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Fair Trial Rights and the Principle of Iura Novit Curia

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Fair Trial Rights and the Principle of Iura Novit Curia 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 Regulation 55? 33 1 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 Table of Cases and Instruments 2 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. 3 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 TC Trial Chamber 4 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 (2005) Criminal Law Forum Vol. 16(1), at 2-3. 5 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 2 Ibid, at 3-4. 6 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.
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