Table of contents:
6.1. There was no previous judgment pronounced by a court.
P.1.1. Evidence of denial of the general right of access to a court.
P.1.2. Evidence of trial by faceless judges.
P.1.3. Evidence of participation of judges disqualified under domestic statutes
P.1.4. Evidence that judiciary and executive were not clearly distinguishable.
P.1.5. Evidence that the executive controlled the judiciary.
P.1.6. Evidence that the executive directed the judiciary.
P.2. Evidence of denial of the right to be informed of the charges against one without delay.
P.7. Evidence of denial of the right to defend oneself in person or through legal assistance.
P.8. Evidence of violation of the right to be tried without undue delay.
P.9. Evidence of denial of the right to present and examine witnesses.
P.10. Evidence of denial of the right to an interpreter.
P.11. Evidence of violation of the principle of individual criminal responsibility.
P.12. Evidence of violation of the principle of nullum crimen sine lege.
P.13. Evidence of denial of the right to be presumed innocent until proved guilty.
P.14. Evidence of denial of the right to be tried in ones own presence.
P.15. Evidence that victim was compelled to testify against himself.
P.15.1. Evidence of pressure to confess from investigating authorities.
P.17. Evidence of denial of the right to have judgment pronounced publicly.
P.18. Evidence of violation of the principle of ne bis in idem.
Element:
6.1. There was no previous judgment pronounced by a court.
A. Evidentiary comment:
The drafting of the elements of article 8(2)(c)(iv) were largely influenced by the content of article 6(2) AP II.On the basis of that provision the term regularly constituted court as contained in common article 3(1)(d) and thus article 8(2)(c )(iv) of the ICC Statute was defined as a court that affords the essential guarantees of independence and impartiality. (Knut Dormann, "Elements of War Crimes under the Rome Statute" Cambridge University Press 2002, pp. 408-409) Firstly, since this crime is derived from common article 3(1)(d) of the Geneva Conventions; secondly, that there have been no findings on the elements of this offence by the as hoc tribunals; and thirdly, that common article 3 of the Geneva Conventions itself does not give any clarification for the interpretation of this offence, one commentator suggests, after an examination of various sources (mainly ICRC commentary on articles 75 AP I and 6 AP II) , that article 6(2) AP II explains common article 3(1)(d) of the Geneva Conventions rather than extends it. The commentator therefore suggests that the material elements of article 6(2) AP II may be an indication of for the respective elements of article 8(2)(c )(iv) of the Rome Statute; and in particular suggests that it might be argued that the non-exhaustive minimum list of essential guarantees contained in article 6(2) AP II also applies to this crime. (ibid, at pp. 409, 412) The commentator further concludes that following the approach in Delalic and Furundzija, where human rights law was used to define the crime of torture, the relevant case law of the human rights bodies may be a further indication for the interpretation of common article 3 of the Geneva Conventions , and thus article 8(2)(c)(iv) of the Rome Statute.(ibid, p.412) That article 6(2) AP II largely reiterates principles based on the ICCPR, the commentator suggests, strongly justifies this approach to the crime. (ibid.)
Therefore, case law from the human rights bodies has been included in this MPMD. However, while human rights jurisprudence may throw some light on the elements of this crime, it should be borne in mind that, as was held in the case of Blake v. Guatemala (Blake v. Guatemala, Judgment, IACtHR, para.50): "[ ] the criteria for evaluation of evidence before an international human rights tribunal are broader, since determination of a State's international responsibility for human rights violation bestows greater flexibility on the Tribunal in assessing evidence delivered to it on the pertinent facts, on the basis of logic and experience ( .)"Furthermore, it is important to keep in mind that the shifting of the burden of proof is strictly prohibited under the Rome Statute.
A. Legal source/authority and evidence:
Article 14(1) ICCPR:
"Article 14
1. All persons shall be equal before the courts and tribunals. In the determination of any criminal charge against him, or of his rights and obligations in a suit at law, everyone shall be entitled to a fair and public hearing by a competent, independent and impartial tribunal established by law. The press and the public may be excluded from all or part of a trial for reasons of morals, public order (ordre public) or national security in a democratic society, or when the interest of the private lives of the parties so requires, or to the extent strictly necessary in the opinion of the court in special circumstances where publicity would prejudice the interests of justice; but any judgement rendered in a criminal case or in a suit at law shall be made public except where the interest of juvenile persons otherwise requires or the proceedings concern matrimonial disputes or the guardianship of children."
Article 6(1) ECHR:
"[ ]
Article 8(1) ACHR:
"Article 8. Right to a Fair Trial
1. Every person has the right to a hearing, with due guarantees and within a reasonable time, by a competent, independent, and impartial tribunal, previously established by law, in the substantiation of any accusation of a criminal nature made against him or for the determination of his rights and obligations of a civil, labor, fiscal, or any other nature."
P.1.1. Evidence of denial of the general right of access to a court.
A. Legal source/authority and evidence:
Ol? Bahamonde v. Equatorial Guinea, Communication No. 468/1991, U.N. Doc. CCPR/C/49/D/468/1991 (10 November 1993), para. 9.4:
"9.4 The author has contended that despite several attempts to obtain judicial redress before the courts of Equatorial Guinea, all of his démarches have been unsuccessful. This claim has been refuted summarily by the State party, which argued that the author could have invoked specific legislation before the courts, without however linking its argument to the circumstances of the case. The Committee observes that the notion of equality before the courts and tribunals encompasses the very access to the courts and that a situation in which an individual's attempts to seize the competent jurisdictions of his/her grievances are systematically frustrated runs counter to the guarantees of article 14, paragraph 1. In this context, the Committee has also noted the author's contention that the State party's president controls the judiciary in Equatorial Guinea. The Committee considers that a situation where the functions and competences of the judiciary and the executive are not clearly distinguishable or where the latter is able to control or direct the former is incompatible with the notion of an independent and impartial tribunal within the meaning of article 14, paragraph 1, of the Covenant."
[B. Evidentiary comment]:
P.1.2. Evidence of trial by faceless judges.
A. Legal source/authority and evidence:
Espinoza de Polay v. Peru, Communication No 577/1994, Report of the Human Rights Committee, UN Doc. A/53/40, paras. 2.2, 8.8:
"2.2 On 3 April 1993, Victor Alfredo Polay Campos was tried in the Yanamayo prison by a so-called "tribunal of faceless judges" established under special anti-terrorist legislation. Such a body consists of judges who are allowed to cover their faces, so as to guarantee their anonymity and prevent them from being targeted by active members of terrorist groups. Mr. Polay Campos was convicted and sentenced to life imprisonment; it is claimed that his access to legal representation and the preparation of his defence were severely restricted. While the author does not specify the crime(s) of which her husband is convicted, it transpires from the file that he was convicted of "aggravated terrorism"."
"8.8. As to Mr. Polay Campos' trial and conviction on 3 April 1993 by a special tribunal of "faceless judges", no information was made available by the State party, in spite of the Committee's request to this effect in the admissibility decision of 15 March 1996. As indicated by the Committee in its preliminary comments of 25 July 1996 on the Third Periodic Report of Peru and its Concluding Observations of 6 November 1996 (2) on the same report, (3) such trials by special tribunals composed of anonymous judges are incompatible with article 14 of the Covenant. It cannot be held against the author that she furnished little information about her husband's trial: in fact, the very nature of the system of trials by "faceless judges" in a remote prison is predicated on the exclusion of the public from the proceedings. In this situation, the defendants do not know who the judges trying them are and unacceptable impediments are created to their preparation of their defence and communication with their lawyers. Moreover, this system fails to guarantee a cardinal aspect of a fair trial within the meaning of article 14 of the Covenant: that the tribunal must be, and be seen to be, independent and impartial. In a system of trial by "faceless judges", neither the independence nor the impartiality of the judges is guaranteed, since the tribunal, being established ad hoc, may comprise serving members of the armed forces. In the Committee's opinion, such a system also fails to safeguard the presumption of innocence, which is guaranteed by article 14, paragraph 2. In the circumstances of the case, the Committee concludes that paragraphs 1, 2 and 3 (b) and (d) of article 14 of the Covenant were violated."
[B. Evidentiary comment]:
P.1.3. Evidence of participation of judges disqualified under domestic statutes
A. Legal source/authority and evidence:
Karttunen v. Finland, Communication No. 387/1989, U.N. Doc. CCPR/C/46/D/387/1989 (1992), para. 7.2:
"7.2 The impartiality of the court and the publicity of proceedings are important aspects of the right to a fair trial within the meaning of article 14, paragraph 1. "Impartiality" of the court implies that judges must not harbour preconceptions about the matter put before them, and that they must not act in ways that promote the interests of one of the parties. Where the grounds for disqualification of a judge are laid down by law, it is incumbent upon the court to consider ex officio these grounds and to replace members of the court falling under the disqualification criteria. A trial flawed by the participation of a judge who, under domestic statutes, should have been disqualified cannot normally be considered to be fair or impartial within the meaning of article 14."
[B. Evidentiary comment]:
P.1.4. Evidence that judiciary and executive were not clearly distinguishable.
A. Legal source/authority and evidence:
Ol? Bahamonde v. Equatorial Guinea, Communication No. 468/1991, U.N. Doc. CCPR/C/49/D/468/1991 (10 November 1993), para. 9.4:
"9.4 The author has contended that despite several attempts to obtain judicial redress before the courts of Equatorial Guinea, all of his démarches have been unsuccessful. This claim has been refuted summarily by the State party, which argued that the author could have invoked specific legislation before the courts, without however linking its argument to the circumstances of the case. The Committee observes that the notion of equality before the courts and tribunals encompasses the very access to the courts and that a situation in which an individual's attempts to seize the competent jurisdictions of his/her grievances are systematically frustrated runs counter to the guarantees of article 14, paragraph 1. In this context, the Committee has also noted the author's contention that the State party's president controls the judiciary in Equatorial Guinea. The Committee considers that a situation where the functions and competences of the judiciary and the executive are not clearly distinguishable or where the latter is able to control or direct the former is incompatible with the notion of an independent and impartial tribunal within the meaning of article 14, paragraph 1, of the Covenant."
[B. Evidentiary comment]:
P.1.5. Evidence that the executive controlled the judiciary.
A. Legal source/authority and evidence:
Ol? Bahamonde v. Equatorial Guinea, Communication No. 468/1991, U.N. Doc. CCPR/C/49/D/468/1991 (10 November 1993), para. 9.4:
"9.4 The author has contended that despite several attempts to obtain judicial redress before the courts of Equatorial Guinea, all of his démarches have been unsuccessful. This claim has been refuted summarily by the State party, which argued that the author could have invoked specific legislation before the courts, without however linking its argument to the circumstances of the case. The Committee observes that the notion of equality before the courts and tribunals encompasses the very access to the courts and that a situation in which an individual's attempts to seize the competent jurisdictions of his/her grievances are systematically frustrated runs counter to the guarantees of article 14, paragraph 1. In this context, the Committee has also noted the author's contention that the State party's president controls the judiciary in Equatorial Guinea. The Committee considers that a situation where the functions and competences of the judiciary and the executive are not clearly distinguishable or where the latter is able to control or direct the former is incompatible with the notion of an independent and impartial tribunal within the meaning of article 14, paragraph 1, of the Covenant."
[B. Evidentiary comment]:
P.1.6. Evidence that the executive directed the judiciary.
A. Legal source/authority and evidence:
Ol? Bahamonde v. Equatorial Guinea, Communication No. 468/1991, U.N. Doc. CCPR/C/49/D/468/1991 (10 November 1993), para. 9.4:
"9.4 The author has contended that despite several attempts to obtain judicial redress before the courts of Equatorial Guinea, all of his démarches have been unsuccessful. This claim has been refuted summarily by the State party, which argued that the author could have invoked specific legislation before the courts, without however linking its argument to the circumstances of the case. The Committee observes that the notion of equality before the courts and tribunals encompasses the very access to the courts and that a situation in which an individual's attempts to seize the competent jurisdictions of his/her grievances are systematically frustrated runs counter to the guarantees of article 14, paragraph 1. In this context, the Committee has also noted the author's contention that the State party's president controls the judiciary in Equatorial Guinea. The Committee considers that a situation where the functions and competences of the judiciary and the executive are not clearly distinguishable or where the latter is able to control or direct the former is incompatible with the notion of an independent and impartial tribunal within the meaning of article 14, paragraph 1, of the Covenant."
B. Evidentiary comment:
As to the meaning of independent, impartial impartiality of a jury, the following cases throw some light:
Findlay v. United Kingdom, Application No. 22107/93, Judgment (European Court of Human Rights), 25 February 1997, para. 73:
"73.The Court recalls that in order to establish whether a tribunal can be considered as "independent", regard must be had, inter alia, to the manner of appointment of its members and their term of office, the existence of guarantees against outside pressures and the question whether the body presents an appearance of independence (see the Bryan v. the United Kingdom judgment of 22 November 1995, Series A no. 335-A, p. 15, para. 37).
As to the question of "impartiality", there are two aspects to this requirement. First, the tribunal must be subjectively free of personal prejudice or bias. Secondly, it must also be impartial from an objective viewpoint, that is, it must offer sufficient guarantees to exclude any legitimate doubt in this respect (see the Pullar v. the United Kingdom judgment of 10 June 1996, Reports 1996-III, p. 792, para. 30)."
Holm v. Sweden, Application No. 14191/88, Judgement (European Court of Human Rights), 25 November 1993, paras. 27-31:
"AS TO THE LAW
I. ALLEGED VIOLATION OF ARTICLE 6 PARA. 1 (art. 6-1)
27. Mr Carl G. Holm alleged that, owing to the participation of five active SAP members in the jury at the District Court of Stockholm, his case had not been heard by "an independent and impartial tribunal" within the meaning of Article 6 para. 1 (art. 6-1) of the Convention, which in so far as relevant, provides:
"In the determination of his civil rights and obligations ..., everyone is entitled to a fair and public hearing ... by an independent and impartial tribunal ..."
This claim was contested by the Government, but was accepted by the Commission.
28. The Government disputed that the manner of composition of the jury had given rise to a legitimate fear as to its independence and impartiality. In their view, the question had to be examined in the light of Sweden's legal system, its legal traditions and political history. Since 1812 a jury system for freedom-of-the-press cases has existed in Sweden; it had been maintained, despite a number of proposals to Parliament to abolish it, in order to safeguard press freedom from undue State interference, in particular as regards political matters. The jury system was seen as having constituted a crucial factor in the development of democracy in Sweden.
In the present case there were admittedly certain links between the five SAP members of the jury and the defendants. However, these were only of a general political nature and ought to be distinguished from those at issue in the case of Langborger v. Sweden. In that case the Court found that a Housing and Tenancy Court had failed to satisfy the requirements of independence and impartiality in Article 6 para. 1 (art. 6-1), mainly because two lay assessors who sat in the proceedings had been nominated by, and had close links with, two associations which both had interests contrary to those of Mr Langborger, a party in the proceedings (judgment of 22 June 1989, Series A no. 155, p. 16, para. 35). Unlike the lay assessors in the latter case, the jurors in Mr Holm's case had no direct interest in the outcome of the case, nor could the SAP be said to have had any such interest. Moreover, it was not contended that the jurors in question had a direct influence on or interest in the defendant company. In fact, the only object of their role was to ensure popular participation in the judicial process.
Finally, the Government submitted that decisive importance should not be attached to the fact that under Swedish law the jury had the final say in the event of an acquittal. This rule, although it could be considered to favour the defence in cases such as the present, was consistent with the principle of according the printed word the benefit of the doubt, and hence with the right to freedom of expression as guaranteed by Article 10 (art. 10) of the Convention; indeed it might even go further than the requirements of that Article (art. 10).
29. In the Commission's opinion, the applicant's doubts as to the independence and impartiality of the District Court could, in the specific circumstances of the case, be considered objectively justified. It placed emphasis inter alia on the links between the five SAP jurors and the two defendants in the case and on the political nature of the disputed passages of the book. It further noted the absence in the District Court's judgment of reasoning indicating the objective basis for the acquittal and the lack of a possibility of obtaining an effective review of such a verdict on appeal.
30. In determining whether the District Court could be considered "independent and impartial", the Court will have regard to the principles established in its own case-law (see, for instance, the above-mentioned Langborger judgment, Series A no. 155, p. 16, para. 32; and the Fey v. Austria judgment of 24 February 1993, Series A no. 255-A, p. 12, paras. 27, 28 and 30), which apply to jurors as they do to professional judges and lay judges. Like the Commission, it finds it difficult in this case to examine the issues of independence and impartiality separately (see also the above-mentioned Langborger judgment, ibid.).
31. It is only the independence and the objective impartiality of the five jurors who were affiliated to the SAP which are in issue; the applicant did not contest their subjective impartiality, finding it impracticable to do so in view of the secrecy of each juror's vote (see paragraph 22 above).
It is undisputed that the jurors in question were elected in the prescribed manner by the competent elective body, in conformity with the legal conditions for eligibility: namely that the persons concerned be known to be independent and fair-minded and to have sound judgment and also that different social groups and currents of opinion as well as geographical areas be represented among the jurors (see paragraph 18 above). The jury was constituted by the drawing of lots after each party to the proceedings had had an opportunity to express its views on the existence of grounds for disqualification of any of the jurors on the list and to exclude an equal number of jurors (see paragraphs 10, 11 and 21 above). It was also possible for the parties to appeal to the Court of Appeal against decisions by the District Court on requests for disqualification, and the applicant, albeit unsuccessfully, availed himself of this remedy (see paragraph 10 above). Before participating in the trial, each juror had to take an oath to the effect that he or she was to carry out the tasks to the best of his or her abilities and in a judicial manner (see paragraph 22 above).
Furthermore, jurors are in several respects viewed under Swedish law as affording the same guarantees of independence and impartiality as judges; in particular, the provisions in the Instrument of Government that aim at safeguarding the independence and impartiality of the judiciary cover juries and the statutory rules on disqualification of judges also extend to jurors (see paragraphs 20-21 above).
Accordingly, as indicated by the Commission and the Government, there existed a number of safeguards to ensure the independence and impartiality of the jurors in question."
Benthem v. The Netherlands, Application no. 8848/80 (European Court of Human Rights), 23 October 1985, paras. 41-43:
"B.The Crown
41.According to the applicant, the proceedings in appeals to the Crown were of an administrative and not of a judicial nature, since there was a review not only of the lawfulness but also of the expediency of the decisions challenged.
In the present case, the appellant was the Regional Health Inspector; his superior was the Director General for Environmental Protection, and that official was also responsible for the department dealing with appeals to the Crown. Again, the technical opinion on which the Royal Decree was based reflected the provisional view of the Ministry and not of independent and impartial experts.
42. For the Government, on the other hand, the Crown was here exercising a function of an essentially judicial nature. Save very exceptionally, it followed the advice tendered by the Administrative Litigation Division of the Council of State and, indeed, had done so on this occasion. As for the Regional Inspector, he acted independently of the Minister where the entering of appeals was concerned.
43.It is true that the Crown, unlike the Administrative Litigation Division, is empowered to determine the dispute, but the Convention requires more than this: by the word "tribunal", it denotes "bodies which exhibit ... common fundamental features", of which the most important are independence and impartiality, and "the guarantees of judicial procedure". The Court refers on this point to its established case-law, and notably to its De Wilde, Ooms and Versyp judgment of 18 June 1971 (Series A no. 12, p. 41, para. 78)."
De Cubber v. Belgium, Application no. 9186/80, Judgment (European Court of Human Rights) , 26 October 1984, paras. 24-26 :
"24. In its Piersack judgment of 1 October 1982, the Court specified that impartiality can "be tested in various ways": a distinction should be drawn "between a subjective approach, that is endeavouring to ascertain the personal conviction of a given judge in a given case, and an objective approach, that is determining whether he offered guarantees sufficient to exclude any legitimate doubt in this respect" (Series A no. 53, p. 14, para. 30).
25. As to the subjective approach, the applicant alleged before the Commission that Mr. Pilate had for years shown himself somewhat relentless in regard to his (the applicant's) affairs (see paragraphs 45-47 of the Commission's report), but his lawyer did not maintain this line of argument before the Court; the Commission, for its part, rejected the Government's criticism that it had made a subjective analysis (see paragraphs 63, 68-69 and 72-73 of the report; verbatim record of the hearings held on 23 May 1984).
However this may be, the personal impartiality of a judge is to be presumed until there is proof to the contrary (see the same judgment, loc. cit.), and in the present case no such proof is to be found in the evidence adduced before the Court. In particular, there is nothing to indicate that in previous cases Mr. Pilate had displayed any hostility or ill-will towards Mr. De Cubber (see paragraph 9 above) or that he had "finally arranged", for reasons extraneous to the normal rules governing the allocation of cases, to have assigned to him each of the three preliminary investigations opened in respect of the applicant in 1977 (see paragraphs 8, 10 and 16 above; paragraph 46 of the Commission's report).
26. However, it is not possible for the Court to confine itself to a purely subjective test; account must also be taken of considerations relating to the functions exercised and to internal organisation (the objective approach). In this regard, even appearances may be important; in the words of the English maxim quoted in, for example, the Delcourt judgment of 17 January 1970 (Series A no. 11, p. 17, para. 31), "justice must not only be done: it must also be seen to be done". As the Belgian Court of Cassation has observed (21 February 1979, Pasicrisie 1979, I, p. 750), any judge in respect of whom there is a legitimate reason to fear a lack of impartiality must withdraw. What is at stake is the confidence which the courts in a democratic society must inspire in the public and above all, as far as criminal proceedings are concerned, in the accused (see the above-mentioned judgment of 1 October 1982, pp. 14-15, para. 30)."
Campbell and Fell v. UK, Application no. 7819/77; 7878/77, Judgment (European Court of Human Rights), 28 June 1984, para. 78:
"78. In determining whether a body can be considered to be "independent" - notably of the executive and of the parties to the case (see, inter alia, the Le Compte, Van Leuven and De Meyere judgment of 23 June 1981, Series A no. 43, p. 24, para. 55) -, the Court has had regard to the manner of appointment of its members and the duration of their term of office (ibid., pp. 24-25, para. 57), the existence of guarantees against outside pressures (see the Piersack judgment of 1 October 1982, Series A no. 53, p. 13, para. 27) and the question whether the body presents an appearance of independence (see the Delcourt judgment of 17 January 1970, Series A no. 11, p. 17, para. 31).
The factors which were relied on in the present case as indicative of the Board's lack of "independence" will be considered in turn."
Piersack v. Belgium, Application no. 8692/79, Judgement (European Court of Human Rights), 1 October 1982, paras. 28-32:
"2. "Impartial tribunal"
28. Mr. Van de Walle, the judge who presided over the Brabant Assize Court in the instant case, had previously served as a senior deputy to the Brussels procureur du Roi; until his appointment to the Court of Appeal, he was the head of section B of the Brussels public prosecutor's department, this being the section dealing with indictable and non-indictable offences against the person and, therefore, the very section to which Mr. Piersack's case was referred (see paragraphs 9-12, 14 and 19 above).
29. On the strength of this fact the applicant argued that his case had not been heard by an "impartial tribunal": in his view, "if one has dealt with a matter as public prosecutor for a year and a half, one cannot but be prejudiced".
According to the Government, at the relevant time it was the procureur du Roi himself, and not the senior deputy, Mr. Van de Walle, who handled cases involving an indictable offence; they maintained that each of the deputies - on this occasion, Mrs. del Carril and then Mr. De Nauw - reported to the procureur on such cases directly and not through Mr. Van de Walle, the latter's role being principally an administrative one that was unconnected with the conduct of the prosecution and consisted, inter alia, of initialling numerous documents, such as the covering notes of 13 January and 20 June 1977 (see paragraphs 9, 11 and 19 above). As regards the covering note of 4 February 1977 (see paragraph 10 above), the investigating judge, Mr. Preuveneers, was said to have written thereon the words "for the attention of Mr. P. Van de Walle" solely because he knew that Mrs. del Carril was frequently on sick-leave. In addition, so the Government stated, there was no evidence to show that Mr. Van de Walle had received that note and, in any event, it was not he but Mrs. del Carril who had replied to Mr. Preuveneers.
30. Whilst impartiality normally denotes absence of prejudice or bias, its existence or otherwise can, notably under Article 6 § 1 (art. 6-1) of the Convention, be tested in various ways. A distinction can be drawn in this context between a subjective approach, that is endeavouring to ascertain the personal conviction of a given judge in a given case, and an objective approach, that is determining whether he offered guarantees sufficient to exclude any legitimate doubt in this respect.
(a) As regards the first approach, the Court notes that the applicant is pleased to pay tribute to Mr. Van de Walle's personal impartiality; it does not itself have any cause for doubt on this score and indeed personal impartiality is to be presumed until there is proof to the contrary (see the Le Compte, Van Leuven and De Meyere judgment of 23 June 1981, Series A no. 43, p. 25, § 58).
However, it is not possible to confine oneself to a purely subjective test. In this area, even appearances may be of a certain importance (see the Delcourt judgment of 17 January 1970, Series A no. 11, p. 17, § 31). As the Belgian Court of Cassation observed in its judgment of 21 February 1979 (see paragraph 17 above), any judge in respect of whom there is a legitimate reason to fear a lack of impartiality must withdraw. What is at stake is the confidence which the courts must inspire in the public in a democratic society.
(b) It would be going too far to the opposite extreme to maintain that former judicial officers in the public prosecutor's department were unable to sit on the bench in every case that had been examined initially by that department, even though they had never had to deal with the case themselves. So radical a solution, based on an inflexible and formalistic conception of the unity and indivisibility of the public prosecutor's department, would erect a virtually impenetrable barrier between that department and the bench. It would lead to an upheaval in the judicial system of several Contracting States where transfers from one of those offices to the other are a frequent occurrence. Above all, the mere fact that a judge was once a member of the public prosecutor's department is not a reason for fearing that he lacks impartiality; the Court concurs with the Government on this point.
(c) The Belgian Court of Cassation, which took Article 6 § 1 (art. 6-1) into consideration of its own motion, adopted in this case a criterion based on the functions exercised, namely whether the judge had previously intervened "in the case in or on the occasion of the exercise of ... functions as a judicial officer in the public prosecutor's department". It dismissed Mr. Piersack's appeal on points of law because the documents before it did not, in its view, show that there had been any such intervention on the part of Mr. Van de Walle in the capacity of senior deputy to the Brussels procureur du Roi, even in some form other than the adoption of a personal standpoint or the taking of a specific step in the process of prosecution or investigation (see paragraph 17 above).
(d) Even when clarified in the manner just mentioned, a criterion of this kind does not fully meet the requirements of Article 6 § 1 (art. 6-1). In order that the courts may inspire in the public the confidence which is indispensable, account must also be taken of questions of internal organisation. If an individual, after holding in the public prosecutor's department an office whose nature is such that he may have to deal with a given matter in the course of his duties, subsequently sits in the same case as a judge, the public are entitled to fear that he does not offer sufficient guarantees of impartiality.
31. This was what occurred in the present case. In November 1978, Mr. Van de Walle presided over the Brabant Assize Court before which the Indictments Chamber of the Brussels Court of Appeal had remitted the applicant for trial. In that capacity, he enjoyed during the hearings and the deliberations extensive powers to which, moreover, he was led to have recourse, for example the discretionary power conferred by Article 268 of the Judicial Code and the power of deciding, with the other judges, on the guilt of the accused should the jury arrive at a verdict of guilty by no more than a simple majority (see paragraphs 13-14 and 20-21 above).
Yet previously and until November 1977, Mr. Van de Walle had been the head of section B of the Brussels public prosecutor's department, which was responsible for the prosecution instituted against Mr. Piersack. As the hierarchical superior of the deputies in charge of the file, Mrs. del Carril and then Mr. De Nauw, he had been entitled to revise any written submissions by them to the courts, to discuss with them the approach to be adopted in the case and to give them advice on points of law (see paragraph 19 above). Besides, the information obtained by the Commission and the Court (see paragraphs 9-11 above) tends to confirm that Mr. Van de Walle did in fact play a certain part in the proceedings.
Whether or not Mr. Piersack was, as the Government believe, unaware of all these facts at the relevant time is of little moment. Neither is it necessary to endeavour to gauge the precise extent of the role played by Mr. Van de Walle, by undertaking further enquiries in order to ascertain, for example, whether or not he received the covering note of 4 February 1977 himself and whether or not he discussed this particular case with Mrs. del Carril and Mr. De Nauw. It is sufficient to find that the impartiality of the "tribunal" which had to determine the merits (in the French text: "bien-fondé") of the charge was capable of appearing open to doubt.
32. In this respect, the Court therefore concludes that there was a violation of Article 6 § 1 (art. 6-1)."
Ringeisen v. Austria, Application No. 2614/65, Judgment (European Court of Human Rights), 16 July 1971, para. 95:
"95.The Court has not found any facts to prove that Ringeisen was not given a "fair hearing" of his case. Besides, the Court observes that the Regional Commission is a "tribunal" within the meaning of Article 6, paragraph (1) (art. 6-1), of the Convention as it is independent of the executive and also of the parties, its members are appointed for a term of five years and the proceedings before it afford the necessary guarantees (see, mutatis mutandis, the Neumeister judgment of 27th June 1968, Series A, p. 44, paragraph 24, and the De Wilde, Ooms and Versyp judgment of 18th June 1971, paragraph 78)."
P.2. Evidence of denial of the right to be informed of the charges against one without delay.
A. Legal source/authority and evidence:
Paul Kelly v. Jamaica, Communication No. 253/1987, U.N. Doc. CCPR/C/41/D/253/1987 at 60 (1991), para. 5.8
"5.8 Article 14, paragraph 3 (a), requires that any individual under criminal charges shall be informed promptly and in detail of the nature and the charges against him. The requirement of prompt information, however, only applies once the individual has been formally charged with a criminal offence. It does not apply to ,those remanded in custody pending the result of police investigations: the latter situation is covered by article 9, paragraph 2, of the Covenant. In the present case, the State party has not denied that the author was not apprised in any detail of the reasons for his arrest for several weeks following his apprehension and that he was not informed about the facts of the crime in connection with which he was detained or about the identity of the victim. The Committee concludes that the requirements of article 9, paragraph 2, were not met."
Article 6(2) Additional Protocol II:
2. No sentence shall be passed and no penalty shall be executed on a person found guilty of an offence except pursuant to a conviction pronounced by a court offering the essential guarantees of independence and impartiality. In particular:
(a) the procedure shall provide for an accused to be informed without delay of the particulars of the offence alleged against him and shall afford the accused before and during his trial all necessary rights and means of defence;
(b) no one shall be convicted of an offence except on the basis of individual penal responsibility;
(c) no one shall be held guilty of any criminal offence on account of any act or omission which did not constitute a criminal offence, under the law, at the time when it was committed; nor shall a heavier penalty be imposed than that which was applicable at the time when the criminal offence was committed; if, after the commission of the offence, provision is made by law for the imposition of a lighter penalty, the offender shall benefit thereby;
(d) anyone charged with an offence is presumed innocent until proved guilty according to law;
(e) anyone charged with an offence shall have the right to be tried in his presence;
(f) no one shall be compelled to testify against himself or to confess guilt.
Article 14 (3) (a) ICCPR:
"[ ]
3. In the determination of any criminal charge against him, everyone shall be entitled to the following minimum guarantees, in full equality:
(a) To be informed promptly and in detail in a language which he understands of the nature and cause of the charge against him;"
Article 6 (3) (a) ECHR:
"[ ]
3. Everyone charged with a criminal offence has the following minimum rights:
(a) to be informed promptly, in a language which he understands and in detail, of the nature and cause of the accusation against him."
Article 8 (2) (b) ACHR:
"2. Every person accused of a criminal offense has the right to be presumed innocent so long as his guilt has not been proven according to law. During the proceedings, every person is entitled, with full equality, to the following minimum guarantees:
[ ]
b. prior notification in detail to the accused of the charges against him;"
A. Legal source/authority and evidence:
Article 6(2) Additional Protocol II:
2. No sentence shall be passed and no penalty shall be executed on a person found guilty of an offence except pursuant to a conviction pronounced by a court offering the essential guarantees of independence and impartiality. In particular:
(a) the procedure shall provide for an accused to be informed without delay of the particulars of the offence alleged against him and shall afford the accused before and during his trial all necessary rights and means of defence;
(b) no one shall be convicted of an offence except on the basis of individual penal responsibility;
(c) no one shall be held guilty of any criminal offence on account of any act or omission which did not constitute a criminal offence, under the law, at the time when it was committed; nor shall a heavier penalty be imposed than that which was applicable at the time when the criminal offence was committed; if, after the commission of the offence, provision is made by law for the imposition of a lighter penalty, the offender shall benefit thereby;
(d) anyone charged with an offence is presumed innocent until proved guilty according to law;
(e) anyone charged with an offence shall have the right to be tried in his presence;
(f) no one shall be compelled to testify against himself or to confess guilt.
Article 14 (3) ICCPR:
"[ ]
3. In the determination of any criminal charge against him, everyone shall be entitled to the following minimum guarantees, in full equality:
(a) To be informed promptly and in detail in a language which he understands of the nature and cause of the charge against him;
(b) To have adequate time and facilities for the preparation of his defence and to communicate with counsel of his own choosing;
(c) To be tried without undue delay;
(d) To be tried in his presence, and to defend himself in person or through legal assistance of his own choosing; to be informed, if he does not have legal assistance, of this right; and to have legal assistance assigned to him, in any case where the interests of justice so require, and without payment by him in any such case if he does not have sufficient means to pay for it;
(e) To examine, or have examined, the witnesses against him and to obtain the attendance and examination of witnesses on his behalf under the same conditions as witnesses against him;
(f) To have the free assistance of an interpreter if he cannot understand or speak the language used in court;
(g) Not to be compelled to testify against himself or to confess guilt.
Article 6(3) ECHR:
"[ ]
3. Everyone charged with a criminal offence has the following minimum rights:
(a) to be informed promptly, in a language which he understands and in detail, of the nature and cause of the accusation against him;
(b) to have adequate time and the facilities for the preparation of his defence;
(c) to defend himself in person or through legal assistance of his own choosing or, if he has not sufficient means to pay for legal assistance, to be given it free when the interests of justice so require;
(d) to examine or have examined witnesses against him and to obtain the attendance and examination of witnesses on his behalf under the same conditions as witnesses against him;
(e) to have the free assistance of an interpreter if he cannot understand or speak the language used in court."
Article 8(2) ACHR:
"2.Every person accused of a criminal offense has the right to be presumed innocent so long as his guilt has not been proven according to law. During the proceedings, every person is entitled, with full equality, to the following minimum guarantees:
a. the right of the accused to be assisted without charge by a translator or interpreter, if he does not understand or does not speak the language of the tribunal or court;
b. prior notification in detail to the accused of the charges against him;
c. adequate time and means for the preparation of his defense;
d.the right of the accused to defend himself personally or to be assisted by legal counsel of his own choosing, and to communicate freely and privately with his counsel;
e.the inalienable right to be assisted by counsel provided by the state, paid or not as the domestic law provides, if the accused does not defend himself personally or engage his own counsel within the time period established by law;
f. the right of the defense to examine witnesses present in the court and to obtain the appearance, as witnesses, of experts or other persons who may throw light on the facts;
g. the right not to be compelled to be a witness against himself or to plead guilty; and
h.the right to appeal the judgment to a higher court."
Article 9(3) ICCPR:
"[ ] 3. Anyone arrested or detained on a criminal charge shall be brought promptly before a judge or other officer authorized by law to exercise judicial power and shall be entitled to trial within a reasonable time or to release. It shall not be the general rule that persons awaiting trial shall be detained in custody, but release may be subject to guarantees to appear for trial, at any other stage of the judicial proceedings, and, should occasion arise, for execution of the judgement."
Article 5(3) ECHR:
"[ ] 3. Everyone arrested or detained in accordance with the provisions of paragraph 1(c) of this article shall be brought promptly before a judge or other officer authorized by law to exercise judicial power and shall be entitled to trial within a reasonable time or to release pending trial. Release may be conditioned by guarantees to appear for trial."
Article 7(5) ACHR:
"Article 7. Right to Personal Liberty
[ ] 5. Any person detained shall be brought promptly before a judge or other officer authorized by law to exercise judicial power and shall be entitled to trial within a reasonable time or to be released without prejudice to the continuation of the proceedings. His release may be subject to guarantees to assure his appearance for trial."
Article 9(4) ICCPR:
"[ ] 4. Anyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings before a court, in order that court may decide without delay on the lawfulness of his detention and order his release if the detention is not lawful."
Article 5(4) ECHR:
"[ ] 4. Everyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings by which the lawfulness of his detention shall be decided speedily by a court and his release ordered if the detention is not lawful."
Article 7 (6) ACHR:
"[ ] 6. Anyone who is deprived of his liberty shall be entitled to recourse to a competent court, in order that the court may decide without delay on the lawfulness of his arrest or detention and order his release if the arrest or detention is unlawful. In States Parties whose laws provide that anyone who believes himself to be threatened with deprivation of his liberty is entitled to recourse to a competent court in order that it may decide on the lawfulness of such threat, this remedy may not be restricted or abolished. The interested party or another person in his behalf is entitled to seek these remedies."
A. Legal source/authority and evidence:
Article 14 (3) (b) ICCPR:
"[ ] 3. In the determination of any criminal charge against him, everyone shall be entitled to the following minimum guarantees, in full equality:
[ ] (b) To have adequate time and facilities for the preparation of his defence and to communicate with counsel of his own choosing;"
Article 6 (3) (b) ECHR:
"[ ] Everyone charged with a criminal offence has the following minimum rights:
[ ] (b) to have adequate time and the facilities for the preparation of his defence;"
Article 8 (2) (c)-(d) ACHR:
2. Every person accused of a criminal offense has the right to be presumed innocent so long as his guilt has not been proven according to law. During the proceedings, every person is entitled, with full equality, to the following minimum guarantees:
[ ] c. adequate time and means for the preparation of his defense;
d. the right of the accused to defend himself personally or to be assisted by legal counsel of his own choosing, and to communicate freely and privately with his counsel;
P.7. Evidence of denial of the right to defend oneself in person or through legal assistance.
A. Legal source/authority and evidence:
Article 14 (3) (d) ICCPR:
"3. In the determination of any criminal charge against him, everyone shall be entitled to the following minimum guarantees, in full equality:
[ ] (d) To be tried in his presence, and to defend himself in person or through legal assistance of his own choosing; to be informed, if he does not have legal assistance, of this right; and to have legal assistance assigned to him, in any case where the interests of justice so require, and without payment by him in any such case if he does not have sufficient means to pay for it;"
Article 6(3) (c ) ECHR:
"Everyone charged with a criminal offence has the following minimum rights:
[ ] (c) to defend himself in person or through legal assistance of his own choosing or, if he has not sufficient means to pay for legal assistance, to be given it free when the interests of justice so require;"
Article 8 (2) (d)-(e) ACHR:
"2. Every person accused of a criminal offense has the right to be presumed innocent so long as his guilt has not been proven according to law. During the proceedings, every person is entitled, with full equality, to the following minimum guarantees:
[ ] d. the right of the accused to defend himself personally or to be assisted by legal counsel of his own choosing, and to communicate freely and privately with his counsel;
e. the inalienable right to be assisted by counsel provided by the state, paid or not as the domestic law provides, if the accused does not defend himself personally or engage his own counsel within the time period established by law;"
Article 7(1)(c) ACHPR:
"ARTICLE 7
1. Every individual shall have the right to have his cause heard. This comprises:
[ ] c. The right to defence, including the right to be defended by counsel of his choice;"
P.8. Evidence of violation of the right to be tried without undue delay.
A. Legal source/authority and evidence:
Article 14 (3) (c) ICCPR:
"3. In the determination of any criminal charge against him, everyone shall be entitled to the following minimum guarantees, in full equality:
[ ] (c) To be tried without undue delay;"
Article 6 (1) ECHR:
"[ ] In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law. Judgement shall be pronounced publicly by the press and public may be excluded from all or part of the trial in the interest of morals, public order or national security in a democratic society, where the interests of juveniles or the protection of the private life of the parties so require, or the extent strictly necessary in the opinion of the court in special circumstances where publicity would prejudice the interests of justice."
Article 7 (5) ACHR:
Any person detained shall be brought promptly before a judge or other officer authorized by law to exercise judicial power and shall be entitled to trial within a reasonable time or to be released without prejudice to the continuation of the proceedings. His release may be subject to guarantees to assure his appearance for trial.
B Evidentiary comment:
Reviewing the case law of the Human Rights Committee, one commentator concludes that the determination as to what a reasonable time (or undue delay) is depends on the circumstances and the complexity of the case. "The Committees general comment article 14 of the ICCPR explains that this guarantee relates not only to the time by which a trial should commence, but also the time by which it should end and judgment be rendered." (Knut Dormann "Elements of War Crimes under the Rome Statute of the International Criminal Court", Cambridge 2002, p. 427)
P.9. Evidence of denial of the right to present and examine witnesses.
A. Legal source/authority and evidence:
Article 14 (3) (e) ICCPR:
"3. In the determination of any criminal charge against him, everyone shall be entitled to the following minimum guarantees, in full equality:
[ ] (e) To examine, or have examined, the witnesses against him and to obtain the attendance and examination of witnesses on his behalf under the same conditions as witnesses against him;"
Article 6 (3) (d) ECHR:
"Everyone charged with a criminal offence has the following minimum rights:
[ ] (d) to examine or have examined witnesses against him and to obtain the attendance and examination of witnesses on his behalf under the same conditions as witnesses against him;"
Article 8 (2) (f) ACHR:
"2. Every person accused of a criminal offense has the right to be presumed innocent so long as his guilt has not been proven according to law. During the proceedings, every person is entitled, with full equality, to the following minimum guarantees:
[ ]
f. the right of the defense to examine witnesses present in the court and to obtain the appearance, as witnesses, of experts or other persons who may throw light on the facts;"
ICRC Commentary on the Additional Protocols, no. 3115:
It is clear that the possibility of examining witnesses is an essential prerequisite for an effective defence.
P.10. Evidence of denial of the right to an interpreter.
A. Legal source/authority and evidence:
Yves Cadoret, Hervé Le Bihan v. France, Communication No. 323/1988,
U.N. Doc. CCPR/C/41/D/323/1988 (1991), para. 5.6:
"5.6. [ ] The provision for the use of one official court language by States parties to the Covenant does not, in the Committee's opinion, violate article 14. Nor does the requirement of a fair hearing obligate States parties to make available to a person .: whose mother tongue differs from the official court language, the services of an ;1 interpreter, if that person is capable of understanding and expressing himself or herself adequately in the official language. Only if the accused or the witnesses have difficulties in understanding or expressing themselves in the court language is it obligatory that the services of an interpreter be made available."
Article 14 (3) (e) ICCPR:
"3. In the determination of any criminal charge against him, everyone shall be entitled to the following minimum guarantees, in full equality:
[ ] (f) To have the free assistance of an interpreter if he cannot understand or speak the language used in court;"
Article 6 (3) (e) ECHR:
"Everyone charged with a criminal offence has the following minimum rights:
[ ] (e) to have the free assistance of an interpreter if he cannot understand or speak the language used in court."
Article 8 (2) (a) ACHR:
"2. Every person accused of a criminal offense has the right to be presumed innocent so long as his guilt has not been proven according to law. During the proceedings, every person is entitled, with full equality, to the following minimum guarantees:
a. the right of the accused to be assisted without charge by a translator or interpreter, if he does not understand or does not speak the language of the tribunal or court;"
P.11. Evidence of violation of the principle of individual criminal responsibility.
A. Legal source/ authority and evidence:
Article 6(2) Additional Protocol II:
2. No sentence shall be passed and no penalty shall be executed on a person found guilty of an offence except pursuant to a conviction pronounced by a court offering the essential guarantees of independence and impartiality. In particular:
(a) the procedure shall provide for an accused to be informed without delay of the particulars of the offence alleged against him and shall afford the accused before and during his trial all necessary rights and means of defence;
(b) no one shall be convicted of an offence except on the basis of individual penal responsibility;
(c) no one shall be held guilty of any criminal offence on account of any act or omission which did not constitute a criminal offence, under the law, at the time when it was committed; nor shall a heavier penalty be imposed than that which was applicable at the time when the criminal offence was committed; if, after the commission of the offence, provision is made by law for the imposition of a lighter penalty, the offender shall benefit thereby;
(d) anyone charged with an offence is presumed innocent until proved guilty according to law;
(e) anyone charged with an offence shall have the right to be tried in his presence;
(f) no one shall be compelled to testify against himself or to confess guilt.
Article 87 Geneva Convention III:
Prisoners of war may not be sentenced by the military authorities and courts of the Detaining Power to any penalties except those provided for in respect of members of the armed forces of the said Power who have committed the same acts.
When fixing the penalty, the courts or authorities of the Detaining Power shall take into consideration, to the widest extent possible, the fact that the accused, not being a national of the Detaining Power, is not bound to it by any duty of allegiance, and that he is in its power as the result of circumstances independent of his own will. The said courts or authorities shall be at liberty to reduce the penalty provided for the violation of which the prisoner of war is accused, and shall therefore not be bound to apply the minimum penalty prescribed.
Collective punishment for individual acts, corporal punishments, imprisonment in premises without daylight and, in general, any form of torture or cruelty, are forbidden.
No prisoner of war may be deprived of his rank by the Detaining Power, or prevented from wearing his badges.
Article 33 Geneva Convention IV:
No protected person may be punished for an offence he or she has not personally committed. Collective penalties and likewise all measures of intimidation or of terrorism are prohibited.
Pillage is prohibited.
Reprisals against protected persons and their property are prohibited.
Article 6(2)(b), ICRC Commentary on the Additional Protocols, no. 4603:
"Sub-paragraph (b) The principle of individual responsibility
4603. This sub-paragraph lays down the fundamental principle of individual responsibility; a corollary of this principle is that there can be no collective penal responsibility for acts committed by one or several members of a group. This principle is contained in every national legislation. It is already epressed in [p.1399] Article 33 of the fourth Convention, where it is more elegantly worded as follows: "No protected person may be punished for an offence he or she has not personally committed". (12) The wording was modified to meet the requirement of uniformity between the texts in the different languages and, in this particular case, with the English terminology ("individual penal responsibility"). Article 75, paragraph 4(b), of Protocol I, lays down the same principle."
P.12. Evidence of violation of the principle of nullum crimen sine lege.
A. Legal source/ authority and evidence:
Kokkinakis v. Greece, Application No. 14307/88, Judgment (European Court of Human Rights 20), 25 May 1993, para. 52:
"52. The Court points out that Article 7 para. 1 (art. 7-1) of the Convention is not confined to prohibiting the retrospective application of the criminal law to an accused's disadvantage. It also embodies, more generally, the principle that only the law can define a crime and prescribe a penalty (nullum crimen, nulla poena sine lege) and the principle that the criminal law must not be extensively construed to an accused's detriment, for instance by analogy; it follows from this that an offence must be clearly defined in law. This condition is satisfied where the individual can know from the wording of the relevant provision and, if need be, with the assistance of the courts' interpretation of it, what acts and omissions will make him liable."
Article 6(2) Additional Protocol II:
2. No sentence shall be passed and no penalty shall be executed on a person found guilty of an offence except pursuant to a conviction pronounced by a court offering the essential guarantees of independence and impartiality. In particular:
(a) the procedure shall provide for an accused to be informed without delay of the particulars of the offence alleged against him and shall afford the accused before and during his trial all necessary rights and means of defence;
(b) no one shall be convicted of an offence except on the basis of individual penal responsibility;
(c) no one shall be held guilty of any criminal offence on account of any act or omission which did not constitute a criminal offence, under the law, at the time when it was committed; nor shall a heavier penalty be imposed than that which was applicable at the time when the criminal offence was committed; if, after the commission of the offence, provision is made by law for the imposition of a lighter penalty, the offender shall benefit thereby;
(d) anyone charged with an offence is presumed innocent until proved guilty according to law;
(e) anyone charged with an offence shall have the right to be tried in his presence;
(f) no one shall be compelled to testify against himself or to confess guilt.
Article 99 Geneva Convention III:
No prisoner of war may be tried or sentenced for an act which is not forbidden by the law of the Detaining Power or by international law, in force at the time the said act was committed.
No moral or physical coercion may be exerted on a prisoner of war in order to induce him to admit himself guilty of the act of which he is accused.
No prisoner of war may be convicted without having had an opportunity to present his defence and the assistance of a qualified advocate or counsel.
Article 67 Geneva Convention IV:
The courts shall apply only those provisions of law which were applicable prior to the offence, and which are in accordance with general principles of law, in particular the principle that the penalty shall be proportioned to the offence. They shall take into consideration the fact that the accused is not a national of the Occupying Power.
Article 99 Geneva Convention III:
No prisoner of war may be tried or sentenced for an act which is not forbidden by the law of the Detaining Power or by international law, in force at the time the said act was committed.
No moral or physical coercion may be exerted on a prisoner of war in order to induce him to admit himself guilty of the act of which he is accused.
No prisoner of war may be convicted without having had an opportunity to present his defence and the assistance of a qualified advocate or counsel.
Article 67 Geneva Convention IV:
The courts shall apply only those provisions of law which were applicable prior to the offence, and which are in accordance with general principles of law, in particular the principle that the penalty shall be proportioned to the offence. They shall take into consideration the fact that the accused is not a national of the Occupying Power.
Article 15 ICCPR:
"Article 15
1 . No one shall be held guilty of any criminal offence on account of any act or omission which did not constitute a criminal offence, under national or international law, at the time when it was committed. Nor shall a heavier penalty be imposed than the one that was applicable at the time when the criminal offence was committed. If, subsequent to the commission of the offence, provision is made by law for the imposition of the lighter penalty, the offender shall benefit thereby.
2. Nothing in this article shall prejudice the trial and punishment of any person for any act or omission which, at the time when it was committed, was criminal according to the general principles of law recognized by the community of nations."
Article 7 ECHR:
"ARTICLE 7
No one shall be held guilty of any criminal offence on account of any act or omission which did not constitute a criminal offence under national or international law at the time when it was committed. Nor shall a heavier penalty be imposed than the one that was applicable at the time the criminal offence was committed.
This article shall not prejudice the trial and punishment of any person for any act or omission which, at the time when it was committed, was criminal according the general principles of law recognized by civilized nations."
Article 9 ACHR:
"Article 9. Freedom from Ex Post Facto Laws
No one shall be convicted of any act or omission that did not constitute a criminal offense, under the applicable law, at the time it was committed. A heavier penalty shall not be imposed than the one that was applicable at the time the criminal offense was committed. If subsequent to the commission of the offense the law provides for the imposition of a lighter punishment, the guilty person shall benefit therefrom."
Article 7 (2) ACHPR:
"ARTICLE 7
[ ] 2. No one may be condemned for an act or omission which did not constitute a legally punishable offence at the time it was committed. No penalty may be inflicted for an offence for which no provision was made at the time it was committed. Punishment is personal and can be imposed only on the offender."
P.13. Evidence of denial of the right to be presumed innocent until proved guilty.
A. Legal source/ authority and evidence:
Case 10.970 Peru, Inter-American Court of Human Rights, Report 5/96, Inter-American Yearbook on Human Rights 1996, vol. 1, p.1196:
"The essential thing is therefore that the judge who hears the case is free of any prejudice concerning the accused's guilt and affords him the benefit of the doubt, i.e. does not condemn him until he is certain or convinced of his criminal liability, so that all reasonable doubt that the accused might be innocent is removed."
Case 11.245 Argentina, Inter-American Court of Human Rights, Report 12/96, Inter-American Yearbook on Human Rights 1996, vol.1, paras. 113-114:
"E. Violation of the presumption of innocence as a result of a prolonged detention: Article 8(2):
113. The prolonged imprisonment without conviction, with its natural consequence of undefined and continuous suspicion of an individual, constitutes a violation of the principle of presumed innocence set forth in Article 8(2) of the American Convention. It should nevertheless be noted that the existence of a growing suspicion of a person in the course of the criminal proceeding is not per se contrary to the principle of presumption of innocence. Neither is the fact that such mounting suspicion justifies the adoption of safeguards--such as pre-trial incarceration--in regard to the suspect's person.
114.Article 8(2) requires the States to compile material incriminating the person accused of a crime in order to "establish that person's guilt." The substantiation of guilt calls for the formulation of a judgment establishing blame in a final sentence. If the use of that procedure fails to assign blame within a reasonable length of time and the State is able to justify further holding of the accused in pre-trial incarceration, based on the suspicion of guilt, then it is essentially substituting pre-trial detention for the punishment. Preventive custody thus loses its purpose as an instrument to serve the interests of sound administration of justice, and the means becomes the end. In the instant case the prolonged imprisonment without conviction of Mr. Giménez is in violation of his right, guaranteed under Article 8(2), to be presumed innocent."
Article 6(2) Additional Protocol II:
2. No sentence shall be passed and no penalty shall be executed on a person found guilty of an offence except pursuant to a conviction pronounced by a court offering the essential guarantees of independence and impartiality. In particular:
(a) the procedure shall provide for an accused to be informed without delay of the particulars of the offence alleged against him and shall afford the accused before and during his trial all necessary rights and means of defence;
(b) no one shall be convicted of an offence except on the basis of individual penal responsibility;
(c) no one shall be held guilty of any criminal offence on account of any act or omission which did not constitute a criminal offence, under the law, at the time when it was committed; nor shall a heavier penalty be imposed than that which was applicable at the time when the criminal offence was committed; if, after the commission of the offence, provision is made by law for the imposition of a lighter penalty, the offender shall benefit thereby;
(d) anyone charged with an offence is presumed innocent until proved guilty according to law;
(e) anyone charged with an offence shall have the right to be tried in his presence;
(f) no one shall be compelled to testify against himself or to confess guilt.
Article 14(2)ICCPR:
"2. Everyone charged with a criminal offence shall have the right to be presumed innocent until proved guilty according to law."
Article 6(2) ECHR:
"Everyone charged with a criminal offence shall be presumed innocent until proved guilty according to law."
Article 8 (2) ACHR:
"2. Every person accused of a criminal offense has the right to be presumed innocent so long as his guilt has not been proven according to law."
"ARTICLE 7
1. Every individual shall have the right to have his cause heard. This comprises:
[ ]b. The right to be presumed innocent until proved guilty by a competent court or tribunal;"
P.14. Evidence of denial of the right to be tried in ones own presence.
A. Legal source/ authority and evidence:
Colozza v. Italy, Application No. 9024/80, Judgment (European Court of Human Rights), 12 February 1985, para. 29:
"29. According to the Government, the right to take part in person in the hearing does not have the absolute character which is apparently attributed to it by the Commission in its report; it has to be reconciled, through the striking of a "reasonable balance", with the public interest and notably the interests of justice.
It is not the Court's function to elaborate a general theory in this area (see, mutatis mutandis, the Deweer judgment of 27 February 1980, Series A no. 35, p. 25, para. 49). As was pointed out by the Government, the impossibility of holding a trial by default may paralyse the conduct of criminal proceedings, in that it may lead, for example, to dispersal of the evidence, expiry of the time-limit for prosecution or a miscarriage of justice. However, in the circumstances of the case, this fact does not appear to the Court to be of such a nature as to justify a complete and irreparable loss of the entitlement to take part in the hearing. When domestic law permits a trial to be held notwithstanding the absence of a person "charged with a criminal offence" who is in Mr. Colozza's position, that person should, once he becomes aware of the proceedings, be able to obtain, from a court which has heard him, a fresh determination of the merits of the charge."
Article 6(2) Additional Protocol II:
2. No sentence shall be passed and no penalty shall be executed on a person found guilty of an offence except pursuant to a conviction pronounced by a court offering the essential guarantees of independence and impartiality. In particular:
(a) the procedure shall provide for an accused to be informed without delay of the particulars of the offence alleged against him and shall afford the accused before and during his trial all necessary rights and means of defence;
(b) no one shall be convicted of an offence except on the basis of individual penal responsibility;
(c) no one shall be held guilty of any criminal offence on account of any act or omission which did not constitute a criminal offence, under the law, at the time when it was committed; nor shall a heavier penalty be imposed than that which was applicable at the time when the criminal offence was committed; if, after the commission of the offence, provision is made by law for the imposition of a lighter penalty, the offender shall benefit thereby;
(d) anyone charged with an offence is presumed innocent until proved guilty according to law;
(e) anyone charged with an offence shall have the right to be tried in his presence;
(f) no one shall be compelled to testify against himself or to confess guilt.
Article 14 (3) (d) ICCPR:
"3. In the determination of any criminal charge against him, everyone shall be entitled to the following minimum guarantees, in full equality:
[ ] (d) To be tried in his presence, and to defend himself in person or through legal assistance of his own choosing; to be informed, if he does not have legal assistance, of this right; and to have legal assistance assigned to him, in any case where the interests of justice so require, and without payment by him in any such case if he does not have sufficient means to pay for it;"
ICRC Commentary on Article 6(2)(e) AP II:
"Sub-paragraph (e)
3109. This rule is contained in a slightly different form in Article 14, paragraph 3(d), of the Covenant ("to be tried in his presence") and in identical wording in Protocol II, Article 6' (Penal prosecutions) ', paragraph 2(e). The Rapporteur of Committee III noted that it was understood that persistent misconduct by a defendant could justify his removal from the courtroom. (29) This sub-paragraph does not exclude sentencing a defendant in his absence if the law of the State permits judgement in absentia.
3110. In some countries the discussions of the judges of the court are public and take place before the defendant; in other countries the discussion is held in camera, and only the verdict is made public. Finally, there are countries where the court's decision is communicated to the defendant by the clerk of the court in the absence of the judges. This sub-paragraph does not prohibit any such practices: the important thing is that the defendant is present at the sessions where the prosecution puts its case, when oral arguments are heard, etc. In addition, the defendant must be able to hear the witnesses and experts, to ask questions himself and to make his objections or propose corrections."
P.15. Evidence that victim was compelled to testify against himself.
A. Legal source/ authority and evidence:
Funke v. France, Application No. 10828/84, Judgment (European Court of Human Rights), 25 February 1993, para. 44:
"44.The Court notes that the customs secured Mr Funke's conviction in order to obtain certain documents which they believed must exist, although they were not certain of the fact. Being unable or unwilling to procure them by some other means, they attempted to compel the applicant himself to provide the evidence of offences he had allegedly committed. The special features of customs law (see paragraphs 30-31 above) cannot justify such an infringement of the right of anyone "charged with a criminal offence", within the autonomous meaning of this expression in Article 6 (art. 6), to remain silent and not to contribute to incriminating himself.
There has accordingly been a breach of Article 6 para. 1(art. 6-1)."
Article 6(2) Additional Protocol II:
2. No sentence shall be passed and no penalty shall be executed on a person found guilty of an offence except pursuant to a conviction pronounced by a court offering the essential guarantees of independence and impartiality. In particular:
(a) the procedure shall provide for an accused to be informed without delay of the particulars of the offence alleged against him and shall afford the accused before and during his trial all necessary rights and means of defence;
(b) no one shall be convicted of an offence except on the basis of individual penal responsibility;
(c) no one shall be held guilty of any criminal offence on account of any act or omission which did not constitute a criminal offence, under the law, at the time when it was committed; nor shall a heavier penalty be imposed than that which was applicable at the time when the criminal offence was committed; if, after the commission of the offence, provision is made by law for the imposition of a lighter penalty, the offender shall benefit thereby;
(d) anyone charged with an offence is presumed innocent until proved guilty according to law;
(e) anyone charged with an offence shall have the right to be tried in his presence;
(f) no one shall be compelled to testify against himself or to confess guilt.
Article 14 (3) (g) ICCPR:
"3. In the determination of any criminal charge against him, everyone shall be entitled to the following minimum guarantees, in full equality:
[ ] (g) Not to be compelled to testify against himself or to confess guilt."
Article 8 (2) (g) , 8(3) ACHR:
"2. Every person accused of a criminal offense has the right to be presumed innocent so long as his guilt has not been proven according to law. During the proceedings, every person is entitled, with full equality, to the following minimum guarantees:
g. the right not to be compelled to be a witness against himself or to plead guilty; [ ]"
"3. A confession of guilt by the accused shall be valid only if it is made without coercion of any kind."
P.15.1. Evidence of pressure to confess from investigating authorities.
A. Legal source/authority and evidence:
Errol Johnson v. Jamaica, Communication No. 588/1994, U.N. Doc. CCPR/C/56/D/588/1994 (1996), para. 8.7:
"8.7 Regarding the claim under articles 7 and 14, paragraph 3 (g) - i.e. that the author was beaten during police interrogation with a view to extracting a confession of guilt - the Committee reiterates that the wording of article 14, paragraph 3 (g), namely that no one shall "be compelled to testify against himself or to confess guilt", must be understood in terms of the absence of any direct or indirect physical or psychological pressure from the investigating authorities on the accused, with a view to obtaining a confession of guilt. E.g. Views on communication No. 248/1987 (G. Campbell v. Jamaica), adopted 30 March 1992, paragraph 6.7."
[B. Evidentiary comment]:
A. Legal source/ authority and evidence:
Article 6(3) Additional Protocol II:
"3. A convicted person shall be advised on conviction of his judicial and other remedies and of the time-limits within which they may be exercised."
P.17. Evidence of denial of the right to have judgment pronounced publicly.
A. Legal source/authority and evidence:
Article 75(4)(i) Additional Protocol I:
"4. No sentence may be passed and no penalty may be executed on a person found guilty of a penal offence related to the armed conflict except pursuant to a conviction pronounced by an impartial and regularly constituted court respecting the generally recognized principles of regular judicial procedure, which include the following:
(a) the procedure shall provide for an accused to be informed without delay of the particulars of the offence alleged against him and shall afford the accused before and during his trial all necessary rights and means of defence."
Article 14 (1) ICCPR:
"1. All persons shall be equal before the courts and tribunals. In the determination of any criminal charge against him, or of his rights and obligations in a suit at law, everyone shall be entitled to a fair and public hearing by a competent, independent and impartial tribunal established by law. The press and the public may be excluded from all or part of a trial for reasons of morals, public order (ordre public) or national security in a democratic society, or when the interest of the private lives of the parties so requires, or to the extent strictly necessary in the opinion of the court in special circumstances where publicity would prejudice the interests of justice; but any judgement rendered in a criminal case or in a suit at law shall be made public except where the interest of juvenile persons otherwise requires or the proceedings concern matrimonial disputes or the guardianship of children."
Article 6(1) ECHR:
"In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law. Judgement shall be pronounced publicly by the press and public may be excluded from all or part of the trial in the interest of morals, public order or national security in a democratic society, where the interests of juveniles or the protection of the private life of the parties so require, or the extent strictly necessary in the opinion of the court in special circumstances where publicity would prejudice the interests of justice."
Article 8(5) ACHR:
"5. Criminal proceedings shall be public, except insofar as may be necessary to protect the interests of justice."
P.18. Evidence of violation of the principle of ne bis in idem.
Article 74 (4) (h) Additional Protocol I:
"4. No sentence may be passed and no penalty may be executed on a person found guilty of a penal offence related to the armed conflict except pursuant to a conviction pronounced by an impartial and regularly constituted court respecting the generally recognized principles of regular judicial procedure, which include the following:
[
] (h) no one shall be prosecuted or punished by the same Party for an offence in respect of which a final judgement acquitting or convicting that person has been previously pronounced under the same law and judicial procedure;"
Article 86 Geneva Convention III:
No prisoner of war may be punished more than once for the same act, or on the same charge.
Article 117(3) Geneva Convention IV:
Subject to the provisions of the present Chapter, the laws in force in the territory in which they are detained will continue to apply to internees who commit offences during internment.
If general laws, regulations or orders declare acts committed by internees to be punishable, whereas the same acts are not punishable when committed by persons who are not internees, such acts shall entail disciplinary punishments only.
No internee may be punished more than once for the same act, or on the same count.
Article 14 (7) ICCPR:
"[ ] 7. No one shall be liable to be tried or punished again for an offence for which he has already been finally convicted or acquitted in accordance with the law and penal procedure of each country."
Article 4 of the 7th AP to the ECHR:
"Article 4 . Right not to be tried or punished twice
1 No one shall be liable to be tried or punished again in criminal proceedings under the jurisdiction of the same State for an offence for which he has already been finally acquitted or convicted in accordance with the law and penal procedure of that State.
2 The provisions of the preceding paragraph shall not prevent the reopening of the case in accordance with the law and penal procedure of the State concerned, if there is evidence of new or newly discovered facts, or if there has been a fundamental defect in the previous proceedings, which could affect the outcome of the case.
3 No derogation from this Article shall be made under Article 15 of the Convention."
Article 8 (4) ACHR:
"4. An accused person acquitted by a nonappealable judgment shall not be subjected to a new trial for the same cause."
B. Evidentiary comment:
In the Prosecutors Response to the Trial Chambers Request in the case of Slavko Dokmanovic, the ICTY Prosecution followed Bin Cheng, who concluded that There seems little, if indeed any, question as to res judicata being a general principle of law or as to its applicability in international judicial proceedings. (B. Cheng, "General Principles of Law as applied by International Courts and Tribunals" p. 336, cited in Knut Dormann, "Elements of War Crimes under the Rome Statute", Cambridge 2002, p. 438) The ICTY Prosecution distinguished the traditional procedural or formal principle of non bis in idem from a substantive non bis in idem which would apply to a case before the question of guilt has been finally adjudicated by a court, in particular at the time of first trial. According to the Prosecution the latter does not exist as a general principle of international law.(Knut Dormann, "Elements of War Crimes under the Rome Statute", Cambridge 2002, p. 438)
