REPORT ON 7 AUGUST 1997 AFTERNOON SESSION OF PREPARATORY COMMITTEE ON THE ESTABLISHMENT OF AN INTERNATIONAL CRIMINAL COURT

[note: names of countries In square brackets to be deleted in public version] Working Group Two on Rules of Procedure: discussion on Article 27 (2)

It was agreed by a number of delegations [United Kingdom] that (1) procedures must be fair and effective, (2) one should not export national procedures (3) that only rules of principle should be included in the Statute and detail should be confined to the Rules of Procedure (RPE).

It was stated [Denmark] that the object of the statute is not to establish a set of harmonized rules. Instead, it is to provide efficient and flexible mechanisms for the ICC to effectively evaluate the cases put before it, and fully respecting the rights of the accused, to tell the accused as soon as possible if he is acquitted or convicted.

Some delegations [Denmark, The Netherlands, Singapore, Malaysia and Rep.of Korea] opposed the concept of an X chamber whose task would be to confirm the indictment. It was stated that there is a serious risk of delaying the proceedings, and a risk that the chamber would obstruct the dialogue between the two parties.

The Prosecutor should have the exclusive responsibility for preparing and investigating the case, making an evaluation as to whether there is sufficient evidence in the investigation as well as phrasing the indictment. The prosecutor should be ex officio under an obligation of objectivity and must apply the rules in the statute. Therefore, the decision of the Prosecutor does not need to be confirmed by an X chamber. Consequently, one delegation [The Netherlands] recommended the complete deletion of article 27(2) to (4)

The same delegation [Denmark], referring, to the UK document on the supervision chamber, expressed the feeling that it is over complicated. Eventually the ideas could be split between those to be dealt with in the statute itself and those belonging in the Rules of Procedure.

Taking the middle ground one delegation [Japan] could support the idea of a x chamber, but only if this chamber is in charge of preliminary hearings rather than of confirmation hearings. It was further elaborated by another delegation [Argentina] that the X chamber could serve as a "filter" or a confirmation hearing. To indict a suspect s a serious matter and thus, the rights of the accused deserve time and expenditure. In order to preserve the right of defense of the accused, the accusation must be made clearly and adequately, and this is why an X chamber could be useful.

In the case that there would be no X chamber, and that the case goes to trial with out sufficient evidence it would be much worse for evidentiary matters to come before the court. This would prejudice the case of the defendant. A bad indictment will make a bad trial and a poor exercise of the defendants right to defense [Argentina].

One delegation [Italy] coming from a civil law background contends that the determination of whether there is a prima facie case is up to the judge. However, this delegation is open-minded and only wishes to see an adversarial proceeding

However, other delegations [United Kingdom, Austria, France, China and Madagascar] took an opposing view regarding the need for X chamber. It was expressed that there is a need for a chamber for preliminary hearings. A preliminary hearing is not a hearing in which witnesses are called upon.

The suggestion was made by one delegation [France] to merge 7(2)(a) and 27(2)(d) due to the fact that the seriousness of the crime is the prerequisite for a prima facie -case and therefore both provisions entail the same content. There is no problem with the terminology of prima facie. The point is simply that the X chamber would be doing the same thing by confirming the indictment as the prosecutor would be doing when he or she submits the case. Furthermore, it was suggested [France, Austria] to delete 27(2)(c) because it does not appropriately address the question whether the prosecutor has a discretionary power to dismiss a case. Some delegations also suggested the deletion of 27(2)(d) [Austria, France]

As far as 27(2) bis is concerned the view was expressed that such a specific question is better dealt with in RPE, due to the fact that the statute is reserved for questions of principle only.

At this point the Chair, in focusing on 27(2), stated:

1. sub-paragraphs 27(2)(a) and (d) could be merged as suggested by France

2. the language in 27(c) will be retained in brackets (noting the same differences as 26(4)(c)

Comments on 27(2) bis

One delegation [France] stated that the provision in 27(2) bis is not essential. It could be dropped if 27(2) quata is retained, though a large part of 27(2)quata would need to be transferred to RPE as it is too specific to be kept in the statute.

Chair proposed to delete 27(2) bis in light of the doubt and opposition expressed by a number of delegates. This, however, was met by opposition by some delegations [China, Nigeria], who claimed that the intention of 27(2) bis was reasonable but that the drafting could be improved. It was held that while the prosecution chamber examines the question of jurisdiction, there should also be an opportunity for countries to voice their objections.

Thus, 27(2) bis was retained in bracketed text and a request to provide an improved text was asked by the chair.

Comments on 27(2) ter and 27(2) quata

It was voiced [United Kingdom] that, if a suspect is in custody he needs to know if there is a case against him and, as provided for in 26(2) ter and 26(2) quata, the accused must have the right to argue his case on the evidence submitted by the prosecutor. Therefore the provisions in 27(2) ter and 27(2) quata should be retained. It was also expressed [China] that, though there are some doubts on the substance of these provisions, it is acceptable in principle. However, 27(2) ter and 27(2) quata are over detailed and could be better dealt with in RPE. [Argentina and France co-sponsored 27(2) ter

Comments on 27(3)

There was a general feeling that the provisions 27(3) and 27(3) bis should be retained. Regarding 27(3), it was asked [Mexico] whether submission not to prosecute (made by the X chamber) would be able to be challanged in an adversarial way by tile complainant state. As for 27(3) bis, it was a-reed that it was useful, the ICC must have a possibility of re-examining admissibility if new evidence is provided.

Comments on 27(4)

A number of delegates [South Africa, Nigeria] expressed the opinion that the second brackets in the first line of 27(4) [on its own ...] could be removed since at the pre-trial stage there is no evidence available. Reference was also made to 27(2)(c)[South Africa] which entails the same kind of problem.

One delegation responsible for this alternative [France, Japan] clarified that the issue at stake in 27(4) is who has the competence to amend the indictment in the different phases. Before it has been confirmed, the indictment remains the property of the Prosecutor. Once the X chamber / Presidency has confirmed the indictment, the Prosecutor must seek the authority from this entity in order to amend it.

Another delegation [Japan] added that in the particular case where a confirmed indictment is withdrawn, the can only re-indict if new evidence is brought forward.

Comments on 27(4) bis

One delegation [Mexico] expressed the view that 27(4) bis should be deleted. In absentia, only the Court can confirm an indictment. In this context, another delegation [Argentina] mentioned the overlap of this provision with 37(4) and 37(5). In response [France] it was felt that, though this provision deals with cases in absentia, it is best kept under 27, which deals with the confirmation of indictments. In the interest of the victims (not mentioned enough), there needs to be a possibility for an indictment to be pronounced, in the hypothetical case where a person has fled or can not be found.

At this point, the Chair intervened and proposed that 27(4) bis be discussed together with 37(4) and 37(5), though it is clear that 27(4) bis will remain in 27.

Comments on 27(4) ter

One of the authors of this provision [France] explained that there is a need to mention victims more. Perhaps this is better done elsewhere in the statute. Mechanisms whereby victims can make their injuries known to the court must be provided, so that additional measures can be given by the confirmation chamber to protect the property of the victims. Some concern was expressed [Nigeria] about the presumption of innocence, however several delegates [Malaysia and Russia] clarified that the point at issue here is the question of pre-trial seizure of assets, distingued from confiscation and restitution which is dealt with under 47.

It was agreed that 37(4)ter was causing problem and moving on to 37(5), possibly making it briefer, could resolve the problem [Russia]