1.7 OTHER GUARANTEES OF THE ACCUSSED DURING PRE-TRIAL
An accused may appear before the Court in one of two ways after summon: by surrender from a State where he or she has been apprehended by the state herself; or by voluntarily presenting him or herself. A hearing is to be held before the Pre-Trial Chamber, which must satisfy itself that the accused has been abreast of the crimes alleged and of his or her rights under the Statute, including the right to apply for interim release for some period of times pending trial.
In the case of individuals who present themselves pursuant to a summons, the Statute presumes that they will be allowed to remain at all liberty during trial. For those arrested and surrendered, detention would seem to be the rule due to the believe of refusing to appear in court. Basically, the Prosecutor must satisfy the Pre-Trial Chamber that the same reasons that justified arrest continue to exist, namely that detention is necessary to ensure attendance at trial, to prevent obstruction of the investigation or court proceedings, or to prevent continued criminal behaviour in the primary society. International human rights law favours release during trial, a corollary of the presumption of innocence. But it seems appropriate that the rule be somewhat weakened in the case of the International Criminal Court. Several reasons justify this. First, because the crimes – and the penalties – are so serious, it seems logical to expect a charged individual to try to avoid trial by any means possible. Secondly, release during trial as a general rule might well trivialise the role of the Court in the public eye and, more importantly, outrage victims of the crimes in question. Thirdly, the Court has no enforcement mechanisms of its own, such as a police force; this is because it relied solely on member country’s resources.
But there is evidence of controversy among judges at the ad hoc tribunals for the perspective that international human rights norms determine an advance that is not very different from that required in national systems. Criticising ‘a culture of detention that is wholly at variance with the customary norm that detention shall not be the general rule’, judges have identified that: ‘while the Tribunal’s lack of a police force, its inability to execute its arrest warrants in States and its corresponding reliance on States for such execution may be relevant in considering an application for provisional release, on no account can that feature of the Tribunal’s regime justify either imposing a burden on the accused in respect of an application . . . or rendering more substantial such a burden, or warranting a detention of the accused for a period longer than would be justified having regard to the requirement of public interest, the presumption of innocence and the rule of respect for individual liberty’.
The same judge said that Article 9(3) of the International Covenant on Civil and Political Rights, stating that ‘it shall not be the general rule that persons pending trial shall be detained in custody’, reflects a common norm. Even international courts would be ‘totally wrong to employ a peculiarity in the Tribunal system, namely its lack of a police force and its inability to carry out some executes its warrants in other countries, as a justification for derogating from that customary norm’.
The Pre-Trial Chamber must ensure that individuals are not detained ‘for an unreasonable period’ prior to trial where this is due to ‘unforgivable delay’ by the Prosecutor. In such cases, the Court is to consider letting the person free, with or without conditions. The Appeals Chamber of the International Criminal Tribunal for Rwanda has therefore considered that inexcusable delay attributable to the Prosecutor, in extreme circumstances, entitles the accused to have the charges dropped ‘with bias’ to the Prosecutor, that is, without the possibility of future retrial. But the Statute of the Rwanda Tribunal is silent as to an appropriate remedy in such cases. That the Rome Statute establishes a specific remedy, namely, release from custody (but not a stay of the proceedings) would seem to rule out the more radical solution adopted by the Appeals Chamber of the Rwanda Tribunal. The issue of interim release can be revisited by both Prosecutor and defendant at any time on the basis of changed circumstances. In the case of a person who is at liberty, the Pre-Trial Chamber may issue an arrest warrant judiciously.
The Pre-Trial Chamber is to hold a hearing to confirm the charges on which the Prosecutor proposes to go to trial. Normally, the hearing is to be held in the presence of the accused as well as his or her counsel. In different occassions, however, the Pre-Trial Chamber may hold this ratification hearing in the absence of the accused, either at the Prosecutor’s request or at its own initiative. Such an ex parte hearing will be justified where the accused has waived the right to be present, or where the accused has fled or is nowhere to be found. In such cases, the Chamber is to satisfy itself that all reasonable steps have been taken to secure the person’s appearance and to inform him or her of the charges and the fact that such a confirmation hearing is to be held. The Pre-Trial Chamber may also allow an absent accused to be constituted by counsel when this is in ‘the interests of justice’.
The pre-trial confirmation hearing resembles in some ways the ‘Rule 61 Procedure’ adopted by the ad hoc tribunals. In the early days, when there was little real trial work because few accused had been arrested, the judges of the International Criminal Tribunal for the Former Yugoslavia developed an original technique of ex parte hearings, pursuant to Rule 61 of their Rules of Procedure and Evidence, at which prosecution evidence was led and the Tribunal ruled on the sufficiency of the evidence and proves. Despite persistent denials, it had many similarities with an in absentia procedure and was, in many respects, an honourable compromise between the different perspectives of the Romano-Germanic and common law systems with respect to such proceedings. The Tribunal has used the ex parte hearing procedure when bedevilled with attempts to arrest a defendant. The situation is rather different with the pre-trial confirmation hearing of the International Criminal Court, as this will only take place with an absent accused in the case of an individual who was arrested or summoned, who presented before the Pre-Trial Chamber and was granted interim release, and who subsequently ran away.
Prior to the confirmation hearing, the accused is to be offered with a copy of the document containing the charges, and to be informed of the evidence on which the Prosecutor intends to rely at the hearing. The Pre-Trial Chamber may make orders concerning disclosure of information for the purposes of the hearing. The Statute does not however specify whether such orders can only be directed against the Prosecutor, although it seems that this flows logically from the nature of such a hearing. At the hearing itself, the Prosecutor is expected to support each specific charge with ‘sufficient evidence to establish substantial grounds to agree that the person committed the crime charged’. The Prosecutor can do this by means of documentary or summary evidence, and is not required to call the witnesses expected to come around and testify at the trial itself. The accused may challenge the Prosecutor’s evidence and present evidence countering the evidence presented by the prosecutor.
The confirmation hearing seems to look like preliminary hearings held under common law procedure. It allows the Court to make sure that a prosecution is not airheaded and that there is more than enough evidence for a finding of guilt, thereby protecting the accused from prosecutorial abuse. From the standpoint of the defendant, it also provides a useful privilege to be informed of important evidence in the possession of the prosecution and even to test the value of such evidence, at least in a superficial way, during a judicial proceeding. Where the Statute is not clear is in the usefulness of submitting defence evidence during the confirmation hearing. While the Statute invites the defence to present evidence at this stage, it is not obvious that contradictory proves adduced by the defence can have any effect upon the determination of the existence of ‘sufficient evidence’. The Pre- Trial Chamber may as well decide that whether or not defence evidence raises doubts about the validity of Prosecution. Evidence is a matter for the trial court and not a pre-trial issue initially.
At the close of the confirmation hearing, the Pre-Trial Chamber may conclude that there is sufficient evidence and present then charge the person for trial. Upon confirmation, the Presidency of the Court is to constitute a Trial Chamber responsible for subsequent proceedings. . Its powers include provision ‘for disclosure of documents or information not previously disclosed, sufficiently before the commencement of the trial to enable adequate preparation for trial’. Finally, the Trial Chamber may make orders for joinder or severance of charges against more than one accused as the case may be.
International human rights law is somewhat not sure as to the scope of the obligation on the prosecution to disclose documented evidence to the defence prior to trial. Although the instruments impose no clear duty in this respect, recently, the European Court of Human Rights declared ‘that it is a requirement of fairness . . . that the prosecution authorities disclose to the defence all material evidence for or against the accused’. The Rules of the ad hoc tribunals make detailed provision for disclosure of the prosecution case and, according to recent amendments, for the defence case as well. A duty on the prosecution to disclose its evidence, both exculpatory and inculpatory, is now known in many legal systems. The existence of a reciprocal duty on the defence is less common although in some cases, such as in a defence of alibi, the credibility of the defence will solely be dependent on prompt disclosure of material facts. In an interlocutory decision in the Tadic case, Judge Stephen of the Yugoslav Tribunal said that the defence has ‘no disclosure obligation at all unless an alibi or a special defence is sought to be relied upon and then only to a quite limited extent’.
The Rules of Procedure and Evidence adapted by the Assembly of States Parties gives a far more thorough regime of disclosure, applicable to both Prosecutor and defence. The prosecution is expected to provide the defence with the names of witnesses it intends to call at trial together with copies of their statements from the executive arm, subject to certain exceptions relating to the protection of the witnesses themselves as person(s). The defence has a corresponding duty with respect to witnesses, although this is worded slightly more narrowly, applying only to those expected to support specific defences. Both sides are required to allow the other to inspect books, documents, photographs and other tangible objects in their possession or control which they intend to use as evidence in order to preventing falsification of evidence. The Prosecutor must also disclose any such items that may assist the defence, although a comparable duty is not imposed upon the defence to disclose items that might assist the prosecution in essence. These provisions should have the effect of reducing cases of ‘trial by ambush’, enhancing fairness and also contributing to expeditious hearings and subsequent fair trial and passing of judgement.