Recharacterising Facts at the ICC
–
Fair Trial Rights and the Principle of Iura Novit Curia
Kaisa Marttinen Supervisor: Professor Harmen Van der Wilt
Date of submission: 25/07/2018 University of Amsterdam
Table of contents
Abstract 3
Abbreviations 4
1 INTRODUCING REGULATION 55 5
1.1 Content – what is this about? 5
1.2 Background – drafting history 6
1.3 Purposes 8
1.3.1 Filling impunity gaps 8
1.3.2 Procedural efficiency 8
2 IURA NOVIT CURIA AND LEGAL RECHARACTERISATION 10
2.1 About the principle 10
2.2 Iura novit curia and legal recharacterisation in national
criminal law 11
2.3 Iura novit curia and legal recharacterisation in international
criminal law 12
2.4 Inquisitorial vs. adversarial proceedings 14
3 WHAT CASE LAW CAN TEACH US ABOUT REGULATION 55 16
3.1 Lubanga – which facts can be recharacterised? 16
3.1.1 Not in pre-trial phase 16
3.1.2 No recharacterisation based on facts not contained in the charges 17
3.2 Katanga – recharacterising the mode of liability 19
3.2.1 Regulation 55 notification from the Trial Chamber Majority 20
3.2.2 Judge Van den Wyngaert dissenting 20
3.2.3 Appeals Chamber confirms Trial Chamber’s reasoning 21 3.3 Banda, Ntaganda and Ruto & Sang – slipping towards alternative
charging? 22
3.4 Bemba – recharacterisation of mens rea 23
3.4.1 Regulation 55 notification from the Trial Chamber 23
3.4.2 Defence responds 23
3.4.3 Final judgment 24
4 ANALYSIS – FAIR TRIAL RIGHTS AT RISK 26
4.1 Right to a fair and impartial trial 26
4.2 Right to be promptly informed of the charges against oneself 27 4.3 Right to have adequate time and facilities to prepare a defence 29
4.4 Right to trial without undue delay 30
4.5 Right to remain silent/not to be compelled to testify against oneself 32
5 CONCLUSIONS 33
5.1 How to address the potential fair trial violations caused by
5.1.1 The matter of timing 33
5.1.2 Emphasis on the pre-trial process 34
5.2 Is it possible for Regulation 55 to both achieve its objectives and
respect fair trial rights? 35
5.2.1 Sacrificing fair trial rights to end impunity? 35
5.2.2 Should alternative charging be avoided? 36
5.3 Final observations: difficulties of implementing iura novit curia in
international criminal proceedings 37
Bibliography
Abstract
Regulation 55 of the Regulations of the Court is a procedural instrument at the ICC that gives the Trial Chambers the power to modify the charges during trial after their confirmation. It was created to help fight impunity and the lengthy proceedings before the Court, but its application has shown that, regardless of the safeguards included in its sub-regulations, Regulation 55 presents a threat to the fair trial rights of the accused.
On the background of the provision is a civil law principle of iura novit curia, which grants the courts in many civil law countries the final say about which legal provision is applied regardless of what the parties have submitted during the trial. Since the ICC and its Statute and Rules are results of negotiations between civil and common law countries, it does not automatically follow that a principle from one tradition is applicable without any issues in the fusion of different legal cultures.
This thesis discusses the relationship iura novit curia has with Regulation 55 and the relationship between Regulation 55 and the fair trial rights of the accused and aims to clarify how the provision could be applied without the risk of violating these rights. By inserting certain limits to the timing of the possible application of the provision and paying attention to the possibilities a more extensive pre-trial stage would have, the respect for the rights of the accused would be secured.
An introduction to the contents and background of Regulation 55 (Chapter 1) is followed by a discussion on the purpose of iura novit curia and its application in national and international criminal proceedings (Chapter 2). Chapter 3 introduces the relevant ICC case law, while Chapter 4 includes a separate section for each fair trial right and uses the information gathered in the previous chapters to analyse the effect the provision has on them. In Chapter 5, suggestions for future use of the regulation are presented together with concluding marks on the position iura novit curia can or should have in international criminal proceedings.
Abbreviations
AC Appeals Chamber
ECCC Extraordinary Chambers in the Courts of Cambodia
ECHR European Convention on Human Rights
ECtHR European Court of Human Rights
ICC International Criminal Court
ICCPR International Covenant on Civil and Political Rights
ICTR International Criminal Tribunal for Rwanda
ICTY International Criminal Tribunal for the former
Yugoslavia
PTC Pre-Trial Chamber
RPE Rules of Procedure and Evidence
Chapter 1
INTRODUCING REGULATION 55
This chapter takes a look into Regulation 55 of the Regulations of the Court by first introducing its content, followed by a short background on the drafting process behind it and the goals the Court hopes to achieve through its application, namely ending impunity and speeding up the lengthy proceedings at the ICC.
1.1 Content – what is this about?
Regulation 55 aims to fill the procedural gap left by the Rome Statute and the Rules of Procedure and Evidence, which do not provide guidance for how to proceed when the crime the accused has been charged with cannot be successfully proven, but the evidence submitted does however prove that a crime within the Court’s jurisdiction has been committed. It enables the Trial Chamber to correct flaws in the already confirmed charges during trial, and prevent acquittals on mere technicalities.1
Regulation 55 reads as follows:
1. In its decision under article 74, the Chamber may change the legal characterisation of facts to accord with the crimes under articles 6, 7 or 8, or to accord with the form of participation of the accused under articles 25 and 28, without exceeding the facts and circumstances described in the charges and any amendments to the charges.
2. If, at any time during the trial, it appears to the Chamber that the legal characterisation of facts may be subject to change, the Chamber shall give
1 Carsten Stahn, Modification of the Legal Characterization of Facts in the ICC System: A Portrayal of Regulation 55
notice to the participants of such a possibility and having heard the evidence, shall, at an appropriate stage of the proceedings, give the participants the opportunity to make oral or written submissions. The Chamber may suspend the hearing to ensure that the participants have adequate time and facilities for effective preparation or, if necessary, it may order a hearing to consider all matters relevant to the proposed change.
3. For the purposes of sub-regulation 2, the Chamber shall, in particular, ensure that the accused shall:
(a) Have adequate time and facilities for the effective preparation of his or her defence in accordance with article 67, paragraph 1 (b); and
(b) If necessary, be given the opportunity to examine again, or have examined again, a previous witness, to call a new witness or to present other evidence admissible under the Statute in accordance with article 67, paragraph 1 (e).
Legal characterisation of facts is a civil law concept where the court may change the classification of facts submitted by parties during trial. By making the modification of charges possible even after the confirmation of charges, the concept creates legal certainty by taking away the Prosecutor’s need for long and excessive alternative or cumulative charges to secure a conviction, which lengthen the proceedings and increase the risk of violating the right of the accused to be tried without undue delay. To avoid violating other fair trial rights of the accused by applying the regulation, the drafters included several safeguards provided for in sub-regulation 2 and 3, designed to guarantee a fair trial after the notice is given to invoke the regulation.
1.2 Background – drafting history
Due to different approaches to the matter in national jurisdictions, the drafters of the Statute and the Rules of Procedure and Evidence (RPE) could not find a common solution to the question how to deal with the issue of correcting flaws in the charges during trial.2 During the negotiations, suggestions were made by some civil law
countries to include recharacterisation of facts to the Statute, but the Preparatory
Committee wanted to avoid taking a stand on whether the powers of the Trial Chamber would resemble those of the civil law tradition, or their common law counterparts.3
Another round of discussions on the issue emerged when the ICTY Trial Chamber made its decision in Kupreškić in 2000, concluding that the civil law principle of iura novit curia is not applicable at the Tribunal, i.e. the Chamber does not have the power to modify charges during trial.4 Several proposals giving different powers to the Trial
Chamber were made to incorporate a recharacterisation provision into the RPE of the ICC, but the scope of the powers of the Chamber proved to divide opinions too gravely for any common ground to be found.5
In the end, a general, neutral phrasing was confirmed at the Rome Conference to be included in Article 74(2), which now states that the Trial Chamber’s judgment “shall not exceed the facts and circumstances described in the charges”.6 This formulation
opens the door to recognising the Chamber’s possibility to interpret the facts and circumstances differently than described in the charges7 – while bound by the facts and
circumstances, the Chamber is not bound by their legal characterisation.
After several proposals during the negotiations from common law and civil law countries alike, which were all voted down by the other “camp”,8 the decision on
including recharacterisation in the ICC proceedings was left to the ICC judges on the basis of Article 52 of the Rome Statute.9 Regulations of the Court, including
Regulation 55, were adopted by the judges of the Court on 26 May 2004.
3 Ibid, at 10.
4 ICTY, Prosecutor v. Zoran Kupreškić et al., Case No. IT-95-16-T, Trial Chamber Judgment, 14 January 2000, at para.
727; 740-748. See also section 2.2.
5 Stahn, supra note 1, at 11. 6 Ibid, at 10.
7 Ibid, at 16. 8 Ibid, at 11.
9 Article 52(1) of the Rome Statute provides as follows: “The judges shall, in accordance with this Statute and the
Rules of Procedure and Evidence, adopt, by an absolute majority, the Regulations of the Court necessary for its routine functioning.”
1.3 Purposes
1.3.1 Filling impunity gaps
The fifth paragraph of the Preamble to the Rome Statute states that the aim of the Statute is to put an end to impunity. Regulation 55 has been said to have as a principal purpose to close accountability gaps enabling acquittals that are the result of legal qualifications confirmed in the pre-trial stage of proceedings that turn out to be incorrect.10 In other words, it removes the risk of acquittals based on mere
technicalities; the accused cannot avoid conviction when he or she has committed a crime within the jurisdiction of the Court only because the Prosecutor has failed to include that crime in the charges.
Closing accountability gaps is thought to be achieved through certain amount of flexibility when applying the regulation. According to sub-regulation 1, only material facts, i.e. the “facts and circumstances described in the charges” can be subject to recharacterisation. While this limits the scope to exclude recharacterisations of subsidiary facts, i.e. the facts that support the material facts and provide background information, the applicable scope still remains wide. Regulation 55 can be invoked to change the mode of liability, or qualify conduct as a different sub-category of crime. It also provides for a requalification to a different category of crime.11 These
parameters ensure that an accused cannot be acquitted solely because of a mistake in charging by the Prosecutor. The cost of such a wide scope of application is discussed in chapters 4 and 5.
1.3.2 Procedural efficiency
It was the hope behind the adoption of Regulation 55 that it would help strengthen the defendant’s right to be tried without undue delay and expeditiously, as required by Articles 67(1)(c) and 64(2) of the Rome Statute respectively. It has been suggested that without the option provided for by Regulation 55, the Prosecutor might burden the
10 Prosecutor v. Lubanga, Judgment on the appeals of Mr Lubanga Dyilo and the Prosecutor against the
Decision of Trial Chamber I of 14 July 2009 entitled "Decision giving notice to the parties and participants that the legal characterisation of the facts may be subject to change in accordance with Regulation 55(2) of the Regulations of the Court", ICC-01/04-01/06-2205, AC, 8 December 2009, at para. 77.
Chambers with excessive alternative or cumulative charges to guarantee that no risk of acquittal exists on the basis of the charges.12 This, in turn, would notably slow the
process and create legal uncertainty. Avoiding lengthy indictments with cumulative and alternative charges has been argued to not only benefit the defendant, but also be in the interest of judicial economy.13
It has also been argued that since the notice of possible recharacterisation can be given at any time during the trial,14 a notice arriving right at the beginning of the proceedings
may benefit the efficiency of the trial by preventing unnecessary duplications of evidence.15 If the right mode of liability or category of the crime is established in time,
time is not wasted on processing a case that would end in an acquittal on a technicality, or on excessive alternative charges that would secure conviction but require a significant amount of time to go through them all. However, several cases before the Court have shown that Regulation 55 itself can also have a negative effect on the efficiency of the proceedings, since the defence must be provided with the necessary time to build and present a new, different case. I will address the criticism for the regulation’s effect on procedural efficiency and legal certainty more closely in sections 4.4 and 5.2.
12 Stahn, supra note 1, at 3.
13 Ibid, at 28. See also Hans-Peter Kaul, Construction Site for More Justice: The International Criminal Court after Two
Years (2005) American Journal of International Law, Vol. 99(2) 370, at 377.
14 Regulation 55(2) of the Regulations of the Court. 15 Stahn, supra note 1, at 28.
Chapter 2
IURA NOVIT CURIA AND LEGAL RECHARACTERISATION
2.1 About the principle
Regulation 55 is an expression of the iura novit curia principle widely acknowledged in civil law systems.16 It translates as ‘the court knows the law’, and suggests that the
charges submitted by the prosecutor are to be considered as recommendations rather than legal qualifications binding to the court – it is the judges who are to administer the law.
The iura novit curia principle developed as a part of Canon law in the Middle Ages, and had its basis as a guarantee for equal possibilities for parties regarding their representation at court.17 Since the legal profession was undeveloped and legal
assistance at trial not available to all, many were unable to properly and successfully represent themselves. Iura novit curia ideology would ‘even out’ the differences of representation between the parties.18 As a comparison to common law tradition during
the same time period, English criminal procedure forbade those accused of felonies to have legal representatives helping them with their defence until the rule was abolished in 1836.19 This kind of procedural system that lacked any principle similar to iura novit
curia put the accused in an immensely unfair position at trial. This aspect has lost meaning in modern times, when competent legal aid has become (at least in principle) accessible to all, although it should not be entirely forgotten as long as it is possible for individuals to represent themselves without legal training or degree.
16See e.g. Section 265 of the German Code of Criminal Procedure, Chapter 17 1 4 of the Finnish Code of Judicial
Procedure, Article 350 of the Dutch Code of Criminal Procedure.
17 [in Swedish] ]Adam Croon, Jura Novit Curia -Principen och Sökandet efter en Rättssäker Rättstillämpning – ett
Rättshistoriskt Perspektiv (2010) Juridisk Publikation 2/2010 273, at 276.
18 Ibid, at 277.
19 John R. Spencer, Adversarial vs inquisitorial systems: is there still such a difference? (2016) The International Journal
Another, and in today’s world more convincing benefit of iura novit curia is its stabilising effect to the adjudication process and creation of case law, which remain uniform when no contradictory judgments or decisions resulting from the parties’ lack of ability to refer to the applicable provisions or principles are established. This, in turn, has a significant positive effect on the rule of law and the requirement for predictability, although the predictability principle works in both ways: on the one hand it is strengthened through the parties’ possibility to rely on precedent, but on the other hand the parties can have difficulties to foresee the result of the process if the court applies other legal qualifications instead of the qualifications presented by the parties. However, since the judge must base the decision on currently valid legal provisions, it should not be impossible for the parties to foresee the eventual decision through their own legal analysis.20
Even though the court has the final say on legal qualifications, the civil law tradition of iura novit curia does not prevent the parties from presenting their view of how the court should interpret the law and which provisions or principles should be applied. In the end, the decision will however be made by the court, without any obligation to follow the suggestions of either of the parties, or even suggestions both parties agree on.21
2.2 Iura novit curia and legal recharacterisation in national criminal law
While iura novit curia is a general civil law principle, civil law countries’ approaches differ from one another in how far the courts’ powers reach concerning legal recharacterisations. Some national criminal proceedings allow the judge to modify the characterisation of facts without early notice to the defence, while others require that the accused is warned in advance to give the defence a chance to have its case properly prepared. While there is no general principle on legal characterisation of facts that would be common to all major legal systems of the world, there is not even a principle common to all national legal systems that share the principle of iura novit curia.
20 Croon, supra note 17, at 279.
21 Ibid, at 274. Swedish case law and doctrine is well established on this front (see for example NJA II 1943:1 p. 446f,
SOU 1938:44 p. 379). Since the principle of iura novit curia differs from country to country, different kinds of variations of the powers of the judges exist. This section has discussed the principle and its ideology at its purest.
The German Code of Criminal Procedure provides for recharacterisation both during pre-trial and trial stage. If the court considers the charges in the indictment to require a different legal characterisation, the order confirming the indictment must contain a notice thereof.22 The court can change its mind during the trial stage and if the legal
characterisation changes again, the accused must be given a warning and is entitled to request an adjournment for further preparations.23
France has taken a different approach and allows the court to modify the legal characterisation of facts without giving prior notice to the accused, as long as the facts themselves remain the same. Even a change from a lesser to a more serious crime is allowed. This principle has been developed through case law and cannot be found in any provision in the Code of Criminal Procedure.24
Italian Code of Criminal Procedure enables the court to change the legal definition of the facts set forth in the charges when confirming the charges, if the crime is still within the competence of the court. If the court notices during trial stage that the facts included in the indictment need recharacterising, it must return the indictment to the Prosecutor and allow the defence to prepare for the recharacterised charges.25 Case law
has developed to the direction where as long as the facts remain the same, the courts are not bound by the Prosecutor’s legal classification and may even find the accused guilty of a more serious crime than originally charged in the indictment.26
2.3 Iura novit curia and legal recharacterisation in international criminal law The principle of iura novit curia has received a plurality of approaches in the international field. The ICTY has adopted a different position from that of the ICC.
22 Kupreškić Trial Chamber Judgment, supra note 4, at para. 734, referring to Sections 206 and 207 of the German Code
of Criminal Procedure.
23 Ibid, Section 265 of the German Code of Criminal Procedure.
24 Kupreškić Trial Chamber Judgment, supra note 4, at para. 736, referring to the French Cour de Cassation: Bulletin
des Arrêts de la Chambre Criminelle, 22 April 1986 no. 136 & 21 June 1989 no. 267.
25 Article 521 of the Italian Code of Criminal Procedure.
26 Kupreškić Trial Chamber Judgment, supra note 4, at para. 737, referring to the Italian Court of Cassation, Section I, 8
July 1985, Sconocchia case, in Giustizia penale, 1986, 562-564 and Section VI, 16 April 1991, Parente case, in Giurisprudenza italiana, 1992, II, 297.
The leading ICTY case in this front is Kupreškić, where the Trial Chamber concluded that iura novit curia does not and should not for the time being (the judgment was given in 2000) fully apply in international criminal proceedings, since “international criminal rules are still in a rudimentary state”.27 Before international law-making
bodies or international case law provide general rules, the rights of the accused, especially the right to be informed promptly and in detail of the charges against oneself, would not be sufficiently protected if a civil law iura novit curia approach would be adopted in international criminal proceedings.28 In the opinion of the
Kupreškić Chamber, in the absence of any such general principles of international criminal law on the matter, advice should be sought from national criminal systems.29
The Chamber continued that when in doubt, it would be appropriate to prosecute alternatively when an offence appears to violate more than one provision, and suggest that if the evidence turns out not to be convincing that an act falls under the stricter and more serious provision, it instead falls under another, less serious provision.30 The
Trial Chamber therefore suggested that if the Prosecutor realises for example that the evidence is not sufficient to prove that the accused committed a certain crime but aiding and abetting in the execution of the same crime can be proved, instead of recharacterisation of facts by the Chamber the Prosecutor should request the Chamber for a leave to amend the indictment and give the defence a chance to contest the charge.31
The ICTY approach is largely consistent with the common law approach to modifying charges during trial, where the court is bound by the legal characterisation submitted by the Prosecution in the charges. Convictions of crimes other than those included in the charges are allowed only in cases of lesser included offences32 (for example, the
court can convict the accused for manslaughter, if the indictment is for murder) – in other cases a formal alteration of charges must be sought.
27 Kupreškić Trial Chamber Judgment, supra note 4, at paras. 723, 740. 28 Ibid, at para. 740.
29 Ibid, at para. 728. 30 Ibid, at para. 727. 31 Ibid, at para. 742.
On the other hand, much like the ICC in Regulation 55, the ECCC has adopted the iura novit curia principle in Rule 98(2) of its Internal Rules, which state that
The judgment shall be limited to the facts set out in the Indictment. The Chamber may, however, change the legal characterisation of the crime as set out in the Indictment, as long as no new constitutive elements are introduced.
The ICC and the ECCC on one side and all other international criminal tribunals on the other, no general principle or rule has emerged regarding iura novit curia’s status in international criminal law.33 It has however been recommended that international
criminal courts and tribunals could apply iura novit curia as far as the rights of the accused to be properly informed and to have adequate time to prepare a defence are protected in regard ‘surprise’ legal recharacterisations.34
2.4 Inquisitorial vs. adversarial proceedings
One problem with integrating provisions such as Regulation 55 into the procedures of international criminal tribunals is the compatibility of iura novit curia with different procedural traditions. Inquisitorial systems, where the court has an active role in investigating and seeking the truth, are more commonly attached to proceedings in civil law countries while common law proceedings are more adversarial in nature and the court’s sole task is to decide whether the prosecution has proven its case.35 As
Judge Van den Wyngaert put it in her Dissenting Opinion in Katanga, provisions like Regulation 55 that are based on the principle of iura novit curia tend to cause fewer problems in inquisitorial proceedings, where the Chamber can decide the evidence to which it relies upon, regardless of what the parties have introduced as evidence.36
33 Göran Sluiter et al., International Criminal Procedure: Principles and Rules (1 edn, Oxford University Press 2013),
at 484.
34 Ibid, at 487 et seq.
35 Spencer, supra note 19, at 610. Although inquisitorial and adversarial traditions have blended in and had a significant
effect on each other during the last centuries, for the purposes of this chapter I will use the terms to describe two separate systems with their own distinctive characteristics regarding the role of the court. On the development and effect the traditions have had on each other, see Spencer, at 601-608.
36 Prosecutor v. Katanga and Ngudjolo Chui, Decision on the implementation of regulation 55 of the Regulations of the
Court and severing the charges against the accused persons, ICC-01/04-01/07-3319, TC II, 21 November 2012, Dissenting Opinion of Judge Christine Van den Wyngaert, at para. 55.
However, as was pointed out above (see section 1.2), common law tradition has had a strong influence on the functioning of the ICC. The adversarial nature of the proceedings before the Court is visible in the Statute; for example, Article 74(2) requires that the Trial Chamber’s decision must be based “only on evidence submitted and discussed before it at the trial”. What evidence is available for the Chamber to base its final decision on is therefore more limited than in systems more clearly inquisitorial in nature, and determined by the submissions of the parties. Legal recharacterisation is especially problematic in adversarial proceedings because the defence may choose what evidence it submits. If the Chamber then decides to modify the charges after the defence has already chosen a direction for presenting its case, the recharacterised facts may render the previously submitted evidence harmful for the defence,37 i.e. the defence may end up digging its own grave.
Chapter 3
WHAT CASE LAW CAN TEACH US ABOUT REGULATION 55
Regulation 55 has been in popular use ever since it was adopted in 2004. Notice of a possible recharacterisation under Regulation 55 has been given in several cases before the Court. While safeguards to protect the rights of the defendant are provided,38 case
law demonstrates that some of these rights can be compromised when applying the regulation. Previous cases have also contributed to the parameters within which Regulation 55 can be applied, suggesting limitations in the use of the regulation regarding the timing of invoking it and the types of changes it allows to be made in the charges.
In this chapter I will elaborate on the cases in which Regulation 55 has played a significant role, and have a closer look to under what circumstances and for what purposes the regulation has been invoked. Chapter 4 will analyse these observations further.
3.1 Lubanga – which facts can be recharacterised? 3.1.1 Not in pre-trial phase
Regulation 55 was applied for the first time since its adoption in Lubanga. The Prosecutor had charged the accused with the war crime of conscripting child soldiers in accordance with Article 8(2)(e)(vii) of the Rome Statute. This provision is applied in internal armed conflicts, while identical conduct constitutes a war crime in an international armed conflict under Article 8(2)(b)(xxvi). The Pre-Trial Chamber concluded that a part of the armed conflict can be characterised as international, but because the above-mentioned articles criminalise the exact same conduct, it would not
be necessary for the Prosecutor to amend the charges.39 During the trial phase, the Trial
Chamber eventually used Regulation 55 to recharacterise the armed conflict as entirely internal as opposed to the classification by the Pre-Trial Chamber.40
The Pre-Trial Chamber, by substituting the charges of war crimes in internal armed conflict with war crimes in international armed conflict, exceeded the powers it has been granted by Article 61(7) of the Rome Statute, which provides only three options how to proceed; the Pre-Trial Chamber must either (1) confirm or (2) decline to confirm the charges, or (3) adjourn the hearing and request the Prosecutor to provide further evidence or amend a charge. By doing so, the Pre-Trial Chamber left the Prosecutor no other option but to prosecute something other than what was the plan based on available evidence.41 However, the Lubanga case is and is likely to remain
the only instance with Pre-Trial Chamber applying such Regulation 55 related powers, since other Chambers have explicitly been against the use of Regulation 55 during the confirmation process.42
3.1.2 No recharacterisation based on facts not contained in the charges
Regulation 55 was applied again in Lubanga by the Trial Chamber, when a joint request was made by the legal representatives of the victims, requesting the Chamber to consider a legal recharacterisation of facts to include additional charges.43 The Trial
Chamber interpreted Regulation 55(1) and (2) to apply on different stages; it claimed that 55(2) applies at any time during the trial, and is limited by the safeguards set in 55(2) and (3), but that exceeding the facts and circumstances described in the charges applies as a limitation only in relation to 55(1), referring to Article 74 of the Rome
39 Prosecutor v. Lubanga, Decision on the confirmation of charges, ICC-01/04-01/06-803, PTC I, 29 January 2007, at
paras. 204, 220.
40 Prosecutor v. Lubanga, Judgment pursuant to Article 74 of the Statute, ICC-01/04-01/06-2842, TC I, 14 March 2012,
at para. 566.
41 Robert Cryer et al., An Introduction to International Criminal Law and Procedure (3 edn, Cambridge University
Press 2014), at 461.
42 Ibid. See also e.g. Prosecutor v. Ruto and Sang, Decision on the "Request by the Victims' Representative for
authorization by the Chamber to make written submissions on specific issues of law and/or fact", ICC-01/09-01/11-247, PTC II, 19 August 2011, at paras. 7-8.
43 Prosecutor v. Lubanga, Joint Application of the Legal Representatives of the Victims for the Implementation
of the Procedure under Regulation 55 of the Regulations of the Court, ICC-01/04-01/06-1891-tENG, TC I, 22 May 2009, at paras. 17 et seq.
Statute, which sets out the requirements for the Trial Chamber’s final decision.44 In
other words, 55(1) would only be applied at the deliberation and delivery of the judgment stage. In accordance with this interpretation, the Trial Chamber was able to disregard the safeguard in 55(1) during trial and add the extra charges requested even though they were based on subsidiary facts, which may not be recharacterised.45
After the defence appealed the Trial Chamber’s Regulation 55 decision, claiming that Regulation 55 is incompatible with Articles 52 and 61(9) of the Statute, general principles of international law and the rights of the accused,46 the Appeals Chamber
upheld the legality of Regulation 55 by emphasising that applicable human rights standards allow the legal recharacterisation during trial – granted that it does not adversely affect the fairness of the trial – and that the Regulation’s purpose of closing accountability gaps is fully consistent with the Statute.47 Article 52 provides that the
judges shall adopt the Regulations of the Court necessary for its routine functioning in accordance with the Statute and the RPE. The Appeals Chamber concluded that while the modification of the legal characterisation of facts has a direct impact on the trial, that alone does not exclude it from being a part of the routine functioning of the Court.48 In regard Article 61(9) providing that the Prosecutor can amend the charges
before the start of the trial or withdraw the charges during the trial, the Appeals Chamber took the view that the article and the regulation address “different powers of different entities at different stages of the procedure” and are therefore not incompatible.49 As to the rights of the accused, the Appeals Chamber concluded that
as such, Regulation 55 is not incompatible with the right to have adequate time and facilities for the preparation of the defence or the right to a trial without undue delay, but that the possibility of the violation of these rights depends on the specific circumstances of the case.50
44 Prosecutor v. Lubanga, Decision giving notice to the parties and participants that the legal characterisation of the
facts may be subject to change in accordance with Regulation 55(2) of the Regulations of the Court, ICC-01/04-01/06-2049, TC I, 14 July 2009, at paras. 27-28.
45 Ibid, at para. 32.
46 Prosecutor v. Lubanga, Appeals Chamber Judgment, supra note 10, at para. 66. 47 Ibid, at paras. 77, 85.
48 Ibid, at para. 69. During the negotiations leading to the adoption of the Statute, the matter of including a provision on
recharacterisation of facts was left for determination by the judges of the Court due to differences of views between common law and civil law countries (para 70).
49 Ibid, at para. 77. 50 Ibid, at paras. 85, 86.
Having confirmed the compatibility of Regulation 55 with the Statute, the Appeals Chamber however concluded that the two-stage interpretation of the Regulation by the Trial Chamber was faulty, pointing out that Article 74(2) does not allow the final decision of the Trial Chamber to be based on anything other than the facts and circumstances described in the charges or amendments thereto.51 Since the Regulations
of the Court must be read subject to the Statute and the Rules,52 any interpretation of
Regulation 55 not compatible with Article 74 must be rejected.53 The Appeals
Chamber also reminded that new facts may only be added under the procedure of Article 61(9) of the Rome Statute, and that the Trial Chamber’s interpretation would blur the distinction between Regulation 55 and Article 61(9). Such incorporation of new facts and circumstances would alter the fundamental scope of the trial, and affect the distribution of powers under the Statute.54 In a following decision, the Trial
Chamber complied with the view of the Appeals Chamber and the requested changes to the charges were not implemented.55
3.2 Katanga – recharacterising the mode of liability
Katanga and Ngudjolo Chui stood for trial together as indirect co-perpetrators until the charges were severed after the trial stage was concluded.56 Combined with the decision on the severance of the charges, the Majority of the Trial Chamber, with Judge Van den Wyngaert dissenting, also notified the parties that Katanga’s mode of liability might be subject to a change to common purpose liability to accord with Article 25(3)(d).57 After the cases were severed, Ngudjolo Chui was acquitted of all original
51 Ibid, para. 89.
52 Regulation 1(1) of the Regulations of the Court.
53 Prosecutor v. Lubanga, Appeals Chamber Judgment, supra note 10, at para. 90. 54 Ibid, at para. 94.
55 Prosecutor v. Lubanga, Decision on the Legal Representatives’ Joint Submissions concerning the Appeals Chamber’s
Decision on 8 December 2009 on Regulation 55 of the Regulations of the Court, ICC-01/04-01/06-2223, TC I, 8 January 2010, at paras. 37-38.
56 Article 25(3)(a) of the Rome Statute; Prosecutor v. Katanga, Decision on the confirmation of charges,
ICC-01/04-01/07-717, PTC I, 30 September 2008, at 211-212 and para. 489.
57 Prosecutor v. Katanga and Ngudjolo Chui, Decision on the implementation of regulation 55 of the Regulations of the
Court and severing the charges against the accused persons, ICC-01/04-01/07-3319, TC II, 21 November 2012, at paras. 6, 7, 9.
charges against him,58 while the change in Katanga’s mode of liability led to
conviction.59
3.2.1 Regulation 55 notification from Trial Chamber Majority
Referencing the Appeals Chamber’s judgment in Lubanga on the legality of the regulation,60 the Trial Chamber Majority discussed the language in Regulation 55, “at
any time during the trial” implying that there is no temporal limitation to triggering it,61 and the case law of ECtHR, pointing out that ECtHR does not seem to consider
late recharacterisation as a violation of the right to a fair trial or as having an effect on the impartiality of the judges.62 As to the defendant’s right to be informed promptly of
the charges against him, the Majority refers again to the case law of ECtHR and the Inter-American Court of Human Rights, where the right to be informed does not necessarily imply that the accused must have been aware or able to foresee the new legal characterisation at the commencement of his trial. Instead it must be ensured that all the facts relating to the charges that are eventually modified were clearly presented in the original indictment, which the majority considered to be the case with Katanga’s mode of liability recharacterisation.63 The Majority also discussed the right to have
adequate time and facilities to prepare the defence, noting that Regulation 55(2) requires that the participants are given the opportunity to make submissions, after the notice of possible recharacterisation. It found support for this in ECtHR case law, where legal recharacterisation of facts has been ruled to breach article 6 of the ECHR if the defence is not allowed the possibility of filing observations.64 In relation to the
right to a trial without undue delay, the Majority refers to the complexity of international criminal law cases, and concluded that while triggering Regulation 55 might lengthen the proceedings, it does not necessarily entail a breach of the right.65
58 Prosecutor v. Ngudjolo, Judgment pursuant to Article 74 of the Statute, ICC-01/04-02/12-3-tENG, TC II, 18
December 2012, at 197.
59 Prosecutor v. Katanga, Judgment pursuant to Article 74 of the Statute, ICC-01/04-01/07-3436, TC II, 7 March 2014,
at 658.
60 Prosecutor v. Katanga, Regulation 55 Decision, supra note 57, at paras. 12-13. 61 Ibid, at para. 15.
62 Ibid, at para. 18.
63 Ibid, at paras. 22, 23, 31. 64 Ibid, at paras. 35, 37. 65 Ibid, at paras. 43, 46.
3.2.2 Judge Van den Wyngaert dissenting
Judge Christine Van den Wyngaert strongly rejected the Majority’s view in her Dissenting Opinion66 and stated that the decision to invoke Regulation 55 should be
based on a two-step analysis, neither of which was satisfied by the Majority Decision; the Chamber must (1) be certain that the recharacterisation does not exceed the facts and circumstances in the charges, and (2) exercise its discretion to determine that the recharacterisation does not render the trial unfair.67
As regards the first step, she noted that while the Appeals Chamber in Lubanga concluded that only the facts and circumstances described in the charges can be relied upon for the recharacterisation,68 the Katanga Majority did not refer to the factual
allegations in the Confirmation Decision on which it intended to base the recharacterisation and due to this ambiguity might have used subsidiary facts as the basis.69 As to the second step, Van den Wyngaert considered the Majority decision to
threaten the right to a fair and impartial trial, and the recharacterisation at such a late point in the proceedings to create an undue delay under Article 67(1)(c), contradicting the requirement for an expeditious trial in Article 64(2). Moreover, she criticised the Majority decision for not being reasonably foreseeable to the defence, violating the right of the accused under Article 67(1)(a) to be informed promptly and in detail of the charges against him.70
3.2.3 Appeals Chamber confirms Trial Chamber’s reasoning
The Appeals Chamber upheld the Trial Chamber Majority judgment71 and concluded
that, while the notice of recharacterisation should preferably be given as early as possible, the Trial Chamber Majority decision was compatible with Regulation 55 which states that the notice may be given “at any time of the trial”.72 Judge Tarfusser
wrote a dissenting opinion, agreeing with the Majority on the timing issue, but voicing
66 Prosecutor v. Katanga, Dissenting Opinion of Judge Van den Wyngaert, supra note 36, at para. 1. 67 Ibid, at para. 10-11.
68 Ibid, at para. 14. 69 Ibid, at para. 17. 70 Ibid, at para. 26.
71 Prosecutor v. Katanga, Judgment on the appeal of Mr Germain Katanga against the decision of Trial Chamber II of
21 November 2012 entitled "Decision on the implementation of regulation 55 of the Regulations of the Court and severing the charges against the accused persons", ICC-01/04-01/07-3363, AC, 27 March 2013.
his concerns about violating the defendant’s right to be informed of the nature, cause and content of the charges against him.73
3.3 Banda, Ntaganda and Ruto & Sang – slipping towards alternative charging? In addition to Katanga, the mode of liability has been subject to possible change in several other cases before the Court. In Banda, the prosecution requested a notice to be given of a possible recharacterisation of the mode of liability on the first day of trial.74 The request suggests that the charges could be modified to include not only
liability under Article 25(3)(a) which was included in the Decision Confirming the Charges,75 but also under 25(3)(b), (c), (d), and 28(a).76 Since Mr Banda is still at large,
the trial has yet to begin and therefore the request for notice has not been decided upon. In Ntaganda, a notice for possible recharacterisation was requested by the prosecution to include direct co-perpetration under Article 25(3)(a) as a further alternative mode of liability,77 to add to the alternative charging which already included all other forms
of liability.78 In Ruto and Sang, charges against Mr Ruto were based on his role as an
indirect co-perpetrator under Article 25(3)(a). The prosecution suggested that the accused’s liability could also be characterised under Articles 25(3)(b), (c), or (d) and requested the Chamber to give notice under Regulation 55(2).79 The Chamber provided
the notice,80 and the prosecution requested a similar notice of possible
73 Prosecutor v. Katanga, Judgment on the appeal of Mr Germain Katanga against the decision of Trial Chamber II of
21 November 2012 entitled "Decision on the implementation of regulation 55 of the Regulations of the Court and severing the charges against the accused persons", ICC-01/04-01/07-3363, AC, 27 March 2013, Dissenting Opinion of Judge Cuno Tarfusser, at para. 1.
74 Prosecutor v. Banda, Prosecution request for notice to be given of a possible recharacterisation under Regulation 55,
ICC-02/05-03/09-549, 28 March 2014, at para. 1.
75 Prosecutor v. Banda and Jerbo, Corrigendum of the “Decision on the Confirmation of Charges”,
ICC-02/05-03/09-121-Corr-Red, PTC I, 7 March 2011, at para. 162.
76 Prosecutor v. Banda, Regulation 55 Request, supra note 74, at para. 1.
77 Prosecutor v. Ntaganda, Prosecution request for notice to be given of a possible recharacterisation pursuant to
Regulation 55(2), ICC-01/04-02/06-501, TC VI, 9 March 2015, at para. 1.
78 Prosecutor v. Ntaganda, Decision Pursuant to Article 61(7)(a) and (b) of the Rome Statute on the Charges of
the Prosecutor Against Bosco Ntaganda, ICC-01/04-02/06-309, PTC II, 9 June 2014, at section IV.
79 Prosecutor v. Ruto and Sang, Prosecution’s Submissions on the law of indirect co-perpetration under Article 25(3)(a)
of the Statute and application for notice to be given under Regulation 55(2) with respect to William Samoei Ruto’s individual criminal responsibility, ICC-01/09-01/11-433, TC V, 3 July 2012, at paras. 29, 35.
80 Prosecutor v. Ruto and Sang, Decision on Applications for Notice of Possibility of Variation of Legal
recharacterisation of mode of liability for Sang,81 but no recharacterisation took place
during the proceedings and the case was eventually terminated without prejudice to re-prosecution.82
This line of cases has raised the question whether alternative charging and the tendency of aiming to include several or every mode of liability by using Regulation 55 are just two sides of the same coin. Alternative charges have been considered a risk for prolonging the trial and hence violating the right to be tried without undue delay.83 The
issue will be analysed further in the following chapters.
3.4 Bemba – recharacterisation of mens rea
3.4.1 Regulation 55 notification from the Trial Chamber
The Pre-Trial Chamber in Bemba found in its decision confirming the charges that there was sufficient evidence to believe that the accused knew his troops were committing or about to commit the war crimes of murder, rape and pillaging and the crimes against humanity of murder and rape.84 Nearly two years after the trial started
and a month after the defence began to present its case,85 the Trial Chamber issued a
notice to the parties that the knowledge requirement might be changed from “knew” to “should have known”.86
3.4.2 Defence responds
The defence raised several objections to the notice and submitted, i.a., that since the defence’s case was already being presented, it no longer had the time or resources to
81 Prosecutor v. Ruto and Sang, Prosecution’s Request for notice under regulation 55(2) of possibility of variation with
respect to individual criminal responsibility of Mr Joshua Arap Sang, ICC-01/09-01/11-1951, TC V(A), 8 September 2015, at para. 1.
82 The Ruto and Sang case was terminated on 5 April 2016, see Prosecutor v. Ruto and Sang, Public redacted version of
“Decision on Defence Applications for Judgments of Acquittal”, ICC 01/09-01/11-2027-Red-Corr, TC V(A), 5 April 2016.
83 Stahn, supra note 1, at 3.
84 Prosecutor v. Bemba, Decision Pursuant to Article 61(7)(a) and (b) of the Rome Statute on the Charges of the Prosecutor
Against Jean-Pierre Bemba Gombo, ICC-01/05-01/08-424, PTC II, 15 June 2009, at para. 478.
85 The Bemba trial started on 22 November 2010 and the defence started presenting its case on 14 August 2012; see
Prosecutor v. Bemba, Defence Submissions on the Trial Chamber’s Notification under Regulation 55(2) of the
Regulations of the Court, ICC-01/05-01/08-2365-Red, TC III, 18 October 2012, at paras. 6, 8.
86 Prosecutor v. Bemba, Decision giving notice to the parties and participants that the legal characterisation of the facts
may be subject to change in accordance with Regulation 55(2) of the Regulations of the Court, ICC-01/05-01/08-2324, TC III, 21 September 2012.
investigate and prepare for an alternative theory of liability, since the recharacterisation would require additional time to recall previous witnesses and identify and interview new witnesses, and start further investigations into what information the accused had received which would suggest he should have known about the crimes being committed by his troops.87 The defence also pointed out that
no more funds are available from the ICC Registry for investigations for the defence and that the accused has so far been financially responsible for the now worthless investigations and preparations of the “knew” case – given these circumstances, the recharacterisation would be inconsistent with the right to have adequate time and facilities for preparing a defence in accordance with Article 67(1)(b) of the Rome Statute.88 Further, the additional time necessary for investigating and preparing for the
new knowledge requirement would delay the proceedings and have a negative effect on the accused’s right to a trial without undue delay. At the time of the notice, Bemba had already been in detention for four and a half years, and requests for provisional release had been denied.89
The defence also stated that due to the lack of notice of the material facts and circumstances underlying the proposed change, the defence “cannot be expected to guess what such a case might have consisted of and what evidence would have been advanced in support of it”.90 The latter argument was however explicitly dismissed by
the Trial Chamber after a submission from the prosecution that the possible change would not have any impact on the prosecution’s case and no additional evidence would be presented. Since the facts and circumstances and the evidence supporting them would be the same, there would be no new case to answer.91
87 Prosecutor v. Bemba, Defence Submissions, supra note 85, at para. 29. 88 Ibid, at paras. 30, 31.
89 Ibid, at paras. 41, 42.
90 Prosecutor v. Bemba, Defence further submissions on the notification under Regulation 55(2) of the Regulations of the
Court and Motion for notice of material facts and circumstances underlying the proposed amended charge, ICC-01/05-01/08-2451-Red2, TC III, 30 November 2012, at para. 13.
91 Prosecutor v. Bemba, Decision on the temporary suspension of the proceedings pursuant to Regulation 55(2) of the
Regulations of the Court and related procedural deadlines, ICC-01/05-01/08-2480, TC III, 13 December 2012, at para. 12.
3.4.3 Final judgment
Balancing between ensuring a fair and expeditious trial and a trial without undue delay, the Trial Chamber suspended the proceedings for ca. two and a half months to ensure that the accused has adequate time for the effective preparation of his defence.92 In its
final judgment, the Trial Chamber noted that even though it did not end up recharacterising the knowledge requirement, the notification procedure accorded with the requirements of Regulation 55.93 The Chamber found that Bemba knew that his
troops were committing the crimes for which he was charged, and did not therefore consider the recharacterisation to include the “should have known” element.94
92 Ibid, at para. 15.
93 Prosecutor v. Bemba, Judgment pursuant to Article 74 of the Statute, ICC-01/05-01/08-3343, TC III, 21 March 2016,
at para. 57.
Chapter 4
ANALYSIS – FAIR TRIAL RIGHTS AT RISK
In connection to Regulation 55, the ICC chambers have come across and collided with several internationally recognised fair trial rights. The Appeals Chamber reminded in Lubanga that the rights of the accused provided for in Article 67(1) of the Rome Statute reflect internationally recognised human rights, and that Article 21(3) of the Statute requires the application and interpretation of the Statute and other applicable sources listed in Article 21 to be consistent with such rights.95 Therefore, if Regulation 55 risks
violating fair trial rights, it is not only a matter of respecting the defendant’s human rights, although the importance of that cannot be stressed too much, but a matter of breaching a binding provision of the Statute. In this chapter I will discuss, one by one, the fair trial rights which the Court has had to address in cases before it.
4.1 Right to a fair and impartial trial
The internationally recognised right to a fair and impartial trial96 was discussed by the
Trial Chamber and Appeals Chamber Majorities in Katanga, and further by Judge Van den Wyngaert in her dissenting opinion, in connection to the timing of recharacterisation of the mode of liability from Article 25(3)(a) to (d). The Majority admitted that recharacterising facts at the deliberations stage can possibly raise concerns about the impartiality of the judges, giving the impression that they are willing to establish the guilt of the accused at all costs. Such concerns should however be objectively justified on a case-by-case basis.97 The Majority also referred to ECtHR
case law which, while concerning cases different in nature from the cases before the ICC, shows that recharacterisation is mostly decided at the deliberations stage in
95 Prosecutor v. Lubanga, Appeals Chamber Judgment, supra note 10, at para. 83.
96 Article 67(1) of the Rome Statute reads: “[…] the accused shall be entitled to […] a fair hearing conducted
impartially […].” See also, e.g., Article 6(1) of the ECHR and Article 14(1) of the ICCPR.
national legal systems and that such late modifications of facts do not contradict the right to a fair and impartial trial.98
The Appeals Chamber Majority agreed with the Trial Chamber Majority and concluded in its Judgment that the late stage of invoking Regulation 55 “does not give rise to an appearance of bias”.99 It is on this statement where I must disagree – to say that recharacterisation at the deliberations stage does not create at least an appearance of bias seems like quite a stretch. The appearance of bias standard for impartiality, widely accepted in ICC and ad hoc tribunal jurisprudence, requires that justice not only be done, but also be seen to be done; the circumstances should lead a reasonable, properly informed observer to reasonably apprehend bias.100 As Judge Van den
Wyngaert pointed out, the timing of the recharacterisation notice decision could raise unacceptable suspicions of the Majority’s intentions of intervening to ensure conviction,101 and such suspicions are further strengthened by the fact that the
prosecution had not at any point during proceedings brought up liability under 25(3)(d) and the defence never had to argue against such charges.102 While there is not
necessarily actual impartiality, the late stage of invoking Regulation 55 certainly gives a different impression – one that breaches the obligation of impartiality: I consider it impossible to claim that recharacterisation in the deliberations stage does not at the very least seem impartial.
4.2 Right to be promptly informed of the charges against oneself
Article 67(1)(a) of the Rome Statute contains the right of the accused to be informed promptly and in detail of the nature, cause and content of the charges against him or herself.103 The Appeals Chamber in Lubanga concluded that 67(1)(a) does not
98 Ibid, at para. 18.
99 Prosecutor v. Katanga, Appeals Chamber Judgment, supra note 71, at para. 105.
100Prosecutor v. Banda and Jerbo, Decision of the plenary of the judges on the "Defence Request for the
Disqualification of a Judge", ICC-02/05-03/09,The Presidency, 5 June 2012, at para. 11; ICTY, The Prosecutor v.
Furundzija, Case No. IT- 95-17/1-A, Appeals Chamber Judgement, 21 July 2000, at para. 189; ICTR, Prosecutor v. Sikubwbabo, ICTR-95-1D-R11bis, Trial Chamber Decision on Prosecutor’s Request for Referral, 26 March 2012, at
paras. 121-125.
101 Prosecutor v. Katanga, Dissenting Opinion of Judge Van den Wyngaert, supra note 36, at para. 28. 102 Ibid, at para. 30.
preclude a recharacterisation of facts during trial by referring to ECtHR case law,104
which indicates that the right includes the right to be informed of the legal characterisation of facts105 – however, the Trial Chamber pointed out in Katanga that
this does not mean that the accused would have to have been able to foresee the possible recharacterisation results already from the commencement of his trial. Instead what needs to be ensured is the fundamental right to submit observations on the recharacterisation as is required under Regulation 55(2), and that all the facts on which the modified charges are based were clearly set out already in the indictment.106 The
Appeals Chamber seems to have accepted that regardless the timing, through the sole act of informing Mr Katanga of the possibility of recharacterisation the Trial Chamber ensured the accused’s right to be informed.107
Judge Van den Wyngaert did not agree with the Majority on the foreseeability issue. According to her interpretation of Regulation 55(2), although the Chamber may give notice of recharacterisation at any stage during the trial, it is under an obligation to “remain vigilant” when contemplating whether to trigger the regulation.108 She called
further attention to the issue that if the Majority considers that the defence should have been able to foresee the recharacterisation, it should itself have been able to foresee it as well and give notice at a more appropriate time during the proceedings.109
The Trial Chamber in Bemba concluded quite simply and shortly that to be adequately informed, regarding the mens rea element, the accused must be notified of the specific state of mind or the evidentiary facts from which the state of mind is to be inferred. Since the charges and the Regulation 55 Notice included this information, there was nothing in the procedure that would breach the safeguards of the regulation.110 This
approach, in my opinion, is too narrow; as mentioned above, the right to be informed of charges extends to legal characterisation of facts, and while the safeguard in
104 Prosecutor v. Lubanga, Appeals Chamber Judgment, supra note 10, at para. 84.
105 See e.g. Pélissier and Sassi v. France, ECHR no. 25444/94, Judgment, 25 March 1999, at para. 51. The Appeals
Chamber in Katanga clearly accepted the human rights law interpretation of the right, i.e. that the “nature, cause and content” of the charges include both the factual allegations and their legal characterisation, see Prosecutor v. Katanga, Appeals Chamber Judgment, supra note 71, at para. 100.
106 Prosecutor v. Katanga, Regulation 55 Decision, supra note 57, at para. 22. 107 Prosecutor v. Katanga, Appeals Chamber Judgment, supra note 71, at para. 100.
108 Prosecutor v. Katanga, Dissenting Opinion of Judge Van den Wyngaert, supra note 36, at para. 40. 109 Ibid, at para. 41.
Regulation 55(2) requires that the parties are informed of the potential recharacterisation, it alone is of little use when the notice comes at late stages in the proceedings. The Bemba Trial Chamber interpretation disregards the effect the timing of the notice undeniably has – the right to be informed is obsolete if the information is received when it has already become useless. As judge Van den Wyngaert noted in Katanga; had the defence been able to reasonably foresee the recharacterisation of the mode of liability, it may have adopted a different defence strategy.111
4.3 Right to have adequate time and facilities to prepare a defence
According to Article 67(1)(b), the defendant has the right to adequate time and facilities for the preparation of his defence. Similar provision can be found in Article 14(3)(b) of the ICCPR, and ECtHR has found in several cases112 that the right to fair
trial in Article 6(3)(b) of the ECHR has been violated when recharacterisation of facts took place without affording the defence a possibility to submit observations. To avoid violations, Regulation 55(2) and (3) provide protection of this right; sub-regulation 3 refers directly to 67(1)(b), and further safeguards for the accused are guaranteed – a suspension of the hearings may be sought and previous witnesses may be re-examined.
On paper, the right to adequate time and facilities would therefore seem to be quite strongly protected. ICC case law has however pointed to the weaknesses of the safeguards on several occasions. The Appeals Chamber in Lubanga quite vaguely settled for noting that how the Regulation 55(2) and (3) safeguards are applied depends on the circumstances of the case.113 In Katanga, the Trial Chamber Majority considered simply that as long as there is a possibility for submissions, no violation has occurred114 – no further analysis on the effects of the timing or other factors was
made regarding this right. In Bemba, the Trial Chamber invited the defence to file submissions after giving notice of possible recharacterisation,115 and when the defence
pointed out that to be required to conduct further investigations and identify new
111 Prosecutor v. Katanga, Dissenting Opinion of Judge Van den Wyngaert, supra note 36, at para. 39.
112 Pélissier and Sassi v. France, supra note 105; Mattei v. France, ECHR 34043/0, Judgment, 19 December 2006. 113 Prosecutor v. Lubanga, Appeals Chamber Judgment, supra note 10, at para. 85.
114 Prosecutor v. Katanga, Regulation 55 Decision, supra note 57, at para. 35 et seq. 115 Prosecutor v. Bemba, Regulation 55 Decision, supra note 86, at para. 6.
witnesses at this late point in the proceedings was unreasonable,116 the Trial Chamber
concluded that the defence had waived the opportunity to address the recharacterisation and saw no further issue with the rights of the defendant.117
It seems that the Trial Chambers have concentrated solely on the right to make submissions as a requirement for not violating the right to adequate time and facilities to prepare a defence. Moreover, the idea that the possibility to make submissions alone would create the reasonable facilities is naïve; as the defence noted in Bemba, at such a late point in the proceedings the financial possibilities to change the course of the defence plan are extremely limited if not entirely drained.118 The timing of the notice
is therefore crucial – having adequate facilities can only be respected through securing adequate time. The earlier the decision on invoking Regulation 55 is made the better the chances for the accused are to actually defend himself against the new charges.
4.4 Right to trial without undue delay
The right to a trial without undue delay is enshrined in Article 67(1)(c) of the Rome Statute, as well as in Article 14(3)(c) of the ICCPR. Article 64(2) of the Rome Statute requires the trial to be conducted expeditiously, while Article 6(1) of the ECHR includes the phrase “within a reasonable time”. It is not however easily applied without a risk of violations or contradictions with other fair trial rights.
The Appeals Chamber in Lubanga referred to the right to a trial without undue delay as not an automatic consequence of recharacterisation of facts, but instead concluded very generally and dismissing the defence’s argument of breach of fair trial rights, that possible undue delay will depend on the specific circumstances of the case at hand.119
The Katanga Trial Chamber elaborated this view further, reminding that international criminal trials tend to go on for very long periods of time due to the complexity of the
116 Prosecutor v. Bemba, Defence Submissions, supra note 85, at paras. 29, 31.
117 Prosecution v. Bemba, Decision lifting the temporary suspension of the trial proceedings and addressing
additional issues raised in defence submissions ICC-01/05- 01/08-2490-Red and ICC-01/05-01/08-2497, TC III, 6 February 2013, at para. 21.
118 Prosecutor v. Bemba, Defence Submissions, supra note 85, at paras. 29, 30. 119 Prosecutor v. Lubanga, Appeals Chamber Judgment, supra note 10, at paras. 86-87.
