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Procedural Aspects

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Illicitly Obtained Evidence at the International Criminal Court

Part of the book series: International Criminal Justice Series ((ICJS,volume 4))

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Abstract

In the previous chapters, this work has developed an approach to the exclusion of illicitly obtained evidence by interpreting Article 69(7) of the ICC Statute in light of domestic and international law of criminal procedure. The present chapter addresses the practical implementation of the previous findings. It considers a number of procedural aspects that influence the implementation of the exclusionary rule in the context of ICC trials. This includes the determination of those procedural actors endowed with the right to file a motion for exclusion as well as the questions whether ICC judges are obliged to provide a ruling on the question of admissibility, in which parts of the proceedings the exclusionary rule applies and whether motions for exclusion must comply with a particular timing. Finally, a crucial question pertaining to the standard as well as to the burden of proof that applies if the facts of a case including tainted evidence remain contentious.

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Notes

  1. 1.

    See in particular Article 64(8)(b) of the ICC Statute, which allocates a broad power to the presiding judge, who may decide in large parts on the structure of the trial.

  2. 2.

    See Article 64(6)(b) of the ICC Statute.

  3. 3.

    See Rule 140(2)(c) of the ICC RPE. These broad judicial powers are in fact a general feature of international criminal proceedings; see Tochilovsky 2010, p. 164 et seq. This is inter alia reflected in the way the power to challenge evidence has been conceived in such proceedings. The ICTY for example has followed the same approach than the one laid down in the ICC Statute. The tribunal has stated that it considered its Trial Chamber to be the “guardian and guarantor of the procedural and substantive rights of the accused”. It concluded that it had to intervene ex officio to exclude evidence that it deemed inadmissible, see Prosecutor v. Martić (Decision Adopting Guidelines on the Standards Governing the Admission of Evidence), ICTY (Trial Chamber), decision of 19 January 2006, para 11. See also Prosecutor v. Delalić et al. (Decision on the Prosecution’s Motion for the Redaction of the Public Record), ICTY (Trial Chamber), decision of 5 June 1997, para 59. Further see Gaynor et al. 2013, p. 1030.

  4. 4.

    See Prosecutor v. Lubanga (Decision on victims participation), ICC (Trial Chamber), decision of 18 January 2008, para 109 “[T]here is no provision within the Rome Statute framework which prohibits the Trial Chamber from ruling on the admissibility or relevance of evidence having taken into account the views and concerns of the victims, in accordance with Articles 68(3) and 69(4) of the Statute”. See also Prosecutor v. Katanga and Chui (Décision Relative aux Modalités de Participation des Victimes au Stade des Débats sur le Fonds), ICC (Trial Chamber), decision of 22 January 2010, para 50. The decision was subsequently upheld by the Appeals Chamber, see Prosecutor v. Lubanga (Judgment on the appeals of the Prosecutor and the Defence against Trial Chamber I’s Decision on Victims’ Participation of 18 January 2008), ICC (Appeals Chamber), decision of 11 July 2008, para 94 et seq. Klamberg 2013, p. 360 et seq.; Gaynor et al. 2013, p. 1031.

  5. 5.

    The Lubanga Trial Chamber had applied the former approach, see Prosecutor v. Lubanga (Decision on the admissibility of four documents), ICC (Trial Chamber), decision of 13 June 2008, para 26 et seq.; it was subsequently followed by the Trial Chamber in the Katanga and Chui case, see Prosecutor v. Katanga and Chui (Decision on the Prosecutor’s Bar Table Motion), ICC (Trial Chamber), decision of 17 December 2010, paras 14 et seq. The Bemba Trial Chamber in turn argued that it had the power to generally admit evidence, see Prosecutor v. Bemba (Decision on the admission into evidence of materials contained in the prosecution’s list of evidence), ICC (Trial Chamber), decision of 19 November 2010, para 8 et seq. The latter decision has however been reversed by the Appeals Chamber, see Prosecutor v. Bemba (Judgment on the appeals of Mr. Jean-Pierre Bemba Gombo and the Prosecutor against the decision of Trial Chamber III entitled “Decision on the admission into evidence of materials contained in the prosecution’s list of evidence”), ICC (Appeals Chamber), decision of 3 May 2011, paras 2 et seq., 45 and 70. On this debate, see also Safferling 2012, p. 491.

  6. 6.

    This has also been recognized in the previously mentioned contentious decision by the Bemba Trial Chamber, see Prosecutor v. Bemba (Decision on the admission into evidence of materials contained in the prosecution’s list of evidence), ICC (Trial Chamber), decision of 19 November 2010, para 18.

  7. 7.

    Piragoff 2001, p. 350. For the confirmation hearing, see also Rule 122(9) of the RPE, which expressly extends the applicability of Article 69 to this particular stage of the proceedings; see also Miraglia 2008, p. 492.

  8. 8.

    Prosecutor v. Mbarushimana (Decision on the Defence Request for Disclosure), ICC (Pre-Trial Chamber), decision of 27 January 2011, para 16.

  9. 9.

    Today, such objections must mostly be raised before trial in a suppression hearing by way of a pre-trial motion. Only some states in the U.S. have kept an older rule, whereby such motions can be made during trial. According to this so-called ‘contemporaneous objection rule’, the defence has to file a motion at the time the prosecution seeks the admission of the evidence, see LaFave et al. 2004, p. 499 et seq.; Trüg 2003, p. 460.

  10. 10.

    LaFave et al. 2004, p. 501; Trüg 2003, p. 460.

  11. 11.

    See German Federal Supreme Court (BGH), decision of 27 February 1992, BGHSt 38, 214; German Federal Supreme Court (BGH), decision of 12 January 1996, BGHSt 42, 15. According to this jurisprudence, Section 257 of the German Code of Criminal Procedure (StPO) determines the moment by which motions for exclusion may be filed. This would be the moment directly after the respective evidence has been examined at trial. See also Eisenberg 2011, p. 144 et seq.; Meyer-Goßner 2013, Section 136, para 25.

  12. 12.

    Beulke 2012, p. 310 et seq.; Trüg 2003, p. 283.

  13. 13.

    Prosecutor v. Lubanga (Decision on victims participation), ICC (Trial Chamber), decision of 18 January 2008, para 109. See also Sect. 7.2.

  14. 14.

    Safferling 2012, p. 56.

  15. 15.

    Buisman et al. 2010, p. 38; LaFave et al. 2004, p. 503.

  16. 16.

    Roberts and Zuckerman 2010, p. 331.

  17. 17.

    With respect to violations of the 5th amendment for instance, the prosecution has to prove that a confession was voluntary or that the investigators have complied with the Miranda requirements; see LaFave et al. 2004, p. 506 et seq. With respect to violations of the 4th amendment, only in the case of a warrant, the defendant has to prove that there was no probable cause. Otherwise, the prosecution needs to prove that the search was reasonable; see LaFave et al. 2004, p. 504.

  18. 18.

    Altogether, see Trüg 2003, p. 462 et seq.

  19. 19.

    Three main standards of proof exist under U.S. procedural law: the highest standard is the ‘beyond a reasonble doubt’ standard that is required to prove a person’s guilt in criminal cases. The lowest is the ‘preponderance of evidence’ standard that mostly applies in civil cases. For some circumstances, the ‘clear and convincing evidence’ standard applies, which lies somewhere between the two other standards. See LaFave et al. 2004, p. 508.

  20. 20.

    See Leon v. Twomey, United States Supreme Court, decision of 12 January 1972, 404 U.S. 477 (1972). See also LaFave et al. 2004, p. 508 et seq.; Trüg 2003, p. 464.

  21. 21.

    R. v. Collins, Supreme Court of Canada, decision of 9 April 1987, [1987] 1 S.C.R. 265, para 21. See also Choo and Nash 2007, p. 94. There is no case law that would suggest that this allocation of the burden of proof has changed under the approach to Section 24(2) of the Charter developed in 2009. On this approach, see Sect. 3.3.4.

  22. 22.

    This would be the case for instance where the issue of discoverability is at stake. Where the prosecution claims that the evidence would have been discovered absent the violation, it must prove the facts that underlie this allegation, see R. v. Burlingham, Supreme Court of Canada, decision of 18 May 1995, [1995] 2 S.C.R. 206, p. 209 et seq.; R. v. Bartle, Supreme Court of Canada, decision of 29 September 1994, [1994] 3 S.C.R. 173, p. 179.

  23. 23.

    R. v. Collins, Supreme Court of Canada, decision of 9 April 1987, [1987] 1 S.C.R. 265, para 21.

  24. 24.

    R. v. Burlingham, Supreme Court of Canada, decision of 18 May 1995, [1995] 2 S.C.R. 206, p. 209 et seq.

  25. 25.

    See Ma 1999, p. 285.

  26. 26.

    R. (on the application of Saifi) v. Governor of Brixton Prison), Divisional Court, decision of 21 December, [2001] 1 W.L.R. 1134.

  27. 27.

    On Section 78 and the burden of proof, see Doak and McGourlay 2012, p. 200.

  28. 28.

    A. and Others v. Secretary of State for the Home Department, House of Lords, decision of 8 December 2005, [2005] UKHL 71, paras 117 et seq, 138 et seq.; 156 et seq. and 172 et seq.

  29. 29.

    A. and Others v. Secretary of State for the Home Department, House of Lords, decision of 8 December 2005, [2005] UKHL 71, paras 56, 80 and 98. For a direct comparison of both tests, see para 118 of the decision.

  30. 30.

    Thienel 2006a, p. 407 et seq.

  31. 31.

    A. and Others v. Secretary of State for the Home Department, House of Lords, decision of 8 December 2005, [2005] UKHL 71, para 80.

  32. 32.

    Ambos 2010, p. 394.

  33. 33.

    Buisman et al. 2010, p. 38 et seq. Safferling 2012, p. 56. In German law, this duty is laid down in Section 244(2) of the German Code of Criminal Procedure.

  34. 34.

    Ambos 2010, p. 393 et seq.; Trüg 2003, p. 291 et seq.

  35. 35.

    See however Buisman et al. 2010, p. 38 et seq. on the differences regarding the standard and burden of proof among different civil law systems, as well as between civil and common law systems.

  36. 36.

    Beulke 2012, p. 27.

  37. 37.

    German Federal Supreme Court (BGH), decision of 28 June 1961, Neue Juristische Wochenschrift 1962, p. 1979 et seq. See also Meyer-Goßner 2013, Section 136a, para 143.

  38. 38.

    Ambos 2010, p. 394; Trüg 2003, p. 293. For the even more problematic case of cross-border collection of evidence see the case of El Motassadeq, who was convicted by a German court in the context of the September 11 attacks on the World Trade Center. The court in this case found no proof for the allegation that witnesses had been subjected to torture. It therefore admitted summaries of their statements into evidence that had been obtained from the U.S. Department of Justice; see Hamburg Higher Regional Court (OLG), decision of 14 June 2005, Neue Juristische Wochenschrift 2005, 2326 et seq. See also Esser 2012, p. 153.

  39. 39.

    Jens Meyer-Ladewig 2011, Article 38, para 19.

  40. 40.

    Jens Meyer-Ladewig 2011, Article 38, para 22.

  41. 41.

    See Gäfgen v. Germany, ECtHR, decision of 1 June 2010 (Application no. 22978/05), paras 69 and 92.

  42. 42.

    See Sect. 3.2.2.

  43. 43.

    Esser 2012, p. 512.

  44. 44.

    See Sect. 3.2.4.

  45. 45.

    Ramanauskas v. Lithuania, ECtHR, decision of 5 February 2008 (Application no. 74420/01), para 70. On the burden of proof in the context of incitement cases, see also Gaede and Buermeyer 2008, p. 286 et seq. The case of incitement is admittedly special in that some commentators do not treat it as a matter of procedural but rather of substantive law, see Gaede and Buermeyer 2008, p. 287.

  46. 46.

    Klamberg 2013, p. 428 et seq.

  47. 47.

    Prosecutor v. Orić (Order Concerning Guidelines on Evidence and the Conduct of Parties During Trial Proceedings), ICTY (Trial Chamber), decision of 21 October 2004, p. 5; Prosecutor v. Martić (Decision Adopting Guidelines on the Standards Governing the Admission of Evidence), ICTY (Trial Chamber), decision of 19 January 2006, para 9. See also Prosecutor v. Delalić (Decision on Zdravko Mucić’s Motion for the Exclusion of Evidence), ICTY (Trial Chamber), decision of 2 September 1997, para 42. This jurisprudence also favours the defence in the—theoretically possible—case that the defence has introduced the evidence, whose exclusion is at stake. Other than the prosecution, the defence only needs to prove the admissibility of its evidence ‘on a balance of probabilities’.

  48. 48.

    See Prosecutor v. Orić (Order Concerning Guidelines on Evidence and the Conduct of Parties During Trial Proceedings), ICTY (Trial Chamber), decision of 21 October 2004, p. 5, where the admissibility of documentary evidence is discussed.

  49. 49.

    Prosecutor v. Katanga and Chui (Decision on the Prosecutor's Bar Table Motions), ICC (Trial Chamber), decision of 17 December 2010, para 56.

  50. 50.

    Prosecutor v. Mbarushimana (Decision on the “Defence Challenge to the Jurisdiction of the Court”), ICC (Pre-Trial Chamber), decision of 26 October 2011, para 20; Prosecutor v. Ruto and Sang (Judgment on the appeal of the Republic of Kenya against the decision of Pre-Trial Chamber II of 30 May 2011 entitled “Decision on the Application by the Government of Kenya Challenging the Admissibility” of the Case Pursuant to Article 19(2)(b), ICC (Appeals Chamber), decision of 30 August 2011, para 62; Prosecutor v. Muthaura and Kenyatta (Judgment on the appeal of the Republic of Kenya against the decision of Pre-Trial Chamber II of 30 May 2011 entitled “Decision on the Application by the Government of Kenya Challenging the Admissibility” of the Case Pursuant to Article 19(2)(b), ICC (Appeals Chamber), decision of 30 August 2011, para 61. See also Klamberg 2013, p. 127.

  51. 51.

    See A. and Others v. Secretary of State for the Home Department, House of Lords, decision of 8 December 2005, [2005] UKHL 71, para 80.

  52. 52.

    See Gäfgen v. Germany, ECtHR, decision of 1 June 2010 (Application no. 22978/05), paras 69 and 92.

  53. 53.

    See Ramanauskas v. Lithuania, ECtHR, decision of 5 February 2008 (Application no. 74420/01), para 70.

  54. 54.

    Ambos 2010, p. 394; Esser 2012, p. 153.

  55. 55.

    See for instance Ambos 2007, p. 501; Jackson 2009, p. 26 et seq. On the rights and possibilities of the defence to collect evidence, see in more detail Klamberg 2013, p. 216 et seq.

  56. 56.

    For the probability standard with respect to reliability, see however Sect. 4.3.2.3.

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    Petra Viebig

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Viebig, P. (2016). Procedural Aspects. In: Illicitly Obtained Evidence at the International Criminal Court. International Criminal Justice Series, vol 4. T.M.C. Asser Press, The Hague. https://doi.org/10.1007/978-94-6265-093-0_7

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