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A Fair Trial at the International Criminal Court? Human Rights Standards and Legitimacy

Procedural Fairness in the Context of Disclosure of Evidence and the Right to Have Witnesses Examined

by Elmar Widder (Author)
Thesis 258 Pages

Summary

This book approaches the question of whether or not the court procedure at the International Criminal Court (ICC) can be regarded as fair from two angles: First, does the ICC provide a fair trial according to the accepted standards of international human rights law? Secondly, is it substantively fair so as to establish the legitimacy of the court on a sound footing? Practitioners and academics are increasingly conscious of the need for an approach to evidence which spans civil law and common law traditions, national and international law. This is what this monograph does, in meticulous detail, for the law of confrontation and disclosure.

Table Of Content

  • Cover
  • Title
  • Copyright
  • About the author
  • About the book
  • This eBook can be cited
  • Acknowledgments
  • Abstract
  • Contents
  • Figures
  • Abbreviations
  • Table of Cases
  • Chapter 1: Introduction
  • 1. The object of this thesis and its research questions
  • 2. Fairness, justice and legitimacy
  • 3. Origins and fundamental treaties of the right to a fair trial
  • 4. International criminal procedure—looking ahead
  • 5. Methodology
  • 5.1 The object of the investigation
  • 5.2 Original contribution and formulating a hypothesis
  • 5.3 Legal theory and the usage of data
  • 5.3.1 Legal theory
  • 5.3.2 Usage of data
  • Chapter 2: The European Court of Human Rights
  • 1. Locating the obligation to disclose evidence
  • 1.1 The right to a fair trial—Article 6 of the ECHR
  • 1.2 Equality of arms
  • 1.3 Right to adversarial proceedings
  • 2. Disclosure of evidence at pre-trial stage
  • 2.1 Equality of arms and adversarial proceedings under Article 5 (4)
  • 2.2 The presence of the charged at pre-trial level
  • 2.3 Access to documents
  • 2.3 Evaluation
  • 3. Disclosure and non-disclosure of evidence at trial stage
  • 3.1 Reasons for limitation—leading judgments
  • 3.2 The general concept behind the ECtHR’s decisions at trial stage
  • 3.3 Critical evaluation of ex parte hearings
  • 3.4 Aspects of timing and disclosure
  • 4. Confrontation and the right to call defence witnesses
  • 4.1 Background information
  • 4.2 The necessity to restrict the right to confrontation—good reason for non-attendance
  • 4.3 Counterbalancing measures before the case of Al-Khawaja and Tahery [GC]
  • 4.4 The ‘classical’ sole or decisive rule
  • 4.5 Al-Khawaja and Tahery [GC]—the post Al-Khawaja approach
  • 4.6 Discussion
  • 4.7 Interim results
  • Chapter 3: The UN Human Rights Committee, the Inter-American Court of HR and the African Court on Human and Peoples’ Rights
  • 1. Observations of the HRC and Article 14 of the ICCPR
  • 1.1 Disclosure of evidence
  • 1.2 Confrontation and the right to call defence witnesses
  • 1.3 Discussion
  • 2. The Inter-American Court of Human Rights
  • 2.1 The right to a fair trial—Article 8 ACHR
  • 2.2 Disclosure of evidence at pre-trial and trial stage
  • 2.3 Confrontation and the right to call defence witnesses
  • 2.4 Evaluation
  • 3. The African Court on Human and People’s Rights—AfCtHPR
  • 3.1 The right to a fair trial—Article 7 of the Banjul Charter
  • 3.2 Disclosure of evidence at pre-trial and trial stage
  • 3.3 Confrontation and the right to call defence witnesses
  • 3.4 Discussion
  • Chapter 4: Fair trial guarantees at the two UN ad hoc tribunals
  • 1. Introduction
  • 1.1 Equality of arms
  • 1.2 The practical application of equality of arms at the early stages
  • 1.3 An authoritative test of proportionality? The ECtHR and the ICTY
  • 1.4 Procedural implications
  • 2. Disclosure obligations and their relationship to fairness
  • 3. Confrontation and the right to call defence witnesses
  • 4. Analysis
  • Chapter 5: The International Criminal Court
  • 1. Prosecution disclosure in the light of the fair trial
  • 1.1 General rights and disclosure at pre-confirmation stage—an overview
  • 1.1.1 Bulk rule v. totality rule
  • 1.1.2 Time frame and format of the Prosecutor’s disclosure obligations
  • 1.1.3 Comparison of terminology
  • 1.2 Disclosure at trial stage, restrictions and ex parte hearings
  • 1.2.1 Aspects of timing and presentation of the inculpatory evidence
  • 1.2.2 Restrictions of disclosure and ex parte hearings
  • 2. The right to have witnesses examined
  • 3. Synopsis and formal assessment of the first part of the hypothesis
  • 4. Fairness, disclosure and investigative procedures
  • 4.1 Developing an assumption of fairness
  • 4.2 Open questions to the Rome Statute
  • Chapter 6: Parameters of Procedure
  • 1. Legitimacy and court procedure
  • 1.1 Parameters of legitimacy
  • 1.2 Legitimate procedure
  • 2. Conclusion
  • Chapter 7: The court procedure at the ECCC
  • 1. The ECCC’s different model in comparison to the ICC
  • 2. The Cambodian model—an alternative?
  • 3. The Investigation Oversight Office
  • Chapter 8: Conclusion
  • Bibliography

← XIV | XV →

Figures

Figure 1.1            Three pillars of the thesis’ methodology

Figure 1.2            Structure of the third pillar

Figure 2.1            Table of time frames with regards to sufficient ‘preparatory time’

Figure 2.2            Three-step test for hearsay evidence if a witness cannot be challenged

Figure 3.1            Primary and partly secondary legislation of the human rights conventions

Figure 3.2            Fundamental cases and Committee/Commission decisions

Figure 3.3            Quantitative side information providing an indication on doctrinal nuances

Figure 4               The differences in the case law of the ECtHR, the ICTY and the SCSL

Figure 5.1            Reasons for the limitation of disclosure

Figure 5.2            Ex parte hearings in the context of the limitation of disclosure

Figure 6               The new middle ground between two edges: the right to accuracy vs. a full range of other procedural rights. The blue graph portrays the ideal balance of fairness between the two edges in order to reach legitimacy. According to the argumentation of this thesis, the ICC’s standard of disclosure is below the ideal balance (red graph) whereas the standard of confrontation is above (green graph)

Figure 7               Examples – from the confirmation of charges or closing order to judgment ← XV | XVI →

← XVI | XVII →

Abbreviations

← XVIII | XIX →

Table of Cases

European Court of Human Rights – Decisions and Judgments

A. and Others v. United Kingdom [GC], no. 3455/05, judgment of 19 February 2009.

A.L. v. Finland, no. 23220/04, judgment of 27 January 2009.

Accardi and Others v. Italy (dec.), no. 30598/02, 20 January 2005.

Aigner v. Austria, no. 28328/03, judgment of 10 May 2012.

Al-Adsani v. United Kingdom [GC], no. 35763/97, judgment of 21 November 2001.

Al-Khawaja and Tahery v. United Kingdom, nos. 26766/05 and 22228/06, judgment of 20 January 2009.

Al-Khawaja and Tahery v. United Kingdom [GC], nos. 26766/05 and 22228/06, judgment of 15 December 2011.

Allen v. United Kingdom, no. 18837/06, judgment of 30 March 2010.

Andrei Georgiev v. Bulgaria, no. 61507/00, judgment of 26 July 2007.

Artico v. Italy, no. 6694/74, judgment of 13 May 1980.

Artner v. Austria, no. 39/1991/291/362, judgment of 28 February 1992.

Asch v. Austria, no. 12398/86, judgment of 26 April 1991.

Assenov and Others v. Bulgaria, no. 90/1997/874/1086, judgment of 28 October 1998.

Balta and Demir v. Turkey, no. 48628/12, judgment of 23 June 2015.

Barberà, Messegué and Jabardo v. Spain, no. 10590/83, judgment of 6 December 1988.

Belziuk v. Poland, no. 45/1997/829/1035, judgment of 25 March 1998.

Bezicheri v. Italy, no. 8/1988/152/206, judgment of 26 September 1989.

Bielaj v. Poland, no. 43643/04, judgment of 27 April 2010.

Birutis and Others v. Lithuania, no. 47698/99 and 48115/99, judgment of 28 March 2002.

Blum v. Austria, no. 31655/02, judgment of 3 February 2005.

Bocos-Cuesta v. The Netherlands, no. 54789/00, judgment of 10 November 2005.

Borgers v. Belgium, no. 12005/86, judgment of 30 October 1991.

Brandstetter v. Austria, nos. 11170/84, 12876/87 and 13468/87, judgment of 28 August 1991.

Bulut v. Austria, no. 17358/90, judgment of 22 February 1996.

C.G.P. v. The Netherlands (dec.), no. 29835/96, 15 January 1997. ← XIX | XX →

Campbell and Fell v. United Kingdom, nos. 7819/77 and 7878/77, judgment of 28 June 1984.

Chmura v. Poland, no. 18475/05, judgment of 3 April 2012.

Chruściński v. Poland, no. 22755/04, judgment of 6 November 2007.

Colac v. Romania, no. 26504/06, judgment of 10 February 2015.

Čonka v. Belgium, no. 51564/99, judgment of 5 February 2002.

Damir Sibgatullin v. Russia, no. 1413/05, judgment of 24 April 2012.

De Wilde, Ooms and Versyp v. Belgium, nos. 2832/66, 2835/66 and 2899/66, judgment of 18 June 1971.

Delcourt v. Belgium, no. 2689/65, judgment of 17 January 1970.

Delta v. France, no. 11444/85, judgment of 19 December 1990.

Dombo Beheer v.The Netherlands, no. 14448/88, § 32, judgment of 27 October 1993.

Dončev and Burgov v. The Former Yugoslav Republic of Macedonia, no. 30265/09, judgment of 12 June 2014.

Doorson v. The Netherlands, no. 20524/92, judgment of 26 March 1996.

Dowsett v. United Kingdom, no. 39482/98, judgment of 24 June 2003.

Edwards v. United Kingdom, no. 13071/87, judgment of 16 December 1992.

Edwards and Lewis v.United Kingdom [GC], nos. 39647/98 and 40461/98, judgment of 27 October 2004.

El Khoury v. Germany, nos. 8824/09 and 42836/12, judgment of 9 July 2015.

Engel and Others v. The Netherlands, nos. 5100/71, 5101/71, 5102/71, 5354/72 and 5370/72, judgment of 8 June 1976.

Ernst and Others v. Belgium, no. 33400/96, judgment of 15 July 2003.

Fąfrowicz v. Poland, no. 43609/07, judgment of 17 April 2012.

Fitt v. United Kingdom [GC], no. 29777/96, judgement of 15 July 2003.

Fodale v. Italy, no. 70148/01, judgment of 1 June 2006.

Fox, Campell and Hartley v. United Kingdom, nos. 12244/86, 12245/86 and 12383/86, Judgment of 30 August 1990.

G.B. v. France, no. 44069/98, judgment of 2 October 2001.

Gabrielyan v. Armenia, no. 8088/05, judgment of 10 April 2012.

Gani v. Spain, no. 61800/08, judgment of 19 February 2013.

Garcia Alva v. Germany, no. 23541/94, judgment of 13 February 2001.

Goddi v. Italy, no. 8966/80, judgment of 9 April 1984.

Gossa v. Poland, no. 47986/99, judgment of 9 January 2007.

Gorraiz Lizarraga and Others v. Spain, no. 62543/00, judgment of 27 April 2004.

Gregačević v. Croatia, no. 58331/09, judgment of 10 July 2012. ← XX | XXI →

Hulki Günes v. Turkey, no. 28490/95, judgment of 19 June 2003.

Hadjianastassiou v. Greece, no. 12945/87, judgment of 16 December 1992.

Hentrich v. France, no. 13616/88, judgment of 22 September 1994.

Horncastle and Others v. United Kingdom, no. 4184/10, judgment of 16 December 2014.

Hümmer v. Germany, no. 26171/07, judgment of 19 July 2012.

Hussain v. United Kingdom, no. 21928/93, judgment of 21 February 1996.

Idalov v. Russia [GC], no. 5826/03, judgment of 22 May 2012.

Imbrioscia v. Switzerland, no. 13972/88, judgment of 24 November 1993.

Isgrò v. Italy, no. 11339/85, judgment of 19 February 1991.

Jasper v. United Kingdom [GC], no 27052/95 judgement of 16 February 2000.

Juričić v. Croatia, no. 58222/09, judgment of 26 July 2011.

Kamasinski v. Austria, no 9783/82, judgment of 19 December 1989.

Kampanis v. Greece, no. 17977/91, judgment of 13 July 1995.

Karpenko v. Russia, no. 5605/04, judgment of 13 March 2012.

Kennedy v. United Kingdom, no. 26839/05, judgment of 18 May 2010.

Khodorkovskiy and Lebedev v. Russia, nos. 11082/06 and 13772/05, judgement of 25 July 2013.

Kok v. The Netherlands (dec.), no. 43149/98, 4 July 2000.

Korneykova v. Ukraine, no. 39884/05, judgment of 19 January 2012.

Koroleva v. Russia, no. 1600/09, judgment of 13 November 2012.

Kostovski v. The Netherlands, no. 11454/85, judgment of 20 November 1989.

Krasniki v. Czech Republic, no. 51277/99, judgment of 28 February 2006.

Kremzov v. Austria, no. 12350/86, judgment of 21 September 1993.

Lamy v. Belgium, no. 10444/83, judgment 30 March 1989.

Laska and Lika v. Albania, no. 12315/04, 17605/04, judgment of 20 April 2010.

Laukkanen and Manninen v. Finland, no. 50230/99, judgment of 3 February 2004.

Leas v. Estonia, no. 59577/08, judgment of 6 March 2012.

Lebedev v. Russia, no. 4493/04, judgment of 25 October 2007.

Lietzow v. Germany, no. 24479/94, judgment of 13 February 2001.

Luboch v. Poland, no. 37469/05, judgment of 15 January 2008.

Lucà v. Italy, no. 33354/96, judgment of 27 February 2001.

Lučić v. Croatia, no. 5699/11, judgment of 27 February 2014.

Lüdi v. Switzerland, no. 12433/86, judgment of 15 June 1992.

Luedicke, Belkacem and Koç v. Germany, nos. 6210/73, 6877/75 and 7132/75, judgment of 28 November 1978. ← XXI | XXII →

Makeyev v. Russia, no. 13769/04, judgment of 9 February 2009.

Makhfi v. France, no. 59335/00, judgment of 19 October 2004.

Makuszewski v. Poland, no. 35556/05, judgment of 13 January 2009.

Details

Pages
258
ISBN (ePUB)
9783631695494
ISBN (PDF)
9783653070965
ISBN (MOBI)
9783631695500
ISBN (Hardcover)
9783631675663
Language
English
Publication date
2016 (August)
Published
Frankfurt am Main, Berlin, Bern, Bruxelles, New York, Oxford, Wien, 2016. 294 pp., 10 s/w graphs, 1 coloured graph

Biographical notes

Elmar Widder (Author)

Elmar Widder holds a BA in Multilingual Communication, an LLM in European and International Law, and was awarded his PhD at the University of Hull. He gained practical experience at the ICC, the European Commission, and the Extraordinary Chambers in the Courts of Cambodia.

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Title: A Fair Trial at the International Criminal Court? Human Rights Standards and Legitimacy