR  ICL and detention o serious crimes and serious penalties o fear of victims o ICC enforcement mechanisms  Prosecutor has to satisfy the PTC that the reasons for detention still exist (art. 60)  release – when a person is detained ‘for an unreasonable period of time’ or when there is ‘unexcusable delay’ by the Prosecution (art. 60 (4))  the PTC decision may be changed again (art. 60 (5))

12. 4. CONFIRMATION HEARING GENERAL REMARKS  confirmation hearing - hearing to confirm charges on which the Prosecutor intends to go to trial  similar to ‘preliminary hearings’ in the common law system  art. 61 of the Rome Statute  ‘within the reasonable time after the voluntarily appearance of the accused or after the surrender’

13. 4. CONFIRMATION HEARING PRESENCE OF THE ACCUSED  rule – in the presence of the accused  exception – in the absence (art. 61 (2))  when the accused waived his right to be present or when the accused cannot be found – BUT only after the PTC is sure that he was properly informed about the charges and the hearing (art. 61 (3))  must be represented by counsel  ad hoc tribunals – frustration with inability to surrender the accused  ICC – only when the accused disapeared (arrested or summoned appeared before the PTC and then fled and did not come back)

14. 4. CONFIRMATION HEARING THE HEARING  similar to common law preliminary hearing  Prosecutor has to present charges and support them with appropriate evidence (art. 61 (5))  reliance on documentary evidence or summaries of evidence  witnesses are not necessarily be called  the accused may (art. 61 (6)): o object to the charges o challenge the evidence presented by the Prosecutor o present own evidence

15. 4. CONFIRMATION HEARING THE DECISION 1. confirmation of charges (art. 61 (7) (a)) sufficient evidence the Presidency of the Tribunal constitutes the Trial Chamber responsible for the proceedings (art. 61 (11)) Trial Chamber will hold a conference on preliminary matters (language, disclosure, joinders and severance) 2. denial to confirm charges (art. 61 (7) (b))  Prosecutor may return with new fact and evidence 3. adjournment of the hearing (art. 61 (7) (c))  PTC orders the Prosecution to provide further evidence or to pursue with the investigation

16. Thank You!