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Thesis
The Role of Defence in Pre-Trial Procedure: Lessons from Domestic and
Hybrid Jurisdictions
Author: Alex Foster Student Number: 12528111
Supervisor: Göran Sluiter
Date: 30 June 2019
Looking at the legacy from the ad hoc international tribunals, hybrid international tribunals and reforms in domestic jurisdictions, could efficiency and fair trial rights at international criminal tribunals be improved with increased defence participation in the pre-trial process?
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Chapter 1 - Introduction
Procedural design across the different international criminal tribunals around the world can be seen as an unofficial experiment, spanning decades, attempting to create systems that best suit the idiosyncratic problems posed by international criminal law. In the tribunals established since the second wave began in the 1990s (the first wave being the Nuremberg and Tokyo tribunals following World War 2), each has drawn on features from the two primary categories of legal system: the adversarial and inquisitorial systems, originating from the Anglo-American tradition and continental European tradition respectively. As a result of political realities and in an attempt to combat the problems inherent in prosecuting such complex crimes, this piecemeal selection of features produced a collection of hybrid systems.
One of the characteristics that differs among these systems is the role of defence in the pre-trial stage of proceedings. At one extreme, in adversarial legal systems, the investigation is left entirely up to the parties, with minimal input from the pre-trial judge (if any). The defence is free to conduct their own enquiries subject to any restrictions that might be in place to protect the integrity of the prosecution investigation. This was the approach adopted at the International Criminal Court (ICC) and International Criminal Tribunal for the former Yugoslavia, among others. On the other hand, the defence under an inquisitorial system is restricted to requesting action through the juge d’instruction. The defence may be permitted only to focus on “influencing the construction and content of the dossier which, as the product of a judicially supervised investigation, forms the evidential centrepiece at trial.”1 This model is used at the Extraordinary Chambers in the Courts of Cambodia, a tribunal which drew its procedural origins from Cambodian civil law which, in turn, is a product of the French inquisitorial system. After the initial referral from the Office of the Co-Prosecutors (OCP), the investigation was left to the Co-Investigating Judges (CIJs), with very limited opportunity for participation by defence.
“Participation” by the defence in pre-trial proceedings will mean different things in different legal systems. However, for the purposes of this paper it will refer to the degree to which defence can realise their fact-finding goals through pursuing active functions in the pre-trial process. In an inquisitorial based system these goals might be realised through the degree to which the defence can request action from the investigating judge. In relation to
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adversarial/managerial systems, participation would mean more than simply being allowed to conduct fact-finding activities unhindered by the court, but actively being able to make use of court mechanisms to realise fact-finding goals and overcome difficulties.
This paper will also discuss the role of the pre-trial judge in counterpoint to the role of defence. The role of the judge in proceedings influences the role of the parties and, for the purposes of this paper, the extent of the participation of defence in pre-trial procedure. Therefore, in assessing the role of defence counsel in each of the jurisdictions explored in this paper, it will be equally necessary to assess the role of the pre-trial judge, as the role of one reflects on the powers of the other. They are both, as De Smet puts it “inextricably linked to each other as two sides of a coin.”2 Fundamental to the analysis in this paper is the communication and interaction between the two in different procedural systems.
What lessons can future designers of international criminal procedure draw from the role of defence in this way? Can parallels and recommendations be drawn from other legal systems? This paper intends to examine these questions focussing on procedure at the ECCC, ICC, and domestic legal systems in France and the Netherlands. Chapter 2 of this paper will explain the division of different types of legal systems in international criminal law and what these reflect about the goals and principles underpinning international criminal justice. It will examine basic principles of defence participation in both types of legal systems and discuss how in adversarial legal systems there can be a degree of pre-trial judge involvement in managing investigations, but it is not always equally available to both parties.
The history of international criminal proceedings over the past three decades has revealed the extent of the practical difficulties involved in effective investigations. The size and scope of the cases involved typically results in long periods of delay between offending, conclusion of investigation, trial and appeal. There are also obstacles that arise from the delicate political situations that inevitably precede international criminal trial. States that are now led by the party that deposed the defendant may distrust defence teams or refuse access to the parties completely. Chapter 3 will discuss the proposal that, while these issues plague international criminal investigations generally, it is more often the defence that is disadvantaged in these situations. This paper will examine how these issues in international
2 Simon De Smet, “A Structural Analysis of the Role of the Pre-Trial Chamber in Fact Finding” in Carsten
Stahn and Goran Sluiter (eds), The Emerging Practice of the International Criminal Court, Koninklijke Brill (2009), p.408.
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criminal investigations create issues in fair trial rights and equality of arms between the parties at the pre-trial stage.
Chapter 4 will then examine two instances of reform in domestic jurisdictions that go to the heart of the issue of defence participation in pre-trial procedure. It will first examine the reforms to French criminal procedure in 1993 and 2000 which, inter alia, sought to strengthen the role of the defence in relation to the juge d’instruction, permitting defence counsel to request investigative action and participate in witness interviews. It will discuss the influence on international human rights standards on these reforms. This chapter will then examine the reforms to Dutch criminal procedure that came into effect in 2013. It will discuss how the reforms propose a system in which the defence, operating in a managerial procedural environment, has an active role in requesting investigative acts, steering the direction of prosecution investigations and participating in witness interviews.
Chapter 5 will then examine the procedure and jurisprudence of the ECCC in depth as a prominent example of a system which adopted the investigating judge model. This chapter will examine how the ECCC Internal Rules presented a limited right of defence to participate in pre-trial process, and how the case law of the Pre-Trial Chamber demonstrates the difficulty the Chamber faced in reconciling a criminal procedure which deviated from its French counterpart. It will then discuss how this influences the conception of defence participation in inquisitorial systems generally. It will conclude that the reforms in domestic jurisdictions increasing the involvement of defence and improving communication between the parties and the investigating judge suggest that the ECCC’s restrictive approach did not meet appropriate fair trial outcomes.
Finally, in Chapter 6, this paper will examine the style of defence participation of the ICC in depth as a prominent example of a system which adopted an adversarial/managerial model. It will examine the way in which the Pre-Trial Chamber can assist the parties in their investigations through the procedures in Articles 56 and 57. It will discuss the ways these procedures may act to discourage defence actively requesting them and how the Pre-Trial Chambers views the overall purpose of the pre-trial stage. It will be concluded while there are issues in defence fact-finding ability that are inherent in international criminal law, there are structural challenges in the adversarial system that would prevent a more interventionist role from the Pre-Trial Chamber.
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In conclusion, this paper will argue that, in the context of international tribunals with an inquisitorial basis, increased participation from defence would meet some of the fair trial outcomes that are sought to be addressed in reforms in domestic jurisdictions. The ECCC’s restrictive approach is not consistent with the increased communication and involvement for defence in the pre-trial process of France and the Netherlands. For adversarial/managerial systems, the answer is more complicated. While there are imbalances in fact-finding abilities of the parties at the ICC, an increased involvement of the Pre-Trial Chamber in assisting the parties or increased communication between the parties would undermine the core adversarial characteristics of the court. While improved communication may benefit fair trial outcomes and efficiency at tribunals that use the ICC model, it would be difficult to implement any changes without a corresponding change in culture about the role of defence in the pre-trial process.
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Chapter 2 – Categories of legal systems
The procedure of international criminal tribunals draws influences from the two dominant legal systems: The adversarial system, originating from the Anglo-American common law tradition, and the inquisitorial system, originating from the European continental civil law tradition. Of course, modern domestic legal systems do not fall into either category as a pure ideal but are instead predominated by one system while borrowing features from the other. Scholars have tracked the changing features of various domestic legal systems over the years as they attempt to improve criminal procedure.3 In international criminal law, the creation of procedure for each tribunal from scratch has resulted in tribunals featuring a hybrid of these two systems. This can be seen in the way they have pulled core features from each to form their procedure. For example, an adversarial presentation of evidence and guilty pleas (which are characteristics of adversarial systems) combined with relaxed rules on admissibility of evidence and appeals on both conviction and acquittal (which are characteristics associated with inquisitorial systems).
In the decades since the second wave of international criminal tribunals were established, it has become clear that problems continue to confront effective, efficient and fair trials. The problems are inherent in the type of crimes that are being tried: The size and complexity of the trials means that trials typically last many years, with long periods between when a witness is first interviewed before they finally give evidence. Accused are also subject to pre-trial detention that lasts many years, with perhaps no recourse to compensation if an acquittal follows.4 There are also problems that have arisen in individual cases but threaten wide ranging implications. At the ICC, cases have been derailed by witness tampering and the prosecution’s use of intermediaries to conduct investigations.5 Mixing features from adversarial and inquisitorial systems has been an integral part of procedural design in
3 See, for example, Salvatore Zappala, “Comparative Models and the Enduring Relevance of the Accusitorial –
Inquisitorial Dichomoty” in Göran Sluiter et al, International Criminal Procedure: Principles and Rules, Oxford UP (2013)
4 See, for example, ICC, Prosecutor v Jean-Pierre Bemba Gombo, Appeal Judgment, ICC-01/05-01/08, Appeal
Chamber, 8 June 2018.
5 Göran Sluiter, “Should We Give the Investigating Judge a Chance in International Criminal Proceedings,”
(draft) accepted for publication in Suzannah Linton & Liu Daqun (eds), East West Perspectives on International
Justice: Papers from Conferences in Beijing and Hangzhou (2015-2017) (forthcoming 2018/2019 with CUPL
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international tribunals, and has continued to be the subject of extensive scholarly debate in attempts to find solutions to some of these problems.
The features of adversarial and inquisitorial legal systems reflect certain cultural beliefs about the role of government and criminal justice in society. 6 In his important work, the Faces
of Justice and State Authority, Mirjan Damaška proposed two “ideal types” of the structure and
function of government.7 These ideals fell into extremes of “active” or “reactive,” and “coordinate” or “hierarchical.”8 He argued that adversarial characteristics reflect trust that the parties to a conflict are best placed to represent their own interests, and that the administration of justice should be concerned with “conflict solving” and government should be fundamentally reactive and coordinate in nature.9 On the other side, the inquisitorial system reflects cultural beliefs including a trust in public authorities, and the role of government as “policy implementing”, active and hierarchical in nature.10
In international criminal justice, the choice of adversarial or inquisitorial features are selected in an attempt to deliver the different goals of international criminal justice. These diverse goals have been identified as retribution, deterrence, rehabilitation, providing reparations and setting a historical record.11 Different features are thought to realise these goals in different ways. For example, Swart argues that there are various goals that set international criminal justice apart from domestic justice. He highlights “the ambition to change a culture of impunity, to provide an accurate historical record of events that may make it more difficult for some to negate history, to provide satisfaction to the victims of crimes committed by an offender and to promote a process of reconciliation.”12 He argues that these goals are policy-implementing and hierarchical in nature, and may be better suited by procedural systems that maximise fact-finding.13 There are certain goals which are purported to be essential across both systems, although they might be approached in different ways, such as actually reaching just outcomes and protecting the rights of the accused. Human rights standards are understood to apply to international criminal tribunals, but as will be discussed further below, their vague
6 For a full discussion, see Bert Swart, “Damaska and the Faces of International Justice,” Journal of
International Criminal Justice 6 (2008), pp 90 – 92.
7 Mirjan Damaska, The Faces of Justice and State Authority - A Comparative Approach to the Legal Process,
New Haven and London: Yale University Press (1986)
8 Bert Swart, above n.6, p.91. 9 Ibid., 90.
10 Ibid.
11 Robert Cryer et al, An Introduction to International Criminal Law and Procedure, Cambridge UP (2014), pp.
28-45.
12 Swart, above n.6, p.102 13 Ibid.
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content means they provide little clarity in the way of guidance of how procedure should be designed.14
Key Characteristics of Adversarial and Managerial Jurisdictions
For the purposes of the conclusions and recommendations that are to be drawn in this paper, it will be necessary to generalise and identify two primary procedural categories of current tribunals. The first is the “managerial/adversarial” model which is currently the most common. It features a procedural system based on the adversarial system, with the parties being responsible for the investigation and presenting the evidence at trial. However, various features have been adopted from the inquisitorial system in order to meet some of the idiosyncratic demands of ICL, such as the involvement of civil parties, a pre-trial judge to provide some degree of oversight over the investigation or more scope for trial judges to question witnesses or call evidence.
For example, the initial procedural structure of the ICTY was primarily adversarial in nature. The prosecution and defence were given procedural equality, with equal roles in conducting investigations during the pre-trial process.15 The defence teams were given similar procedural rules for developing their own case, and there was no statutory duty imposed on the Prosecution to conduct investigations impartially (unlike at the ICC).16 However, over time the tribunal adopted a pre-trial judge system to provide judicial management over the prosecution-run investigations.17 This was a response to the need for improved efficiency and pressure to deal with the mounting case load.18 There was a perception that a pure adversarial system could not handle the complexities of ICL and the multitude of different goals it was seeking to address.19
Similarly, the procedural design of the ICC reflects a move towards maintaining “managerial” judge model imposed over an adversarial investigation and trial structure. The ICC has implemented an entire Pre-Trial Chamber to address pre-trial issues and allow judges
14 K.J Zeegers, International Criminal Tribunals and Human Rights: Adherence and Contextualisation, (2015),
p. 44.
15 Maximo Langer, “The Rise of Managerial Judging in International Criminal Law,” The American Journal of
Comparative Law, Vol. 53, No. 4 (Fall, 2005), pp. 835-909, at 861
16 Ibid.
17 Göran Sluiter, “Procedural Lawmaking at the International Criminal Tribunals”, Judicial creativity at the
international criminal tribunals, Oxford UP (2010), p. 318
18 Langer, above n.15, pp.869 – 873. 19 Ibid.
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more influence over the final charges that ultimately go to trial. As some have pointed out, these adoptions of “inquisitorial” characteristics move the role of the judge towards a more “managerial” role rather than that of a fully active investigating judge.20 In his article, The Rise of the Managerial Judge, Langer discusses the system employed in US civil law cases and defines managerial judging at the ICTY as using judicial intervention to ensure the parties are acting efficiently.21 The definition of adversarial/managerial jurisdictions employed in this paper covers not just the characteristics of managing the parties to improve efficiency, as identified by Langer, but also the role of a Pre-Trial Judge in active involvement in investigations to ensure they are completed adequately.
In adversarial legal systems the parties are free to conduct their own investigations. As a result, the defence starts with a high degree of participation in the pre-trial process. There are typically no limits to the investigative actions that defence can take, within boundaries of the law and limits set up by conditions to protect the safety of witnesses or integrity of the police investigation. However, as will be explored below, even with resource equality and no statutory restrictions there can be an imbalance in fact-finding abilities between the parties. Thus there are situations where it may be necessary for the court to use its powers to assist the parties.
Taking the Australian jurisdiction of Victoria as an example, the judge’s role prior to trial is to confirm whether there is sufficient evidence to commit the accused for trial.22 The judge also has a minor part to play in fact-finding. The prosecution can use the coercive power of the court to force a reluctant witness to give evidence prior to trial, under what is known as a “compulsory examination.”23 This is typically used in late stages of the investigation and is entirely prosecution driven – the application for this procedure is only available to the prosecution and the prosecution is only permitted to ask questions of the witness.24 The accused is permitted to attend the hearing, but cannot cross-examine the witness.25 The pre-trial judge plays a role only in that he or she is required to assess whether such an examination of a witness is necessary in the interests of justice and to make the order listing the hearing.26 The
20 Sluiter, above n.17, p 320. 21 Langer, above n,15, pp.869 – 873.
22 Criminal Procedure Act 2009 (Victoria, Australia), s.128; Forsyth v Rodda (1988) 37 A Crim R 50
(Australia) (The test being whether a reasonable jury would convict the accused, taking the prosecution case at its highest.)
23 Criminal Procedure Act, s.103 24 Criminal Procedure Act, s.106(2) 25 Criminal Procedure Act, s.106(3) 26 Criminal Procedure Act, s.104
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examination is then conducted before the pre-trial judge, between the prosecution and the witness.27
In the United States, the Federal Rules of Criminal Procedure provide a procedure by which the parties can request the court to order that a witness be deposed in order to preserve testimony for trial.28 The accused has a right to attend the deposition and “the scope and manner of the deposition examination and cross-examination must be the same as would be allowed during trial.”29 This procedure was intended to be used only in exceptional circumstances and was not intended to override the principle that witnesses should be required give evidence in person.30 This procedure was originally only available to the defence, but this was changed in 1975 to allow the prosecution access to it as well.31
These examples demonstrate that in traditionally adversarial domestic jurisdictions where the parties are given complete procedural equality to conduct their own investigations, there are some instances of judicial intervention. The US example shows a procedure, similar to that adopted by the ICC under Article 56, that is used to preserve evidence prior to trial. As will be discussed further below, the provision differs from that under the Rome Statute in that the procedure that provides equal access from a practical standpoint to defence and prosecution. The Australian example is used only to use the coercive powers of the court where police powers have been unsuccessful. However, it is only available to the prosecution.
It should be noted that fundamental to adversarial jurisdictions is an unbalanced system of disclosure whereby the prosecution is under onerous obligations to disclose any relevant evidence and the defence is generally permitted to keep their strategy and evidence confidential until the trial.32 This provides a strategic advantage to defence and may cause defence counsel to be reluctant to use actions by a PTJ to publicly hear witnesses or take investigative action prior to trial. Any discussion of the interaction between the defence and pre-trial judge needs to be understood with this in mind.
27 Criminal Procedure Act, s.106(2)
28 US Federal Rules of Criminal Procedure (1 December 2012), Rule 15.
29 US Federal Rules of Criminal Procedure (1 December 2012), Rule 15(c) and (e) 30 Rule 15. Depositions (Dec. 1, 2012): Notes, Legal Information Institute,
<https://www.law.cornell.edu/rules/frcrmp/rule_15#>
31 Rule 15. Depositions (Dec. 1, 2012): Notes, Legal Information Institute,
<https://www.law.cornell.edu/rules/frcrmp/rule_15#>
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Key Characteristics of Inquisitorial Systems
Less common among the international tribunals, but still significant given the historical importance of each one, is the “pure” inquisitorial model. It is characterised by investigations conducted almost entirely by an investigating judge (juge d’instruction) with little input from the parties. These characteristics defined the procedure at the ECCC in Cambodia and the EAC in Senegal.
Inquisitorial jurisdictions feature a low degree of defence participation in the pre-trial stage. Police, prosecutors, and investigative judges are responsible for finding both incriminating and exculpatory evidence. Traditionally, defence play a sidelined role during the investigation stage in inquisitorial jurisdictions, and is not permitted to conduct its own independent investigations.33 In France for example, the lawyer is described as functioning as an “auxiliary to the magistrate,” influencing how investigations are carried out, but having no direct investigatory powers themselves.34 As Hodgson explains, “she may scrutinise the results of the investigation, challenge irregularities in the procedure, request that certain investigations be carried out and be present during the interviews of her client and other witnesses.”35 Historically, the French Code de Procédure Pénale allowed for the procureur to request investigative actions by the juge d’instruction, after having made the initial referral.36 Defence were not permitted to make requests for investigative action, however this changed through reforms instituted in 1993 and 2000 which will be discussed in more detail below.
The Extraordinary African Chambers (EAC), established in Senegal to try the former president of Chad, Hissene Habré, provides an illustrative example. While this court was not an international tribunal in the sense traditionally associated with the ad hoc tribunals and the ECCC, it faced many of the same challenges. It featured a court staffed by Senegalese judges and investigations carried out by a Senegalese juge d’instruction into international crimes committed in a foreign territory.37 It applied domestic Senegalese criminal procedure38, which
33 Leslie Haskell, The Long Arm of Justice: Lessons from Specialised War Crimes Units in France, Germany
and the Netherlands, (Human Rights Watch, 2014)
https://www.hrw.org/report/2014/09/16/long-arm-justice/lessons-specialized-war-crimes-units-france-germany-and
34 Hodgson, above n.1, p.124. 35 Ibid.
36 Jacqueline Hodgson, “The Role of the Criminal Defense Lawyer in an Inquisitorial Procedure: Legal and
Ethical Constraints,” 9 Legal Ethics 125 (2006), p.130.
37 Emanuele Cimiotta, “The First Steps of the Extraordinary African Chambers: A New Mixed Tribunal?”
Journal of International Criminal Justice 13 (2015), p.187
38 Statute of the Extraordinary African Chambers within the courts of Senegal created to prosecute international
crimes committed in Chad between 7 June 1982 and 1 December 1990, Article 17; Cimiotta, above n.37
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is based on the French system (albeit prior to the reforms that will be discussed in Chapter 4). The Procureur de la République was responsible for initiating the investigation by submitting a “requisitoire” to the juge d’instruction after conducting a preliminary examination.39 Unlike the modern French system, only the Procureur de la République was able to make requests for investigative action. The Procuerer could submit a request for all acts that appear to him or hear to be useful to the manifestation of the truth.40 This effectively excluded defence from the investigative stage of the proceedings, being unable to participate in the pre-trial process or to guide the investigation.
39 Code de Procédure Pénale Sénégalais, Article 71 40 Code de Procédure Pénale Sénégalais, Article 73
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Chapter 3 – Determining Efficiency and Fair Trial Rights in ICL Fair Trial and Efficiency in International Criminal Law
It is difficult to assess efficiency and fair trial outcomes in international criminal law. There are many different factors that point to the success or failure of a particular case. It is also difficult to reconcile competing goals of international criminal law in determining whether outcomes are successful or not. International fair trial norms are enshrined in various international instruments.41 Zeegers argues that the international criminal tribunals are bound by international human rights law, on the basis that the tribunals have a legal personality and act as subjects of international law.42These norms reflect “meta-principles of fairness” that are shared across all national systems.43 Both the adversarial and inquisitorial system purport to achieve the same ends in upholding human rights, but may approach these issues in different ways. Significantly, none of the human rights instruments dictate which model of justice should be adopted by a jurisdiction to best uphold human rights.44 As Megret summarises, “The debate between traditions occasionally looks up to human rights for mediation, only to find human rights law looking down for guidance.”45
These standards provide partial guidance as their content can be unclear or not directly related to the procedural issue. For example, in relation to the fair trial guarantees in Article 6 of the European Convention on Human Rights (ECHR)46, the European Court of Human Rights examines fairness of the trial procedure as a whole.47 The Court chooses not to look at individual rules as it is considered to be a matter for national legislators.48 It is difficult to draw conclusions on individual aspects of pre-trial procedure that may or may not be expected to be cured at the trial stage. One of the aspects of the degree of participation by defence may not infringe on free trial rights as a whole. There is a certain amount of accepted deviation in how human rights are upheld by different systems. Therefore, human rights standards provide a
41 See for example, UN General Assembly, International Covenant on Civil and Political Rights, 16 December
1966; Council of Europe, European Convention for the Protection of Human Rights and Fundamental
Freedoms, as amended by Protocols Nos. 11 and 14, 4 November 1950.
42 Zeegers, above n.14 p.53. 43 Swart above n.6, p. 96. 44 Ibid., at pp. 95 - 96
45 Frederic Megret, “Beyond Fairness: Understanding the Determinants of International Criminal Procedure”,
UCLA Journal of International Law and Foreign Affairs (2010) at p. 23
46 European Convention on Human Rights, as amended by Protocols Nos. 11 and 14 supplemented by
Protocols Nos. 1, 4, 6, 7, 12, 13 and 16 (Rome, 4.XI.1950) (“ECHR”)
47 Hirsch Ballin, Anticipative Criminal Investigations, Asser Press (2012), p55 48 Ibid.
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starting point, albeit a fluid one, for determining how the procedural choices of different tribunals can be said to be effective.
Measuring efficiency in international criminal tribunals is also difficult. The managerial reforms instituted at the ICTY were intended to increased efficiency in trials. However, an early analysis of the results reported that they had not delivered on their promised outcomes, such as “limiting the number of incidents under discussion at trial, of live witnesses testifying at trial, or of interlocutory appeals entertained by the appeals chamber.” 49 However, the report claimed that this was a result of the judges making limited use of the their judicial powers, and the parties “neutralising” the reforms.50 Therefore, the experience at the ICTY does not suggest that addition of more inquisitorial or managerial aspects to international criminal procedure necessarily increases efficiency outcomes. This paper will examine how efficiency has sought to be improved in reforms in domestic jurisdictions, but the difficulty in analysing outcomes means that it will be difficult to draw conclusions in this regard.
Equality of Arms and Investigations
Issues surrounding equality of arms in investigations have been faced at the ad hoc tribunals, hybrid tribunals and the ICC to varying degrees.51 A report by the International Bar Association highlighted equality of arms issues as central to many of the fairness issues it identified at the ICC.52
The principle is not incorporated into the various statutes of international courts or tribunals. It is seen as being subsumed into fair trial rights more generally.53 These fair trial rights are provided for in Article 14 of the ICCPR and Article 6 of the ECHR at the international level, and in the various fair trial provisions of the statutes of the tribunals.54 Taking the ICC as an example, fair trial rights are phrased as minimum standards which include the right for
49 Maximo Langer and Joseph Doherty, Managerial Judging Goes International But Its Promise Remains
Unfulfilled: An Empirical Assessment of the Reforms to Expedite the Procedure of the International Criminal Tribunal for the Former Yugoslavia, UCLA Law & Economics Series (2010), pp.60 – 61.
50 Ibid.
51 See examples, ICTY, Prosecutor v. Tadić, Judgement, IT-94-1-A, A. Ch., 15 July 1999; ICTR, Prosecutor v.
Kayishema v. Ruzindana, Judgment (Reasons), ICTR-95-1-A, A. Ch., 1 June 2001, par. 72; ICTY, Prosecutor v. Milutinović et al., General Ojdanić’s Third Motion for Stay of Proceedings, IT-05-87-T, T. Ch., 23 July 2007.
52 Fairness at the International Criminal Court, International Bar Association’s Human Rights Institute Report,
2011, available at: http://www.ibanet.org, p11
53 Jarinde Tuinstra, Defence Counsel in International Criminal Law, Asser Press (2009) p.153;
54 See, for example, Updated Statute of the ICTY, (last amended 7 July 2009), (1993) (“ICTY statute”) Article
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the accused “to have adequate time and facilities for the preparation of the defence and to communicate freely with counsel of the accused's choosing in confidence…”55. At its core, the principle requires that each party gets “a reasonable opportunity to present his case – including his evidence – under conditions that do not place him at a substantial disadvantage vis-a-vis his opponent.”56 This principle can only be derogated from based on law and justified on objective and reasonable grounds.57
Another relevant provision is the right to have “to examine, or have examined, the witnesses against him or her and to obtain the attendance and examination of witnesses on his or her behalf under the same conditions as witnesses against him or her. The accused shall also be entitled to raise defences and to present other evidence admissible under this Statute.”58 This right does not provide an absolute right to call any witness, but is instead concerned with the equality to call witnesses as between the defence and the prosecution.59
There is little specificity in these human rights standards and what degree of participation would be required from defence to be compliant. The degree of participation is dependent on the features of the system in which defence are operating. The use of an impartial judicial officer who conducts investigations into inculpatory and exculpatory will obviously call for less participation. As Ballin explains, Article 6 rights are assessed based on trial procedure as a whole.60 However, they relevant to the pre-trial stage in so far as the fairness to the trial is likely to be seriously prejudiced by the initial failure to comply with pre-trial procedures.61 Ballin claims that this type of oversight by fair trial standards calls for transparency in pre-trial proceedings to enable control over the investigation and prevent the defence from being hindered in the exercise of their rights.62
55 UN General Assembly, Rome Statute of the International Criminal Court (last amended 2010), 17 July 1998
(“Rome Statute”), Article 67(1)(b)
56 ECtHR, Dombo Beheer BV v Netherlands, 27 October 1993, para 33; Tuinstra p 154; International Covenant
on Civil and Political Rights (United Nations [UN]) 999 UNTS 171, UN Doc A/6316, UN Doc A/RES/2200(XXI), Annex, UN Reg No I-14668, Part III, Art.14
57 Human Rights Committee, General Comment No 32: Article 14: Right to equality before courts and tribunals
and to a fair trial, 23 August 2007, p.3
58 Rome Statute, Article 67(1)(e)
59 Sarah Joseph and Melissa Castan, The International Covenant on Civil and Political Rights: Cases, Materials,
and Commentary, Oxford (2013)
60 Ballin, p.56 61 Ballin, p 56 62 Ballin, p 58
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The principle of equality of arms can be divided into two categories: resource equality and procedural equality.63 While issues of resource equality are not the focus of this paper, it is still necessary to outline them here, as they closely relate to issues of procedural equality. Resource equality requires a balance in resources (funding, staff, material) between the parties to conduct the investigation and trial to an adequate standard. Whether resources are adequate depends on the role of the parties in the proceedings.64 The need for resource equality has created a tension in international tribunals with an adversarial/managerial procedural design. The fundamental structure of the trials as an adversarial contest between the parties is predicated on the idea that the parties have equal access to resources and ability to conduct investigations and present their evidence. At the ICC, the OTP’s mandated duty to investigate both inculpatory and exculpatory evidence means that budget allocation for an investigation is not straightforward.
This challenge of financial resource allocation links the primary issue of procedural equality to be discussed in this paper: The difference in access to evidence and fact-finding capabilities. Even assuming a perfectly assessed balance of resources between the parties, the idiosyncratic problems faced by international criminal investigations create procedural inequalities. First, there is often significant delay between the commencement of the prosecution investigation and the commencement of the defence investigation. This is due in part to the unavoidable fact that it often takes time to collect sufficient evidence to meet the evidentiary threshold to charge a suspect.65 Another issue is the procedural and structural limitations imposed by the courts themselves, which delay the involvement of the suspect in order to preserve the integrity of the investigation. This creates a somewhat unavoidable structural imbalance in fact-finding capabilities from the start. In itself, this does not result in an unfair trial, as these issues may be ameliorated at the trial stage, through other procedural rules and principles of criminal law.66
On top of these structural issues, international criminal law presents further issues in ensuring balanced investigations. Defence teams often have more difficulty adequately
63 See for example, International Bar Association, above n.52, stating the issues primarily rely with procedural
equality.
64 Tuinstra, above n.53, p.157. 65 Tuinstra, above n.53, p.164.
66 See for example Ballin, above n.46, p.56; ICC, Prosecutor v. Abdallah Banda Abakaer Nourain and Saleh
Mohammed Jerbo Jamus Decision on the defence request for a temporary stay of proceedings,
ICC-02/05-03/09, Trial Chamber IV, 26 October 2012 (“Decision on Temporary Stay”), Concurring Opinion of Judge Eboe-Osuji, para 3.
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conducting investigative acts than the prosecution. For example, a state’s willingness to cooperate may depend on how defence lawyers are perceived at the national level.67 Whether the state’s domestic legal system normally sees defence teams conducting investigations whether they play sidelined until trial is a factor that may contribute to the degree cooperation.68 Furthermore, due to the politically complex nature of international criminal cases, state authorities sometimes view defence teams as being on the side of the “enemy.”69 States may also deny defence teams access by reason of national security.70 As a result of these problems, there have been instances when states have been uncooperative with defence teams seeking to conduct their investigations on their territory.71 Similarly, international organisations which have been heavily relied upon by the prosecution to prepare cases may deny access to defence teams.72 As will be discussed below, the ad hoc tribunals and ICC have held that this denial of access does not in itself amount to unfairness. However, this demonstrates the practical difficulties faced by defence teams in international criminal law which may place them at a real disadvantage in comparison to the prosecution.
Equality of arms issues are also faced by domestic legal systems attempting to exercise universal jurisdiction over international crimes. A recent Human Rights Watch report noted that, even in inquisitorial system jurisdictions, there was a need for greater defence autonomy in investigations in order to offset problems such as that fact that “the crimes typically were committed in distant countries, often many years earlier, witnesses may be dispersed or hard to find, and national authorities in the territorial state may not cooperate with the investigation.”73 The report highlights the importance of active fact-finding abilities stating, “To ensure a fair trial, the accused must have a reasonable opportunity to present evidence and confront witnesses against him or her. It is extremely difficult to do this without setting foot in the territorial state and being able to probe evidence uncovered by law enforcement and judicial authorities in an effective manner.”
67 De Smet, aboven.2, p.426 68 Ibid.
69 Tunistra, above n.53, p.164. 70 Ibid., p.180
71 Buisman and Hooper, “Defense Investigations and the Collection of Evidence” in Colleen Rohan, Gentian
Zyberi (eds) Defense Perspectives on International Criminal Justice, Cambridge (2017), p.538
72 Tuinstra, above n.53, p.179
73
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Chapter 4 – Legal Reform in Domestic Jurisdictions
Despite the uncertain content of fair trial standards across different jurisdictions and legal systems, the incorporation of the ECHR into domestic criminal law in some European states has been partly responsible for an increase in defence participation in the pre-trial process. France and the Netherlands are two jurisdictions which have implemented reforms aimed at both improving defence participation in the pre-trial process and limiting the powers of the investigating judge. This chapter will examine what has inspired these reforms and what they have sought to achieve.
France
Historically, the French legal system embodied the inquisitorial features of an investigating judge (juge d’instruction) who was responsible for conducting the investigation and had a duty to investigate inculpatory and exculpatory evidence equally.74 This was prepared in a dossier which was provided to the parties to the trial at a late stage. Defence counsel had no ability to influence the investigation or the contents of the dossier. Her role was limited to what could be achieved at trial in proposing an alternative interpretation of the dossier.75 The preliminary investigation “remained dominated by the interests of the state search for the truth and a view of the suspect as object of inquiry rather than an active subject.”76
Reforms to the French criminal justice system have highlighted the recognition of the importance of a strengthened role for defence in the pre-trial process and communication between defence counsel and the investigating judge. The reforms implemented in 1993 and 2000 modified the role of the defence counsel in pre-trial procedure, allowing them access to the defendant in custody, permitted earlier access to the dossier of evidence and the right to attend judicial interviews of the defendant.77 Significantly, with the introduction of Article 82-1 to the French Code de Procédure Pénale, defence counsel were given the ability to request
74 Stewart Field and Andrew West, “Dialogue and the Inquisitorial Tradition: French Defence Lawyers in the
Pre-Trial Criminal Process,” Criminal Law Forum 14: 261–316, (2003). p.263
75 Hodgson, above n.1.
76 Field and West, above n.74, p.285.
77 Loi no 1993-2 du 4 janvier 1993 portant réforme de la procédure pénale, Loi no 1993–1013 du 24 août 1993
modifiant la loi no 1993–2 du 4 janvier 1993 portant réforme de la procédure pénale, Loi no 2000–516 du 15 juin 2000 renforçant la protection de la présomption d’innocence et les droits des victimes ; See also Field and
19
investigative action for the first time.78 It was accompanied by the right for defence lawyer to request to be present during any judicial examination of a witness.79
The motivations for these reforms arose from the heart of the relationship between defence counsel and the investigating judge. The 1991 Delmas-Marty Commission which provided many of the recommendations that led to the reforms saw dialogue between the parties and the judge as key to the inquisitorial process and its “search for truth.”80 The commission pointed to a serious imbalance between the powers of the prosecution and defence in the investigation stage.81 It also highlighted the influence of the European Convention on Human Rights and the fair trial rights embodied therein.82
However, as Hodgson points out, there have been limitations to the realisation of these reforms in practice. The structure of the French criminal procedure often limits the degree of real participation that was sought in the reforms. For example, the juge d’instruction still retains substantial power over the degree to which the parties participate, and may use blatant or subtle means to keep counsel from interfering in the process.83 Hodgson concludes that in defence are still sidelined in the pre-trial process and the communication issues that were identified as the impetus for those reforms have not been truly addressed. Despite the reforms implemented, proper defence participation in French pre-trial procedure will require a cultural change.84
Defence counsel “may scrutinise the results of the investigation, challenge irregularities in the procedure, request that certain investigations be carried out and be present during the interviews of her client and other witnesses.”85 The defence may also serve as a “useful counter-reflex, ensuring that all angles are covered during the enquiry.”86 This involvement is still limited by French legal culture, while still ostensibly moving towards more open communication inspired by the ECHR. Nevertheless, these reforms illustrate a move by an historically important inquisitorial jurisdiction in adopting reforms to reflect fair trial standards as set out in international human rights standards. They highlight the importance of increased communication and defence involvement in investigations in which significant discretionary
78 Field and West, above n.74 p.264.
79 Jean Pradel, Manuel de Procédure Pénale, Edition Cujas (2006), p.661. 80 Field and West, above n.74, p.265.
81 Commission Justice Pénale et Droits de l’homme (Chair: M. Delmas-Marty), La Mise En Etat Des Affaires
Pénales (1991), (“1991 Delmas-Marty Commission Report”), p.53.
82 1991 Delmas-Marty Commission Report, p.93, 133. 83 Hodgson, above n.1, p.125.
84 Ibid., p.126. 85 Ibid., p.124 86 Ibid.
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power is vested with a judge. The incorporation of the ECHR into French law partly inspired these reviews of French criminal process and resulted in changes which saw the defence gain rights such as equal access to the dossier and the ability to request investigative action.87
The Netherlands
Among the countries participating in domestic prosecutions of international crimes, the Netherlands has the most longstanding and robust war crimes unit and has been historically active in this area.88 It provides an interesting case where reforms have seen the role of the pre-trial judge move away from the pure inquisitorial model and increased the role of the defence. The Netherlands criminal procedure previously on the French Code, with complex investigations being carried out by the investigating judge (rechter-commissaris).89 The central role of the judge in the pre-trial process was designed to guarantee impartiality and independence in pre-trial investigations.90 The fact-finding role of the judge in investigations was traditionally limited to more complex matters.91
The reforms which came into effect on 1 January 2013 sought to strengthen the supervisory responsibilities of the rechter-commissaris while keeping the overall responsibility for investigations squarely in the hands of the Public Prosecution Service.92 The
rechter-commissaris monitors the balance between legitimacy and efficiency in the preliminary
investigation,93 taking a more supervisory role with specific powers to conduct investigative acts when required.94 As a part of the judiciary under the Dutch constitution, the PPS has a duty to conduct investigations impartially.95
87 Ibid., pp.39 – 45, 119 – 121. 88 Haskell, above n.33. 89 Ballin, above n.46, p.40. 90 Ibid., p.67 91 Sluiter, above n.5, pp.6 - 7
92 N J M Kwakman, “De nieuwe Wet versterking positie rechter-commissaris,” Trema, 35 (2012), 228-
233, p.1.
93 Ballin, above n.46, p.94.
94 Ballin summarises the repositioning of Dutch criminal procedure as follows: “The public prosecutor directs
the criminal investigation, with a supervisory role over the police, and the examining magistrate exerts judicial control over the course of events in the criminal investigation, in particular over the legitimate use of
investigative powers, over the progress of the investigation and over the realization of the duty to seek the truth in a balanced and complete manner.”
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Under the reforms, the defence may request the rechter-commissaris to conduct investigative acts, including examining witnesses.96 The defence may attend witness interviews conducted by the rechter-commissaris and put questions to the witness under the supervision of the judge.97 Ballin describes the role of defence as to control whether all procedural rules has been observed, with access to the dossier giving defence a means of controlling the pre-trial investigation.98 The commentary on the DCCP highlights the importance of the defence having sufficient opportunities to supplement the investigation or steer the direction of the investigation.99 It emphasises a proactive approach by defence, noting that the defence can make its views known at an early stage. This, the commentary argues, is also important for the sake of efficiency.100 The commentary also gives examples why suspect may request investigative action: It highlights the importance of giving suspect opportunities to supplement the investigation or steer its direction, which is still primarily carried out by the PPS.101 It also emphasises an active role by defence in communicating the substance of their case at an early stage.102
The new laws emphasise the communication between the rechter-commissaris, the Public Prosecution Service and the defendant, during the pre-trial process. This increased communication was aimed to prevent the rechter-commissaris from unintentionally interfering with the investigation.103 This combination of an increased supervisory role of the
rechter-commissaris and increased communication between the parties in principle aims to ensure that
investigations are prepared properly for trial, and that issues are appropriately confined. Although the importance of the use of these measures in proceedings in international crimes was not discussed in the commentary, the types of crimes referred to as requiring
96 Wetboek van Strafvordering, English translation, text valid on: 08 October 2012, (“Dutch Code of Criminal
Procedure”), Article 182; Ballin p. 42;
97 Dutch Code of Criminal Procedure, Article 186a. 98 Ballin, above n.46, p.42.
99 PPJ van der Meij, “1. Algemeen” Tekst & Commentaar Strafvordering, Onderzoekshandelingen R-C, (2019)
(“De wetgever achtte het van belang dat de verdediging ter voorbereiding van het onderzoek ter terechtzitting op elk moment in het vooronderzoek voldoende mogelijkheden bezit het onderzoek aan te vullen, of zonodig daadwerkelijk de richting van het onderzoek bij te sturen.”)
100 R.G.A. Beaujean, “22.4.2 Onderzoekshandelingen op verzoek van de verdachte,” Tekst & Commentaar
Strafvordering, Onderzoekshandelingen R-C, (2013), (“De verdediging zal – ook om redenen van een efficiënte
behandeling van de zaak op het onderzoek ter terechtzitting – niet steeds tot het onderzoek ter terechtzitting moeten wachten om haar zienswijze en wensen tot het verrichten van aanvullend onderzoek kenbaar te maken.”)
101 Ibid. 102 Ibid.
103 Ibid. (“In de regeling wordt de nadruk gelegd op de communicatie tussen de R-C, de OvJ en de verdachte,
zowel voorafgaande aan als tijdens het verrichten van de onderzoekshandelingen. Hiermee kan worden voorkomen dat de R-C met zijn onderzoekshandelingen het opsporingsonderzoek onbedoeld doorkruist.”)
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increased power by the rechter-commissaris offer parallel issues to those faced in international criminal law: The commentary highlights the importance of the use of judicial investigative acts in complex investigations,104 and situations where investigations are being conducted into the actions of public officials.105 In the Netherlands the rechter-commissaris’ role is flexible and has more active involvement in more complex cases. As Federova explains, “The role of
rechter-commissaris depends on the seriousness of the case; it can vary from merely
authorizing some coercive measures to also questioning witnesses. He merely collects the evidence that is put into the dossier and does not have to give an opinion as to the sufficiency of evidence to bring the case to trial.”106 While the reforms are relatively recent, the commentary on the new legislation points to the usefulness of increased communication between defence and the rechter-commissaris in complex investigations, and investigations into the actions of public officials. This provides a useful parallel for the types of challenges faced in ICL: complex atrocity crimes and state cooperation.
The reforms indicate a move towards a system that bears similar features to that under the Rome Statute. There is a similar relationship between the R-C and the PPS as between the PTC and OTP. While the defence are not ordinarily given full reign to conduct their own investigations, there has been a move for the court to improve fact-finding by authorising the defence to conduct their own investigations. 107 The greater scope for defence to make requests through the rechter-commissaris helps promote an active role for both parties and the managerial judge.
Commentators have highlighted potential issues following the reforms, including the tensions that may arise between the competing powers of the rechter-commissaris and the PPS, and the possibility of the judge dominating the pre-trial investigations.108 Furthermore, others have criticised the lack of actual change in the position of the defence in the Netherlands.109 The EU report on defence pre-trial investigations points out that in relation to the prosecution’s rights when the R-C takes investigative action, the defence is still at a disadvantage when
104 Ballin, Anticipative Criminal Investigation, p. 42; Ibid. (“De toegevoegde waarde van het verrichten van
onderzoekshandelingen door de R-C is vooral aan de orde in complexe onderzoeken, al dan niet naar zware strafbare feiten.”)
105 R.G.A. Beaujean, above n.100.
106 Maria Fedorova, The Principle of Equality of Arms in International Criminal Proceedings, School of Human
Rights Research Series, Volume 55 (PhD, defended 7 September 2012), p.128
107 Haskell, above n.33.
108 N. J. M. Kwakman, “De nieuwe Wet versterking positie rechter-commissaris,” Trema, 35 (2012), 228-
233.
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compared to prosecution powers.110 For example, the ability to attend witness hearings available to the defence is not an automatic right such as that available to the prosecution.
Despite the potential issues, the Dutch legislators are now seeking to double down on the previous reforms and increase the powers available to the rechter-commissaris.111 Although this paper has not been able to look to more substantial results, the aims behind the reforms may indicate some useful parallels. It will be useful to see how these reforms are actually implemented in practice, and whether they can help to combat some of the issues faced in fact-finding in international criminal cases. As a system that bears some resemblance to the procedural system adopted by the ICC, the changes in the roles between the parties and the judge may provide important insight how to improve efficiency and fair-trial rights.
110 Criminal procedural laws across the European Union – A comparative analysis of selected main differences
and the impact they have over the development of EU legislation, Policy Department for Citizens' Rights and
Constitutional Affairs, (Study 2018), p.68
111 Kamerstuk 29279, nr. 278, 5 October 2015, Brief Van De Minister Van Veiligheid En Justitie
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Chapter 5 – Defence Participation and Fair Trial Rights at the ECCC The ECCC – Defence Participation in Pre-Trial Procedure
Like the EAC, the procedural structure of the ECCC is inquisitorial and historically derived from the French system with a central role for the juge d’instruction. Investigations are conducted entirely by the Office of the Co-Investigating Judges (OCIJ), in a dual system of one national judge and one international judge.112 There is significant involvement by the prosecution at the pre-trial stage. The Office of the Co-Prosecutor (OCP) is responsible for conducting a preliminary examination and submitting an Introductory Submission to the judges.113 The judges are restricted in their investigation to the facts set out in this submission or any supplementary submissions submitted by the OCP.114 If their investigation reveals new facts they have a duty to inform the OCP, and these facts may be included in a Supplementary Submission requesting further investigation.115 The Internal Rules of the ECCC require the OCIJ to “conduct their investigation impartially, whether the evidence is inculpatory or exculpatory.”116
Defence participate in fact-finding indirectly. The parties have a general power to request the OCIJ to “make such orders or undertake such investigative action as they consider useful for the conduct of the investigation.”117 There is also a specific power available to the defendant to request the OCIJ “to interview him or her, question witnesses, go to a site, order expertise or collect other evidence on his or her behalf.”118 The defence is prohibited from approaching witnesses and can only take acts that were necessary to making requests to the OCIJ.119 Unlike the more open rules of participation in witness hearings seen in the reformed procedure of France and the Netherlands, Internal Rule 60(2) prohibits the presence of the defence during witness hearings by the CIJs, except in situations of a contest. Although the
112 Law on the Establishment of the Extraordinary Chambers, with inclusion of amendments as promulgated on
27 October 2004 (NS/RKM/1004/006) (“ECCC Statute”), Article 23 new.
113 ECCC Internal Rule 53. 114 ECCC Internal Rule 55(2). 115 ECCC Internal Rule 55(3) 116 ECCC Internal Rule 55(5) 117 ECCC Internal Rule 55(10) 118 ECCC Internal Rule 58(6)
119 ECCC, [REDACTED] Prosecutor v. Meas Muth, Decision on Meas Muth’s Request for the Co-Investigating
Judges to Clarify whether the Defence May Contact Individuals Including, OCIJ, 003/07-09-2009-ECCC-OCIJ, 4 December 2015 (http://www.legal-tools.org/doc/5a276d/).
25
CIJ’s reasons for decisions for each request for investigative action are unavailable, fewer than 20% of the requests made by the defendant Nuon Chea in Case 002 were granted.120
Defence participation became the subject of litigation before the court’s Pre-Trial Chamber (PTC)121 which heard appeals originating from decisions made by the OCIJ. For instance, the point at which a suspect becomes a “charged person” under the Internal Rules (and therefore obtains access the dossier and participate in the pre-trial procedure) was a point of contention between the different judges of the Pre-Trial Chamber. When interpreting this issue, the Pre-Trial Chamber was split.122 The majority took a literal interpretation of the Internal Rules and found that the CIJs had not formally put the suspect under judicial investigation as provided for under Internal Rule 55 and Article 126 of the Code of Criminal Procedure of Cambodia.123 In contrast, the minority considered the object and purpose of the Internal Rules alongside the fair trial standards set out in Article 14 of the ICCPR, and fundamental principles underpinning the ECCC set out in Rule 21 which states, inter alia, that “ECCC proceedings shall be fair and adversarial and preserve a balance between the rights of the parties.”124 The minority held that, although the suspect had not been formally charged at that point in the proceedings, he had been named in the Introductory Submission filed by the OCP.125 Temporal delay in the participation of defence in order to preserve the integrity of the investigation is not unusual in criminal procedure. However, the question remains as to whether the PTC’s interpretation restricted defence participation beyond that which might have fallen short of fair trial standards when looking at the case as a whole.
This narrow interpretation of on this definition of charged person had flow on effects for defence participation. Defence counsel in this same case submitted additional requests for investigative action two months after the defendant was charged in 2015, but more than four
120 John D. Ciorciari and Anne Heindel, “Experiments in International Criminal Justice: Lessons from the
Khmer Rouge Tribunal,” 35 Michigan. Journal of International Law (2014). p388
121 Referring, in this Chapter, to the PTC at the ECCC unless otherwise stated.
122 ECCC, Co-Prosecutors v Ao (An) and ors, Considerations of the Pre-Trial Chamber on appeal against the
decision denying his requests to access the case file and take part in the judicial investigation, Case No 004/07-09-2009-ECCC/OCIJ (PTC05), Doc No D121/4/1/4, 15th January 2014, Oxford Public International Law (2015), (“Decision on request to take part in judicial investigation”)
123 Co-Prosecutors v Ao (An) and ors, Decision on request to take part in judicial investigation, Majority
judgment, para 7.
124 ECCC Internal Rule 21 (1)(a); Decision on request to take part in judicial investigation, para 25 – 29. (Rule
21 is the requirement to interpret the rules “so as to always safeguard the interests of the Suspects, Charged Persons [and] Accused…”)
125 Co-Prosecutors v Ao (An) and ors, Decision on request to take part in judicial investigation, Opinion of
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years after the initial investigation had been commenced.126 The requests were refused, and the matter was appealed to the PTC. The PTC upheld the refusal on multiple grounds, including that the “information was deemed not conducive to ascertaining the truth at the ‘late stage’ of the investigation.”127 It created a contradictory situation where defence were excluded from participating by the rules of the court until such a point that it is then too late for their requests for investigative action to be approved. Of the final 13 requests that were filed in this case after the accused had become a suspect, 10 were partly granted and partly denied, 2 were declared sufficiently investigated and 1 was denied outright.128 However, the actual scope of each request and reasoning is unavailable for further analysis.
Other examples illustrate challenges faced by the defence in the pre-trial stage at the ECCC. The PTC stipulated the requirements for an investigative request to be approved by the OCIJ, holding that the applicant must identify the investigative action with sufficient specificity and explain why the requested investigative action is prima facie relevant to ascertaining the truth.129 The defence argued it had limited ability to meet these requirements due to the limited access to case file and resources available.130 As Luna Spada pointed out, the PTC did not address this argument in its decision.131 In another case, the defence argued that meeting these requirements would mean revealing their case strategy, but the PTC dismissed this argument.132 In exploring these issues further the PTC may have taken an opportunity to discuss the implications for balance in investigations and fair trial rights.
The obstacles presented to defence in effectively managing the pre-trial stage were further compounded by the appeal structure of the ECCC itself. The PTC held that the OCIJ that it had broad discretion in deciding whether to take investigative actions proposed by the
126 ECCC, Co-Prosecutors v [Redacted], Considerations on appeal against decision on fifth request for
investigative action, Case No 004/07-09-2009-ECCC/OCIJ, PTC, 16 June 2016, ECCC, Oxford Public International Law (2015) (“Decision on Fifth Request”).
127 Co-Prosecutors v [Redacted], Decision on Fifth Request, A2.
128 Prosecutor v AO An, Annex II - Motions and Requests Filed with the CIJs, D360.2.
129 ECCC, Co-Prosecutors v [Redacted], Decision on appeal against the decision on [Redacted]'s sixth request
for investigative action, Case No 004/2/07-09-2009-ECCC/OCIJ (PTC33), Doc No D276/1/1/3, PTC, Oxford Public International Law (2015), 16th March 2017, (“Decision on Sixth Request”).
130 Co-Prosecutors v [Redacted], Decision on Sixth Request, para 13.
131 Co-Prosecutors v [Redacted], Decision on Sixth Request, A3 (But note that the majority did not address the
substance of the appeal because the national judges of the PTC had previously decided there it was not necessary for the OCIJ to conduct an investigation into this case.)
132 ECCC, Co-Prosecutors v [Redacted], Decision on appeal against decision on [redacted] twelfth request for
investigative action, (Case No 004/07-09-2009-ECCC/OCIJ), PTC, 16 March 2017, Oxford Public International Law (2015), (“Decision on Twelfth Request”), A2 – A3.
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parties, the parties could request action to be taken but not demand it.133 Furthermore, the Pre-Trial Chamber was not given any power on appeal to order that the OCIJ carry out further investigative acts, and was restricted to simply determining an appeal submitted against the OCIJ.134 The appeal system of the PTC meant that in the event of disagreement between the judges, the impugned decision would remain in force, even if this was detrimental to the position of the accused.135 This problem was exacerbated by the dual nature of the PTC in featuring both international and national judges, who frequently disagreed on important matters.
Defence Participation and Fair Trial Rights in inquisitorial systems
Would increased participation by the defence improve fair trial rights in inquisitorial based international tribunals? Yes, the reforms adopted by France and the Netherlands indicate a move to strengthening the role of defence in pre-trial procedure. This provides a striking parallel for international criminal tribunals that adopt an inquisitorial model. The domestic reforms were implemented in part meet the changing standards set by the ECHR. Both jurisdictions have created mechanisms whereby defence have a much greater opportunity to participate in making requests to the investigating judge and attend judicial interviews of witnesses. These changes are aimed at steering the investigation from an early stage. Although this paper has not been able to analyse results of the reforms in France and the Netherlands, both jurisdictions have sought to reform the role of defence so as to allow the defence lawyer to steer the investigation and make its position known. This is aimed to assist in both improving rights for the accused and improve efficiency by narrowing the issues that will be raised at trial. The way that defence were permitted to participate in pre-trial procedure at the ECCC suggests a divide between the restrictive procedure that excludes defence counsel from the pre-trial stage and the fair pre-trial rights as recognised under international law, taking into account reforms by France and the Netherlands. Even given flexible standards that exist in human rights norms, the combined effect of the Internal Rules and strict interpretation appears to fall short of the fair trial requirements set out under international law. The statutory exclusion of the
133 ECCC, Co-Prosecutors v Khieu Samphan, Ieng Thirith, Nuon Chea, Public Decision on the Appeal from the
Order on the Request to seek Exculpatory Evidence in the Shared Materials Drive, (Case No. 002/19-09-2007-ECCC/OCIJ), D164/4/13, PTC, 18 November 2009, (“Shared Material Drive Decision”), para 22.
134 ECCC Internal Rules, Rule 73(a); Shared Material Drive Decision.
135 See for example, Co-Prosecutors v Ao (An) and ors, Decision on request to take part in judicial investigation,
