Abstract
In this chapter, the law and practice of the international criminal tribunals (ICTs) with respect to the question of how to address procedural violations committed in the pre-trial phase of the proceedings, as set out in Chaps. 5 and 6, is evaluated in light of the human rights standards set out in Chap. 2, and compared to the national law and practice (and the theoretical accounts thereof) set out in Chaps. 3 and 4, in an assessment of its soundness; compliance with human rights law, and the quality of reasoning of the ICTs in this regard, in terms of cogency, coherence and consistency. Points of concern are identified and suggestions for improvement are made, and conclusions are drawn as to the most suitable rationale(s) for responding to procedural violations committed in the pre-trial phase of international criminal proceedings, the merits of a discretionary approach to the question of how to address such violations and to the impact of certain particularities of international criminal proceedings on the determination of this question.
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Notes
- 1.
Parts of the assessment undertaken in this chapter are based on those undertaken in an earlier written piece. See De Meester et al. 2013. Due to a mistake on the part of the publisher, this chapter was presented as a co-authored chapter. However, part 5 of this chapter (‘Remedies’) is to be attributed to the present author. This will be corrected with the next edition. Further, some of the (normative) arguments made in this chapter were put forward, in a very rudimentary form, in an earlier article. See Pitcher 2013.
- 2.
A precise date has not been given, but at the end of 2015, the President of the ICTY submitted a request to the UN Secretary-General for the extension of the terms of 17 judges until dates ranging from 31 March 2016 to 30 November 2017, based on projections for the completion of the Tribunal’s remaining work. See ‘Letter dated 1 October 2015 from the President of the International Tribunal for the Former Yugoslavia addressed to the Secretary-General’, annexed to ‘Identical letters dated 28 October 2015 from the Secretary-General addressed to the President of the General Assembly and the President of the Security Council’ (10 November 2015) UN Doc S/2015/825.
- 3.
For the reasons set out in Chap. 2 (see n 15−18 and accompanying text), in setting out the human rights standards on the right to a fair trial, the focus will be on the ECHR (and, specifically, Article 6 thereof).
- 4.
Teixeira de Castro v Portugal App no 25829/94 (ECtHR, 9 June 1998), para 39.
- 5.
Teixeira de Castro v Portugal App no 25829/94 (ECtHR, 9 June 1998), para 39.
- 6.
The ECtHR itself has stated that it must lead to the exclusion of all evidence obtained as a result of the police incitement or a similar consequence (see Chap. 2, n 171−172 and accompanying text).
- 7.
- 8.
See Chap. 2, n 345−347 and accompanying text.
- 9.
See Chap. 2, n 348−350 and accompanying text.
- 10.
See e.g. the following decisions: Prosecutor v Martić (Decision Adopting Guidelines on the Standards Governing the Admission of Evidence) IT-95-11-T, T Ch I (19 January 2006) para 9; and Prosecutor v Katanga and Ngudjolo (Decision on the Prosecutor’s Bar Table Motions) ICC-01/04-01/07, T Ch II (17 December 2010) paras 63‒65.
- 11.
See in particular Prosecutor v Delalić, Mucić, Delić and Landžo (Decision on Zdravko Mucić’s Motion for the Exclusion of Evidence) IT-96-21-T, T Ch II (2 September 1997); and Prosecutor v Katanga and Ngudjolo (Decision on the Prosecutor’s Bar Table Motions) ICC-01/04-01/07, T Ch II (17 December 2010).
- 12.
At the ICC, chambers may not take these factors into account anyway. More will be said about this later on in the chapter.
- 13.
Strictly speaking, the ECtHR does not set forth rules on the admissibility evidence. See in this regard Schenk v Switzerland App no 10862/84 (ECtHR, 12 July 1988), para 46. In any case, according to the ECtHR, the use at trial of evidence obtained by the aforementioned violations will automatically, or nearly so, lead to a violation of Article 6(1) ECHR.
- 14.
Judge Meron made a similar argument in respect of statements obtained in violation of the provision at the ad hoc Tribunals that the questioning of suspects be audio- or video-recorded. See Chap. 5, n 175−176 and accompanying text.
- 15.
To borrow from Choo; see in this regard Choo 2015, 189.
- 16.
See in this regard Chap. 5, Sect. 5.3.2, where it was observed that chambers have not explained why certain evidence is subject to automatic exclusion.
- 17.
See generally Zeegers 2016, Chap. 4.
- 18.
Jackson 2012, 138.
- 19.
Ashworth 2012, 157 (emphasis added).
- 20.
Ashworth and Redmayne 2010, 362.
- 21.
Redmayne 2009, 305.
- 22.
See in this regard Chap. 5, n 22−23 and accompanying text.
- 23.
At the ad hoc Tribunals, the norm that must have been violated in order to trigger the exclusionary mechanism under Rule 95 is not defined; in principle, therefore, it is open to the defence to challenge evidence obtained by violation of national law (although on its own, such a violation will not lead to the exclusion of evidence obtained thereby). At the ICC, the norm that must have been violated in order to trigger the exclusionary mechanism under Article 69(7) ICC Statute is defined; it seems therefore that it is not open to the defence to challenge evidence obtained by violation of national law alone.
- 24.
Van Hoek and Luchtman 2005, 24.
- 25.
Van Hoek and Luchtman 2005, 24 and 38.
- 26.
Echeverri Rodriguez v Netherlands App no 3286/98 (ECtHR, Decision of 27 June 2000), 8 (emphasis added).
- 27.
The ECtHR does not explain what falls under ‘defence rights’; here the assumption is that what is meant here is the specific fair trial rights enumerated in or otherwise flowing from Article 6 ECHR.
- 28.
In Jalloh v Germany (App no 54810/00 (ECtHR, 11 July 2006)), it should be recalled, the evidence obtained by violation of Article 3 ECHR was highly probative; nevertheless, the ECtHR founded a violation of Article 6 ECHR.
- 29.
This seems to have been the case in Jalloh. See Jalloh v Germany App no 54810/00 (ECtHR, 11 July 2006), para 119.
- 30.
For an example of such a case, see Heglas v Czech Republic App no 5935/02 (ECtHR, 1 March 2007), para 87.
- 31.
See Chap. 2, n 246 and accompanying text.
- 32.
Van Hoek and Luchtman 2005, 25‒26.
- 33.
Ibid., 38.
- 34.
Ibid., 38.
- 35.
See Chap. 2, n 297 and accompanying text. By contrast, the right to compensation in case of unlawful arrest or detention, which may be viewed as a specific manifestation of the right to an effective remedy, does require a judicial remedy.
- 36.
Zeegers 2016, 175‒179.
- 37.
See Prosecutor v Lubanga (Decision on the admission of material from the “bar table”) ICC-01/04-01/06, T Ch I (24 June 2009), and the discussion of this decision in Chap. 5 (see n 339−360 and accompanying text).
- 38.
However, as will be explained below, it not obvious why the fact it was not the accused’s right that had been violated should be a reason not to exclude evidence. See n 107 and accompanying text.
- 39.
Prosecutor v Kajelijeli (Judgement) ICTR-98-44A-A, A Ch (23 May 2005), para 220.
- 40.
Ibid., para 220.
- 41.
Ibid., para 220.
- 42.
This is the approach adopted in the Netherlands. See in this regard the following decision of the Dutch Supreme Court: HR 5 October 2010, ECLI:NL:HR:2010:BL5629, r.o. 4.4.1, NJ 2011/169 m.nt. TM Schalken.
- 43.
An argument in favour of the ICTs providing effective, personal remedies in respect of rights violations that are not attributable to them is that states may be disinclined to address rights violations committed by their own authorities in the execution of a request for cooperation, in light of the fact that they will have provided such assistance as a matter of legal obligation.
- 44.
Taylor and Jalloh 2013, 319.
- 45.
See in this regard Taylor and Jalloh 2013, 321.
- 46.
See also Taylor and Jalloh 2013, 320.
- 47.
See Prosecutor v Muthaura and Kenyatta (Decision on the application for a ruling on the legality of the arrest of Mr. Dennis Ole Itumbi) ICC-01/09-02/11, T Ch V (19 November 2012) paras 7‒9.
- 48.
Goranova-Karaeneva v Bulgaria App no 12739/05 (ECtHR, 8 March 2011), para 57, referring to Khan v UK App no 35394/97 (ECtHR, 12 May 2000), para 44.
- 49.
See Chap. 4, Sect. 4.3.3.
- 50.
See n 17 and accompanying text.
- 51.
This issue is addressed further, in the following subsection on the right to compensation in case of unlawful arrest or detention.
- 52.
Zappalà 2002, 1584.
- 53.
See also n 367 and accompanying text.
- 54.
See Prosecutor v Muvunyi (Decision on the Prosecutor’s Motion Pursuant to Trial Chamber’s Directives of 7 December 2005 for the Verification of the Authenticity of Evidence Obtained Out of Court Pursuant to Rules 89(C) and (D)) ICTR-2000-55A-T, T Ch II (26 April 2006) para 23, referring to Prosecutor v Stakić (Decision) IT-97-24-AR73.5, A Ch (10 October 2002). At the ICC, similar statements have been made in the context of confirmation proceedings; see Prosecutor v Mbarushimana (Decision on the confirmation of charges) ICC-01/04-01/10, P T Ch I (16 December 2011), paras 58‒65.
- 55.
See e.g. Bachmaier Winter 2013, 139‒140.
- 56.
Reisinger-Coracini 2013, 96‒97.
- 57.
Ibid., 97 (emphasis added).
- 58.
Ibid., 97 and 115.
- 59.
Bachmaier Winter 2013, 139.
- 60.
See e.g. Prosecutor v Delalić, Mucić, Delić and Landžo (Decision on Zdravko Mucić’s Motion for the Exclusion of Evidence) IT-96-21-T, T Ch II (2 September 1997); and Prosecutor v Katanga and Ngudjolo (Decision on the Prosecutor’s Bar Table Motions) ICC-01/04-01/07, T Ch II (17 December 2010); see, however, Prosecutor v Renzaho (Decision on Exclusion of Testimony and Admission of Exhibit) ICTR-97-31-T, T Ch I (20 March 2007) para 16.
- 61.
See Rule 95 ICTY/ICTR RPE and Article 69(7) ICC Statute.
- 62.
- 63.
Both of the domestic jurisdictions examined in this book are signatories to the ECHR.
- 64.
See HR 30 March 2004, ECLI:NL:HR:2004:AM2533, NJ 2004/376 m.nt. Y Buruma, para 3.6.4, as repeated in HR 19 February 2013, ECLI:NL:HR:2013:BY5322, NJ 2013/308 m.nt. BF Keulen, para 2.4.2.
- 65.
See s 78(1) PACE.
- 66.
More will be said about this below, in addressing the merits of judicial discretion.
- 67.
See n 66.
- 68.
See n 66.
- 69.
See e.g. Ormerod and Birch 2004.
- 70.
When the content of Rule 95 ICTY RPE was amended in January 1995 to how it currently reads, the ICTY said that the amendment was made to ‘[put] parties on notice that although a Trial Chamber is not bound by national rules of evidence, it will refuse to admit evidence—no matter how probative—if it was obtained by improper methods’. See ICTY ‘Second Annual Report of the International Tribunal for the Prosecution of Persons Responsible for Serious Violations of International Humanitarian Law Committed in the Territory of the Former Yugoslavia Since 1991’ (23 August 1995) UN Doc A/50/365‒S/1995/728, 45.
- 71.
See Chap. 4, n 205−208 and accompanying text.
- 72.
See Chap. 5, n 174 and 337 and accompanying text.
- 73.
See in this regard Dennis’ comments regarding s 76(2)(b) PACE in England and Wales: ‘because the court is dealing only with the hypothetical issue at the particular moment in the interview, the prosecution cannot overcome problems about the reliability of a confession by using extrinsic evidence that is likely to be true’. See Dennis 2013, 234−235.
- 74.
It is also worth noting that (one version or another of) the integrity rationale has been adopted as the primary rationale for exclusion in a number of jurisdictions, e.g. Canada and Australia.
- 75.
See Chap. 4, Sect. 4.3.4.
- 76.
See in particular Prosecutor v Brđanin (Decision on the Defence “Objection to Intercept Evidence”) IT-99-36-T, T Ch II (3 October 2003) para 63; as was seen in Chap. 5, this decision has been cited with approval in numerous decisions at the ad hoc Tribunals.
- 77.
Nevertheless, it is important to note that, in the context of the (‘preservation of the integrity of the proceedings ’ limb of the test for a) stay of proceedings, the Trial Chamber seemed to approve taking the seriousness of crime with which the accused is charged into account. See in this regard n 163 and accompanying text.
- 78.
Prosecutor v Lubanga (Decision on the admission of material from the “bar table”) ICC-01/04-01/06, T Ch I (24 June 2009) para 42 (footnotes in original omitted; emphasis added).
- 79.
See Chap. 5, n 359 and accompanying text.
- 80.
Mirfield 1997, 24.
- 81.
Dennis 2013, 108.
- 82.
Ibid., 108. Mirfield is sceptical in this regard: ‘it would seem strange to regard the disrepute in which the administration of justice would be held as properly to be assessed by those who themselves administer it; one’s reputation is a reflection of what others think of one’. Mirfield 1997, 369.
- 83.
Choo 2008, 112. See also Duff 2004, 175: ‘… courts in operating a moral legitimacy rationale [which may be equated to the public attitude variation of the integrity rationale; see in this regard Mirfield 1997, 27‒28] need not simply reflect the allegedly right wing, “law and order” reflexes of the general citizenry but can take a more rational and liberal approach.’ Nevertheless, according to Duff, if courts ‘are to pay more than lip-service to the moral legitimacy rationale, they must attach considerable importance to the likely views of the body politic.’ Ibid. The notion that a population can be depicted as a single group is questionable, however, and in the context of international criminal adjudication this problem is exacerbated.
- 84.
See Chap. 4, n 93 and 95 and accompanying text.
- 85.
Grevling 1997, 681.
- 86.
Duff et al. 2004, 25.
- 87.
Admittedly, the descriptor ‘citizen’ is somewhat awkward in the context of international criminal adjudication; the term ‘(responsible) agent’ may be more fitting in this context.
- 88.
See in this regard Ormerod and Birch 2004, 782, where the authors argue, in relation to s 78 PACE, that: ‘a reliability -centered discretion is problematic… the trial is not merely about reliably convicting the guilty and ensuring the protection of the innocent from conviction; there is an important judicial responsibility to maintain the moral integrity of the process’.
- 89.
Ashworth 1977, 723.
- 90.
R v Grant [2009] 2 SCR 353 [68] (emphasis added).
- 91.
Ibid., [84] (emphasis added).
- 92.
See in this regard also the Canadian Supreme Court’s findings in R v Harrison [2009] 2 SCR 494 [34]: ‘While the charged offence is serious, this factor must not take on disproportionate significance.’
- 93.
See Dennis 2013, 107‒108.
- 94.
Zuckerman 1987, 59.
- 95.
See n 81‒82 and accompanying text.
- 96.
Prosecutor v Lubanga (Decision on the admission of material from the “bar table”) ICC-01/04-01/06, T Ch I (24 June 2009).
- 97.
Ibid., para 47. It is not obvious why the fact that it was not the accused’s, but a third person’s, right to privacy that had been violated would make the violation less serious.
- 98.
See Chap. 3, n 309−315 and accompanying text.
- 99.
See in this regard Kamisar 1987, 18.
- 100.
Or, in other words, ‘at what point does moral scruple properly obtrude?’ See Mirfield 1997, 25. See also n 80 and accompanying text.
- 101.
- 102.
See Mirfield 1997, 29.
- 103.
See n 18−21 and accompanying text.
- 104.
More will be said about this issue below, in addressing the question as to the most suitable rationale for responding within the criminal trial to procedural violations committed in the pre-trial phase context of international criminal proceedings.
- 105.
Various authors have argued or otherwise acknowledged that the (use of evidence obtained by the) violation of human (or constitutional) rights in particular is problematic from the perspective of the integrity rationale. See in this regard Chap. 4, n 88−90 and accompanying text, and also Roberts 2012 and Safferling 2003, 295 (‘every human rights violation must … hamper the integrity of the proceedings.’).
- 106.
Prosecutor v Lubanga (Decision on the admission of material from the “bar table”) ICC-01/04-01/06, T Ch I (24 June 2009) para 47.
- 107.
Choo 2008, 110.
- 108.
See n 11 and accompanying text.
- 109.
See in this regard n 18−21 and accompanying text.
- 110.
See e.g. Prosecutor v Lubanga (Judgment on the Appeal of Mr. Thomas Lubanga Dyilo against the Decision on the Defence Challenge to the Jurisdiction of the Court pursuant to Article 19(2)(a) of the Statute of 3 October 2006) ICC-01/04-01/06, A Ch (14 December 2006) para 42; Prosecutor v Gbagbo (Decision on the “Corrigendum of the challenge to the jurisdiction of the International Criminal Court on the basis of Articles 12(3), 19(2), 21(3), 55 and 59 of the Rome Statute filed by the Defence for President Gbagbo (ICC-02/11-01/11-129)”) ICC-02/11-01/11, P T Ch I (15 August 2012) para 109; and Prosecutor v Muthaura and Kenyatta (Decision on the application for a ruling on the legality of the arrest of Mr. Dennis Ole Itumbi) ICC-01/09-02/11, T Ch V (19 November 2012) paras 7‒9.
- 111.
Prosecutor v Lubanga (Decision on the admission of material from the “bar table”) ICC-01/04-01/06, T Ch I (24 June 2009) para 47.
- 112.
Ibid., para 46.
- 113.
Prosecutor v Lubanga (Decision on Confirmation of Charges) ICC-01/04-01/06, P T Ch I (29 January 2007) para 80 (emphasis added).
- 114.
R v Grant [2009] 2 SCR 353 [75].
- 115.
Regarding the issue of cooperation, see n 56‒58 and accompanying text.
- 116.
Prosecutor v Brđanin (Decision on the Defence “Objection to Intercept Evidence”) IT-99-36-T, T Ch II (3 October 2003) para 63.
- 117.
R v Horseferry Road Magistrates’ Court, Ex parte Bennett [1994] 1 AC 42, 74.
- 118.
Prosecutor v Barayagwiza (Decision) ICTR-97-19-AR72, A Ch (3 November 1999) para 77.
- 119.
See n 117 and accompanying text.
- 120.
Prosecutor v Lubanga (Judgment on the Appeal of Mr. Thomas Lubanga Dyilo against the Decision on the Defence Challenge to the Jurisdiction of the Court pursuant to Article 19(2)(a) of the Statute of 3 October 2006) ICC-01/04-01/06, A Ch (14 December 2006) para 37.
- 121.
Ibid., para 37. See also Prosecutor v Lubanga (Judgment on the appeal of Mr. Thomas Lubanga Dyilo against his conviction) ICC-01/04-01/06, A Ch (1 December 2014) para 147.
- 122.
Prosecutor v Lubanga (Judgment on the Appeal of Mr. Thomas Lubanga Dyilo against the Decision on the Defence Challenge to the Jurisdiction of the Court pursuant to Article 19(2)(a) of the Statute of 3 October 2006) ICC-01/04-01/06, A Ch (14 December 2006) para 36.
- 123.
See n 120 and 228‒229 and accompanying text.
- 124.
Prosecutor v Lubanga (Redacted Decision on the “Defence Application Seeking a Permanent Stay of the Proceedings”) ICC-01/04-01/06, T Ch I (7 March 2011) paras 165‒166.
- 125.
See similarly Taylor and Jalloh 2013, 320.
- 126.
R v Beckford [1996] 1 Cr App R 94 at 100‒101. See also R (Ebrahim) v Feltham Magistrates’ Court [2001] 1 WLR 1293 [20].
- 127.
Choo 2008, 187. As to the case law, in Warren, Lord Dyson was similarly critical of the ‘fairness to try ’ terminology: ‘It is unhelpful and confusing to say that this category [the second category of case under the abuse of process doctrine] is founded on the imperative of avoiding unfairness to the accused. It is unhelpful because it focuses attention on what is fair to the accused, rather than on whether the court's sense of justice and propriety is offended or public confidence in the criminal justice system would be undermined by the trial. It is confusing because fairness to the accused should be the focus of the first category of case.’ See Warren and others v Attorney General for Jersey [2012] 1 AC 22 [35].
- 128.
Choo 2008, 18.
- 129.
Ibid., 18.
- 130.
See Prosecutor v Barayagwiza (Decision) ICTR-97-19-AR72, A Ch (3 November 1999) para 77 and Prosecutor v Stanišić and Župljanin (Decision on Mićo Stanišić’s Motion Requesting a Declaration of Mistrial and Stojan Župljanin’s Motion to Vacate Trial Judgement) IT-08-91-A, A Ch (2 April 2014) para 35.
- 131.
Prosecutor v Lubanga (Judgment on the Appeal of Mr. Thomas Lubanga Dyilo against the Decision on the Defence Challenge to the Jurisdiction of the Court pursuant to Article 19(2)(a) of the Statute of 3 October 2006) ICC-01/04-01/06, A Ch (14 December 2006) para 37.
- 132.
Ibid., para 39.
- 133.
Prosecutor v Lubanga (Redacted Decision on the “Defence Application Seeking a Permanent Stay of the Proceedings”) ICC-01/04-01/06, T Ch I (7 March 2011) paras 165‒166.
- 134.
See Chap. 5, n 254 and 264−266 and accompanying text.
- 135.
See Chap. 5, n 90−91 and accompanying text.
- 136.
Choo 2008, 189 (emphasis added).
- 137.
- 138.
See Chap. 3, n 252 and accompanying text.
- 139.
See in this regard Martin 2005, 181.
- 140.
Choo 2008, 189‒190.
- 141.
Rogers 2008, 291.
- 142.
Ibid., 291.
- 143.
For a more comprehensive overview of the facts, see Chap. 6, n 424−441 and accompanying text.
- 144.
Prosecutor v Lubanga (Decision on the consequences of non-disclosure of exculpatory materials covered by Article 54(3)(e) agreements and the application to stay the prosecution of the accused, together with certain other issues raised at the Status Conference on 10 June 2008) ICC-01/04-01/06, T Ch I (13 June 2008) paras 92‒93.
- 145.
Ibid., paras 90–91.
- 146.
Ibid., para 95.
- 147.
It is worth noting in this regard that the Trial Chamber’s decision was upheld on appeal, with the Appeals Chamber observing that: ‘If the trial of Mr. Lubanga Dyilo had taken place in such circumstances, there would always have been a lurking doubt as to whether the disclosure of the documents in question would have changed the course of the trial.’ See Prosecutor v Lubanga (Judgment on the appeal of the Prosecutor against the decision of Trial Chamber I entitled “Decision on the consequences of non-disclosure of exculpatory materials discovered by Article 54(3)(e) agreements and the application to stay the prosecution of the accused, together with certain other issues raised at the Status Conference on 10 June 2008”) ICC-01/04-01/06, A Ch (21 October 2008) para 97.
- 148.
Heller KJ, ‘NYU JILP Symposium: The Rhetoric of Remedies’ (Opinio Juris, 5 April 2013), http://opiniojuris.org/2013/04/05/nyu-jilp-symposium-the-rhetoric-of-remedies/ Accessed 1 March 2017.
- 149.
It would therefore be misleading to describe the Trial Chamber’s decision to stay the proceedings in this case as ‘absolutist’. See Heller 2013 (n 148), referring to Iontcheva Turner 2012.
- 150.
See in this regard n 105‒129 and accompanying text.
- 151.
See n 117 and accompanying text.
- 152.
See n 75 and accompanying text.
- 153.
See Chap. 4, n 441−446 and accompanying text.
- 154.
See in this regard Prosecutor v Barayagwiza (Decision) ICTR-97-19-AR72, A Ch (3 November 1999) paras 106, 108 and 112.
- 155.
Ibid., para 77.
- 156.
The Appeals Chamber held that: ‘Considering the lengthy delay in the Appellant’s case, “it is quite impossible to say that there was no prejudice to the applicant in the continuance of the case”. The following discussion, therefore, focuses on whether it would offend the Tribunal’s sense of justice to proceed to the trial of the accused.’ See Prosecutor v Barayagwiza (Decision) ICTR-97-19-AR72, A Ch (3 November 1999) para 77 (emphasis added). In making this finding, the Appeals Chamber relied on an English ‘undue delay’ case (R v Oxford City Justices, ex parte Smith (1982) 75 Cr App R 200) in which the concern was with forensic prejudice.
- 157.
Prosecutor v Barayagwiza (Decision) ICTR-97-19-AR72, A Ch (3 November 1999) para 108.
- 158.
Prosecutor v Nikolić (Decision on Interlocutory Appeal Concerning Legality of Arrest) IT-94-2-AR73, A Ch (5 June 2003) paras 24‒26. See also Prosecutor v Tolimir (Decision on Preliminary Motions on the Indictment pursuant to Rule 72 of the Rules) IT-05-88/2-PT, T Ch II (14 December 2007) paras 19 and 25.
- 159.
Prosecutor v Nikolić (Decision on Interlocutory Appeal Concerning Legality of Arrest) IT-94-2-AR73, A Ch (5 June 2003) para 32 (emphasis added).
- 160.
Ibid., para 33.
- 161.
Prosecutor v Karadžić (Decision on Karadžić's Appeal of Trial Chamber’s Decision on Alleged Holbrooke Agreement) IT-95-5/18-AR73.4, A Ch (12 October 2009) para 49. See also Prosecutor v Nikolić (Decision on Interlocutory Appeal Concerning Legality of Arrest) IT-94-2-AR73, A Ch (5 June 2003) paras 25–26, and 30.
- 162.
See Chap. 3, n 315 and accompanying text.
- 163.
Prosecutor v Lubanga (Redacted Decision on the “Defence Application Seeking a Permanent Stay of the Proceedings”) ICC-01/04-01/06, T Ch I (7 March 2011) para 195.
- 164.
See n 77–78 and accompanying text.
- 165.
See in this regard n 80–99 and accompanying text.
- 166.
See n 81–82 and 90–91 and accompanying text.
- 167.
See in this regard n 96–99 and accompanying text.
- 168.
See n 102 and accompanying text.
- 169.
See in this regard Martin 2005, 181.
- 170.
See n 139 and accompanying text.
- 171.
Prosecutor v Nikolić (Decision on Interlocutory Appeal Concerning Legality of Arrest) IT-94-2-AR73, A Ch (5 June 2003) para 30. See also Prosecutor v Gbagbo (Decision on the “Corrigendum of the challenge to the jurisdiction of the International Criminal Court on the basis of Articles 12(3), 19(2), 21(3), 55 and 59 of the Rome Statute filed by the Defence for President Gbagbo (ICC-02/11-01/11-129)”) ICC-02/11-01/11, P T Ch I (15 August 2012) para 91; and Prosecutor v Lubanga (Redacted Decision on the “Defence Application Seeking a Permanent Stay of the Proceedings”) ICC-01/04-01/06, T Ch I (7 March 2011) para 195.
- 172.
See Prosecutor v Nikolić (Decision on Interlocutory Appeal Concerning Legality of Arrest) IT-94-2-AR73, A Ch (5 June 2003) paras 28‒33; and Prosecutor v Nikolić (Decision on Defence Motion Challenging the Exercise of Jurisdiction by the Tribunal) IT-94-2-PT, T Ch II (9 October 2002) para 114.
- 173.
See in this regard Choo 2008, 126. See also 190.
- 174.
Choo 2008, 126.
- 175.
See, generally, Chap. 4, n 125−135 and accompanying text.
- 176.
R v Mullen [2000] QB 520 at 536 (emphasis added).
- 177.
Prosecutor v Karadžić (Decision on Karadžić’s Appeal of Trial Chamber’s Decision on Alleged Holbrooke Agreement) IT-95-5/18-AR73.4, A Ch (12 October 2009) para 47.
- 178.
See in this regard Prosecutor v Nikolić (Decision on Defence Motion Challenging the Exercise of Jurisdiction by the Tribunal) IT-94-2-PT, T Ch II (9 October 2002) para 114.
- 179.
As was the case in the ICTR case of Barayagwiza.
- 180.
See Chap. 5, n 267−280 and accompanying text.
- 181.
See the discussion above, in the context of the exclusionary discretion; n 110–113 and accompanying text.
- 182.
Prosecutor v Gbagbo (Decision on the “Corrigendum of the challenge to the jurisdiction of the International Criminal Court on the basis of Articles 12(3), 19(2), 21(3), 55 and 59 of the Rome Statute filed by the Defence for President Gbagbo (ICC-02/11-01/11-129)”) ICC-02/11-01/11, P T Ch I (15 August 2012) para 92. The Pre-Trial Chamber’s decision was upheld on appeal, and while this was not an issue on appeal, the Appeals Chamber did not distance itself from the Pre-Trial Chamber’s finding on attribution. See Prosecutor v Gbagbo (Judgment on the appeal of Mr. Laurent Koudou Gbagbo against the decision of Pre-Trial Chamber I on jurisdiction and stay of the proceedings) ICC-02/11-01/11 OA 2 (12 December 2012).
- 183.
Prosecutor v Gbagbo (Decision on the “Corrigendum of the challenge to the jurisdiction of the International Criminal Court on the basis of Articles 12(3), 19(2), 21(3), 55 and 59 of the Rome Statute filed by the Defence for President Gbagbo (ICC-02/11-01/11-129)”) ICC-02/11-01/11, P T Ch I (15 August 2012) para 108.
- 184.
Ibid., para 109.
- 185.
See n 45 and accompanying text.
- 186.
See Prosecutor v Barayagwiza (Decision) ICTR-97-19-AR72, A Ch (3 November 1999) para 73, and Prosecutor v Nikolić (Decision on Defence Motion Challenging the Exercise of Jurisdiction by the Tribunal) IT-94-2-PT, T Ch II (9 October 2002) para 114.
- 187.
See Prosecutor v Barayagwiza (Decision) ICTR-97-19-AR72, A Ch (3 November 1999) paras 73 and 75.
- 188.
Prosecutor v Nikolić (Decision on Defence Motion Challenging the Exercise of Jurisdiction by the Tribunal) IT-94-2-PT, T Ch II (9 October 2002) para 114.
- 189.
See, generally, Chap. 5, n 270−272 and accompanying text.
- 190.
See in this regard n 114–115 and accompanying text.
- 191.
See n 116 and accompanying text.
- 192.
For the ad hoc Tribunals, see Chap. 5, n 197−204 and 212−213 and accompanying text, and for the ICC, see n 47 and accompanying text.
- 193.
See Chap. 6, Sect. 6.2.3.
- 194.
See Chap. 3, n 186 and accompanying text.
- 195.
Prosecutor v Rwamakuba (Decision on Appropriate Remedy) ICTR-98-44C-T, T Ch III (31 January 2007).
- 196.
Nevertheless, in a recent ruling, the Dutch Supreme Court held that sentence reduction would be an appropriate response to a violation of the right to legal assistance during questioning, where the accused’s right to legal assistance prior to questioning has been observed. See HR 22 December 2015, ECLI:NL:HR:2015:3608, para 6.4.2.
- 197.
Starr 2009, 1534‒1535.
- 198.
Wassink v Netherlands App no 12535/86 (ECtHR, 27 September 1990), para 38.
- 199.
Danev v Bulgaria App no 9411/05 (ECtHR, 2 September 2010), para 35. See also Georgi Marinov v Bulgaria App 36103/04 (ECtHR, 15 March 2011), paras 47‒48.
- 200.
See n 54 and accompanying text.
- 201.
See in this regard Choo 2008, 166‒167.
- 202.
See Prosecutor v Lubanga (Redacted Decision on the “Defence Application Seeking a Permanent Stay of the Proceedings”) ICC-01/04-01/06, T Ch I (7 March 2011) para 169.
- 203.
See n 126–127 and accompanying text.
- 204.
See Chap. 3, n 174−175 and accompanying text.
- 205.
Ölçer 2008, 518.
- 206.
See Chap. 5, n 285−287 and accompanying text.
- 207.
Prosecutor v Katanga and Ngudjolo (Judgment on the Appeal of Mr. Katanga Against the Decision of Trial Chamber II of 20 November 2009 Entitled “Decision on the Motion of the Defence for Germain Katanga for a Declaration on Unlawful Detention and Stay of Proceedings”) ICC-01/04-01/07 OA 10, A Ch (12 July 2010) para 40.
- 208.
Roach 1998, 411.
- 209.
As was seen above, at the ICTs, there two grounds for excluding evidence on account of the manner in which was obtained—‘substantial doubt as to reliability ’ and ‘serious damage to the integrity of the proceedings’—and two grounds for staying the proceedings—‘impossibility of a fair trial ’ and ‘preservation of the integrity of the proceedings’.
- 210.
It is submitted that the fact that states are under an obligation to cooperate with the ICTs (see in this Chap. 5, Sect. 5.2) does not make the two institutionally connected, i.e. does not make them part of the same legal system.
- 211.
See Prosecutor v Brđanin (Decision on the Defence “Objection to Intercept Evidence”) IT-99-36-T, T Ch II (3 October 2003) para 63 and Prosecutor v Lubanga (Decision on the admission of material from the “bar table”) ICC-01/04-01/06, T Ch I (24 June 2009) para 45.
- 212.
Indeed, it was seen in Chap. 3 that it may be a reason to exclude evidence (or, in particularly serious cases, to declare the prosecution inadmissible (a procedural step akin to a stay of proceedings)) that, in obtaining the evidence in question, the public authorities violated the norms that govern the exercise of the powers conferred on them for the purpose of investigating and prosecuting crime; in other words, it may be a reason to exclude evidence that, in obtaining the evidence in question, the public authorities charged with the investigation and prosecution of crime failed to observe the norms that bind them. Aside from the fact that this argument would seem ill-suited to the context of international criminal proceedings, it would appear to have particular force in systems which have a codified (and more or less closed) system of standards for the conduct of criminal investigation. In such systems it is easier to argue that non-observance by the authorities of the standards that bind them should lead to the nullification or invalidation of the unlawful act and its results (which may be achieved by the exclusion of evidence obtained thereby). For this reason also, the argument from the rule of law is unlikely to present a forceful argument for exclusion in the context of international criminal proceedings. As observed in Chap. 5, a feature of international criminal procedure is the broad attribution of powers and the absence of detailed rules in respect of the investigation. Thus, the ICTs governing documents confer on the ICTs broad coercive powers, but, in general, say little about the actual execution of coercive measures.
- 213.
Ashworth 1977, 725.
- 214.
See Chap. 3, n 216−236 and accompanying text.
- 215.
See Chap. 4, n 114−117 and 457 and accompanying text.
- 216.
In the Netherlands, this is a pertinent consideration under the third category of exclusion, at least, where the underlying rationale for exclusion is ‘deterrence’. See Chap. 3, n 232 and accompanying text. The focus on this rationale to the exclusion of other rationales has been subject to criticism in the Dutch literature, also on the basis that it wrongly assumes that it is a task of the criminal court to ‘police the police’, whereas this is the task of the public prosecutor. See T Schalken in his annotation to HR 9 September 2014, ECLI:NL:HR:2014:2650, NJ 2014/420.
- 217.
For an overview of such measures, and of non-judicial—administrative—measures at the ICTs, see Iontcheva Turner 2012, 232‒244.
- 218.
See Chap. 4, Sect. 4.3.3.
- 219.
It is submitted that (internationally recognized human) rights violations should be able to be established on the basis of the acts of national authorities alone. To argue that rights should only be considered to have been violated when an organ of the international criminal tribunal in question was involved would be to distort the analysis and is apt to mislead.
- 220.
See n 108‒113 and accompanying text.
- 221.
Roberts 2012, 180‒181.
- 222.
It has been argued that the adoption of a (strong and inflexible) rights-based exclusionary rule might have the opposite effect of vindicating rights, or, at least, might undermine human rights enforcement, since, in light of the ‘high costs’ of such an exclusionary rule (whereby ‘costs’ would appear to cover both financial costs, e.g. the costs of a retrial, and non-financial costs, i.e. the reputation of the criminal justice system being undermined), courts might be driven ‘to circumvent those costs by narrowing their substantive interpretations of rights’. See generally Starr 2008. Another ‘manifestation’ of ‘remedial deterrence’, according to which notion ‘if it is more costly to recognize a remedy, courts will be less likely to do so’ (ibid., 695 and 715, ‘borrowing from’ Levinson 1999), is where the court finds ‘some procedural reason to avoid reaching the merits of a rights claim in the first place’, for example, lack of jurisdiction.
- 223.
See in this regard Starr 2008, 703‒704.
- 224.
See similarly Choo 2008, 110‒111.
- 225.
See in this regard n 48‒51 and accompanying text.
- 226.
See Chap. 4, n 31−33 and accompanying text.
- 227.
Ashworth and Redmayne 2010, 362.
- 228.
Ashworth 2003, 113‒114.
- 229.
Ibid., 116.
- 230.
Ibid., 117 (emphasis added).
- 231.
Ibid., 118 (emphasis added).
- 232.
Ashworth and Redmayne 2010, 362.
- 233.
A v Secretary of State for the Home Department (No 2) [2005] 3 WLR 1249.
- 234.
Ibid., [91] (Lord Hoffmann, emphasis added).
- 235.
Ibid., [150] (Lord Carswell, emphasis added).
- 236.
- 237.
Ashworth and Redmayne 2010, 362.
- 238.
It may be recalled that it was argued above, in discussing the suitability of the ‘protective ’ or ‘remedial’ rationale to the particular context of the ICTs, that precisely in light of the need, in principle, for attribution of the procedural violation to the international criminal tribunal in question, i.e. the need for some level of involvement in the violation, it may be misleading to construe the judicial response to such violations (where the fact that rights violations have been committed is not, by itself, sufficient to warrant a judicial response) in terms of that rationale.
- 239.
See similarly Choo 2008, 190.
- 240.
Ashworth 1977, 723.
- 241.
Roberts 2012, 172.
- 242.
See n 86‒89 and accompanying text.
- 243.
Prosecutor v Barayagwiza (Decision) ICTR-97-19-AR72, A Ch (3 November 1999) para 108.
- 244.
Choo 2008, 156.
- 245.
Ibid., 156−157. For these two interpretations, Choo draws on Dworkin’s Taking Rights Seriously, in which a distinction is drawn between ‘discretion’ in a weak sense and ‘discretion’ in a strong sense. See Dworkin 1977, 31−32.
- 246.
Dennis 2013, 89.
- 247.
Choo 2008, 156.
- 248.
Dennis 2013, 89.
- 249.
- 250.
Davis 1969, 17.
- 251.
See Choo 2008, 157.
- 252.
Pound 1959, 367.
- 253.
Ibid., 367‒368.
- 254.
For a concise overview of the objections to judicial discretion, see Choo 2008, 158‒162.
- 255.
- 256.
Choo 2008, 163.
- 257.
Ibid., 163‒165.
- 258.
Ibid., 165.
- 259.
Ibid., 164.
- 260.
Ibid., 164.
- 261.
Thus, it was argued that, combined with a certain level of involvement on the part of the ICTs therein, the violation of an internationally recognized human right should make a compelling case for exclusion.
- 262.
See Choo 2008, 165.
- 263.
Vasiliev 2014, 174‒182.
- 264.
Ibid., 167‒168, in particular. See also Ohlin 2013, 55‒68.
For a critical overview of the special goals, see ibid., 171‒182.
- 265.
Vasiliev 2014, 170.
- 266.
Ibid., 170. Thus, Vasiliev argues that the goals of criminal justice should be distinguished from goals of punishment and sentencing rationales. Ibid., 168.
- 267.
Vasiliev 2014, 170.
- 268.
Prosecutor v Blaškić (Decision on the Objection of the Republic of Croatia to the Issuance of Subpoenae Duces Tecum) IT-95-14-PT, T Ch II (18 July 1997) para 154 (emphasis added).
- 269.
De Brouwer and Heikkilä 2013, 1300.
- 270.
Seibert-Fohr 2009, 283.
- 271.
- 272.
Fairlie 2003, 59.
- 273.
Starr 2008, 761.
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Pitcher, K. (2018). Assessment of the International Criminal Tribunals’ Law and Practice. In: Judicial Responses to Pre-Trial Procedural Violations in International Criminal Proceedings. International Criminal Justice Series, vol 16. T.M.C. Asser Press, The Hague. https://doi.org/10.1007/978-94-6265-219-4_7
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