[1] In Lubanga, Decision replacing a judge in the Appeals Chamber, 23 September 2009, the Presidency attached to the Appeals Chamber on a temporary basis a judge from the Trial Division.

[10] Election of the Presiding Judge of the Pre-trial Chamber I, 16 September 2004

[11]  According to Regulation 15 the Presidency shall be responsible for the replacement of a judge, see for example situation in Democratic Republic of the Congo, Decision replacing a judge in Pre-Trial Chamber I, 22 June 2007.

Crossreference:
Article 39(1)

Author: Mark Klamberg

[12] On or more judges may remain as an alternate, see Articles 39(4), 74(1), Rule 39 and Regulation 16 on alternate judges.

Crossreference:
Articles 39(4) and 74(1), and Rule 39

Doctrine:
Jules Deschênes  at pp.  615-616, paras. 1-2  in Triffterer.
John R.W.D. Jones at  pp. 2632-64 in Antonio Cassese/Paola Gaeta/John R.W.D. Jones.

Author: Mark Klamberg

[13] In Decision on "Prosecutor's Application to attend 12 February hearing", 9 February 2007, PTC II rejected the Prosecutor's request to attend a hearing to be attended by the OPCV and the Victims' Participation and Reparations Section only.

[14] In Decision on the "Prosecution's Request for Leave to Appeal the Decision Denying the 'Application to Lift Redactions From Applications for Victims' Participation to be Provided to the OTP' ", 9 March 2007, PTC II noted that the Prosecutor neither in his application nor in his further submissions had argued that was bringing a motion under the regulation in question and rejected the request for leave to appeal.

[20] In Katanga, Decision on the Prosecution's Request for Leave to Reply, 18 January 2008, the Appeals Chamber denied the Prosecution's request for leave to reply to defence desponse to the prosecution's document in support of an appeal.

[21] In Decision on the new version of the draft protocol on the presentation of evidence prepared jointly by the Office of the Prosecutor, the Defence and the Registry, 27 July 2006, PTC I decided that the parties shall file the originals and an electronic copy of the evidence on which they intend to rely at confirmation hearing contain the particulars required by the Draft Protocol. 

In Prosecutor v. Lubanga, Final Decision on the E-Court Protocol for the Provision of Evidence, Material and Witness Information on Electronic Version for their Presentation During the Confirmation Hearing, 28 August 2006, pages 5-6, PTC I decided what content the E-Court Protocol for presentation of evidence, material and witness information should contain for the purpose of the confirmation hearing.

In Prosecutor v. Lubanga, TC I appointed an expert witness on e-court and instructed the expert "not to limit her consideration to the context of Regulation of the Court 26, as some aspects of the e-court protocol which may be of assistance to the work of the parties may fall outside the scope of that regulation." Instructions to the expert on e-court, 1 November 2007, para. 15. 

In Prosecutor v. Thomas Lubanga Dyilo, Decision on the E-Court Protocol, 23 January 2008, paras. 21 and 30, TC I decided that the metadata fields should not extend beyond those identified as "objective".

[22] In Decision on "Prosecutor's Application to attend 12 February hearing", 9 February 2007, PTC II rejected the Prosecutor's request to attend a hearing to be attended by the OPCV and the Victims' Participation and Reparations Section only.

[23] In Decision to convene a status conference on matters related to safety and security in Uganda, 25 November 2005, PTC II decied to to hold a status conference by way of a hearing in closed session.

[24] In  Decision on "Requête de la Défense en extension de délai afin de répondre aux 'Observations de la Défense sur les demandes de participation à la procédure a/0010/06, a/0064/06 à a/0070/06, a/0070/06, a/0081/06 à a/0104/06 et a/0111/06 à a/0127/06", 23 February 2007, PTC II stated that "pending the effective implementation of a secure electronic system for the transmission of documents, it should be considered that with respect to confidential documents, a participant is deemed notified of a confidential document, decision or order on the day it is effectively received by post by the said participant.”

[24bis] In  Katanga and Chui, Decision on Prosecution requests ICC-01/04-01/07-1386 and ICC-01/04-01/07-1407 made pursuant to regulation 35 of the Regulations, 23 October 2009, para. 14, the Trial Chamber considered "whether there is a timely and sufficiently motivated application for extension of time limit in accordance with regulation 35(2) of the regulations. If this is the case, the Chamber will in principle allow the late submission, unless this would cause undue prejudice to the Defence. If this is not the case, the Chamber will in principle reject the late addition of new items of evidence, unless the new material must be disclosed to the Defence in accordance with article 67(2) of the Statute or falls under rule 11 of the Rules. If the new material is incriminating, the Chamber may still consider late addition, using its powers under article 64(6)(d) and 69(3) of the Statute, but only if it can be shown that (i) the new material is either significantly more compelling than other items of evidence already disclosed to the Defence, or brings to light a previously unknown fact which has a significant bearing upon the case, and (ii) the late addition will not cause undue prejudice to the Defence in relation to the latter's right to have adequate time and facilities to prepare in accordance with article 67(l)(b) of the Statute."
       In Katanga and Chui, Decision on Prosecution requests ICC-01/04-01/07-1726-Conf-Exp and ICC-01/04-01/07-1738-Conf-Exp made pursuant to regulation 35 of the Regulations, 15 February 2010, para. 12 the Trial Chamber stated that it "will in principle reject the late addition of new items of evidence, unless the new material must be disclosed to the Defence in accordance with article 67(2) of the Statute or falls under rule 77 of the Rules. If the new material is incriminating, the Chamber may still consider late addition, using its powers under article 64(6)(d) and 69(3) of the Statute, but only if it can be shown that (i) the new material is either significantly more compelling than other items of evidence already disclosed to the Defence, or brings to light a previously unknown fact which has a significant bearing upon the case, and (ii) the late addition will not cause undue prejudice to the Defence in relation to the latter's right to have adequate time and facilities to prepare in accordance with article 67(l)(b) of the Statute."

[25] In Dyilo, Decision on the re-filing of the document in support of the appeal, 22 July 2008, the Prosecutor used an average of 580 words per page (para. 6), the Appeals Chamber determined that the Prosecutor circumvented the page limit and ordered the Prosecutor to re-file the document in support of the appeal.

[26] In Decision on the "Prosecution's Request for Leave to Appeal the Decision Denying the 'Application to Lift Redactions From Applications for Victims' Participation to be Provided to the OTP' ", 9 March 2007, PTC II noted that the Prosecutor neither in his application nor in his further submissions had argued that was bringing a motion under the regulation in question and rejected the request for leave to appeal. In Decision on the Prosecutor 's Applications dated 22 March 2007 and on the OPCV's Requests dated 29 March 2007, 4 April 2007, PTC II considered that nowhere in the Prosecution's Applications did the Prosecutor provide evidence of any change in either the factual circumstances or the relevant level of risk and dismissed the Prosecution's Applications.
    In Banda and Jerbo, Decision on the "Prosecution's Application for Variation of Protective Measures Pursuant to Regulation 42 of the Regulations of the Court by Lifting Certain Redactions Authorised Pursuant to Rule 81(4) of the Rules of Procedure and Evidence", 13 July 2012, paras. 2 and 6-7, The Trial Chamber dealt with redactions concerning soem witness statements authorised by Pre-Trial Chamber I in the Abu Garda case continued to be in effect in the Banda and Jerbo case. The Trial Chamber was seised of a request pursuant to Regulation 42(1) of the Regulations for lifting redactions previously authorised under Rule 81(4) of the Rules. Considering that Pre-Trial Chamber I was no longer seised of the Abu Garda case, the Chamber could vary the protective measures ordered by Pre-Trial Chamber I in that case.

[27]  In Prosecutor v. Lubanga,  Decision on the procedures to be adopted for instructing expert witnesses, 10 December 2007, TC I issued the following order:
 "i) in the first instance, the parties are to instruct a joint expert on any relevant issue, if possible;
 ii) the joint expert should be jointly instructed;
 iii) if the parties cannot agree joint instructions, the joint expert is to be given separate instructions, wholly or in part;
 iv) the parties shall only instruct separate experts after that proposed course has been raised with the Chamber;
 v) to the extent that victims are participating on an issue or as regards evidence which is to be the subject of expert evidence, they are to be given an opportunity to contribute to the expert's instructions (jointly with the parties or separately);
 vi) whenever a party or a participant intends to instruct an expert, the name of the expert is to be included in a filing;
 vii) whenever an expert is to be instructed jointly, the instructions to the expert should be filed with the Chamber at an early stage;
 viii) if a participant wishes to instruct an expert he or she should request the leave of the Chamber;
 ix) if an expert who is to be relied on is not on the list of experts, an application should be made forthwith to include his or her name on the list, and the Chamber should be notified by way of email to the Legal
 Adviser to the Trial Division."
     In Bemba, Decision on the procedures to be adopted for instructing expert witnesses, 12 February 2010, paras. 10-12, the Trial Chamber followed the procedure set out in Lubanga.
     In Katanga and Chui, 07 October 2009 ICC-01/04-01/07-1515 - Decision on the disclosure of evidentiary material relating to the Prosecutor's site visit to Bogoro on 28,29 and 31 March 2009 (ICC-01/04-01/07-1305,1345,1360,1401,1412 and 1456) including Corrigenda, paras. 74-75 the Trial Chamber rejected the Prosectur's request for late submission of the four expert reports and related material as incriminating evidence because the Defence was not consulted about the selection of experts or  the formulation of the questions that were asked from them.

[50] In Decision assigning the Situation in the Democratic Republic of Congo to Pre-Trial Chamber I, 5 July 2004, the Precidency assigned the situation in the Democratic Republic of Congo to Pre-Trial Chamber I.

[51] The present regulation provides that the Pre-Trial Chamber may designate more than one single judge when the efficient management of the workload of the Chamber so requires, see for example Prosecutor v. Kony et. al., Decision designating a Single Judge on Victim's issues, 22 November 2006. According to article 57(2)(a).

Author: Mark Klamberg

[51bis] In Katanga and Chui, Decision on the "Prosecution's Application Concerning Disclosure by the Defence Pursuant to Rules 78 and 79(4)", 14 September 2010, paras. 56-58, the Trial Chamber ordered, with reference to regulation 54 that the Defence shall provide the Prosecution, the Chamber, the co- Accused and the Legal Representatives of Victims with a document outlining the legal and factual issues that it intends to raise during its defence case as well as the defences, if any, to be advanced by the accused.

[51ter] Rule 69 and regulation 54(n) may be used to ensure that witnesses are not needlessly brought to court when their evidence is not in dispute, Lubanga, Decision on agreements between the parties, 20 February 2008, para. 11.

[52]  In Decision on the status before the Trial Chamber of the evidence heard by the Pre-Trial Chamber and the decisions of the Pre-Trial Chamber in trial proceedings, and the manner in which evidence shall be submitted, 13 December 2007, the Defence submitted that "the provisions of Regulation 55 are contrary to the Statute and the Rules of Procedure and Evidence, and the Chamber is invited to declare the regulation unlawful." (para. 35) TC I considered that "the terms of Regulation 55 do not involve any conflict with the main relevant provision, Article 74(2), because they allow for a modification of the legal characterisation of the facts rather than an alteration or amendment to the facts and circumstances described in the charges." (para 47). Furthermore, the TC held the view that "[t]he scheme of Regulation 55 indicates that a decision to modify the legal characterisation of facts will only occur at a late rather than an early stage in the trial" (para 48).
     In relation to charging, the Pre-Trial Chamber in Bemba recalled that "that the ICC legal framework differs from that of the ad hoc tribunals, since under regulation 55 of the Regulations, the Trial Chamber may re-characterise a crime to give it the most appropriate legal characterisation. Therefore, before the ICC, there is no need for the Prosecutor to adopt a cumulative charging approach and present all possible characterisations in order to ensure that at least one will be retained by the Chamber." As a result the Chamber considered that the act of torture was fully subsumed by the count of rape. Decision Pursuant to Article 61(7)(a) and (b) of the Rome Statute on the Charges of the Prosecutor Against Jean-Pierre Bemba Gombo, 15 June 2009, paras. 203-205. This was appealed by the Prosecutor, Decision on the Prosecutor's Application for Leave to Appeal the "Decision Pursuant to Article 61(7)(a) and (b) of the Rome Statute on the Charges of the Prosecutor Against Jean-Pierre Bemba Gombo", 18 September 2009, paras. 30, 38-39 and 74.

[53]  In Lubanga, Judgment on the appeals of Mr Lubanga Dyilo and the Prosecutor against the Decision of Trial Chamber I of 14 July 2009 entitled "Decision giving notice to the parties and participants that the legal characterisation of the facts may be subject to change in accordance with Regulation 55(2) of the Regulations of the Court", 8 December 2009, paras. 66-88, the defence argued that regulation 55 is inherently incompatible with articles 52 and 61 (9) of the Statute, general principles of international law and with the rights of the accused. The Appeals Chamber "determined that Regulation 55 is not inherently incompatible with the aforementioned provisions of the Statute, but rather complements and completes them".
     In Prosecutor v. Lubanga, Decision giving notice to the parties and participants that the legal characterisation of the facts may be subject to change in accordance with Regulation 55(2) of the Regulations of the Court, 14 July 2009, paras. 27, 31 and 33 the Majority of the Trial Chamber held that "In the view of the majority of the Trial Chamber, Regulation 55 sets out the powers of the Chamber in relation to two distinct stages.... Regulation 55(2), applicable at any stage during trial proceedings, contains no limitation to the "facts and circumstances described in the charges". Therefore, a right to examine again previous witnesses, to call new witnesses and to present new evidence is expressly provided for in order to allow the defence the opportunity to challenge whether the evidentiary threshold required by procedural law has been met, and accordingly, a new factual basis has been established. ... A condition for triggering the mechanism of Regulation 55(2) is the Chamber's finding that the legal characterisation of facts may be subject to change. The submissions of the legal representatives of the victims and the evidence heard so far during the course of the trial persuade the majority of the Chamber that such a possibility exists. Accordingly, the parties and participants have a right to receive early notice."
     Judge Fulford dissented. In Minority opinion on the "Decision giving notice to the parties and participants that the legal characterisation of facts may be subject to change in accordance with Regulation 55(2) of the Regulations of the Court", 17 July 2009, paras. 13, 14, 28, 34 and 44, he held that: "the power to frame and alter the charges is exclusively a function of the Pre-Trial Chamber. ... Once the trial has commenced, the two limited powers given to the Trial Chamber under the Rome Statute framework in relation to the charges are, first, to grant or reject an application by the prosecution to withdraw the charges and, second, to modify the legal characterisation of the facts under Regulation 55.... Furthermore, in their Decision, the majority suggest that if Regulation 55(2) is treated as a separate provision, enabling the Chamber to change the characterisation of the facts at any time during the trial, it follows that the restriction in Regulation 55(1) -that the modification shall not exceed the facts and circumstances described in the charges and any amendments thereto -does not apply....In my view, the proposals advanced by the victims do not raise the possibility that the legal characterisation of the facts may change. Instead, the victims seek to add five additional charges. ... Each of the five proposals is founded on a new form of criminal responsibility. These proposals -if endorsed -would involve additional, and arguably more serious, offences being levied against the accused, in breach of Article 61(9)." Furthermore, in Judge Fulford's judgment ""i. Regulation 55, endowing the Chamber with authority "to modify the legal characterisation of facts" created an indivisible or singular process; ii. A modification to the legal characterisation of the facts under Regulation 55 must not constitute an amendment to the charges, an additional charge, a substitute charge or a withdrawal of a charge, because these are each governed by Article 61(9)" (para 53)
     The Trial Chamber's decision was appealed. In Lubanga, Decision adjourning the evidence in the case and consideration of Regulation 55, 2 October 2009, paras. 21-22 the Trial Chamber was persuaded that a necessary precondition for the "effective preparation" of the accused's defence, at that stage in the trial, was that Mr Thomas Lubanga Dyilo should know whether or not the legal characterisation of the facts may be subject to change, so as to include the elements of sexual slavery, inhuman treatment and cruel treatment. Additionally, he was entitled to know whether or not any potential modification of the legal characterisation of the facts is to be limited by the facts and circumstances contained in the charges. Therefore, the accused was entitled to certainty as regards these issues. Therefore the Trial Chamber concluded that further evidence in the case, along with a more detailed consideration of Regulation 55, cannot occur until the Appeals Chamber had resolved the appeal.
     The Appeals Chamber reversed the decision of Trial Chamber I with the key finding that "Regulation 55(2) and (3) of the Regulations of the Court may not be used to exceed the facts and circumstances described in the charges or any amendment thereto", Judgment on the appeals of Mr Lubanga Dyilo and the Prosecutor against the Decision of Trial Chamber I of 14 July 2009 entitled "Decision giving notice to the parties and participants that the legal characterisation of the facts may be subject to change in accordance with Regulation 55(2) of the Regulations of the Court", 8 December 2009, para. 1. It held that "any interpretation of Regulation 55 that cannot be reconciled with article 74 (2) of the Statute must be rejected as incorrect." (para. 90). The Appeals Chamber was of the view "that the Trial Chamber erred in law when finding that Regulation 55 contained two separate procedures and that it was permissible under Regulation 55(2) and (3) to include additional facts and circumstances that are not described in the charges." (para. 112).
     In the view of the Appeals Chamber, "the term 'facts' refers to the factual allegations which support each of the legal elements of the crime charged. These factual allegations must be distinguished from the evidence put forward by the Prosecutor at the confirmation hearing to support a charge (article 61 (5) of the Statute), as well as from background or other information that, although contained in the document containing the charges or the confirmation decision, does not support the legal elements of the crime charged. The Appeals Chamber emphasises that in the confirmation process, the facts, as defined above, must be identified with sufficient clarity and detail, meeting the standard in article 67 (I) (a) of the Statute." (para. 90, footnote 163) In a later decision, the Trial Chamber stated that the "specific factual allegations are to be distinguished from the general evidence in the case", Decision on the Legal Representatives' Joint Submissions conceming the Appeals Chamber's Decision on 8 December 2009 on Regulation 55 of the Regulations of the Court, 08 January 2010. The Chamber also stated that "it is necessary to focus on the factual allegations in [the Decision on the Confirmation of Charges] and on whether the requested modification of the legal characterisation of facts arises (i) from factual allegations included in the Decision on the Confirmation of Charges, which (ii) support each of the legal elements of the crimes with which the accused is charged. (para. 30) The Chamber's conclusion was that "it does not appear to the Chamber that the legal characterisation of facts may be subject to the changes described by the legal representatives of victims" and the application for the implementation of the procedure under Regulation 55 was refused. (paras. 38 and 39)

[54] In Prosecutor v. Thomas Lubanga Dyilo, Decision on victim's participation, 18 January 2008, paras. 110-112, TC I considered that "there will be some areas of evidence concerning reparations which it would be inappropriate, unfair or inefficient to consider as part of the trial process. ... The Trial Chamber may allow such evidence to be given during the trial if it is in the interests of individual witnesses or victims, or if it will assist with the efficient disposal of issues that may arise for determination."

[55] In Appointment of Duty Counsel, 19 April 2007, PTC I ordered the Registrar or his representatives to appoint a duty counsel for Thomas Lubanga Dyilo pursuant to regulation 73 (2) of the Regulations.

[56] Decision on legal representation, appointment of counsel for the defence, protective measures and time-limit for submission of observations on applications for participation a/0010/06, a/0064/06 to a/0070/06, a/0081/06 to a/0104/06 and a/0111/06 to a/0127/06, 1 February 2007, paragraph 15 In Decision Appointing Ad Hoc Counsel and Establishing a Deadline for the Prosecution and the Ad Hoc Counsel to Submit Observations on the Applications of Applicants a/0001/06 to a/0003/06, 18 May 2006, PTC I decided to appoint an ad hoc counsel to represent and protect the general interests of the Defence during the application process provided for in rule 89 of the Rules in relation to the Applications.
    In the situation in Uganda, Decision on legal representation, appointment of counsel for the defence, criteria for redactions of applications for participation, and submission of observations on applications for participation a/0014/07 to a/0020/07 and a/0076/07 to a/0125/07, 17 September 2008, p. 7, the Pre-Trial Chamber appointed a counsel for the defence within the context of a situation to represent and protect the interests of the defence even though the persons against whom warrants of arrest have been issued are neither before the Court nor available for contacts by the defence.

[57] Decision on legal representation, appointment of counsel for the defence, protective measures and time-limit for submission of observations on applications for participation a/0010/06, a/0064/06 to a/0070/06, a/0081/06 to a/0104/06 and a/0111/06 to a/0127/06, 1 February 2007, paragraph 13. In Decision on the OPCV's 'Request to access documents and material', 16 March 2007, PTC II rejected the OPCV's request to access documents or material included in the record either of the situation or of the case bearing upon issues of security and safety of victims and witnesses. In Decision on the OPCV's observations on victims' applications and on the Prosecution's objection thereto, 16 April 2007, PTC II considered that  on the basis that the OPCV's spontaneous submission of legal observations as to the admissibility and the merits of the victims' applications to the Single Judge is deprived of legal basis and dismissed the OPCV's Observations as inadmissible.

[57bis] In Ruto et al, Decision on the "Application of the Victims' Representative pursuant to Article 83 of the Regulations", 23 April 2012, paras. 6 and 23, the the Pre-Trial Chamber rejected in limine for lack of standing a request by the Legal Representative to order the Registry to make available resources for a mission to Kenya. The Pre-Trial Chamber noted that under the Decision on Victims' Participation, the Legal Representative's mandate "was limited to the confirmation of charges hearing and related proceedings, and thus did not include, in and of itself, future involvement in the case". On appeal, the Appeals Chamber ruled that "the approach of the Registry as to legal assistance paid by the Court for the present phase of the proceedings before the Appeals Chamber, namely that further activities of the Legal Representative must be authorised beforehand by the Registry in order to be covered by the legal aid scheme, is therefore adequate. "

[58] In  Decision on the application for additional means under regulation 83(3) of the Regulations of the Court and on the applications to intervene as amici curiae under rule 103 of the Rules of Procedure and Evidence, 5 June 2007, PTC I considered that the chamber had committed the case to trial before a Trial Chamber on the charges as confirmed and transmitted the decision and the record of the proceedings in the instant case to the Presidency pursuant to rule 129 of the Rules.  It considered therefore that the Chamber is no longer seized of any matter in the instant case, decided that the Chamber has no jurisdiction to rule on the present requests and that the Chamber is no longer seized of any matter in the case.

[58bis] In Bemba, Decision Filing a Public Redacted Version of the "Decision on the 'Request for Review of the Registrar's Decision of 25 August 2008 on the Application for Legal Assistance Paid by the Court'" with annex, 25 February 2009, the Presidency reviewed the decision of the Registrar on Mr Jean-Pierre Bemba Combo's application for legal assistance paid by the Court.

[59] In Situation in Darfur, Sudan, Decision on the Requests of the OPCD on the Production of Relevant Supporting Documentation Pursuant to Regulation 86(2)(e) of the Regulations of the Court and on the Disclosure of Exculpatory Materials by the Prosecutor, 6 December 2007, the OPCD requested that the legal representative of the applicants for victim status should be ordered to provide information and documents showing that the applicants had exhausted all domestic remedies, beacuse otherwise the principle of complementarity would be frustrated (paras. 9 and 10). The Single Judge Kuenyehia considered that the object and purpose of the application process concerning the procedural status of victims in rule 89 and regulation 86 is "limited to the determination of whether such procedural status should be granted to applicants... The application is not related to questions pertaining to quilt or innocence of the suspect or the accused... Hence, it can be distinguished from criminal proceedings of the Court, which include the investigation of a situation, the initiation of a case and the pre-trial, trial and appeal stages of a case, which are goverend by specific articles, rules and regulations." (paras 5-6). As a result, the single judge came to the conclusion that the complementarity principle is inapplicable to the application process because the object and purpose of the application process is confined to the determination of whether the procedural status of victims can be granted to the applicants" in ongoing proceedings (para. 11). The OPCD also asked the Chamber to order the Prosecutor to search for and disclose exculpatory information. The Single Judge found that article 67(2) "is not applicable in the context of the application process" for victim status (paras 18-20). The Single Judge Steiner later recalled the decision from 6 December 2007 in Situation in the Democratic Republic of Congo Decision on the Requests of the OPCD on the Production of Relevant Supporting Documentation Pursuant to Regulation 86(2)(e) of the Regulations of the Court and on the Disclosure of Exculpatory Materials by the Prosecutor, paras. 4-5, 7 December 2007 and rejected the requests of the OPCD on the same grounds.    

    Single Judge Kuenyehia granted leave to appeal the decision from 6 December 2007 in relation to the issue whether "article 68(3) of the Statute can be interpreted as providing for a 'procedural status of victim' at the investigation stage of a situation and the pre-trial stage of a case" in situation in Darfur, Sudan, Decision on Request for leave to appeal the "Decision on the Requests of the OPCD on the Production of Relevant Supporting Documentation Pursuant to Regulation 86(2)(e) of the Regulations of the Court and on the Disclosure of Exculpatory Materials by the Prosecutor", 23 January 2008. See also Judge Steiner Situation in the Democratic Republic of Congo, Decision on Request for leave to appeal the "Decision on the Requests of the OPCD on the Production of Relevant Supporting Documentation Pursuant to Regulation 86(2)(e) of the Regulations of the Court and on the Disclosure of Exculpatory Materials by the Prosecutor.

Author: Mark Klamberg

[80] The Chamber is not required to transmit the report of the Registrar to the participants. See situation in Darfur, Sudan, Decision on the Requests of the OPCD and the Legal Representatives of the Applicants Regarding the Transmission of the Report of the Registry under Rule 89 of the Rules of Evidence and Procedure, 21 August 2007. TC I made a similar ruling in Decision on the implementation of the reporting system between the Registrar and the Trial Chamber in accordance with Rule 89 and Regulation of the Court 86(5) and stated that "the reports prepared by the Victims Participation and Reparations Section are not to be provided to the parties and participants unless the Trial Chamber orders otherwise." (para. 27)

Crossreference:
Rule 89

Author: Mark Klamberg

[100] In Prosecutor v. Chui,  Decision on the Prosecution's Urgent Application pursuant to regulations 90,99(2) and 101(2) of the Regulations of the Court, 7 February 2008, page 5, the single Judge considered the following measures appropriate: "(i) active enforcement of the prohibition to exchange case-related materials between Mathieu Ngudjolo Chui and Germain Katanga; and (ii) a general prohibition for both detainees to communicate in relation to any public or confidential aspects of their respective cases." See also Katanga and Chui,  Decision revoking the prohibition of contact and communication between Germain katanga and Mathieu Ngudjolo Chui, 13 March 2008, where the single judge rejected the Prosecution Application to segregate the defendants.

[104] In Bemba, Reasons for the decision on the Applications for judicial review of Mr Jean-Pierre Bemba Gombo of 10 and 11 November 2008, 04 September 2009, the Presidency reviewed the decision of the Registrar on the non-authorisation of private visits and the monitoring of non-privileged communications and visits of Mr Jean-Pierre Bemba Gombo.

[105] In Bashir, Decision requesting observations about Omar Al-Bashir's recent visit to Malawi, 19 October 2011 invitedpursunat to regulation 109(3) the competent authorities of the Republic of Malawi to submit observations with regard to the alleged failure by the Republic of Malawi to comply with the Cooperation Requests issued by the Court.

[110] 1. The Presidency shall establish an enforcement unit within the Presidency to assist it in the exercise of its functions under Part 10 of the Statute, in particular:(a) The supervision of enforcement of sentences and conditions of imprisonment; and(b) The enforcement of fines, forfeiture orders and reparation orders.2. The record for each sentenced person shall be maintained by the Registrar in accordance with rule 15. The Presidency shall create a specialized unit to assist the three judges with their extensive duties under Part 10. The main tasks listed here are the supervision of the enforcement and conditions of all prison sentences, including the contact to sentenced persons (Art. 106) and the enforcement of other sanctions (Art. 109). According to sub-regulation 2, the Registrar will keep a file for each sentenced person.

Cross-references:
Articles 106, 109

Authors:
Michael Stiel and Carl-Friedrich Stuckenberg

[111] Bilateral arrangements as described in rule 200, sub-rule 5, shall be negotiated under the authority of the Presidency and thereafter concluded with the relevant State by the President.
In line with Rule 199, the Presidency is responsible to negotiate enforcement agreements according to Rule 200(5) with interested States. However, the final conclusion of such agreements is a duty of the President himself as chief official and representative of the Court (cf. Art. 2, 3).

Cross-references
Article 103
Rule 200(5)

Authors:
Michael Stiel and Carl-Friedrich Stuckenberg

[112] In the exercise of its functions under rule 214, sub-rule 4, the Presidency shall have due regard to the principles of international law on re-extradition.
Curiously, neither the Statute nor the Rules of Procedure and Evidence have regard to the law governing inter-State extradition and the status of the surrendering State when questions of re-extraditing the prisoner to a third State under Art. 108 arise, see comment on article 108. Regulation 115 is intended to fix this omission and calls for “due regard” of the principles of international law on re-extradition. “Due regard” should result in the Presidency’s respecting the vote of the surrendering State under normal circumstances, see the commentary on Rule 214(4).

Cross-references:
Article 108
Rule 214(4)

Authors:
Michael Stiel and Carl-Friedrich Stuckenberg

[113]  1. For the purposes of enforcement of fines, forfeiture orders and reparation orders, the Presidency, with the assistance of the Registry as appropriate, shall make the arrangements necessary in order to, inter alia:
(a) Receive payment of fines as described in article 77, paragraph 2(a);
(b) Receive, as described in article 109, paragraph 3, property or the proceeds of the sale of real property or, where appropriate, the sale of other property;
(c) Account for interest gained on money received under (a) and (b) above;
(d) Ensure the transfer of money to the Trust Fund or to victims, as appropriate.
2. Following the transfer to or deposit in the Trust Fund of property or assets realized through enforcement of an order of the Court, the Presidency shall, subject to article 75, paragraph 2, and rule 98, decide on their disposition or allocation in accordance with rule 221.
Regulation 116 specifies the details how the Presidency shall, with help of the Registry as appropriate, make arrangements for the reception of payments and property resulting from the enforcement of fines, forfeiture and reparation orders, account for interest and ensure their possible transfer to the Trust Fund or to victims. Pursuant to sub-regulation 2, the Presidency also decides on the disposition or allocation of property or assets transferred or deposited to the Trust Fund.

Cross-references:
Articles 75, 77, 79(2), 109
Rules 98, 221

Authors:
Michael Stiel and Carl-Friedrich Stuckenberg

[114] The Presidency shall, if necessary, and with the assistance of the Registrar as appropriate, monitor the financial situation of the sentenced person on an ongoing basis, even following completion of a sentence of imprisonment, in order to enforce fines, forfeiture orders or reparation orders, and may, inter alia:
(a) Request relevant information, expert opinions or reports, where necessary by way of a request for cooperation, and, if appropriate, on a periodic basis;
(b) Contact, where appropriate in the manner described in rule 211, paragraph 1(c), the sentenced person and his or her counsel in order to inquire into the financial situation of the sentenced person;
(c) Ask for observations from the Prosecutor, victims and legal representatives of victims.
The regulation sets forth an obligation of the Presidency to continuously monitor the financial situation of a sentenced person to enforce any outstanding fines, forfeiture orders or reparation orders, even if the person is released following the completion of his or her sentence of imprisonment. Some examples are listed of how to collect the necessary information: expert opinions and other reports, received according to Part 9, as appropriate; statements of the sentenced person or their counsel; the views of the Prosecutor, of the victims and of their representatives. Compare Rule 212 which authorizes the Presidency to request the State of enforcement to transmit the relevant information concerning the intention of that State to authorize the person to remain in its territory or the location where it intends to transfer the person.

Cross-references:
Article 109
Rules 211, 212

Authors
Michael Stiel and Carl-Friedrich Stuckenberg

[115] 1. In making its decision on the extension of the term of imprisonment in accordance with rule 146, sub-rules 5 and 6, the Presidency may ask for observations from States in which attempts to enforce fines did not succeed and shall ask for observations from the State in which the sentence of imprisonment is being served. 
The first paragraph provides guidance for the Presidency preparing its decision whether to extend the term of imprisonment of the sentenced person for failure to pay a fine under Rule 146(5), (6) as a means of “last resort” at all and if so, to what extent. It may seek observations from states attempting to enforce fines, presumably to examine the exact amount and the degree of the sentenced person’s responsibility. The Presidency may also consider reports from the State of enforcement which will bear the costs of the extension of imprisonment and whose enforcement measures (one might think of rehabilitation programs preparing the release after completion of the sentence) might be affected by the decision.

Authors:
Michael Stiel and Carl-Friedrich Stuckenberg

[116] 2. Where the term of imprisonment has been extended under rule 146, sub-rules 5, and the sentenced person subsequently pays the fine or a portion thereof, the Presidency shall revoke or in case of partial payment reduce the extension previously ordered.
The second paragraph of the regulation stipulates that subsequent payment of the fine must lead to a corresponding reduction of the extension of imprisonment. This reflects the subsidiarity of the imprisonment invoked under Rule 146 to the fine originally ordered by the final sentencing judgment. Nonetheless, the “quasi judicial function” of the Presidency sitting “in camera” under Rule 146(5), (6) to impose a term of imprisonment subject to its (relative) discretion without mandatory consultation of the Trial Chamber, albeit as an extension, may seem remarkable (Abtahi/Arrigg Koh, 2012, p. 21 f.).

Cross-reference:
Article 77
Rule 146(5)

Doctrine:
Abtahi, Hirad/Arrigg Koh, Steven, The Emerging Enforcement Practice of the International Criminal Court, Cornell International Law Journal, vol. 45 (2012): 1–23

Authors:Michael Stiel and Carl-Friedrich Stuckenberg