Judicial Control of an Accusation

The Charter of the International Military Tribunal in Nuremberg contained only concise provisions pertaining to the technical requirements (the form, which by Anglo-Saxon lawyers could be known as “lay-out”) and contents of an indictment. Article 16(a) provided that “in order to ensure fair trial for the Defendants (…) the Indictment shall include full particulars specifying in detail the charges against the Defendants”. Each of the four Chief Prosecutors was responsible for preparation of their thematic section of the indictment; as a result, each section demonstrated an approach unique for a given legal system. The French and Soviet Union sections (pertaining to War crimes and Crimes against humanity—for the western and eastern front, respectively) were very detailed. The section prepared by the representatives of the United Kingdom (dealing with Crimes against peace) had one page only; the United States drafted 13 pages on a count dealing with a common plan or conspiracy to wage an aggressive war (as it is mentioned, it had the narrative style of an antitrust indictment). As eventually drafted, the indictment was only 65 pages long.³

The statutory requirements concerning the form and contents of an indictment in the proceedings before the ad hoc tribunals are equally general in nature. Article 18(4) of the ICTY Statute provides only that “upon a determination that a prima facie case exists, the Prosecutor shall prepare an indictment containing a concise statement of the facts and the crime or crimes with which the accused is charged under the Statute”. Rule 47(C) adds: “the indictment shall set forth the name and particulars of the suspect and a concise statement of the facts of the case and of the crime with which the suspect is charged”. Due to the concise nature of these provisions, the requirements as to the form and contents of an indictment were developed in the course of judicial practice. It is in the jurisprudence of the ad hoc tribunals that the foundations for the theory of drafting indictments in international criminal proceedings have been laid.⁴

Initially, two trends could be observed in the practice of the ICTY. First, it was decided that indictments would be prepared on the basis of the common law model. At the beginning of its functioning, there were evident differences in the way specific indictments were drafted. What was missing was a uniform model. It was uncertain which legal system should be followed by the ICTY. The Prosecutor himself had to decide about the form of a particular indictment. The defence attorneys expected the indictments brought before the ICTY to be as detailed as in the former Yugoslavian states, where references had to be made to specific evidence while describing specific charges.⁵ However, in consequence of the adoption of the common law model, each indictment was challenged by the defence counsels for being too general and had to be corrected by the Prosecutor at least once. The Trial Chamber was unwilling—although it possessed the relevant powers—to check the technical form of the indictment ex officio: “It is not the function of a Trial Chamber to check for itself whether the form of an indictment complies with the pleading principles which have been laid down. The Trial Chamber is, of course, entitled proprio motu to raise issues as to the form of an indictment but, unless it does so, it waits until a specific complaint is made by the accused before ruling upon the compliance of the indictment with those pleading principles. This is fundamental to the primarily adversarial system adopted for the Tribunal by its Statute”.⁶

The second trend concerned the contents of indictments. In the rulings of the ad hoc tribunals, it was adopted, similarly as in common law,⁷ that the essence of an indictment was the presentation of “material facts”.⁸ The court would decide that an indictment includes “a concise statement of facts” if it described material facts in a sufficiently accurate manner so as to provide clear information to an accused necessary for the preparation of a defence.⁹ The accused had to be informed in detail of the nature and cause of charges and the evidence on the basis of which his responsibility for these acts was to be determined. In the jurisprudence, we can find indicated what elements must appear in an indictment for it to be considered as containing material facts:

The ICTY judges did not, however, indicate a comprehensive list of circumstances that need to be included in an indictment: “material facts” are defined on a case-to-case basis; what is understood under this notion depends on the nature of a specific case, mainly the nature of the alleged criminal conduct. They found that the requirements relating to the precise drafting of an indictment in cases concerning mass criminality might not be interpreted in the same manner as in the case of crimes heard by national courts. While deciding how precise an indictment should be, the Prosecutor needs to take numerous factors into account: the type of crimes, their extent, the circumstances of commission, the period in which they were committed, the relation between other circumstances and the main act the defendant is charged with. If possible, the Prosecutor should include the victims’ personal data. The Tribunal may not, however, require him to perform an impossible task, e.g., to present the identity of 800,000 victims.¹⁴ The mass scale of the offences “would make [it] impracticable”¹⁵ to require a high degree of specificity regarding the identity of victims, time of alleged offences and place of events. Therefore, according to the jurisprudence, where a precise identification of the victim or victims cannot be specified, a reference to their category or position as a group may be sufficient. Where the prosecution is unable to specify matters such as these, it must make it clear in the indictment that it is unable to do so and that it has provided the best information it can. On the other hand, it may turn out to be necessary to expand the contents of an indictment compared to national systems by presenting additional facts defining the nature of the crime: e.g., the demographic, geographical or historical facts, demonstrating the (massive) scale of the committed crimes.

In proceedings before the International Criminal Court, the statutory requirements for indictments are more detailed. However, the ICC Prosecutor does not prepare an indictment. A special phrase is used in the Rome Statute declaring that “within a reasonable time before the hearing, the person shall be provided with a copy of the document containing the charges on which the Prosecutor intends to bring the person to trial” (Article 61(3)(a)). Thus, it is not a classical indictment but a “document containing the charges”. Interestingly, the form and contents of this document were specified neither in the Statute nor in the Rules but in the Regulations of the Court (Regulation 52).¹⁶ These Regulations state that

There is no obligation to refer to evidence in an indictment.¹⁷ However, in order to support all material facts that are provided in the document containing the charges, the Prosecutor should present the evidence at the confirmation hearing that has been disclosed prior to this hearing in the disclosure of evidence procedure. We have to keep in mind the interrelation between drafting the charges and the necessity of complying with the disclosure of evidence obligation. The Prosecutor should avoid including charges—or even describing the circumstances in which an act was committed—if supporting evidence has not been (or cannot be) disclosed.¹⁸ Taking into consideration the existing legal framework and doctrinal considerations, we can observe that a threefold test has been established. The legal requirements of an indictment before the ICC relate to the standard of proof (which will be discussed later), legal sufficiency (compliance with Regulation 52 requirements) and specificity.¹⁹ The last parameter examines whether the indictment sets out the material facts of the prosecution case.

In the first confirmation hearing before the International Criminal Court, the accused claimed that ambiguity, the general nature of charges and lack of specificity of the document containing charges made it impossible to prepare for defence. Also, the Pre-Trial Chamber acknowledged that it was imprecise both in relation to the facts of the case and the effective legislation; in its opinion, the Prosecutor failed to demonstrate that the crimes had been committed within the scope of a conflict of an international character. Ultimately, however, the Chamber concluded that the form and contents of charges should be read together with a list of pieces of evidence presented at the confirmation hearing. In consequence, in spite of the indicated deficiencies, the formulation of charges still enabled preparation for defence and was not prejudicial to their rights, and therefore the indictment could have been approved.²⁰

There is no doubt that the preparation of an indictment in cases pertaining to international law crimes is a difficult task. An indictment needs to have a reporting function: to present charges in the context of specific facts and within a specific conflict. Thus, preparation of a broader background for incriminating events has always been very significant. In consequence, indictments submitted before the international criminal courts will always be much longer than those in national legal orders. On the other hand, as M. Damaška observes, “when judges aspire to paint a broader historical tableau, the issues involved in trial may become staggeringly complicated”.²¹ An example of such an attitude could be seen when while trying Prosecutor v. Milosević case judges intended to produce a record of events accompanying the disintegration of Yugoslavia. The indictment related to crimes committed within a period of 8 years and contained 66 counts. Therefore, it should be seen as doubtful to attempt to use criminal proceedings to provide a comprehensive portrayal of events surrounding massive human rights violations. Prosecutors should not go beyond what’s regarded as common sense. It is the Prosecutor’s task in every international criminal court to seek balance between the required precision of drafting an indictment and a rational approach that requires this document to be clear and coherent.

A key element of an indictment is a proper formulation of the legal characterisation of the suspect’s alleged act. Each legal system allows for using more than one legal characterisation to describe the conduct of the defendant, which may simultaneously infringe several criminal law provisions and can consequently be classified as a concourse of legal provisions. In the Polish and German continental law systems, cumulative legal charging may be used under the concurrence of legal provisions (in German: either in a form of Realkonkurrenz or Idealkonkurrenz). English law differentiates between two regimes: charges founded on the same facts (cumulative charges) and alternative charges. The former approach is designed to describe a situation in which a single act by the defendant gives rise to several offences—leads to the violation of several provisions and results in several charges. As to alternative counts, they may be included in an indictment when the accused’s conduct, depending on his state of mind at the relevant time and/or consequences of his act, might make him guilty of one of a number of offences of differing degrees of gravity, and therefore a prosecutor is not sure what charge he will be able to prove with the evidence collected and presented in the trial.²² In such a case, he will include in the indictment all possible legal characterisations of facts acceptable on the basis of the evidence at their disposal.

In proceedings before the ad hoc tribunals, it was agreed that the prosecutor may present more than one legal characterisation of facts to define a single act; some provisions of the ICTY Statute have such a broad scope that they may overlap. The ICTY addressed this issue for the first time in Prosecutor v. Kupreškić. ²³ The Trial Chamber indicated that although the matter was fundamental for the adjudication before international criminal tribunals, it had neither been regulated by the legislation nor dealt with in depth by an international criminal court.

Judges decided to fill the gaps in the doctrine of international criminal law by relying on the general principles of international criminal law and, if no such principle is found, on the principles common to the various legal systems of the world, in particular those shared by most civil law and common law criminal systems. In consequence, they presented what they considered to be “the correct legal standards” based on the model adopted in the common law tradition.²⁴

First, they decided that the ICTY Prosecutor may present cumulative charges whenever he contends that the facts charged violate simultaneously two or more provisions of the Statute under each relevant provision; in such a case, we may differentiate between partial concurrence (referred to as “reciprocal speciality”) and total concurrence (adopting the “lesser included offence” doctrine existing in common law).

Partial concurrence means that the Prosecutor must demonstrate that each of the crimes meets an additional criterion in relation to another. In so far as each crime contains a materially distinct legal element, cumulative convictions are permitted. Cumulative legal charging may then refer solely to the situation in which the conduct of the accused itself violates two legal standards and each of them requires evidence that an additional criterion is met in relation to the other standard. In the Tribunal’s opinion, cumulative legal charging allows the entirety of the criminal content of the offender’s act to be presented. It also offers some advantages to the Prosecutor—if it turns out that he is not able to present satisfactory evidence for some of the charges, the Tribunal may still convict the offender for another act cited in the legal characterisation of facts. If this test, however, is not passed, one legal characterisation of facts is applied in accordance with the doctrine of lex specialis derogat generali. In such a situation, the Prosecutor must rely on the law that relates to the crime more specifically, or it is assumed that there is an inclusion relation (total concurrence, lesser included offence). There is no need for cumulative conviction then.

Cumulative legal charging was also applied in proceedings before the ICTR. In the procedure before this Tribunal, however, the French concours ideal d’infractions regime was adopted as the basis “which permits multiple convictions for the same act under certain circumstances”. In Prosecutor v. Akayesu, the Tribunal found that “It may, depending on the case, be necessary to record a conviction for more than one of these offences in order to reflect what crimes an accused committed”. ²⁵ The Chamber concluded that it is acceptable to convict the accused of two offences in relation to the same set of facts in the following circumstances:

Second, as the ICTY judges indicated, the possibility of using cumulative charging should be differentiated from alternative description of facts.

At the initial stage of the functioning of the ICTY, there was no consensus as to the possibility of alternative charging. The ICTY judges coming from continental systems argued that it was not possible to plead in the alternative, especially not to the extent that the counts contradicted each other.²⁷ Ultimately, however, the ICTY stated that this practice was acceptable. Currently, it is recognised that presenting charges alternatively supports the effectiveness of an indictment; even if the Tribunal finds one of the charges to be unclear or insufficiently proven, it may convict the accused on the basis of an alternative legal characterisation of facts. If an indictment lacks such an alternative, this may not be remedied at the stage of court proceedings. Inadequately formulated charges or charges based on an inappropriate legal characterisation of facts lead to a futile presentation of evidence that could be used in support of these charges if they had been phrased otherwise. In such a situation, the Prosecutor should charge in the alternative rather than cumulatively whenever an offence appears to be in breach of more than one provision, depending on the elements of the crime the prosecution is able to prove. The Prosecutor may legitimately fear that, if he fails to prove the required legal and factual elements necessary to substantiate a charge, the count may be dismissed even if in the course of the trial it has turned out that other elements were present supporting a different and perhaps even a lesser charge. Thanks to this solution, the Prosecutor does not need to select one form of complicity for a given act but may formulate alternative charges, e.g., of aiding and abetting, liability of superiors and being part of a joint criminal enterprise. As a result, the Trial Chamber may, having rejected the main charge (e.g., acting as a main perpetrator or in complicity), still convict the accused for aiding and abetting.²⁸ Presentation of alternative charges allows the Trial Chamber to decide which legal characterisation of facts is more suitable for the presented evidence or which form of complicity should be adopted in relation to the accused.²⁹ As the judges concluded: “The Trial Chamber is better poised, after the parties’ presentation of the evidence, to evaluate which of the charges may be retained, based upon the sufficiency of the evidence”.³⁰

The judges went even further and provided the Prosecutor with a set of “guidelines” that specified the violation of which provisions should be presented so as to, in the event there is no possibility of proving the violation of the Statute of a more material nature, prevent acquittal and to lead to conviction for another, alternatively specified, crime: “The efficient fulfilment of the Prosecution’s mission favours a system that is not hidebound by formal requirements of pleading in the indictment”. The judges indicated that the Prosecutor should present an alternative rather than a cumulative characterisation of facts whenever he concludes that the acts with which the accused is charged simultaneously violate two or more provisions of the Statute, and in his opinion he may prove that only some of the criteria of the crime have been met, depending on the elements of the crime the Prosecutor is able to prove. For instance, the prosecution may characterise the same act as a crime against humanity and, in the alternative, as a war crime. Indeed, in case of doubt, it is appropriate from a prosecutorial point of view to suggest that a certain act falls under a stricter and more serious provision of the Statute, adding, however, that if proof to this effect is not convincing, the act falls under a less serious provision: “it may also prove appropriate to charge the indictee with a crime envisaged in a provision that is – at least in some respects – special vis-à-vis another and, in the alternative, with a violation of a broader provision, so that if the evidence turns out to be insufficient with regard to the special provision (the lex specialis), it may still be found compelling with respect to a violation of the broader provision (the lex generalis). The prosecution should make clear that these are alternative formulations by use of the word ‘or’ between the crimes against humanity and war crimes charges, for example, and refrain in these circumstances from using the word ‘and’, to make clear the disjunctive and alternative nature of the charges being brought”.³¹

It seems, however, that the differentiation between cumulative and alternative charges is not entirely consistent.³² The Tribunal found that “Cumulative charging on the basis of the same acts is generally allowed on the basis that prior to the presentation of all of the evidence, it is not possible to determine to a certainty which of the charges brought against an accused will be proven”. In the same case, the Tribunal admitted that “The same reasoning allows for alternative charging”.³³ Moreover, it can be stated that cumulative charges and cumulative convictions leave little space for alternative charges. However, using alternative charges is considered to constitue a method specifically used for securing conviction as to different forms of criminal responsibility; superior responsibility is subsidiary to other modes of liability, and commission excludes a conviction for also planning and aiding and abetting.³⁴

Application of cumulative charging is possible in proceedings before the International Criminal Court—although subject to certain conditions. The ICC judges have not, however, differentiated between alternative and cumulative charging. They defined both of these approaches as “cumulative charging”, which they understood as a situation in which “the same criminal conduct can be prosecuted under two different counts”³⁵—regardless of whether legal provisions are cumulated or excluded. In The Prosecutor v. Bemba, the Prosecutor decided to charge both rape and, using the same conduct, torture (the act of rape being the instrument of torture) as crimes against humanity, in addition to charging rape and outrages against personal dignity as war crimes, again using the same acts. However, the Pre-Trial Chamber made it clear that “the Prosecutorial practice of cumulative charging is detrimental to the rights of the Defence since it places an undue burden on the Defence. The Chamber considers that, as a matter of fairness and expeditiousness of the proceedings, only distinct crimes may justify a cumulative charging approach and, ultimately, be confirmed as charges. This is only possible if each statutory provision allegedly breached in relation to one and the same conduct requires at least one additional material element not contained in the other”.³⁶ It also instructed the Prosecutor on the theory of application of the concurrence of legal regulations: its application should be restricted to instances where the same conduct gives rise to an “additional material element”. The Chamber did not agree with the Prosecutor’s argument, who claimed that it was not his intention to present alternative charges for the purpose of “unfairly securing conviction on multiple counts” and that he only wanted to “capture the full extent of the criminal conduct of the accused”. The Prosecutor also indicated that as long as all charges are supported by the evidence, the choice of counts to prosecute at trial is a right guaranteed only the prosecutor. However, the Pre-Trial Chamber emphasised that “it is not its role to accept every charge presented to it”. In its opinion, the Prosecutor should choose the most appropriate characterisation (choisir la qualification la plus pertinente). It indicated that the Prosecutor should ensure that the same criminal conduct should not be prosecuted under two different counts, as this might create an impression that the accused was twice held responsible for the same criminal act. When charging for violation of too many provisions of the Statute in the indictment, the Prosecutor is risking subjecting the defence to the burden of responding to multiple charges for the same facts and at the same time delaying the proceedings. The Chamber considered that, as a matter of fairness and expeditiousness of the proceedings, only distinct crimes might justify a cumulative charging approach and, ultimately, be confirmed. This is only possible if each statutory provision allegedly breached in relation to one and the same conduct requires at least one “additional material element” not contained in the other. Thus, the International Criminal Court has not rejected the practice of cumulative charging but has introduced limitations to its application. In the subsequent decision issued in this case, the Pre-Trial Chamber rejected two out of three charges presented by the Prosecutor on the basis of the same facts. It decided that in this particular case the count of outrage upon personal dignity is fully subsumed by the count of rape, which is the most appropriate legal characterisation of the conduct presented.³⁷ Moreover, the Chamber selected between the forms of complicity presented in (cumulative) charges by the Prosecutor and decided that although it could not accept the charge of complicity, it would accept the charge of directing the commission of acts of a crime (based on superior responsibility).³⁸ At the same time, the Chamber stressed that “it did not purport to impinge upon the Prosecutor’s functions as regards the formulation of the appropriate charges or to advise the Prosecutor on how best to prepare the document containing the charges”.

However, we could observe an example of inconsistency in this approach. In The Prosecutor v. Al Bashir, the Pre-Trial Chamber accepted cumulative charges from the Prosecutor when it issued an arrest warrant concerning the counts of both acts of extermination and murder as crimes against humanity that were based on the same underlying conduct.³⁹ Also in The Prosecutor v. Ruto, the Pre-Trial Chamber accepted the later view, adopting the jurisprudence of the ICTY, known from the Kupreskić judgment.⁴⁰ It stated namely, rejecting the claims of the defence based on an earlier finding of this Chamber in The Prosecutor v. Bemba confirmation of charges decision, that cumulative charging of multiple crimes for the same behaviour is permissible—provided that each of the charges involved a materially distinct element. We could also claim that this changing approach is not a sign of inconsistency but a sign of an evolution of the approach.⁴¹ Nonetheless, this inconsistency results in the lack of clarity, which, in turn, leads to insecurity as to what interpretation will be adopted in the next case.

Two observations appear when interpreting this jurisprudence. First, we could note a re-evaluation of the international criminal law (characteristic of common law tradition) doctrine according to which, where the charges are supported by evidence, the choice of counts to prosecute at trial is a right granted only to the Prosecutor. This power was used willingly by the prosecutors of the ad hoc tribunals. It seems that the ICC Prosecutor “walked into the shoes” of these prosecutors, assuming that the ICC will adopt the same attitude towards cumulative and alternative charging as it was the case before these tribunals. Meanwhile, the ICC judges decided to narrow the scope of the prosecutorial discretion as to the choice of counts. This re-evaluation constitutes an example of tension between the ICC Prosecutor and the Chambers “in assessing which organ of the Court has the authority to decide which charges should be tried”.⁴²

It should be also noted that the issue of application of alternative charging should be contemplated in combination with the competence of a court to change the legal characterisation of facts presented by a prosecutor in an indictment. If the court has the right to modify it, then the prosecutor’s decision as to legal characterisation of facts does not have to be final: it does not determine the legal basis of the conviction. In this aspect, the ICC legal framework differs from that of the ad hoc tribunals. Under Regulation 55 of the Regulations of the Court, the Trial Chamber may re-characterise a crime to give it the most appropriate legal characterisation. Therefore, before the ICC, there is no need for the Prosecutor to adopt an alternative charging approach and present all possible characterisations in order to ensure that at least one could be retained by the Chamber. It is for the Chamber to characterise the facts put forward by the Prosecutor. It appears that the application of alternative charging is a remnant of relying on the common law tradition by the ad hoc tribunals, in which the characterisation of facts presented by the Prosecutor was binding for the judges. In this model, alternative charging constitutes a safeguard against a situation in which the court decides that the presented evidence proves that the elements of crime have not been fulfilled. In proceedings before the International Criminal Court, this practice is no longer justified. It may, then, seem somewhat surprising that in such a situation, the judges of the ICC did not rely on the advanced doctrine of concurrence of legal provisions (real and formal, or in German: echte Konkurrenz, Art. 68 StGB und unechte Konkurrenz) already existing in the continental model of accusation and instead referred to the “alternative and cumulative charging” doctrine used in Anglo-Saxon systems—even if it has no justification in the judicial review model adopted before the International Criminal Court.⁴³ The only justification for this solution is the fact that it relies on the existing judicial practice of the ad hoc tribunals relating to this issue—having in mind though that it significantly narrowed the scope of application of the cumulative charging practice. It should be, however, noted that these tribunals operate on other assumptions, with the accusation model typical for common law states playing a dominant role.

In Anglo-Saxon systems, erroneous preparation of an indictment by a prosecutor has serious consequences: it may lead to acquittal of the accused or reversal of the judgement. A judgement issued on the basis of a wrongly formulated indictment will be reversed if the defence demonstrates that the entire trial should be considered as lacking integrity as a result of such a defect.⁴⁴ If the defect of an indictment, however, is not serious enough to lead to a miscarriage of justice, the conviction may be upheld by the court. Such is the case with so-called technical errors; as, e.g., it was decided in the U.S. Federal Rules of Criminal Procedure, unless the defendant was misled and thereby prejudiced, neither an error in a citation nor a citation’s omission is a ground to dismiss the indictment or information or to reverse a conviction⁴⁵ or “trivial mistakes” (such as misspelling a name). Moreover, a procedure known as “a motion to quash the indictment” may be followed. However, this procedure signifies that after a successful motion to quash the indictment, the prosecution is entitled to commence fresh proceedings in respect of the same matters.⁴⁶

In continental systems, the consequences of defective formulation of an indictment, whether formal or concerning the merits of the case, do not have to lead to acquittal. A defective indictment will be returned to the prosecutor as a result of a preliminary review of the indictment so that it can be cured. There are two ways to do this, the application of which is based on the stage of proceedings at which the indictment is found to be wrongly formulated: first, an indictment can be remedied under both the formal review and the review of its merits performed at the pre-trial hearing, as a result of which the case may be remanded to the state prosecutor in order to correct deficiencies of vital significance in the investigation (e.g., Article 339(3)(4) CCP⁴⁷); second, when the case is already at the trial stage the court may refer the case back to the prosecutor in order to complete the investigation (Article 397(1) CCP⁴⁸). The first institution signifies that a deficient indictment can be remanded to the prosecutor so long until the prosecutor files a formally correct version thereof.

Whereas the former practice is used within the preliminary review of an indictment, the latter enables the deficiencies of investigation to be remedied at the stage of court proceedings. In the Polish criminal procedure, pursuant to Article 397(1) CCP, if essential deficiencies of the investigation have become apparent at the trial, and their removal, were it to be done by the court, would prevent the court from issuing the correct judgement within a reasonable time, the court may discontinue or postpone the trial and refer the case back to the prosecutor, indicating a deadline to present evidence whose discovery would allow the remedy of the detected deficiencies.

This practice of returning a case to complete the investigation provides an opportunity to avoid an acquittal verdict by the court. The court may resolve doubts arising from the lack of adequate evidence for the benefit of the accused only as a result of the prosecutor’s failure to present such evidence. The representatives of the Polish legal doctrine indicate that this practice should be applied only when there is no possibility of pursuing with the case any further.⁴⁹ Every time formal deficiencies are noticed, their nature and possibilities to remedy them by the court should be investigated thoroughly, as not every deficiency is significant enough to result in a return of the case for supplementary investigation to the prosecutor. “Major difficulties” do not necessarily entail the “impossibility” of eliminating the deficiencies by the court on its own. On the other hand, other authors believe that the prosecutor’s duty to complete the investigation prevents the main trial from becoming a peculiar judicial investigation and, as such, counteracts situations in which the court takes over tasks inherent to investigation, simultaneously guaranteeing that the responsibility to produce evidence rests with the prosecutor. It should be, however, noted that the above considerations will become unfounded when an amendment of the Code of Criminal Proceedings comes into force by way of the Act of 27 September 2013 (on the 1st of June 2015),⁵⁰ which enhances the adversarial nature of Polish criminal proceedings. It will repeal both of the aforementioned provisions, which will significantly affect the consequences of defective drafting of the indictment, as they will become similar to those existing in common law systems. One of the consequences of adopting the principle that the judicial authority is not responsible for collecting evidence, and is deprived of evidentiary initiative, is an assumption that it also cannot order the production of evidence in addition to that already presented during the trial by the parties. It does also mean that the prosecutor will not be able to remedy the deficiencies of the indictment. However, the amendments provide for another solution if the prosecutor deems production of new evidence necessary: the prosecutor may request a break in the hearing so as to enable him to gather additional evidence in support of the facts as presented in the indictment.

In proceedings before the ad hoc tribunals, the model typical for Anglo-Saxon systems has been adopted. It was assumed that the deficiencies of an indictment are impossible to remedy at the stage of court proceedings and as such should lead to acquittal of the accused. The correctness of the indictment is all the more significant since the legal characterisation of facts adopted by the Prosecutor is binding for the Trial Chamber. The adoption of an erroneous legal characterisation of facts or ambiguity and vagueness of charges may lead to overturning the entire conviction or the conviction as it relates to specific charges (as, e.g., in a case of wrongly adopted cumulative legal characterisation of facts).⁵¹

When an indictment is found to be defective—it fails to set forth the specific material facts against the accused or due to drafting errors it lacks the proper technical form—judges have two options. First, the Trial Chamber must decide whether the deficiencies may be remedied by way of amending the indictment by the Prosecutor, with the trial being postponed. Another solution is curing the deficiencies of the indictment during the court proceedings, by providing “timely, clear and consistent” information to the defendant on the factual basis of the charges and evidence to support them.⁵² The judges will then assess whether the remedy of deficiencies of the indictment allows the accused to understand the nature of the alleged charges and to prepare properly for the defence.⁵³

Second, it should be always considered whether a fair trial was ensured to the accused despite the errors in the indictment. Immaterial deficiencies may remain without any impact on the trial as long as the right to a fair trial of the accused is not affected. However, fundamental defects may result in the Trial Chamber disregarding the charge or the Appeals Chamber reversing a conviction that was decided on the basis of a deficient indictment.⁵⁴ For example, in one of its cases the ICTR ruled that an indictment could not be cured because the Prosecutor claimed that the accused controlled a different armed group that committed rape, not the one specified in the indictment. It was thus not possible to cure the indictment because to do so would amount to a “radical transformation” of the case.⁵⁵

In proceedings before the ICC, the consequences of defective drafting of an indictment are not as critical. The confirmation hearing becomes a filter for improperly formulated indictments. If an indictment is imprecise or erroneously phrased out in formal terms, the Pre-Trial Chamber may postpone the hearing in order to enable the Prosecutor to carry on with the investigation or to amend the charges. It provides an opportunity for the Prosecutor to collect additional evidence or to correct the errors of this document. As far as the curing of the indictment is concerned after it has been approved by the Pre-Trial Chamber, pursuant to Article 61(9) of the Statute, “After the charges are confirmed and before the trial has begun, the Prosecutor may, with the permission of the Pre-Trial Chamber and after notice to the accused, amend the charges”. If the Prosecutor seeks to amend charges already confirmed before the trial has begun, in accordance with Article 61, he may make a written request to the Pre-Trial Chamber (Rule 128). If the Prosecutor wants to present additional charges in the indictment or replace them with more serious ones, it is necessary to conduct proceedings to confirm the charges by the Pre-Trial Chamber pursuant to the basic procedure. However, once the trial has commenced, and specifically when the charges have been submitted to the Trial Chamber, the Prosecutor may only withdraw the charges upon the permission of the Trial Chamber; it is impossible, however, to supplement them or to replace them with more serious ones.

The judicial review of both the merits and the formal contents of an indictment is a distinctive feature of the continental model of accusation.⁵⁶ The concept of the judicial review of an indictment in the Polish legal system covers the following aspects:

First and foremost, however, the court analyses compliance with the formal requirements of the indictment. Pursuant to Article 337 § 1 CCP, if an indictment does not meet the formal criteria, the president of the court remands it to the state prosecutor in order that the deficiencies may be corrected within a 7-day period. The public prosecutor is obliged to file the corrected or supplemented indictment within the stipulated deadline. It is characteristic that the review may be performed both ex officio and as requested by a party to the judicial proceedings.⁵⁸

The second group of the court’s review competences pertains to the examination of the suitability of a petition (indictment) in terms of its merits. The review of the indictment’s merits is performed during a hearing. During the hearing, first, the judicial authority controls if there are grounds to believe that the proceedings should be discontinued by reason of a manifest absence of any factual basis for charge (Article 339 § 3 CCP). A manifest absence of factual basis for an accusation is a situation in which it is evident and clear and there are no doubts that the collected evidence does not justify the accusation of a given person.⁵⁹

Second, as a result of a completed review of an indictment’s merits, the appointed judge may conclude that the case needs to be remanded to the state prosecutor in order to correct deficiencies of essential significance in the investigation (Article 339 § 4 p. 2 CCP). Pursuant to Article 345 § 1 CCP,⁶⁰ the court shall remand the case to the state prosecutor if the case’s files indicate the essential deficiencies of the proceedings, especially the need to search for evidence, and where conducting necessary actions by the court would entail substantial hardship. Although the court is provided with powers to produce evidence ex officio (Article 167 CCP), it is not its responsibility to search for evidence or to secure it and to perform the necessary actions for its proper discovery.⁶¹ When handing a case over to the prosecutor, the court indicates the specific deficiency in evidence. It may emphasise that there is a need for presenting specific evidence (e.g., an expert’s opinion) or for conducting mandatory steps of the investigation (e.g., presenting charges to the suspect). The court may not, however, force the prosecutor to formulate charges in a given way, nor may it suggest the legal characterisation of facts that is, in its opinion, correct.⁶² The prosecutor is bound by the court’s decision to a limited extent. From the moment the indictment is returned, the prosecutor becomes the master of the proceedings again and may continue in any way: he may discontinue the proceedings, uphold the existing indictment, file a new one or suspend the proceedings. This will change with the coming into force of the amendment to the Code of Criminal Proceedings of 27 September 2013.⁶³ In the Explanatory Report to the draft, it was indicated that the judicial authority should have no right to review a filed indictment in terms of completeness of the accompanying evidence. In the planned model of proceedings the review of the sufficiency of evidence collected by the prosecutor will be the responsibility of the prosecutor himself and not of the court.

The evaluation of the indictment and of the presented evidence is performed by a judge, usually on the basis of the evidence presented in the case file, but such court hearings may become adversarial in nature. The parties, defence counsels and representatives may participate in the court hearing (Article 339 § 5 CCP). This offers the prosecutor the opportunity to take the floor during the hearing and present their reasons that may have an impact on the decision of the court.⁶⁴ He may present additional circumstances against discontinuation of the proceedings in addition to those included in the indictment (althought it rarely happens in practice).⁶⁵

Also, in German criminal procedure strong judicial powers are manifested during the preliminary judicial review of the indictment. Upon completion of the investigation at the stage between instances, a judge is appointed, who examines in an in camera hearing whether the proceedings conducted by the prosecutor have provided sufficient grounds to suspect that a crime has been committed (hinreichender Tatverdacht, § 199(1) StPO). This decision is taken on the basis of the materials contained in the case file (dossier) without holding any adversarial hearing. When there is a well-founded suspicion that the act the accused is charged with has been committed, and the judge decides that the indictment is justified, the indictment can be admitted and the trial is opened. The judge may conclude, however, that the prosecutor has failed to demonstrate it and may order a further search for evidence during the same hearing or modify the charges by removing or amending certain allegations (then the prosecutor is obliged to read out the indictment in the version amended by the judge). He may then also refuse to open the trial (§202, §207(2), §204 StPO, respectively).

The powers of the judge during the pre-trial review of an indictment in German criminal procedure can be divided into two groups: the first type is a simple assessment of the investigation conducted by the prosecutor and the police; the second group of competencies relates to a specific type of a judicial investigation—conducting a judge’s own enquiry. As a result of this preliminary judicial review of the case, which will be presented at the trial stage, the judge himself can eliminate existing prosecutorial deficiencies in the establishment of sufficient suspicion. The judge himself may use certain legal instruments to collect evidence and at this stage may, e.g., summon witnesses. It is a proprio motu power but can also be conducted on the initiative of the person charged. This power allows him “to raise additional evidence to support or weaken the necessary ‘sufficient suspicion’ that the accused committed the crime”.⁶⁶ He may choose to take evidence himself during the trial or oblige the prosecutor to do so. The prosecutor may, but does not have to, collect the suggested evidence. In consequence, the preliminary judicial scrutiny shifts the responsibility for the matter of evidence to the judicial authority and clearly establishes a principle of a judge-led enquiry in trial.⁶⁷

It may be noticed that in the German procedure the powerful role of the judge related to the screening of cases that “deserve” to be forwarded to the trial stage should be seen in conjunction with his powerful role during the trial, when he has broad competences related to conducting evidence ex officio. Owing to the powerful review functions performed during the preliminary hearing, he may more efficiently eliminate the cases that should not go to trial.⁶⁸ Thus, the judge is empowered to provide a “framework for the trial” in order to avoid unnecessary extension of the trial and clear up the case. The judicial authority is not bound by the indictment but obliged to independently search for the material truth and assess the legal value of the prosecutor’s case. These powers of a judicial authority are referred to as an “inquisitorial principle” (Untersuchungsgrundsatz, § 155(2) StPO). Moreover, it cannot be overlooked that in this model control of the proceedings lies with the judge, who deprives the prosecutor of the supervision over the indictment.

The continental systems are based on the assumption that the objective of the judicial review of prosecutor’s actions is not to “undermine trust” in his actions but rather to “encourage him to be pro-active and diligent in the pursuit of the objective truth”.⁶⁹ On the other hand some still believe that the impact of the judge on the contents of the indictment is in conflict with the judicial function of adjudicating and introduces an element of “inquisition” to the procedure.⁷⁰ They claim that if it is not the prosecutor who controls the contents and filing of an indictment, only the court, it is not the prosecutor, but the court, who is the real accusatory.⁷¹ On the other hand, others appreciate a powerful interference of the judicial body in the prosecutor’s activities.⁷²

In the common law model of accusation, judicial review of the prosecutor’s activities during investigation is much more limited—judicial interference in this phase is seen as “an inconvenient element”⁷³ Judicial review of the filing of an indictment by the prosecutor at the inter-instance proceedings is performed during the preliminary hearing (preparatory hearing). The single objective of such a hearing is a review of merits—judges decide whether the evidence in possession of the prosecution provides a sufficient basis for acknowledging that a trial should be held (i.e., whether it justifies the presumption that a crime was committed by the accused), making sure that there is a prima facie case against the accused. The review of an indictment as regards technical requirements is not known here.⁷⁴

In the United States, the preliminary hearing is the most significant aspect of the judicial review of the prosecutor’s activities in investigation. Its aim is to prevent any “hasty, malicious, improvident and oppressive prosecutions” and to ensure that “there are substantial grounds upon which a prosecution may be based”.⁷⁵ The prosecutor needs to prepare evidence to convince judges during this hearing that the case should be heard during the trial.⁷⁶ The standard of proof that rests with the prosecution is showing a “probable cause”. The main objective of this stage is not yet to prove the defendant’s guilt beyond any doubt but rather to present their responsibility as more probable. To require proof beyond a reasonable doubt, which is a higher evidentiary standard, would make holding a later criminal trial redundant.⁷⁷ Its only objective is to reject groundless cases.⁷⁸ The review takes place during an adversarial hearing, allowing the parties to undertake activities similar to those performed in the proceedings: they may, among others, interview witnesses (sometimes, however, only to a limited extent). At the preliminary hearing, the defendant may introduce evidence (present exculpatory testimony and cross-examine adverse witnesses).⁷⁹ However, a preliminary hearing certainly should not turn into a full-blown criminal trial. Usually, the parties themselves prevent the occurrence of such a situation, as they prefer to save their strategic moves for the trial itself. In the case of more serious crimes (e.g., those punishable by the death penalty), federal law and some states require that the review of an indictment in terms of its merits is performed by the grand jury. In such cases, it is usually an internal procedure, in session in camera, without attendance of the prosecutor and the person charged. Sometimes only the prosecutor may present his arguments. However, in some states at this stage also the suspect may already present exculpatory testimony and even summon witnesses.⁸⁰

If at the preliminary hearing judges find a probable cause to believe an offence has been committed and the defendant committed it, they must promptly require the defendant to appear for further proceedings.

The English legal system also knows preliminary hearings during which a judicial authority reviews the suitability of an indictment filed by a prosecutor. These include a preparatory hearing before the Crown Court (sections 28–38 CPIA).⁸¹ During the preparatory hearing, the judge assesses whether there is a prima facie case. Only after such an assessment has been performed can a case be submitted to trial. However, it should be stressed that judges “do not investigate the case committed to trial but only control the evidence of the prosecution and thus ‘filter out’ the manifestly unfounded cases”.⁸² Moreover, the main aim of the hearing becomes an “active case management” in order “to reduce the number of ineffective and cracked trials and delays during the trial”:⁸³ The hearing is usually committed to preparation of the case for trial in order to identify issues that are likely to be material to the verdict of the jury, to assist their comprehension of any such issues, to expedite the proceedings before the jury, to assist the judge’s management of the trial or to consider questions as to the severance and joinder of charges. The hearing is summoned on the application of the prosecutor, on the application of the accused or on the judge’s own motion. At the hearing, the judge may order the prosecutor to give the court and the accused a case statement that includes the principal facts of the case for the prosecution, including information about the witnesses who will speak to those facts, any exhibits relevant to those facts and the proposition of law on which the prosecutor proposes to rely. He may also be ordered to prepare the prosecution evidence and any explanatory material in such a form as appears to the judge to be likely to aid comprehension; this is a chance for the prosecutor to present any inferences that he is asking the jury to draw from the evidence. Once the prosecution has supplied such a case statement, the judge may order the defence to supply a statement setting out in general terms the nature of the defence and the principal matters on which they take issue with the prosecutor, including any objections that they have to the prosecution case statement. During this hearing, the accused is notified about the contents of the charges, and he has the opportunity to acquaint himself with the case statement. The hearing is also adversarial in nature in that the accused may, when requested by the court, provide explanations and present the evidence of his innocence.⁸⁴

Before international criminal tribunals as well, the review of justifiability of an indictment is performed at the inter-instance proceedings stage as “a linking interface between the investigation and trial”.⁸⁵ These courts have adopted a sui generis solution for judicial review of an accusation in general and an indictment. The elements of the inter-instance stage are derived from various legal systems and, combined, create a solution that is unique and different from each of those systems. Confirmation of an indictment by a judicial authority became the element of the judicial authority review over the Prosecutor’s activities in investigation that is common for all the tribunals. The procedure of confirmation of an indictment (before the ad hoc tribunals) or of charges (before the ICC) constitutes a preliminary review of the indictment by means of which the court assesses, first of all, its correctness in terms of merits.⁸⁶

In proceedings before international military tribunals, there was no mechanism for preliminary judicial review of an indictment (or accusation in general) that would make it possible to assess at this stage whether the evidence collected by the Prosecutor was sufficient to commit the case to trial. There was no requirement to have the indictment approved by a judicial authority. Instead, the indictment was to be unanimously approved by four Chief Prosecutors: “The Chief Prosecutors shall act as a committee for the purpose to lodge the Indictment and the accompanying documents with the Tribunal” (Article 14 of the Charter of the International Military Tribunal in Nuremberg). The only example of judicial review over the work of the Prosecutors could be seen when the judges dismissed the motion to amend the indictment by changing defendants.⁸⁷ The lack of judicial review of an indictment seemed to have a certain impact on further proceedings before the IMT in Tokyo: “it should nonetheless occasion no surprise that at the outset of its judgment the majority of the Tribunal dismissed forty five of the fifty five charges on grounds of redundancy, lack of jurisdiction, the merging of one count into another or because a charge was stated obscurely”.⁸⁸

The procedure for judicial confirmation of the indictment is provided by the Rules of Procedure and Evidence of the ICTY. The Prosecutor is to file an indictment when he is convinced that the “collected evidence is sufficient to become reasonably convinced that the accused committed the crime, which falls under the jurisdiction of the Tribunal”. The appointed judge of the Trial Chamber confirms an indictment (he is then excluded from adjudication, Rule 47(A), Rule 15(C) RPE). He is in charge of examining each of the presented charges and supporting evidence as presented by the Prosecutor in order to decide “whether there is a prima facie case against the accused” (Article 19(1) of the Statute). The judicial review aims to determine whether:

The term “prima facie case”, as understood in common law systems, means a case in which the prosecutor produces evidence that provides a reasonable basis to believe that the guilt of the accused will be proven beyond any doubt in the trial. In the ICTY judicial practice, it has been assumed that the term designates a case that is “trustworthy and when approved and unchallenged, may provide a sufficient basis for the conviction of the accused”, “a credible case, which would (if not contradicted by the Defence) be sufficient basis to convict the accused on the charge”.⁹⁰ This phrase could be translated as “visible at first sight”, “based on the first impression”, and the closest legal equivalent of the concept in Polish language would be “a reasonable suspicion that the crime was committed”. It is, however, not clear what, if any, consequences arise from using two different phrases in the legislation of the ad hoc tribunals in relation to the same evidentiary threshold that should be met by the Prosecutor. The ICTY Statute provides that, first, the Prosecutor “shall assess the information received or obtained and decide whether there is sufficient basis to proceed”, and then the court authority should analyse the presented evidence to verify whether the Prosecutor established a prima facie case. It seems that these notions are synonymous and that a prima facie case (whose existence is examined by the judge) occurs in a situation when the evidence collected by the Prosecutor leads to a conclusion that “there is sufficient basis to proceed” (which is to be proven by the Prosecutor while requesting the approval for the indictment).

In proceedings before the ICC, the procedure for confirmation of charges also ends the stage of investigation (Article 61 of the ICC Statute). It is another stage of criminal proceedings during which the work of the Prosecutor is subject to a judicial authority’s assessment: having granted authorisation for conducting the investigation and having issued an arrest warrant upon the Prosecutor’s motion, it is the third occasion on which a judicial authority assesses whether the evidence and the information collected by the Prosecutor justify the transfer of the procedure to the next stage—this time, to court proceedings. The confirmation procedure has undergone a remarkable transformation compared to the ad hoc tribunals:

When, according to the Prosecutor, the evidence collected during investigation substantiates the suspicion that the committed crimes fall within the jurisdiction of the Court, and the premise of Article 60(1) of the Statute has been met (the person has been surrendered to the Court or appeared before the Court voluntarily or pursuant to a summons), the Prosecutor files a motion with the Pre-Trial Chamber to approve the charges of the indictment.

Pursuant to the ICC Statute, the suspect (the Statute carefully avoids using the term “the accused” until the charges are confirmed) and the Prosecutor must participate in the confirmation hearing. At this stage, the suspect already has the right to be assisted by counsel. The Statute provides that if the suspect has waived his right to participate in the hearing or has fled (or otherwise cannot be found), this hearing may be held in his absence unless the Pre-Trial Chamber decides otherwise.

During this hearing, the Prosecutor presents charges, supporting them with evidence substantiating the belief that the suspect committed the alleged crime. The suspect has the chance to challenge the charges and produce evidence to support his statements. The parties may also raise their objections as to the Court’s jurisdiction over a given case. If possible, they may also call witnesses. This depends on the adopted strategy and the decision as to whether using specific evidence will not be more useful if done during the course of the trial. It should be stressed that the parties are not obliged to present all evidence at the confirmation hearing but only the (supporting or refuting) “sufficient evidence” that is necessary “to establish substantial grounds to believe that the person committed each of the crimes charged” (or that he did not commit these crimes). During the confirmation hearing on the situation in Kenya, the Prosecutor decided against calling witnesses, but the defence called 43 witnesses. The Pre-Trial Chamber, however, indicating the objectives and the limited scope of the confirmation hearing, instructed the defence to limit the number of witnesses to 2 per suspect.⁹¹ The defendant’s strategy may also involve raising the grounds for excluding criminal responsibility pursuant to Article 31 of the Statute, or mistakes in procedural law or substantive law (in such case, it is, however, necessary to report such objections 3 days prior to the date of the hearing). The suspect may challenge not only the grounds for the charges but also the admissibility of evidence. It is characteristic that, since the Prosecutor’s role is to establish the true facts of a case (the material truth), he may also raise such objections against the indictment during the hearing.

On the other hand, during the confirmation hearing, it is not necessary to examine the temporal and territorial jurisdiction of the Court. This examination is always performed by the Pre-Trial Chamber while analysing if there is sufficient basis to proceed with an investigation and authorising the commencement of the investigation by the Prosecutor. Therefore, it is not necessary to reassess the existence of ratione loci and ratione materiae. If the Court has already confirmed that it has the jurisdiction over a given case in the scope indicated by the Prosecutor, then, if the Prosecutor has conducted its investigation adhering to the scope authorised by the Pre-Trial Chamber, it is clear that it still has that jurisdiction.⁹² This procedure is also designed to enable to evaluate evidence that may have been collected under different systems and in various countries before any decision as to whether the case may be sent to trial.⁹³

The Pre-Trial Chamber shall, on the basis of the hearing, determine whether there is sufficient evidence to establish substantial grounds to believe that the person committed each of the crimes charged. Based on its determination, the Pre-Trial Chamber shall do as follows: