{"id":4113,"date":"2021-04-29T14:59:55","date_gmt":"2021-04-29T12:59:55","guid":{"rendered":"http:\/\/michaelgkarnavas.net\/blog\/?p=4113"},"modified":"2021-04-29T15:04:01","modified_gmt":"2021-04-29T13:04:01","slug":"icc-no-case-to-answer","status":"publish","type":"post","link":"https:\/\/michaelgkarnavas.net\/blog\/2021\/04\/29\/icc-no-case-to-answer\/","title":{"rendered":"MISAPPREHENDING THE ESSENCE OF NO CASE TO ANSWER & WHY IT IS INTRINSIC TO ICC TRIAL PROCEEDINGS: interpreting an accused\u2019s fair trial rights through an inquisitorial victim-oriented humanitarian-centered prism \u00a0"},"content":{"rendered":"

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In my view, the rights of these 700 plus victims to express their views and concerns, as well as their rights to truth, justice and reparations, and to have an effective remedy, were at stake in this case. Having placed emphasis only on the rights of the accused, Judges Henderson and Tarfusser prematurely terminated the proceedings, without providing reasons. In doing so, they did not seem to have considered the rights of the victims. I recall the human rights are interconnected and indivisible, and there is no one human right that is more important than another. In my view, in no case can the rights of two accused be preferred over the rights of more than 700 victims without more, especially through a procedure that is not envisioned in the Statute, while the rights of the victims are duly established under the Statute.\u2026 [E]ven if Judges Henderson and Tarfusser, being minded to acquit, had concerns as to the liberty of the accused, there was no need to terminate the trial prematurely as the Trial Chamber had been seized of submissions on the continued detention of the accused and the judges could have granted provisional release. Instead, Judges Henderson and Tarfusser decided not to entertain such submissions and rather acquit the accused, halfway through the trial, under the no case to answer motions.<\/p><\/blockquote><\/p>\n

Dissenting Opinion of Judge Luz del Carmen Ib\u00e1\u00f1ez Carranza<\/span><\/em><\/a><\/p>\n

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\"\"<\/a>Occasionally a circumstance comes along when not correcting the record, when not speaking truth to power, when remaining silent out of fear of ruffling powerful feathers, is as uncomfortable as trekking in shoes a half-size too small, with a stone, or worse yet, a sharp thorn, in them. Here is one of those occasions. Aside from finding Judge Luz del Carmen Ib\u00e1\u00f1ez Carranza\u2019s<\/a> understanding of no case to answer<\/em> procedure at the ICC flawed and ill-conceived, as a defence lawyer I find her above quoted dissenting remarks shocking, even scandalous. So, let me bring some clarity on the seemingly pesky no case to answer<\/em> procedure by discussing its purpose and why under the adopted ICC regime it is not only appropriate, but indispensable. I will then deal with Judge Ib\u00e1\u00f1ez Carranza\u2019s comments which seemingly suggest that judges should, in some instances, apply a utilitarianism test when deciding to what extent they should afford an accused their right to the presumption of innocence and whether, for the sake of the victims, the prosecution should be given a pass when unable to meet its burden of proof.<\/p>\n

Evolution (or devolution) of the no case to answer procedure at the ICTY <\/em><\/strong><\/p>\n

The ICC\u2019s Ruto and Sang <\/em>Trial Chamber adopted the standard of proof for the no case to answer<\/em> procedure in reference to the International Criminal Tribunal for the former Yugoslavia\u2019s (\u201cICTY\u201d) Rule 98bis. <\/em>So, I will start the discussion here before turning to the question whether the \u201cpar excellence<\/em>\u201d common law procedure of no case to answer<\/em> (as Judge Ib\u00e1\u00f1ez Carranza puts it) applies under the ICC procedural regime.<\/p>\n

At the ICTY, Rule 98bis<\/em> provided that the defence may seek or the Trial Chamber proprio motu<\/em> could order a judgement of acquittal<\/em> (essentially the same as no case to answer<\/em>) at the end of the prosecution\u2019s case-in-chief.(( ICTY Rules of Procedure and Evidence, 8 July 2015, IT\/32\/Rev.13<\/a>, Rule 98bis<\/em> (adopted 10 July 1998). )) Originally, Rule 98bis<\/em> permitted a judgement of acquittal on all or some of the charges at the end of the prosecution\u2019s case, if the Trial Chamber found the evidence \u201cinsufficient to sustain a conviction<\/em>\u201d on one or more of the offences charged. The test for determining whether the evidence is insufficient to sustain a conviction was interpreted as \u201cnot 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<\/em>\u2026.\u201d(( Prosecutor v. Jelisic\u0301, IT-95-10-A, <\/em>Judgement<\/a>, 5 July 2001, para. 37 (emphasis added). ))<\/em><\/p>\n

In December 2004, Rule 98bis<\/em>\u00a0was amended to provide that the Trial Chamber would enter a judgement of acquittal on any count if it found\u00a0\u201cno evidence capable of supporting a conviction<\/em>.\u201d(( ICTY Rules of Procedure and Evidence<\/a>, 8 July 2015, IT\/32\/Rev.50, Rule 98bis<\/em> (adopted 10 July 1998, amended 17 November 1999, amended 8 December 2004) (emphasis added). ))\u00a0Ironically, some Trial Chambers misguidedly took this to mean a lowering of the standard of proof in further favor of the prosecution, holding that only <\/em>evidence presented by the prosecution should be considered in a vacuum, disregarding evidence adduced by the defence through confrontation of the prosecution witnesses or documents proposed by the defence and admitted by the Trial Chamber during the prosecution\u2019s case.(( Prosecutor v. Prli<\/em>\u0107<\/em> et al<\/em>., IT-04-74-T, Transcript<\/a>, 20 February 2008, p. 27206 (emphasis added): \u201cAt the 98 bis stage, the Trial Chamber only considers the Prosecution evidence submitted by the Prosecution and not the evidence adduced by the Defence.\u201d)) In other words, the judgement of acquittal \/ no case to answer<\/em> procedure was turned into a re-confirmation process.<\/p>\n

This begged several questions:<\/p>\n