[341] General remarks concerning Rules 173-175
Rules 173 to 175 provide some details concerning the procedure to request compensation under article 85 of the Statute.
The most important decision in this regard is the Decision on the “Requête en indemnisation en application des dispositions de l’article 85 (1) et (3) du Statut de Rome” in the Ngudjolo case even though, the request was dismissed. Prosecutor v. Ngudjolo, ICC T. Ch. II, Decision on the “Requête en indemnisation en application des dispositions de l’article 85 (1) et (3) du Statut de Rome”, ICC-01/04-02/12, 16 December 2015
Other decision of the Court related to the matter:
- Prosecutor v. Thomas Lubanga Dyilo, ICC A. Ch., Judgment on the Appeal of Mr. Thomas Lubanga Dyilo against the Decision in the Defence Challenge to the Jurisdiction of the Court pursuant to article 19(2)(a) of the Statute, ICC-01/04-01/06-772, 14 December 2006.
- Prosecutor v. Germain Katanga et al., ICC T. Ch. II, Decision on the Motion of the Defence for Germain Katanga for a Declaration in Unlawful Detention and Stay of Proceedings, ICC-01/04-01/07, 3 December 2009.
- Prosecutor v. Jean-Pierre Bemba Gombo et al., ICC PT. Ch., Decision on the “Requête de mise en liberté” submitted by Defence for Jean-Jacques Mangenda, ICC-01/05-01/13, 17 April 2014.

Cross-reference:
Article 85

Author:
Wenke Brückner, Julia Dornbusch

Updated:
13 March 2017

[342] 1. Anyone seeking compensation on any of the grounds indicated in article 85 While according to Article 84 and Rules 159-161 spouses, children, parents etc. are entitled to seek revision after the death of a convicted person, Rule 172 refers to Article 85 and thus, only allows the person concerned, i.e. the person convicted, detained or arrested to request compensation [Bitti, 2001, p. 623-636, 626]. The wording of the Statute cannot be interpreted differently although the benefits of the ability of relatives to seek compensation might be more substantial than the possibility to have the final judgment revised.

Cross-reference:
Article 84 and 85

Author:
Wenke Brückner, Julia Dornbusch

Updated:
13 March 2017

[343] shall submit a request, in writing, to the Presidency, which shall designate a Chamber composed of three judges to consider the request.
The wording of Rule 173, empowering the presidency to “designate” a Chamber, suggests that the decision on the request for compensation is to be made by a Pre-Trial or a Trial Chamber, as only these Chambers are composed of three judges and the Presidency is not allowed to constitute a new Chamber exclusively for the question of compensation [Bitti, 2001, p. 623-636, 627].

Cross-reference:
Article 85

Author:
Wenke Brückner, Julia Dornbusch

Updated:
13 March 2017

[344] These judges shall not have participated in any earlier judgement of the Court regarding the person making the request.
Rule 173(1) is supposed to guarantee a total impartiality of the deciding judges, notwithstanding the use of the word “judgment”, that seems to exclude e.g. decision of the Appeals Chamber. The goal of this provision is clearly to cover all relevant decisions by the Court. A finding that is supported by the French version of Rule 173, that speaks of “decision” instead of “arrêt” although “arrêt” is the word otherwise used for the English term “judgment” [Bitti, 2001, p. 623-636, 627].

Cross-reference:
Article 85

Author:
Wenke Brückner, Julia Dornbusch

Updated:
13 March 2017

[345] 2. The request for compensation shall be submitted not later than six months from the date the person making the request was notified of the decision of the Court concerning:
In general, the filing for the request for compensation according to Article 85(1) and (3) must be preceded by a decision of the Court determining that either the arrest or detention had been unlawful or that a miscarriage of justice had taken place [Ngudjolo, ICC T. Ch. II, ICC-01/04-02/12, 16 December 2015, para. 13; Lubanga, ICC A. Ch., ICC-01/04-01/06-772, 14 December 2006, para. 4; see also Mangenda et al, ICC PT. Ch., ICC-01/05-01/13, 17 April 2014, para. 3]. Therefore, the person seeking compensation as a first step must submit a motion for a declaration stating that his or her arrest or detention had been unlawful (Articles 55(1)(d), 58(1)(b) of the Statute) or that a miscarriage of justice had taken place (fundamental rights of the defendant must have been violated to the extent that the proper administration of justice was compromised). This motion has to be submitted as soon as the applicant becomes aware of the miscarriage of justice or the unlawfulness of his or her arrest or detention [see Ngudjolo, ICC T. Ch. II, ICC-01/04-02/12, 16 December 2015, para. 19; Katanga, ICC T. Ch. II, ICC-01/04-01/07, 3 December 2009, para. 39f., 48]. A separate decision as a precondition for the request under Article 85 of the Statute is not required when another decision or judgement of the Court explicitly states that the arrest or the detention had been unlawful or a miscarriage of justice had taken place [see Ngudjolo, ICC T. Ch. II, ICC-01/04-02/12, 16 December 2015, para. 15]. A decision on acquittal as such does not imply that the arrest or detention was unlawful or a miscarriage of justice has taken place [Ngudjolo, ICC T. Ch. II, ICC-01/04-02/12, 16 December 2015, para. 15].
   Against a literal interpretation of Rule 173 a request for compensation can also be made in absence of a preceding decision declaring the unlawfulness of the arrest or detention or determining a miscarriage of justice had taken place. In that case, the Chamber designated to decide on the request for compensation can rule on the matter as a preliminary question [Ngudjolo, ICC T. Ch. II, ICC-01/04-02/12, 16 December 2015, para. 16]. Problematic in that regard is, that the Chamber deciding on compensation is not permitted to act as another level of adjudication. For example, it does not have the power to re-assess the merits of decisions of the Court in order to determine whether a miscarriage of justice had taken place [Ngudjolo, ICC T. Ch. II, ICC-01/04-02/12, 16 December 2015, para. 47]. The applicant must show proof that a miscarriage had occurred by making special reference to the content of transcripts of decisions and hearings or on what grounds his or her arrest or detention was unlawful [Ngudjolo, ICC T. Ch. II, ICC-01/04-02/12, 16 December 2015, para. 48]. Because the Chamber has no powers to act in an ‘investigatory manner’ the applicant should request an independent decision on the unlawfulness of his or her arrest or detention or the occurrence of a miscarriage of justice before filing a request for compensation.
   In general, the request for compensation has to be submitted six month after the decision stating that the arrest or the detention had been unlawful or a grave miscarriage of justice had occurred. If the unlawfulness of the arrest or detention or the occurrence of a miscarriage of justice has not been determined in a separate decision of the Court prior to the request of compensation and therefore, has to be determined as a preliminary question, the request for compensation shall be submitted as soon as the applicant became aware of the unlawfulness of his or her arrest or detention or the miscarriage of justice [see Ngudjolo, ICC T. Ch. II, ICC-01/04-02/12, 16 December 2015, para. 19].

Cross-reference:
Article 85

Author:
Wenke Brückner, Julia Dornbusch

Updated:
13 March 2017

[346] (b) The reversal of the conviction under article 85, paragraph 2;
A filing of the request for compensation pursuant to article 85 paragraph 2 must be preceded by a decision on revision of a final decision of the Court.

Author:
Wenke Brückner, Julia Dornbusch

Updated:
13 March 2017

[347] 3. The request shall contain the grounds and the amount of compensation requested.
The application must meet certain standards of clarity and definiteness. For example, the amount of the compensation requested must be stated. It can be assumed that the Chamber is not bound by the amount proposed considering the discretion the Rules confer to the Chamber especially regarding the amount of compensation under Article 85(1) and (2). For the latter no criteria for determining the amount are provided for in the Rules of Procedure and Evidence, while Rule 175 provides criteria for the amount of compensation under Article 85(3). In absence of a preceding decision on the illegality of the arrest or detention or on the occurrence of a miscarriage of justice the application for compensation must meet a very high standard of clarity and definiteness as the burden of proof lies with the applicant [see Ngudjolo, ICC T. Ch. II, ICC-01/04-02/12, 16 December 2015, para. 47f.]. His/her application as such must show that a miscarriage of justice took place or why the detention or arrest was illegal. As stated above, the Chamber deciding on the request for compensation does not act in an investigatory manner to determine this preliminary question.

Cross-reference:
Article 85
Rule 175

Author:
Wenke Brückner, Julia Dornbusch

Updated:
13 March 2017

[348] 4. The person requesting compensation shall be entitled to legal assistance.
The specification in Rule 173(4), that the right to counsel exists also in compensation proceedings was necessary because Article 67 ICC-Statute applies only to proceedings concerning the determination of charges. However, it is not clear, if – corresponding to Article 67 ICC-Statute – free legal assistance is included. Regarding the difference between financial compensation and the risks of a criminal charge it might be justified to provide free legal assistance by the Court only in cases of questions on criminal liability, although the prior suffering of the person concerned due to malpractice of the Court itself suggests a higher duty of the Court in this regard.

Cross-reference:
Article 85

Doctrine:
Gilbert Bitti “Compensation to an Arrested or Convicted person”, in Roy Lee et al. (Eds.), The International Criminal Court, Elements of Crimes and Rules of Procedure and Evidence, Transnational Publishers, New York, 2001, p. 623-636

Author:
Wenke Brückner, Julia Dornbusch

Updated:
13 March 2017

[349] 1. A request for compensation and any other written observation by the person filing the request shall be transmitted to the Prosecutor, who shall have an opportunity to respond in writing. Any observations by the Prosecutor shall be notified to the person filing the request.

2. The Chamber designated under rule 173, sub-rule 1, may either hold a hearing or determine the matter on the basis of the request and any written observations by the Prosecutor and the person filing the request. A hearing shall be held if the Prosecutor or the person seeking compensation so requests.
In case of a request for compensation the principle of oral proceeding is softened in the way that a hearing is not mandatory, but shall be conducted when the prosecutor or the party seeking compensation requests so.

Author:
Wenke Brückner, Julia Dornbusch

Updated:
13 March 2017

[350] 3. The decision shall be taken by the majority of the judges. The decision shall be notified to the Prosecutor and to the person filing the request.
Originally, the decision of the judges was to contain their reasoning. However, although everyone agreed, that the decision on compensation was supposed to be final and not subject to appeal, no agreement could be reached between the different proposals referring either to “reasons” or article 83(4) ICC-Statute. Hence, in the end, the entire sentence was dropped [Bitti, 2001, p. 623-636, 634].

Cross-reference:
Article 85(3)

Doctrine:
Gilbert Bitti “Compensation to an Arrested or Convicted person”, in Roy Lee et al., The International Criminal Court, Elements of Crimes and Rules of Procedure and Evidence, Transnational Publishers, New York, 2001, p. 623-636

Author:
Wenke Brückner, Julia Dornbusch

Updated:
13 March 2017

[351] In establishing the amount of any compensation in conformity with article 85, paragraph 3,
Rule 175, concerning the amount of compensation, only addresses the situation of Article 85(3) ICC-Statute, because only Article 85(3) explicitly requires concrete criteria for the decision on the amount of compensation. Although, it was suggested during the drafting of the Rules, that Rule 174 should apply to Article 85 ICC-Statute in its entirety, the States in the end decided to leave the Chamber with more – put in a positive way – flexibility. However, it should be pointed out that the Rules do not provide any criteria for deciding whether compensation should be granted or not. Even if, a manifest and grave miscarriage took place it is in Chamber’s the discretion to award compensation, as Article 85(3) ICC-Statute does not provide a right to compensation.

Cross-reference:
Article 85
Rule 174

Author:
Wenke Brückner, Julia Dornbusch

Updated:
13 March 2017

[352] the Chamber designated under rule 173, sub-rule 1, shall take into consideration the consequences of the grave and manifest miscarriage of justice on the personal, family, social and professional situation of the person filing the request.
The criteria concerning the amount of compensation in Rule 175 shows the aim of the provisions to compensate material and immaterial damage linked to the miscarriage of justice.

Author:
Wenke Brückner, Julia Dornbusch

Updated:
13 March 2017