Making Sense of the Standard & Burden of Proof in Hybrid Courts: Reflections on the Common Law & Civil Law Approaches to Proof — Part IV

Part IV – International criminal courts and tribunals: mixing, matching & inventing

The latest type of international crimes courts, inter alia dubbed ‘hybrid courts’, has been welcomed with great expectations. The hybrid model that is characterized by a mix of national and international components is said to ‘hold a good deal of promise and actually offer an approach that may address some of the concerns about purely international justice, on the one hand, and purely local justice, on the other.’ The hybrid courts are thought to avoid the drawbacks of purely domestic trials and proceedings by purely international courts, such as the International Criminal Tribunals for the former Yugoslavia (ICTY), Rwanda (ICTR) and the International Criminal Court (ICC). The model of hybrid courts ‘endeavors to combine the strengths of the ad hoc tribunals with the benefits of local prosecutions.’1Sarah M.H. Nouwen, ‘Hybrid Courts’ The Hybrid Category of a New Type of International Crimes Courts, 2(2) Utrecht L. Rev. ,190 (2006). An excellent expose on what is referred to as hybrid courts, the features they purportedly share and their fundamental differences. With the vast range of differences, Nouwen questions whether there is a promising model hybrid court.

This is the final post on my discussion of standards and burdens of proof in hybrid courts. In the first post, I briefly discussed the terms standard and burden of proof.  The second post dealt with the history of the reasonable doubt standard of proof and the in dubio pro reo principle to provide some context and a background understanding of how the common law and civil law standards of proof diverged and evolved over the centuries. The third and fourth posts dealt with common law and civil law systems and the practical application of standards and burdens of proof in national criminal systems. In this final post to this series, I will address these issues in the context of the international criminal courts and tribunals.  I will also touch upon some of the jurisprudence from the European Court of Human Rights (“ECtHR”).

Procedural justice: cherry picking from the common law and civil law procedures   

Hybrid2International criminal courts and tribunals adopt hybrid procedures by cherry picking from the two major legal traditions, the common law and civil law.  It is assumed that the optimal way to handle the unique challenges faced by the international criminal courts and tribunals (including the amount of data involved, the timeframes, and all sorts of other challenges related to investigating and trying war crimes and crimes against humanity) is to combine the best of the two systems in creating the rules of procedure and evidence. Wishful thinking.  When the innovative procedures turn out to be ill-conceived, some drafters run for cover. In describing what emerged after the Internal Rules drafted by the judges were put into practice at the Extraordinary Chambers in the Courts of Cambodia (“ECCC”), former Co-Investigating Judge Marcel Lemonde bemoaned, “The dish was not exactly what we ordered.”2Peter Zsombor, The Khmer Rouge Tribunal – A Legacy Yet to be Written, Cambodia Daily, 5 December 2012, p. 17.  Of course, Judge Lemonde was one of the cooks in the kitchen.  How apt:  too many chefs in the kitchen spoil the broth, especially true when the cooks are trained in different cuisines and have neither the appetite nor the desire to understand and appreciate the nuances of the cuisines of their fellow cooks, not to mention cooking together but with different dishes in mind.

As I discussed in the previous posts, common law and civil law systems contain distinct and incompatible concepts/practices, especially when it comes to the standard and burden of proof.  Blending and selecting the rules and procedures from two fundamentally different systems requires finesse, prudence and farsightedness.  As we have seen, the common law and civil law have distinct approaches (party-driven vs. judge-driven), and even vary among their respective traditions (e.g. the French model vs. the German model). Finding an appropriate compromise between the two systems, and accommodating the weaknesses/strength that either system may have, has proved to be more of an aspiration than a reality.

From the practitioner’s point of view, amalgamating procedures from the common law and civil law systems often give birth to procedural rules and courtroom practices that manifest uncertainty and inconsistency in their application.  Trials seem to be conducted based on the serendipity of who is selected as the presiding judge and his or her interpretation of the rules.  Not to mention that the rules tend to change as the proceedings go on.  Imagine being at a championship game where the referee is changing the rules as the game is played.   As I once noted:

Whenever it suits them they just create new rules.  By judicial fiat they make these decisions.  Today we’re going to apply this; tomorrow we’re going to apply that.  Just tell me what the rules are so I know what to expect and how to proceed.3Interview with Michael G. Karnavas, 9 May 2012, in John D. Ciorciari & Anne Heindel, Hybrid Justice: The Extraordinary Chambers in the Courts of Cambodia 60 (University of Michigan Press 2014).  

The lack of cohesion and foresight in cobbling rules and procedures from the common law and civil law systems can be seen in the frequency with which the rules of procedure and evidence are amended at the ad hoc international criminal tribunals, the inconsistent interpretation and application of these rules, and the conflicting and at times inharmonious reasoning given when applying or misapplying them. The judges are allowed (or feel entitled to) interpret the rules based on their national experience, applying the rules through their own differing domestic procedures rather than applying the rules as the drafters intended. When questioned, they all invoke a series of alibis: this is an international tribunal, or we are professional judges, or, better yet, we are guided by our judicial independence. It sounds reasonable until you are on the receiving end of procedural decisions that are based on a judge’s inability to grasp or an unwillingness to implement the rules as they were intended when adopted.  And there are unfortunate unintended consequences as I noted during a speech at the 60th anniversary of the Nuremberg trials:

Unlike in Nuremberg, the judge-made Rules of Procedure and Evidence at the ad hoc tribunals, particularly at the ICTY, have been in a constant state of flux since their inception.  Indeed, the changes in the rules have been so extensive, that the procedure has been transformed to such extent that many participants and observers are concerned that the changes transgress upon both the letter and spirit of the Statutes of these institutions.  Moreover, the differences in practice – that is in the application of the rules of the various Trial Chambers, are creating differences in the fairness of the trials from one courtroom to the next depending on which judges were selected to constitute the bench. And because of the different ethnic groups involved in the various trials [at the ICTY, Serbs, Croats and Bosniaks / Muslims were tried separately], the unintended and unfortunate perception is that there is a correlation between the inconsistent application of discretionary aspects of the Rules and ethnicity.4See Speech delivered by Michael G. Karnavas, ADC-ICTY President at: Nuremberg – 60 Years After: the Beginning and Development of International Criminal Justice, Joint Conference of the German Section of the International Commission of Jurists, the City of Nuremberg, and the City of Nuremberg Human Rights Office, 10-12 November 2006.

There is this romanticized article of faith that those doing the selecting, cobbling, and amalgamating of the rules actually appreciate and understand both legal systems: knowing why the systems function as they do, i.e., knowing the historical and philosophical bases for the various attributes and nuances, as opposed to superficially knowing the principles as reflected from a basic reading of the text. It also is assumed that they have sufficient practical experience with the procedural rules of both legal systems so as to appreciate their actual application.  It is one thing to be familiar with the rules of procedure and evidence from having studied them (or taught them), it is another to have a feel for them from having firsthand experience in applying them.  There is a vast difference between knowing from reading and knowing from doing or applying.  As we know, many of the judges at these tribunals have never practiced law or served as judges.  Being “learned” in the classroom or a diplomat in the field does not necessarily make one suitable for the bench – especially at these international and internationalized criminal courts and tribunals.5For an excellent exposé debunking this myth, see Michael Bohlander, The International Criminal Judiciary – Problems of Judicial Selection, Independence and Ethics, in International Criminal Justice: A Critical Analysis of Institutions and Procedures 325, 325-390 (Michael Bohlander, ed. 2007).

Anyone who has cut his or her teeth in the courtroom knows that there is a tangible feel for how the rules should function in practice; a feel that can only be acquired through actual courtroom experience, as well as from an abiding appreciation of the legal systems from which the rules are inspired and/or amended.  The unhappy co-existence of ICTY Rule 98bis among common law and civil law judges is an apt vignette worth examining.

ICTY Rule 98bis provides for seeking a judgement of acquittal at the end of the prosecution’s case-in-chief.  The judges – who make the Rules of Procedure and Evidence – adopted a common law procedure at the ICTY without fully grasping the essence of what is or the purpose for a judgement of acquittal.  Rule 98bis permitted a judgement of acquittal of some or all of the charges at the end of the prosecution’s case, if the Trial Chamber found the evidence insufficient to sustain a conviction on one or more of the offenses charged. Appropriate. After all, the ICTY adopted an adversarial procedure.  The degree of necessary proof  (the test for determining whether the evidence is insufficient to sustain a conviction) was interpreted as “not whether the trier of fact would in fact arrive at a conviction beyond reasonable doubt on the Prosecution evidence if accepted, but whether it could….”6Prosecutor v. Jelisić, IT-95-10-A, Appeals Judgement, 5 July 2001, para. 37 (emphasis added).   If the prosecution failed to meet its burden of proof on a particular charge on what is a rather low threshold (as the norm in the common law traditions), then a judgement of acquittal for those charges would be entered, subject to immediate appeal.  This put the onus on the prosecution to put on its entire case (as opposed to holding back vital evidence for rebuttal), and also allowed, in instances where partial acquittals resulted, the defense lawyers to better allocate their limited resources and focus their case on whatever charges remained.

While this Rule 98bis was quite rational for any judge from a common law system, it made little to no sense to civil law judges.  How could a judgement of acquittal be rendered after only having heard the prosecution’s case?  This ran counter to their notion of the free evaluation of evidence at the end of the proceedings, when, presumably, the judges would be in a position to determine the relevance and weight of the evidence. Rather than do away with Rule 98bis, a silly compromise was reached, effectively defeating the purpose of Rule 98bis but not without fostering the illusion that the Rule retained relevance.

In December 2004, Rule 98bis was amended to provide that the Trial Chamber would enter a judgement of acquittal on any count if it found no evidence capable of supporting a conviction.  While unclear whether this change of wording was intended to lower the Trial Chamber’s standard of review of the evidence, it effectively did, in favor of the prosecution.7For a concurring opinion by prosecutors, see Andrew Cayley & Alexis Orenstein, Motion of Judgement of Acquittal in the Ad Hoc and Hybrid Tribunals: What Purpose If Any Does it Serve?, 8 J. Int’l Crim. Just. 575, 581 (2010). By considering only the evidence presented by the prosecution,8See Prosecutor v. Prlić et al., IT-04-74-T, Transcript, 20 February 2008, p. 27206 (emphasis added): “At the 98 bis stage, the Trial Chamber only considers the Prosecution evidence submitted by the Prosecution and not the evidence adduced by the Defence.” and no evidence adduced by the defense lawyers through confrontation of the prosecution witnesses or the documents proposed by the defense lawyers and admitted by the Trial Chamber during the prosecution’s case, Rule 98bis proceedings were turned into a redundant absurdity: a re-confirmation hearing of the indictment.  By keeping Rule 98bis in its amended form as opposed to discarding it completely (the more prudent course), many of the accused nonetheless continued to make applications for judgements of acquittal.  Predictably, the application of Rule 98bis has wasted precious time, energy, and resources on a procedure that for all intents and purposes has become meaningless. Considering the limited evidence the Trial Chamber will consider and the low threshold of proof required, Rule 98bis proceedings amount to nothing more than a vacuous exercise, a charade.

Advocates beware: know thy bench

Effective advocacy demands that defense lawyers know their audience: the trial bench of judges from various legal traditions with various notions of the standard (quality and quantity) and burden (to whom the task is consigned) of proof.  This is essential in crafting and presenting their case and arguments effectively. Defense lawyers must unshackle themselves from their own legal traditions and consider how to better appreciate the approaches taken by the judges in interpreting the rules within the context of their own legal backgrounds and experiences. And, even then, it is a tall order to penetrate a judge’s inner conviction on how he or she ought to interpret and apply the rules that may be foreign to or an amalgamation of the judge’s legal training.

The haphazard approach to rulemaking at the international tribunals (setting aside the International Criminal Court (“ICC”), which has taken a different path, though even it is recalibrating its rules as it evolves) stems from the fact that, since Nuremberg, international criminal courts and tribunals have been legislating by drafting their own rules of procedure and evidence.  Because of their international / multi-national makeup, no one system is in sole use.  Realistically, neither of the two dominant legal systems is superior to the other; both have their strengths and weaknesses.  Conceptually, the cross-pollination of the procedures of the two systems, would, in theory, produce an incomparable procedure, accommodating any weaknesses either system may have, especially in light of the challenges presented by the mega war crimes and crimes against humanity cases. Theoretically.

But, as we have seen in my previous posts, the two major legal traditions differ significantly in the ends they each aim to achieve. While both strive to achieve “justice”, only the civil law system attempts to find the objective material truth – getting as close to the truth as possible.9See Hervé Pelletier and Jean-Baptiste Thierry, Juris Classeur Procédure Pénale, LexisNexis, Articles 427 – 457, 10 March 2015, para. 1 (translation by author): “The criminal judge searches for the material truth.” See also R. Merle, A.Vitu, Traité de droit criminel, t. 2, Procédure pénale: Cujas, 2001, 5e éd., n°115 (translation by author): “meaning what is really the truth as he sees it and not what the parties offered as being the truth.” The common law system places the burden on the prosecution to prove the charges beyond a reasonable doubt.  This may be close to certainty, but there is no appreciable burden to ensure that the “objective material truth” is sought by the prosecution and uncovered or realized by the judges.  Rather, justice is served by leaving it up to the trier of fact (usually the jury in domestic courts) to determine whether the prosecution, which initiated the charges and is backed by the enormous power and resources of state or local authorities, has proved all the elements of the charges beyond a reasonable doubt.  Put differently, mere belief, however strong, is insufficient for the trier of fact to render a guilty verdict. The prosecution must prove the elements of the crimes with proof beyond a reasonable doubt: proof of such a convincing nature that one would be willing to act and rely on it without hesitation in one’s important affairs.10See PATTERN CRIMINAL JURY INSTRUCTIONS OF THE FIFTH CIRCUIT 1.05 (2012), available at http://www.lb5.uscourts.gov/juryinstructions/fifth/crim2012.pdf.

In common law, the trier of fact is not seeking the truth; it merely decides whether the evidence presented by the prosecutor proves beyond a reasonable doubt the charges. Conversely, in civil law the judge plays a key role in seeking for the truth. The judge hears all the evidence and assesses it in determining the guilt or innocence of the accused based on his or her intimate conviction i.e., forming a personal opinion after questioning himself or herself and reflecting and seeking in the sincerity of his or her conscience the impression that has been made upon his or her reason by the evidence brought against the accused and the arguments of the parties. It is a method used to render a judgment that takes into account the act that has to be judged as well as the accused, as a person, in all of his or her subjectivity.11Jean-Marie Fayol-Noireterre, L’intime conviction, fondement de l’acte de juger in: Informations sociales, 2005/7 (n° 127), p. 46-47. The judge has to be convinced at an inner, personal level.12Article 427 of the French Code of Criminal Procedure (2000) (translation by John Rason Spencer, QC, 2006) states: “except where the law otherwise provides, offences may be proved by any mode of evidence and the judge decides according to his innermost conviction. The judge may only base his decision on evidence which was submitted in the course of the hearing and adversarially discussed before him.”

We have already seen what the President of the French Cour d’Assise (which comprises three judges and six jurors) reads before the Court goes to deliberate:

The law does not ask the judges to account for the means by which they convinced themselves; it does not charge them with any rule from which they shall specifically derive the fullness and adequacy of evidence. It requires them to question themselves in silence and reflection and to seek in the sincerity of their conscience what impression has been made on their reason by the evidence brought against the accused and the arguments of his defence. The law asks them but this single question, which encloses the full scope of their duties: are you inwardly convinced?13C. PR. PÉN. (2000), art. 353, translation by John Rason Spencer, QC (2006).

The jurors then reflect inwardly to determine whether they believe the accused to be guilty or innocent.

These two standards are different in the sense that one – beyond reasonable doubt – is “external and objective where two persons using the same yardstick would reach the same conclusion”14Mark Klamberg, Evidence in International Criminal Trials 129 (Martinus Nijhoff Publishers 2013). and the other – intimate conviction – means “that the fact finder’s state of subjective persuasion [is] both a necessary and a sufficient condition to support the factual basis of a judgment.”15Id.  The intimate conviction standard undoubtedly contains an element of subjectivity, as one has to reflect and rely upon one’s inner conviction to consider whether an accused is guilty or is innocent.

This fundamental difference in the two systems is the crux of the discontent in this arranged marriage of common law and civil law.  Judges in the common law system are determining whether the prosecution proved each element of each charge beyond a reasonable doubt, whereas judges in the civil law system are seeking the truth.

Common law judges tend to behave similarly to referees during the trial.  Their main function is to ensure that the parties play by the rules and that the proceedings are conducted in an orderly fashion.  The judges are not after the truth, though through the confrontation process by the parties (questioning of witnesses) the truth – or the closest thing to it – should (hopefully) emerge.  What is important is that the party who brought the charges, the prosecution, proves the charges.  The sole burden of proving the charges beyond a reasonable doubt, and of persuading the judges that the proof rises to that level, rests on the prosecution.16See Prosecutor v. Delalić et al., IT-96-21-T, Trial Judgement, 16 November 1998, para. 601: “the general principle to be applied by the Trial Chamber is clearly, on the basis of this brief analysis, that the Prosecution is bound in law to prove the case alleged against the accused beyond a reasonable doubt.” It is not up to the judges to act for either party or to independently pursue a line of questioning or call a witness in order to be satisfied of the outcome.  The judges (unless a jury is involved) are merely expected to objectively assess the evidence.

Conversely, because civil law judges are on a truth-seeking mission, they are very active in the questioning of witnesses.  They carry a burden, if you will, of having to be persuaded that they have come as close to the truth as possible.  This burden cannot simply be met by leaving the questioning of the witnesses to the prosecution and defense lawyers.  If civil law judges think an accused is guilty, then instinctively they tend to pursue all avenues in questioning and will consider any type of evidence, within the very broad contours of what is known as the free evaluation of evidence, in confirming this belief and reaching a guilty verdict.

There are, of course, lots of other differences and nuances in the role of the judges of the two legal traditions, but, principally, the distinction on how the judges approach the burden and stand of proof is the most challenging one when they are engaged in international tribunals with hybrid procedures.  It strikes at the very core of a judge’s DNA.  Once a judge is sworn in, he or she is independent.  And since every judge is a slave of his or her own legal system, it is often very hard for a judge to set aside his or her core values of how justice is to be achieved and follow a set of procedures that may be antithetical.  Even when there is a will to do so, it can be a struggle to think and act counter-intuitively; a dilemma civil law judges are more likely to face when the rules of procedure call for proof beyond a reasonable doubt.17Rule 87 of the ICTY and International Criminal Tribunal for Rwanda (“ICTR”) Rules of Procedure and Evidence states, in relevant part “A finding of guilt may be reached only when a majority of the Trial Chamber is satisfied that guilt has been proved beyond reasonable doubt.” Rule 87 of the Residual SCSL similarly requires that “A finding of guilty may be reached only when the President, Designated Judge or a majority of the Trial Chamber is satisfied that guilt has been proved beyond reasonable doubt.” Rule 87 of the Extraordinary Chambers in the Courts of Cambodia’s (“ECCC’s”) Internal Rules states: “The onus is on the Co-Prosecutors to prove the guilt of the accused. In order to convict the accused, the Chamber must be convinced of the guilt of the accused beyond reasonable doubt.”

The common law judges seem to adjust more easily at the international criminal courts and tribunals.  Unquestionably they are unburdened by the absence of the rigid rules of evidence found in their own legal traditions.  They are also unconstrained in asking questions, especially if a line of questioning by the parties has left an issue or topic unclear or unfinished.  However, it seems that because they inherently appreciate the prosecution’s burden, they generally tend to tread lightly, taking care not to act as an advocate for any of the parties.  This is not necessarily always the case.  Some common law judges are pro-prosecution and see it as their mission to convict the accused. The where there is smoke, there is fire syndrome of pre-judging and assessing the evidence to affirm a confirmation bias is occasionally suffered by some judges who were career prosecutors before donning their crimson silk judicial robes.

The civil law judges, on the other hand, because of their moral and legal convictions, do seem to be more challenged when it comes to the inviolable principle of the presumption of innocence.  Some see it as a mere legal fiction, a pretense (a bit like the pro-prosecution common law judge).  After all, a prosecutor (an organ of the state, or of the United Nations, or whichever entity established the tribunal) has indicted this accused.  Prosecutors in the civil law tradition are part of the magistrate family.  They are trained to be fair and to search for exculpatory evidence with the same zeal they search for incriminating evidence.  They too are supposed to be searching for the truth. No prosecutor should indict an accused if he or she were not likely to be found guilty, so how can a judge now pretend by assuming the accused to be innocent? Fair enough, but at the international tribunals, the prosecutors are from different legal traditions, as are the investigators who interview witnesses and gather the evidence.  Prosecutors and investigators from the common law system do not have as part of their DNA the imperative to search for exculpatory evidence.  If they stumble over it they may collect it, but even then it is likely to be buried in an avalanche of evidence – providing the haystack as opposed to the needle buried within. Once the common law prosecutor has a particular suspect or accused in the crosshairs, the notion of affirmatively looking for exonerating or mitigating evidence is irreconcilable with his or her concept of mission.  It is delusional to think otherwise.

This is significant because the civil law judges tend to presume – at least so it seems – that the prosecutors at the international tribunals are conducting themselves in the same fashion as prosecutors normally do in the civil law national environment.  In other words, unwarranted deference is extended to the prosecution out of instinct and belief that the prosecutors and investigators also are searching for the truth.18For an exquisite example of how civil law judges may not fully appreciate the differences in how at the investigative stage evidence is collected and thereafter used/relied by the prosecution in adversarial/common law systems, see Renee Lettow Lerner, The Intersection of Two Systems: An American on Trial for an American Murder in the French Cour d’Assises, 2001 U. Ill. L. Rev. 791 (2001).

The different approaches or missions of the common law judges and civil law judges often are played out in the courtroom during the questioning of the witnesses.  The common law judges, even if their own national courts permit them to interject questions while the parties are questioning witnesses, tend to be reserved and circumspect.  This may be because of their inherent training and conviction that it is not within their remit to assist either party, especially the prosecution. Their questions tend to relate to matters of clarification, completeness or reconciliation of contradictory testimony.  This conservative approach is appropriate, since judges (or, in reality, their legal officers) will be making findings of facts at the end of the proceedings.  Loose ends, a confusing record, or semi-developed lines of questioning to critical aspects of the case are of no assistance to the triers of fact, making the process of deliberation and the drafting of the judgement even more challenging than it is already.  The judges are there to ensure that a clear and complete record is made, so the facts can fairly be assessed and so any errors they may commit in rendering the judgement can be readily scrutinized on appeal.

The civil law judges, because of their inherent training and conviction that they are to ensure that they get as close to the truth as possible, believe that they are best poised to lead the questioning.  It matters not whether it is direct or cross-examination.  Intellectually, many of them may grasp that the proceedings at the international tribunals are party-driven in that the parties have their respective cases and thus are the captains of their own vessels.  But, when it comes to the actual practice during court proceedings, many find themselves incapable of exercising the requisite self-restraint.

And this is where judges of any denomination, but especially from the civil law system, risk becoming a party, and worse yet, knowingly or unknowingly, acting on behalf of a party by being overly intrusive in the questioning of witnesses. The judge / referee becomes an active player, assisting one side in particular (usually the prosecution, since the accused must be guilty of something or the prosecution would not have indicted him or her, and our fellow judges would not have confirmed the indictment) to ensure that there is a sufficient record for a presumed result. Putting it bluntly, these mission-driven / truth-seeking judges (especially if they are human rights-victim oriented) interpret and apply the rules of procedure to suit their own convictions, as if they were serving on their national courts as opposed to a hybrid international criminal court or tribunal, thus acting as the midwife in assisting the prosecution with delivering its case and a conviction.

MarionetteTo proof or not to proof: a vignette on the clash of legal traditions

The proofing (preparing) of witnesses to testify is an exquisite example of the clash of legal traditions.  Some observations.

During a recent visit to the International Criminal Tribunal for the Former Yugoslavia, I met one of the staff lawyers who explained that in discussing preparation of the witnesses for cross-examination during trial several lawyers from different countries expressed opposing views on the questions of ethics involved. An Australian lawyer felt that from his perspective it would be unethical to prepare a witness; a Canadian lawyer said it would be illegal; and an American lawyer’s view was that not to prepare a witness would be malpractice.19Karen L.K. Miller, Zip to Nil?: A Comparison of American and English Lawyers’ Standards of Professional Conduct 1995 ALI-ABA 199, 204 (1995), cited by Mary C. Daly, The Dichotomy between Standards and Rules: A New Way of Understanding the Differences in Perceptions of Lawyer Codes of Conduct by US and Foreign Lawyer’ 32 Vand. J. Transnat’l. L. 1117, n. 184 (1999).

Or how about the calling party speaking to his or her own witness while the witness is still giving evidence, for instance, when the witness approached that party to offer information relevant to his or her testimony?  According to former ICTY and International Criminal Tribunal for Rwanda (“ICTR”) Prosecutor Louise Arbour:

The views of lawyers trained in common law systems, based on their own national practices, ranged from: “I would be disbarred if I did” to “I would be disbarred if I did not.” The Canadians, of course, took the middle ground: ‘It is OK while the witness is in chief, but a no-no while he is in cross’. Meanwhile, the members of the team trained in the civil law tradition were still trying to figure out what the fuss was all about.20Louise Arbour, Legal Professionalism and International Criminal Proceedings, 4 (4) J. Int’l Crim. Justice 674, 684 (2006).

At the ICTY, “[t]he practice of proofing witnesses … has been in place and accepted since the inception of this Tribunal…. The process of human recollection is likely to be assisted … by a detailed canvassing during the pre-trial proofing of the relevant recollection of a witness…. [S]uch proofing is likely to enable the more accurate, complete, orderly and efficient presentation of the evidence[.]”21See Prosecutor v. Limaj, IT-03-66-T, Decision on Defence Motion on Prosecution Practice of ‘Proofing’ Witnesses, 10 December 2004, p. 2.

At the ICC, witness proofing has become a contentious issue, with judges divided on its use.  In the Lubanga, Ngudjolo, and Bemba cases, the Trial Chambers disallowed addressing differences in the witnesses’ recollection prior to the testimony by allowing witnesses to read their statements, or by asking witnesses the very same questions in the same order as they will be asked at trial.22See Prosecutor v. Lubanga, ICC-01/04-01/06, Decision on the Practices of Witness Familiarisation and Witness Proofing, 8 November 2006, para. 40; Prosecutor v. Ngudjolo, ICC-01/04-01/07-1134, Decision on a Number of Procedural Issues Raised by the Registry, 14 May 2009, paras. 35-52, 57; Prosecutor v. Bemba, ICC-01/05-01/08-1016, Decision on the Unified Protocol on the Practices used to Prepare and Familiarize Witnesses for Giving Testimony at Trial, 18 November 2010, paras. 31, 34-35.  In Bemba, Judge Ozaki (Japan) dissented, stating that it is not ‘practical and reasonable to prohibit any pre-trial meeting between the parties and their witnesses…. [W]itness proofing could be considered as “genuine attempt to clarify a witness’ evidence”, and to ensure the smooth conduct of the proceedings by enabling a more accurate, complete, methodical and efficient presentation of evidence.’23See Prosecutor v. Bemba, ICC-01/05-01/08, Partly Dissenting Opinion of Judge Kuniko Ozaki on the Decision on the Unified Protocol on the practices used to prepare and familiarize witnesses for giving testimony at trial, 24 November 2010, para. 22 (internal citations omitted). In the Ruto and Sang and Kenyatta cases, Trial Chamber V24Presiding Judge Ozaki (Japan), Judge Van den Wyngaert (Belgium), and Judge Eboe-Osuji (Nigeria). (Judge Ozaki presiding) allowed pre-testimony meetings aimed at clarifying a witness’s evidence on the basis that it is likely to enable a more accurate and complete presentation of evidence and assist in the truth finding function.25See Prosecutor v. Ruto and Sang, ICC-01/09-01/11-524, Decision on witness preparation, 2 January 2013, para. 50; Prosecutor v. Muthaura and Kenyatta, ICC-01/09-02/11-588, Decision on Witness Preparation, 2 January 2013, para. 52.

Inconsistencies in the approach to proofing at the ICC can be seen from the witness proofing protocols adopted on the case-by-case basis.  There are no standardized regulations across the cases.  The protocols are generally the same, but for each case they are supplemented and modified to various degrees.26Concerning the inconsistencies in approach to proofing at the ICC, and other tribunals, see Witnesses Before the International Criminal Court, An International Bar Association International Criminal Court Programme Report on the ICC’s Efforts and Challenges to Protect, Support and Ensure the Rights of Witnesses, July 2013, pp. 21-26 available at http://www.ibanet.org/ICC_ICL_Programme/Reports.aspx.  For instance, in Ruto and Sang, the Trial Chamber adopted the Witness Preparation Protocol authorizing witness preparation, providing for general principles (outlining the purpose of witness preparation), and the required and permissible conduct, including the general explanation of the topics that the calling party intends to cover during the examination as well as cross-examination (albeit in “general and neutral terms”).27Prosecutor v. Ruto and Sang, ICC-01/09-01/11-524, Decision on witness preparation, 2 January 2013, TC V, Annex “Witness Preparation Protocol,” paras. 1-4, 20-21.

In the Gbagbo and Goudé case, the Gbagbo Defence and the Prosecution proposed a Draft Witness Preparation Protocol based on the one adopted in Ruto and Sang, with slight changes.28Prosecutor v. Gbagbo and Goudé, ICC-02/11-01/15, Decision on witness preparation and familiarization, 2 December 2015, para. 13. The Trial Chamber29Presiding Judge Henderson (Trinidad and Tobago), Judge Carbuccia (Dominican Republic), and Judge Schmitt (Germany). (by Majority) decided that witness preparation was not appropriate in this case and rejected the proposal, emphasizing that “the principle of orality and immediacy … require that evidence is brought before the Chamber in a genuine and undistorted manner, leaving it for the judges to asses any inconsistencies or additional evidence….”30Prosecutor v. Gbagbo and Goudé, ICC-02/11-01/15, Decision on witness preparation and familiarization, 2 December 2015, para. 16.  It reasoned that the Trial Chambers,31Prosecutor v. Ruto and Sang, Trial Chamber V-A, Decision on witness preparation, 2 January 2013, ICC-01/09-01/11-524; Prosecutor v. Muthaura and Kenyatta, Decision on witness preparation, 2 January 2013, ICC-01/09-02/11-588; Prosecutor v. Bosco Ntaganda, Trial Chamber VI, Decision on witness preparation, 16 June 2015, ICC- 01/04-02/06-652. which adopted the protocols modelled after Ruto and Sang, were “invoking the singularity and complexity of the given case, including the lapse of time since the occurrence of the alleged facts and the large number of potential exhibits.”32Prosecutor v. Gbagbo and Goudé, ICC-02/11-01/15, Decision on witness preparation and familiarization, 2 December 2015, para. 18. Considering that each Chamber enjoys the discretion to adopt the most appropriate procedures for the conduct of the trial, the Trial Chamber decided that witness preparation was not appropriate in this case and adopted its own protocol.33 Prosecutor v. Gbagbo and Goudé, ICC-02/11-01/15, Decision on witness preparation and familiarization, 2 December 2015, paras. 19, 27.

According to the protocol adopted by the Majority, the Victims and Witnesses Unit (“VWU”) conducts witness familiarization, consisting of a “courtesy meeting” (a ten-fifteen minute meeting with the persons who will examine the witness), courtroom familiarization, and a reading of the prior witness’s statement at the premises of the VWU.34See Prosecutor v. Gbagbo and Goudé, ICC-02/11-01/15, Decision on witness preparation and familiarization, 2 December 2015, Annex “Unified Protocol on the practices used to prepare and familiarise witnesses for giving testimony at trial,” paras. 61-94.

Presiding Judge Henderson dissented in part, disagreeing with the Majority’s conclusion that witness preparation is unnecessary in this case.35Prosecutor v. Gbagbo and Goudé, ICC-02/11-01/15, Decision on witness preparation and familiarization, 2 December 2015, Partially Dissenting Opinion of Judge Henderson, para. 2.  He noted that “at the Court, the parties, not the judges, conduct investigations, which include both the interview of witnesses and taking of witness statements, as is done in an adversarial system.”36Id., para. 4. He further reasoned:

There is little dispute that the adversarial system depends to a large extent on the ability of the parties calling its witnesses to ensure that all relevant matters are placed before the Chamber. It is counsel who decides what is called into evidence, and it is their role to effectively lead that evidence in a way that is understood by the Chamber. In the Rome Statute system, the Trial Chamber is the finder of fact, and may base its decision only on evidence submitted and discussed before it at the trial. While it is empowered to request the submission of all evidence it considers necessary for the determination of the truth, the onus is on the Prosecutor to prove the guilt of the accused beyond a reasonable doubt.37Id., para. 5.

Judge Henderson further opined that “in a purely inquisitorial system, where the judges bear primary responsibility for gathering and eliciting evidence, would the risks of witness preparation necessarily, and without more, outweigh other benefits….”38Id., para. 10.  However, in this case, he observed that “the risks of this Chamber being exposed to and acting on manipulated and/or distorted evidence are mitigated both by the trial process itself, as well as by available sanctions. One such measure is an appropriate protocol that provides robust safeguards for the conduct of witness preparation.”39Id., para. 11. Judge Henderson also considered that:

Unlike the situation in domestic proceedings where arguably the counsel, the witness, the accused and the judicial officers all share the same culture and language (or the same version of that language), the experience in international criminal justice is unique. Peculiar to international proceedings generally, and before this court specifically, is the relative absence of any such shared culture and, in some cases, common language. For this reason alone, it may be necessary and appropriate for lawyers in the proceedings to spend time with their witnesses so as to ensure that they are able to effectively communicate with each other.40Id., para. 13.

Judge Henderson considered the time that elapsed between the alleged occurrence of facts, investigation, and the expected testimony (five to ten years),41Id., para. 15. as well as the voluminous scope of the case and evidence, to conclude that the adopted protocol would not enable the calling parties to properly and appropriately engage with the witnesses prior to their testimony in order to facilitate the focused, efficient and effective questioning of the witnesses during the proceedings.42Id., para. 16.

This example and Judge Henderson’s dissenting opinion illustrate the disaccord between the adversarial and inquisitorial “ideologies.”  The ban on witness preparation imposed in based on a stringent application of Article 21 and the evidentiary regime in which the Court enjoys discretion to adopt the most appropriate procedures for the trial conduct.  In the exercise of this discretion the judges tend to interpret the rules according to their legal traditions and understandings of what is appropriate.

A brief look at the international tribunals

Having set the context of the discussion, let’s now look at the various international tribunals and see how their respective rules of procedures deal with standards and burdens of proof.  They all seem to have adopted common law standards and burdens, save for the ECCC.  The ICTY, ICTR, Special Court for Sierra Leone, and Special Tribunal for Lebanon have adopted the reasonable doubt standard, putting the burden of proving the guilt of the accused on the prosecution.

Rule 87(A) of the ICTY Rules of Procedure and Evidence (“RPE”) reads in part:

A finding of guilt may be reached only when a majority of the Trial Chamber is satisfied that guilt has been proved beyond reasonable doubt.43ICTY Rules of Evidence and Procedure, IT/32/Rev. 48, Rule 87(A) (“ICTY RPE”), (emphasis added).

It has been interpreted to mean that:

Proof beyond a reasonable doubt “need not reach a certainty but it must carry a high degree of probability. Proof beyond a reasonable doubt does not mean proof beyond the shadow of a doubt. The law would fail to protect the community if it admitted fanciful possibilities to deflect the course of justice. If the evidence is so strong against a man as to leave only a remote possibility in his favour, which can be dismissed with the sentence, ‘of course it is possible, but not in the least probable’, the case is proved beyond a reasonable doubt, but nothing short of that will suffice.44Prosecutor v. Delalić et al., IT-96-21-T, Trial Judgement, 16 November 1998, para. 600, citing Miller v. Minister of Pensions (1947) 1 All ER 373,373-4.

Rule 87(A) of the ICTR RPE, Rule 87(A) of the SCSL RPE, and Rule 148(A) of the STL RPE are identical to Rule 87(A) of the ICTY.

At the ICC, the standard of proof at trial before the ICC is set out in Article 66 of the Rome Statute:

  1. Everyone shall be presumed innocent until proved guilty before the Court in accordance with the applicable law.
  2. The onus is on the Prosecutor to prove the guilt of the accused.
  3. In order to convict the accused, the Court must be convinced of the guilt of the accused beyond reasonable doubt.

The ECCC is an example of a civil law based system adopting some adversarial modalities with little appreciation of both legal systems and the actual application of the standards and burdens of proof. The standard for admissibility and presentation of evidence before the ECCC is set out in Rule 87(1) of the ECCC Internal Rules.45ECCC Internal Rules, as revised 3 August 2011 (Rev. 8), Rule 87(1). The English version states that “unless provided otherwise in these [Internal Rules], all evidence is admissible.  The onus is on the Co-Prosecutors to prove the guilt of the accused.  In order to convict the accused, the Chamber must be convinced of the guilt of the accused beyond reasonable doubt.”46Rule 87(1), ECCC Internal Rules, (emphasis added). The French version of Rule 87(1), however, states (as translated into English): “Unless provided otherwise in these [Internal Rules], all evidence is admissible. The onus is on the Co-Prosecutors to prove the guilt of the accused.  In order to convict the accused, the Chamber must have the intimate conviction of the guilt of the accused.”47“Sauf dispositions contraires du présent Règlement, la preuve en matière pénale est libre. La charge de la preuve de la culpabilité de l’accusé incombe aux co-procureurs. Pour condamner l’accusé, la Chambre doit avoir l’intime conviction de sa culpabilité.”   The French version refers to the standard of intimate conviction of the Judges, yet still places the burden of proof on the Co-Prosecutors.

As explained in throughout this post series, proof beyond a reasonable doubt and intimate conviction are two different standards of proof that cannot be used as interchangeable terms.  Both standards come from two distinct legal systems and have two different goals.  Consequently, confusion has arisen as to which standard of review should be applied.

The Trial Chamber addressed this issue in its first case (the Case 001 Duch Trial Judgement):

Internal Rule 21(d) enshrines the right of an accused to be presumed innocent as long as his or her guilt has not been established.  This presumption places the burden of establishing the guilt of an accused before the ECCC on the Co-Prosecutors.  Internal Rule 87(1) further provides that ‘[i]n order to convict the accused, the Chamber must be convinced of the guilt of the accused beyond reasonable doubt.’48Case of KAING Guek Eav alias Duch, 001/18-07-2007/ECCC-TC, Judgement, 26 July 2010, para. 44, (emphasis added).

[T]he basis of this finding is expressed differently in common law and civil law systems, and within the different language versions of Internal Rule 87(1).  Cambodian law derives from civil law and, in particular, from the notion of the judge’s intime conviction.  This notion is retained in the French version of Internal Rule 87(1), whereas both the Khmer and English versions of this Internal Rule state that a finding of guilt against the accused requires that the Chamber be convinced beyond a reasonable doubt.  Despite these conceptual differences, the Chamber has adopted a common approach that has evaluated, in all circumstances, the sufficiency of the evidence.  Upon a reasoned assessment of evidence, any doubt as to guilt was accordingly interpreted in the Accused’s favour.49Case of KAING Guek Eav alias Duch, 001/18-07-2007/ECCC-TC, Judgement, 26 July 2010, para. 45, (emphasis added).

Later, the Trial Chamber reiterated this finding in Case 002/01, providing:

In order to resolve any discrepancy between the different language versions of Internal Rule 87(1) that reflect the common law ‘beyond reasonable doubt’ standard and the civil law concept of ‘intime conviction’, the Chamber has adopted a common approach that evaluates the sufficiency of the evidence.  Upon a reasoned assessment of the evidence, the Chamber interprets any doubt as to guilt in the Accused’s favour.50Case of NUON Chea et al., 002/19-09-2007/ECCC/TC, Judgement, 7 August 2014, para. 22.

In stating that there were “conceptual differences” between the languages and that the “discrepancy between the different language versions” needed to be resolved, the Trial Chamber identified the discrepancy, but then incorrectly applied the intimate conviction standard.  Even if these two concepts were joined in a common approach by the Trial Chamber, they remain distinct concepts from two different legal systems that pursue two different goals through their standards of proof.51See Kevin M. Clermont, Standards of Proof Revisited, 33 Vt. L. Rev. 469 (2009).

The Trial Chamber gave no legal reasoning as to why the standard of proof beyond a reasonable doubt should be applied instead of the intimate conviction standard.  It simply acknowledged the differences between these two standards and considered that a common approach should be implemented.  This application of the standard of proof beyond reasonable doubt is inappropriate since the ECCC is based in a civil law system.  The roles of the parties and the judges are completely reversed and are not what they would have been if civil law procedures had been correctly applied.  Once the ECCC opted to place the burden of proof on the prosecution, it should have adopted a balanced adversarial procedure.  For instance, the parties could have been permitted to put on their respective cases by allowing them to select their witnesses and conduct the questioning as is done at the ICTY.

Whose burden is it anyway?

By placing the burden of proving the guilt of the accused on the prosecution, the criminal procedures cannot maintain some of the inquisitorial tools typical for the civil law systems.  If the burden of proof is on the prosecution, it is up to the prosecution to investigate, develop a theory of the case, select witnesses and documents it considers necessary to prove its case.  It is captain of its ship.  The prosecution can hardly be expected to reach its destination if they are deprived of a compass and the ship’s wheel.  As such, judges should refrain from searching for the truth by excessively questioning or calling witnesses.  In doing so, judges become what I call the fifth prosecutor (as in fifth column), a midwife for the prosecution in delivering the guilty verdict.  If the adopted procedure is adversarial, the parties should be entitled to cross-examine witnesses though leading questions – a forbidden fruit in some civil law systems.  The accused is entitled to a proper defense, which, in an adversarial setting, cannot be fully realized if his or her defense lawyer is deprived of the necessary tools in challenging the evidence and showing prosecution’s failure of meeting its burden of proof to the standard adopted by the court.

How the prosecution characterizes the facts in the indictment is important because the accused will develop his or her defense in response to the indictment/prosecution’s case.  If judges intervene to re-characterize the charges in the middle of or even at the end of the trial proceedings, as permitted in civil law systems, they effectively impact on the accused’s fair trial rights.  While re-characterization of the charges has not been gaining much traction at the ad hoc tribunals, it is permissible and often used at the ICC and the ECCC.  Expectedly, the application of re-characterization of the charges has been controversial. Some examples.

At the ICC, Regulation 55 of the Regulations of the Court provides that, in its final judgment, a “Chamber may change the legal characterization of facts to accord with the crimes … or to accord with the form of participation of the accused … without exceeding the facts and circumstances described in the charges and any amendments to the charges.”  For example, in Lubanga, the Pre-Trial Chamber used the regulation to re-characterize the conflict in the Democratic Republic of Congo from non-international to international, and the Trial Chamber considered (but ultimately rejected) five additional charges.52Prosecutor v. Lubanga Dyilo, Judgment pursuant to Article 74 of the Statute, ICC- 01/04-01/06-2842, TC, 14 March 2012.  More dramatically, in Katanga the Trial Chamber applied the regulation more than six months after the end of the trial to re-characterize the applicable mode of participation from indirect co-perpetration to common purpose liability and then convicted the accused on the re-characterized mode of liability.53Prosecutor v. Katanga and Ngudjolo Chui, ICC-01/04-01/07, Decision on the implementation of regulation 55 of the Regulations of the Court and severing the charges against the accused persons, 17 December 2012.  At the ECCC, re-characterization took on a life of its own.  It was used in one instance by the prosecution as a vehicle before the Trial Chamber to challenge the applicability of Joint Criminal Enterprise (“JCE”) III as a crime applicable before the ECCC,54See Case of NUON Chea et al., 002/19-09-2007-ECCC-TC, Co-Prosecutors’ Request for the Trial Chamber to Consider JJCE III As An Alternative Mode of Liability, 17 June 2011, E100. i.e., whether between 1975-1979 during the temporal jurisdiction of the ECCC, JCE III was customary international law, contrary to a decision reached by the ECCC Pre-Trial Chamber.55Case of NUON Chea et al., 002/19-09-2007-ECCC-OCIJ(PTC35), Decision on the Appeals Against the Co-Investigative Judges Order on Joint Criminal Enterprise (JCE), 20 May 2010, D97/14/15. In other words, the prosecution sought the re-characterization of the law, effectively requesting a legal determination of the contours of an existing and applicable form of liability, JCE III.  A clear abuse of the intended purpose of the re-characterization,56 See Case of NUON Chea et al., 002/19-09-2007-ECCC/TC, IENG Sary’s Response to the Co-Prosecutors’ Request for the Trial Chamber to Consider JCE III as an Alternative Mode of Liability & Request for an Oral Hearing, 22 July 2011, E100/2. but one the Trial Chamber was all too willing to go along with – though thankfully it upheld the Pre-Trial Chamber’s decision.57Case of NUON Chea et al., 002/19-09-2007-ECCC-TC, Decision on Applicability of Joint Criminal Enterprise, 12 September 2011, E100/6, para. 38.

In civil law systems, where the focus is on discovery of the truth, it matters not how the prosecution characterizes the facts in the indictment, since judges know the law and they are best poised to re-characterize the charges.  Since the parties do not have a case, and since the judge is entrusted with getting to the truth, it makes perfect sense for judges to recalibrate the charges to fit the facts. After all, this is part and parcel of the truth-seeking process; an acquittal or conviction should not result because of a charge based on mischaracterized facts.  That would, in the civil law system, amount to a perverse result.

Does it really matter how judges judge (assess) the evidence?

In hybrid systems replacing the intimate conviction standard with the standard of proof beyond a reasonable doubt does not create such pitfalls.  In judge-tried cases, professional judges, trained and experienced in reaching judgments based on the intimate conviction standard of proof, face few, if any, obstacles in applying the standard of proof beyond a reasonable doubt.  The process of assessing the evidence is essentially the same as in common law systems.  In evaluating reasonable doubt, jurors apply their own subjective, individualistic evaluations.  Doubt is an individual matter; jurors must not abandon their personal conclusions or vote against their judgment.58For more on “subjective” interpretation of the reasonable doubt standard, see H. Richard Uviller, Acquitting the Guilty: Two Case Studies on Jury Misgivings and the Misunderstood Standard of Proof, 2 Crim. L. F. 1, 18-19 (1990). For a professional judge there is no real distinction in the qualitative substance of the evidence required for the judge to be convinced and for guilt to be ascribed.  Aside from the definitional distinctions, there is little, if any, difference in the quality of proof between the intimate conviction and the standard of proof beyond a reasonable doubt.  Both standards require a high degree of certainty and both eschew fanciful or inconsequential doubts.

A potential dilemma may arise when it comes to the judge’s understanding of their role in the proceedings – generally an issue that is commonly seen before the international tribunals where some judges decide to interpret or apply the rules of procedure through the prism of their national criminal procedure.   Are they seeking the truth, and, therefore, may they intervene when one of the parties is failing at its task, or are they expected to follow the proceedings passively and intervene only when it is necessary to ensure that the rules and procedure are complied with?  Do they have the burden of being persuaded, or is the burden of proof on the prosecution?  Without clear answers to these questions, the blind application of borrowed concepts or tools threatens to become a source of obstruction rather than justice.

ECtHR

The approach of the ECtHR to the standards and burdens of proof is relevant and worth considering.  Being forced, by its own nature, (similar to international criminal courts and tribunals) to accommodate different views of the evidence systems from the member states’ law and taking into consideration its purpose, the Court has developed its own approach in the matter of interpreting the standard and burden of proof, which reflects the Court’s commitment to protect human rights at the level of the state.  The necessary degree of persuasion depends on the specific facts at issue.

The Convention and the Rules of the Court are silent as to the standard and burden of proof; these issues have been addressed in the case law.  In the Greek case (1969), the European Commission of Human Rights (“Commission”) had to decide what standard of proof should apply in the evaluation of evidence when dealing with the allegations of violation of Article 3 of the European Convention on Human Rights (“ECHR”).  The Commission stated that the allegations of breaches of Article 3 must be proved beyond reasonable doubt.  It further gave a definition that “reasonable doubt’ is ‘not a doubt based on a merely theoretical possibility,” but “a doubt for which reasons can be given.”  The ECtHR repeatedly reaffirmed the definition of reasonable doubt standard provided by the Commission in the Greek case.59Ireland v United Kingdom, 25 ECtHR, ser. A, (1978), para 160; Anguelova v. Bulgaria, App. 38361/97, 13 June 2002,(hereinafter “Anguelova”), para 111; Nachova and others v. Bulgaria, Apps. 43577/ 98 & 43579/98, 6 July 2005, para. 147 (hereinafter “Nachova”). For instance, in Ireland v. United Kingdom (1978),60Ireland v. United Kingdom, 25 ECtHR, ser. A, (1978), (hereinafter “Ireland”). the ECtHR stated that:

[T]o assess [the] evidence, the Court adopts the standard of proof ‘beyond reasonable doubt’ but adds that such proof may follow from the coexistence of sufficiently strong, clear and concordant inferences or of similar unrebutted presumptions of fact.61Ireland, para. 161.

This approach to the interpretation of the reasonable doubt standard has been criticized in dissenting opinions for leaving excessive room for judicial discretion and arbitrariness.62Sonja C. Grover, The European Court Of Human Rights As A Pathway To Impunity For International Crimes 125 (Springer Science & Business Media 2010). While in national systems the reasonable doubt standard is applied in conjunction with the rule of evidence that allows only the most relevant evidence for admission, at the ECtHR, no evidence is inadmissible: the Court has the power to evaluate evidence freely.

Therefore, the critics argued that it is easy for the respondent party to create doubts in the judges’ minds by adducing evidence, which would otherwise be inadmissible in common law systems.63Ugur Erdal, Hasan Bakirci Article 3 Of The European Convention Of Human Rights: A Practitioner’s Handbook 258 (OMCT 2006). For instance in Labita v. Italy, eight of the seventeen judges of the Grand Chamber stated:

The majority of the Court considered that the applicant has not proved “beyond all reasonable doubt” that he was subjected to ill-treatment in Pianosa as he alleged. While we agree with the majority that the material produced by the applicant constitutes only prima facie evidence, we are nonetheless mindful of the difficulties which a prisoner who has suffered ill‑treatment on the part of those responsible for guarding him may experience, and the risks he may run, if he denounces such treatment…

We are accordingly of the view that the standard used for assessing the evidence in this case is inadequate, possibly illogical and even unworkable … in the absence of an effective investigation[.]64Labita v. Italy, App. 26772/95, 6 April 2000, Joint Partly Dissenting Opinion of Judges Pastor Ridruejo, Bonello, Makarczyk, Tulkens, Strážnická, Butkevych, Casadevall and Zupančič, para. 1.

When the state controls the evidence, it is almost impossible to establish a violation conclusively for the individual making the allegations against the state.  Thus, the ECtHR shifts the allocation of the burden of proof to the government.  For example, in Anguelova v. Bulgaria (2002), the ECtHR stated:

Where the events in issue lie wholly, or in large part, within the exclusive knowledge of the authorities, as in the case of persons within their control in custody, strong presumptions of fact will arise in respect of injuries and death occurring during that detention. Indeed, the burden of proof may be regarded as resting on the authorities to provide a satisfactory and convincing explanation.65Anguelova, para. 111 (emphasis added).

In Nachova and others v. Bulgaria (2005), the ECtHR addressed the concerns of the eight judges in Labita v. Italy who felt that the reasonable doubt standard was inappropriate to address state breaches, particularly due to the state’s monopoly on evidence, stating the following:

In assessing evidence, the Court has adopted the standard of proof “beyond reasonable doubt”. However, it has never been its purpose to borrow the approach of the national legal systems that use that standard. Its role is not to rule on criminal guilt or civil liability but on Contracting States’ responsibility under the Convention. The specificity of its task under art 19 of the Convention – to ensure the observance by the Contracting States of their engagement to secure the fundamental rights enshrined in the Convention – conditions its approach to the issues of evidence and proof. In the proceedings before the Court, there are no procedural barriers to the admissibility of evidence or pre-determined formula for its assessment. It adopts the conclusions that are, in its view, supported by the free evaluation of all evidence, including such inferences as may flow from the facts and the parties’ submissions. According to its established case-law, proof may follow from the coexistence of sufficiently strong, clear and concordant inferences or of similar unrebutted presumptions of fact. Moreover, the level of persuasion necessary for reaching a particular conclusion and, in this connection, the distribution of the burden of proof are intrinsically linked to the specificity of the facts, the nature of the allegation made and the Convention right at stake.66Nachova, para. 147.

The specificity of the reasonable doubt standard at the ECtHR underpins the role of the ECtHR’s commitment to protect human rights at the state level. The application of the standard and burden of proof depends on the rights involved and some external factors such as the availability and control of proof by the other party.  When the states are accused of violating human rights, applying the high standard of proof beyond a reasonable doubt as in national proceedings appears illogical, as it would work against the individual’s interests and contradicts the purpose of human rights proceedings to grant the individuals human rights protections.  Thus, difficulties in obtaining evidence may lower the standard of proof by using the freely and independently evaluating the proof.

National courts going hybrid with a jury

What of national civil law systems which have modified their criminal procedures by adopting adversarial modalities making them hybrid systems, and where they are entertaining introducing juries as the fact-finder? Though not part of the focus of this series of posts, it is not entirely unrelated.  Can any lessons can be drawn?  Are there any obstacles or challenges to consider?   Yes.  Once the fact-finder is the jury in a hybrid system with civil law roots, there are a host of issues that need to be considered, particularly when considering the standards and burdens of proof.  Here are some.

  1. Formal rules of procedure and evidence would have to be developed to protect the jury fact-finder from prejudicial and other inadmissible evidence;
  2. A list of evidentiary objections would be required to ensure that the rules of procedure and evidence were being implemented;
  3. The judges would have to be trained in addressing the evidentiary objections while assessing the evidence contemporaneously as it is presented at trial;
  4. The lawyers would have to be trained in making the timely and specific objections at trial to make a record for appeal;
  5. Clear instructions for the jurors would have to be developed to guide the jurors at each phase of the trial;
  6. A clear, concise and easily understood definition of proof beyond a reasonable doubt would need to be developed.

If jury trials are adopted in these hybrid proceedings the standard of proof beyond a reasonable doubt cannot operate in the abstract.  The procedures would need discrete rules of evidence and a set of jury instructions invoked throughout the trial.  Together with the in dubio pro reo principle and the presumption of innocence, the standard of proof beyond a reasonable doubt, despite its definitional challenges, would serve well, calling for a very high standard of proof in finding guilt.

Conclusion

In this series of posts I have attempted to bring some clarity on the standards and burdens of proof for those practicing before the international criminal courts and tribunals.  Many advocates may not fully appreciate how the different legal systems work and how the judges before whom they appear go about taking and assessing evidence.  Advocates cannot rely on the judges making the requisite adjustments to the adopted procedures of the courts in which they have been selected to serve as judges.  Being independent, once sworn in, judges are, or at least seem to be, free to willy-nilly interpret the rules as they wish.  One need only compare the trial proceedings of the various chambers at the ICC.  Some permit the proofing of witnesses before they testify while others forbid it.  Some allow leading questions on cross-examination, while others forbid any leading questions.  Since the ICC Statute does not specify such matters, the presiding judge is free to use his or her discretion.  Thus, advocates simply need to adjust and adopt strategies and tactics that are most likely to meet the approval of the judges before whom they appear in advancing their theory of the case.  And here is where having an abiding appreciation of the various legal traditions can make a difference.

In the final analysis, there is little difference on how the evidence will (or should be) assessed.  For “professional” judges there should be no real dilemma in discerning the qualitative substance of evidence required to be satisfied of the guilt of an accused – whether it is by beyond reasonable doubt or through an intimate conviction.  The definitional differences between these two standards – if we can view them as such – are arguably a matter of semantics.  There appears to be little, if any, difference in the quality of proof between these two different standards of proof.  Both standards require a high degree of proof tantamount to near certainty, eschewing fanciful or inconsequential doubts.


For more on standards and burdens of proof here is a modest suggested reading list.


Posts in this series: 

Making Sense of the Standard & Burden of Proof in Hybrid Courts: Reflections on the Common Law & Civil Law Approaches to Proof

Historical Aspects of the Standard of Proof Beyond a Reasonable Doubt & The Principle of In Dubio Pro Reo

Making Sense of the Standard & Burden of Proof in Hybrid Courts: Reflections on the Common Law & Civil Law Approaches to Proof, Part III-A – Common Law

Making Sense of the Standard & Burden of Proof in Hybrid Courts: Reflections on the Common Law & Civil Law Approaches to Proof, Part III-B – Civil Law

Making Sense of the Standard & Burden of Proof in Hybrid Courts: Reflections on the Common Law & Civil Law Approaches to Proof, Part IV

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Author: Michael G. Karnavas

Michael G. Karnavas is an American trained lawyer. He is licensed in Alaska and Massachusetts and is qualified to appear before the various International tribunals, including the International Criminal Court (ICC). Residing and practicing primarily in The Hague, he is recognized as an expert in international criminal defence, including, pre-trial, trial, and appellate advocacy.

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