Powers of the Prosecutor Before the Trial Chamber

The major differences between the assumptions of the two models of accusation typical for the two legal traditions manifest themselves in the judicial proceedings quite clearly.¹

The assumptions of the common law tradition oblige the prosecutor to take a proactive approach at the judicial proceedings stage, both in the process of introducing evidence and in the presentation of this evidence before the court: witnesses appear in court when summoned by the prosecutor. The parties look for witnesses and then prepare them for the trial, practicing cross-examination. In common law adversarial criminal proceedings, the prosecutor is the master of his case; he determines the manner in which he will conduct his case, the number of witnesses and exhibits and the amount of testimony to be elicited. It is up to the parties to decide in what manner and sequence to present the evidentiary material. The parties manage evidentiary proceedings, interrogate witnesses and experts called by them and cross-examine the parties and experts summoned by the opposite party. The trial can end only when the parties decide to end it—as the length of the presentation of evidence depends on what the parties consider to be relevant to their case or on the number of available evidence. The judge is solely a passive observer of the dispute conducted by the parties to the proceedings. He may not influence the parties and demand that the time of the presentation of evidence is shortened. His role is limited to ensuring that trial participants properly apply the principles governing the trial. After the exchange of arguments and evidence is completed, the jury decides whether or not the prosecutor has proven the guilt of the accused beyond any doubt.²

Such a model of the contradictory trial could be referred to as a strictly adversarial approach (T. Grzegorczyk talks about the adversarial approach in a “pure” form).³ The continental tradition uses the phrase “contradictory”, where the common law tradition speaks of “adversarial”. Both these phrases are best rendered in translation as “antagonistic” or “based on the evidence collected individually”. This phrase is most commonly used to describe actual features of Anglo-Saxon criminal justice. However, as there is a need to apply one pattern to describing the accusation model, we will abandon “contradictory” nomenclature and settle for the principle of “adversarality”. It can be understood in many ways: in a procedural way (where it means “procedural type designed by comparative law scholars to capture characteristic features of the common law process, particularly when contrasted with continental systems”)⁴, in a theoretical way (where it is used to describe the goal of the process: conflict resolution) or, as an ideal of procedure, in a purely normative meaning.⁵ Here it will be used in the latter meaning.

Judicial proceedings in continental systems are also conducted contradictorily, but this principle is understood differently. Although it also means that the criminal trial is a dispute of two parties, in the case of such a dispute the court is neither passive, nor are the parties obliged to present the evidence during the trial. Here, the principle is deemed to be a directive “pursuant to which the parties have the right to fight for a resolution that is favourable for them”.⁶ There are a number of exceptions to this system that constitute a concession in favour of the inquisitorial approach, releasing the parties from the responsibility for the course of the trial and handing it over to the judge. First of those is the fact that it is the judge who controls the trial and presentation of evidence (it is so-called judge-centered trial or judge-driven trial).⁷ Second, it is a special obligation of a judge to produce evidence ex officio in order to ensure that all circumstances of vital significance to the case shall be duly explained and elucidated (e.g. Article 366 § 1, Article 167 CCP).⁸ The third limitation to the adversarial approach is the manner of introducing evidence to the trial by the court that has the right to evidentiary initiative, regardless of the parties’ position on this matter. Moreover, it is the court that decides on the introduction of evidence requested by the party in an “evidentiary motion”—a motion to conduct a certain evidence. As a result, all evidence has the same status—that of evidence produced by the court. Moreover, the court not only introduces evidence to trial but also actively participates in the examination of the witnesses. In view of the situation, it is obvious that judges may always ask questions to the persons being interrogated without “waiting their turn” and at any moment of the trial. Fourth, there is only one “case”—that presented by the prosecutor, who submits the case file to court and is the only party obliged to be active in a trial. Such a trial structure may be referred to as a tempered adversarial approach. In Anglo-Saxon systems, this model is often termed “non-adversarial” or “inquisitorial”.⁹ Also, in the Polish legal science, there is a view that the Polish Code of Criminal Proceedings implements the principle of an adversarial approach “with an inquisitorial twist”.¹⁰ Although we have to remember, as of the 1st of July 2015, the Polish system ceases to be an example of a tempered adversarial (inquisitorial) model of trial.

The adoption of a specific model of the adversarial approach entails certain powers and obligations for the prosecutor.¹¹ An active role of a judge and a passive role of a prosecutor represent two sides of a coin. A judge in a more passive role results in the parties taking control over the course of the trial. In such a situation, it is solely the prosecutor who is in charge of the introduction of evidence to the trial. If the evidentiary material turns out to be ambiguous during the trial, he may not rely on the judge’s support to elucidate on the matter—by requesting additional evidence or by asking witnesses further questions—and to prevent adjudication that would be favourable for the accused. Evidentiary shortcomings are the responsibility of the prosecutor and result in acquittal. A proactive judge, on the other hand, takes over the evidentiary initiative and in this way outlines the scope of the evidentiary material. This problem can be perceived from the other perspective: when there is no activity on the part of the public prosecutor, the court is forced to look for evidence to enable conviction. If there are any elements of dispute that appear during the trial, they are usually related to the dispute between the defence and the court, which not only is ineffective but also does not help in promoting an image of the court as an independent and impartial authority entrusted with the task of guaranteeing respect for rights and freedom in a democratic state. Handling of the trial by the judge and introduction of evidentiary material solely pursuant to his discretionary decision deprive the prosecutor of his status as the master of the case. He enjoys specific powers only: he has the right to submit motions, especially evidentiary ones; to question the accused, witnesses and experts; to appeal judgements within the scope provided for in the law; to take the floor during the trial on the issues to be resolved; and to give an opinion on testimonies of the other party.

The adopted adversarial model determines the intensity of the prosecutor’s activity during trial and in an investigation. A strictly adversarial trial assumes that both parties should actively engage in the search for evidence to support their claims. As early as at the investigation stage, they must collect extensive material in order to disclose it to the other party to the proceedings, thus meeting their trial obligations. However, for the prosecutor, this stage is only a preparation before his active performance in the trial. We could risk a thesis that the strictly adversarial system adopted in Anglo-Saxon states requires that the prosecutor prepare his case much more carefully and completely, not only in the legal aspect, as part of the investigation, but also in the practical aspect, pertaining to the preparation of evidentiary material to be presented: the clarity and transparency of the evidence presented to the jury, as well as the manner of presentation and the power of persuasion.¹²

Meanwhile, in the continental trial, a prosecutor’s proactive role usually ends with the completion of an investigation and drafting of an indictment. As it is the court that is in charge of an active search of evidence during the trial, the accuser often settles for a passive role. It is assumed that he has already played his role as far as the search for evidence is concerned during an investigation, and all the evidence that needs to be submitted during the trial is included in the case file.¹³ He is not considered to be obliged to participate actively in the trial dispute or in the conduct of evidentiary proceedings; although he is entitled to do so in line with the effective law, the lack of a proactive approach in the trial does not have any negative consequences, such as acquittal of the accused, as in Anglo-Saxon systems. This is related to the depreciation of the judicial stage of proceedings in the continental system, which—in extreme cases—is used solely for the presentation of findings made in an investigation.¹⁴

Elements characteristic of both the aforementioned adversarial models have been used in proceedings before international criminal tribunals.

Proceedings before the International Military Tribunals had the features of both the strictly adversarial approach and the tempered adversarial approach but were predominantly shaped by the former. It was indicated for the first time that judicial proceedings could be regulated by using solutions borrowed from various legal systems. A compromise was needed to determine the course of the trial and the role of the judge: common law systems proved useful in lending the principle of bringing evidence by the parties and the cross-examination principle; simultaneously, a decision was made that the trial would be managed by the judge on the basis of the solutions taken from the continental trial model.¹⁵

At the very beginning of their operation, the ad hoc tribunals adopted a purely adversarial model of judicial proceedings. However, it turned out to be impossible to altogether exclude the judge’s active involvement in such factually and legally complicated cases as adjudicated by the tribunals. This was mainly caused by the fact that the nature of and the principles governing the trial before the international criminal tribunal were different than in Anglo-Saxon systems, under which a judge is not obliged to determine the material truth. Conducting a trial pursuant to the assumptions of a strictly adversarial approach was in conflict with the main objective of the international tribunals, namely the determination of the so-called historical truth, the truthful account of past events.¹⁶ The makers of the Tribunal believed that if the judge had to choose between the versions of events presented by the parties, he would not be able independently to pursue the material truth. Also, the experience of the ad hoc tribunals has demonstrated that a model of trial closely following the strictly adversarial approach can bring international justice authorities to a standstill and reduce their effectiveness. During their operation, it had already become evident that this approach needed to be changed.

These changes had two main purposes: first, they were intended to expedite the course of the trial; second, they were intended to take into account the legal context of international criminal proceedings. It turned out that these objectives could be achieved by utilising solutions characteristic of the continental tradition. Following the example of continental judges, the ICTY judges were gradually broadening their powers to manage the course of a trial. They believed that it would enhance and improve the effectiveness of the trial. For example, they introduced solutions that would allow them to determine during the Pre-Trial Conference, prior to the commencement of the trial, the scope of evidentiary material presented by the Prosecutor at trial, the number of witnesses he may call and the time available to the Prosecutor for presenting evidence or even to limit the scope of the indictment itself, by directing the Prosecutor to select the counts in the indictment on which to proceed (Rule 73bis(C) and 73 bis(E)). The judges were also offered the power to produce evidence independently during the trial and while interrogating witnesses and experts. This authority was compatible with the simultaneous obligation to determine the material truth. Moreover, no jury was introduced, which simplified the rules of evidentiary proceedings and shifted the burden of deciding the accused’s guilt to the judges. This burden turned the judges’ attention to precise determination of the circumstances of the case. Ultimately, however, none of these changes affected the main assumptions of the trial that, as a rule, is conducted pursuant to the principles of the common law tradition: the Prosecutor does not prepare a case file, evidence is introduced by the parties, evidentiary proceedings are conducted in certain stages and according to a strict structure.

When drafting the ICC Statute, its authors did not want to follow the assumptions of a specific legal system but rather aimed at finding a balance between the rights of the parties and the effectiveness of the proceedings by incorporating elements of various legal systems. In its current form, this model cannot be definitely described as strictly adversarial because of the strong role given to the judges. It has been concluded that the continental tradition exerts a much greater influence on the proceedings before the ICC than on the proceedings held before the ad hoc tribunals.¹⁷

The characteristic features of this model include

The decision whether the ICC Prosecutor should act as a “partisan actor” driven by the goal to prevail in a trial “combat” (as in the common law systems) or whether he should be an authority looking for the material truth (as a “guardian of the law”, or “minister of justice”, in German Wächter des Gesetzes ¹⁸) turned out to be the basic factor affecting the scope of obligations and powers of the ICC Prosecutor. The question that had to be answered was whether the prosecutor of an international authority, whose role was diametrically different from that of a national prosecutor, should only seek conviction.

Two major problems arise in connection with the role to be played by the ICC Prosecutor.

First, it is not entirely clear whether the Prosecutor’s obligation to act also in favour of the accused expires upon completion of the investigation. The Statute does not impose on the Prosecutor the obligation to undertake activities in favour of the accused during the trial. It seems that due to the lack of a direct prosecutorial obligation to actively engage in actions that would benefit the accused, the end of an investigation simultaneously terminates the Prosecutor’s obligation to act as an authority seeking the material truth.¹⁹ The only statutory manifestation of this obligation is the rule according to which the Prosecutor is under an obligation to disclose to the defence evidence in his possession or control that he believes shows or tends to show the innocence of the accused, or to mitigate the guilt of the accused, or that may affect the credibility of prosecution evidence (Article 67(2) of the Rome Statute), in the frames of the disclosure of evidence procedure.

Second, it is not clear whether such a development of the Prosecutor’s role also imposes on the Trial Chamber an obligation to ensure that the Prosecutor has properly fulfilled his task to collect evidence in favour of the accused.

We have seen that a question appeared whether the Pre-Trial Chamber has powers to examine the scope of fulfilment of the Prosecutor’s obligation under Article 54 of the Statute during an investigation: whether the prosecution had sought enough to obtain exonerating information.²⁰ In the case law, it was concluded that the fulfilment of Article 54 duties is another one of the Prosecutor’s powers that should fall into the scope of judicial control.²¹

Some representatives of the doctrine believe that the Trial Chamber also enjoys similar powers at the trial stage: to demand from the Prosecutor to establish certain facts or to bring additional evidence in order to supply also evidence in favour of the accused.²² According to their opinion, it would be justified by limited human and technical resources of the defence, which leads to a lack of choice but to rely on evidence gathered by the Prosecutor; it is impossible for the accused to conduct an independent investigation on equal foot with the prosecution team. The Trial Chamber could—on request of the defence—oblige the Prosecutor to undertake such actions using its competence under Article 64(6)(d) of the Statute, to “order the production of evidence in addition to that already collected prior to the trial or presented during the trial by the parties”. In practice, the exercise of these powers depends solely on the judges’ visions of the trial and their personal views on the role of the ICC Prosecutor. This assumption could find confirmation in the phrase used by the Pre-Trial Chamber in The Prosecutor v. Kenyatta, where it found that the Prosecutor “is not responsible for establishing the truth only at the trial stage by presenting a complete evidentiary record, but is also expected to present a reliable version of events at the confirmation hearing”. Such obligation could also be considered to be in compliance with the continental model of accusation, where the prosecutor is obliged to act according to the principle of objectivity. His obligation to establish the true account of events requires him to take into account circumstances that act both in favour of and against the accused also at the stage of judicial proceedings. He may not seek, at any cost, to demonstrate the guilt of the accused and should discontinue prosecution if the outcomes of judicial proceedings failed to confirm charges articulated in an indictment.

On the other hand, such an assumption could lead to a situation where the judges would determine the tasks of the Prosecutor in judicial proceedings and bindingly order him to produce certain evidence in favour of the accused. It seems that the existence of such a power would excessively complicate the fulfilment of prosecutorial tasks. Even at present, the ICC Prosecutor is not only expected to retain evidence to which he has had access and that could be used by the defence, but he also must actively seek such evidence during an investigation. If we also add the obligation to seek specific evidence upon request of the accused, the Prosecutor would be forced to play a dual role also in the judicial proceedings. Placing the burden on the Prosecutor to secure the “public interest” also in trial would contradict with his function as an accusatory and a partisan advocate. This burden would turn the Prosecutor into a “quasi-judicial authority” also during the court proceedings. It would also lead to an unequal treatment of the two parties to the proceedings—although the Prosecutor is entitled to be treated equitably by the Court. We should, however, notice that the wording of the Statute seems to be quite clear in demanding from the prosecution objectivity only within the scope of an investigation. The presentation of exonerating evidence at the trial stage should remain the realm of the defence—or eventually the Trial Chamber. It seems that it would be more reasonable to leave the collection of evidence requested by the accused to the Trial Chamber. During the judicial proceedings, the Prosecutor is to remain a solely accusing authority. It should be therefore assumed that the obligation to act and collect evidence in favour of the accused ends when an indictment is brought in. From this moment on, the Prosecutor’s sole task is to accuse. This approach is consistent with the model of judiciary proceedings adopted before the ICC. Some authors claim that this approach is based on the strictly adversarial trial approach.²³ However, as the trial approach is a hybrid, it is better to conclude that it results from the adoption of the principle of general responsibility of the parties to submit evidence in support of their cases.

International criminal tribunals introduce evidence in a manner borrowed from common law systems. Characteristically for these systems, witnesses are summoned by the parties. The Sixth Amendment to the United States Constitution, which forms a part of the US Bill of Rights, grants to the accused the right to be confronted with the witnesses against him and to have compulsory process for obtaining witnesses in his favour (on the basis of a court’s order, so-called subpoena. In England, each participant of a criminal case not only can but must prepare and conduct the case in accordance with the overriding objective.²⁴ Pursuant to the concept of a strictly adversarial trial, each of the parties is expected to prove its arguments, taking a proactive approach. Since each party has its own witnesses, the witness for the prosecution cannot be (as a rule) used by the defence, and the prosecutor may not look for or call witnesses for the defence.

In continental states, the manner of introducing evidence to the trial is subject to more complex rules. There are three major assumptions that determine its unique nature.

First, it is the existence of a case file. During the investigation, the state law enforcement authorities collect a complete set of evidence provided to the court in the form of a case file that will be summarised in the indictment.

Second, there are three characteristic ways of introducing evidence into the trial. Evidence is produced

Finally, the third characteristic feature of this system is the fact that introduction of evidence to the trial is done solely upon the judge’s decision (Article 167 CCP, § 244 StPO). Both in the Polish and the German systems, the evidence in the trial may not be introduced without the judge’s authorisation.

According to the opinion of the legal doctrine, formulation of this provision serves to emphasise the adversarial nature of the proceedings.²⁶ However, the application of the judicial proceedings model characteristic of common law states in proceedings before the ICC has negative consequences in the light of the functions of international justice. Namely, when certain persons are qualified as witnesses for a particular trial party right from the start of a case, it may put them in specific trial roles. As a result, both the parties and the witnesses act as the participants of a trial combat. Witnesses are expected not to present an objective course of events but rather to support the “case” presented in the trial by the party that has summoned them; a similar approach is expected from experts. Naturally, a party will not call a witness who could challenge the arguments it presents. This risk is further alleviated by the procedure of “witness proofing” during which both the defence attorney and the prosecutor prepare their witnesses for interrogation, practicing the correct replies to the questions that will be asked during the trial.²⁷ It has been observed that in the case of international tribunals, the trial combat reflects internal conflicts of an ethnic and religious nature underlying the committed crimes. It leads to unnecessary antagonisms throughout the trial. Taking into account the role played by international criminal tribunals, it has been suggested that the witnesses should appear before the tribunal upon the judge’s summons rather than when called by the parties to the proceedings: “To make use of their investigative powers to intervene, the judges should in particular feel called upon when deadlocks between the parties which, for contrary reasons, restrict the presentation of evidence” should be “de-blocked”.²⁸ In such a case, they would have witnesses called to determine the material truth rather than to win the trial combat.

We have experienced, however, a shift in understanding the role of a witness before the ad hoc tribunals, which have abandoned the doctrine of perceiving a witness as a partisan of solely one version of events. In Prosecutor v. Tadić, the Trial Chamber observed that after the witness has taken the solemn declaration, he becomes “a witness of truth” and is no longer a witness of the calling party: “a witness, either for the Prosecution or Defence, once he or she has taken the Solemn Declaration (…), is a witness of truth before the Tribunal and, inasmuch as he or she is required to contribute to the establishment of the truth, not strictly a witness for either party”. In consequence of adopting a more neutral doctrine of presentation of evidence, the Chamber prohibited further communications between the party and a witness after he or she has commenced his or her testimony as it may lead both witness and party, albeit unwittingly, to discuss the content of the testimony already given so as to avoid the danger of “influencing the witness’s further testimony in ways which are not consonant with the spirit of the Statute and Rules of the Tribunal”.²⁹

In proceedings before the ICC, it is clear that a witness should rather support the pursuit of the material truth rather than endorse a specific version of events. Due to this modification, a more neutral approach to the interrogation of witnesses, typically found in continental systems, is possible. Along with the increasingly proactive approach of the judge, this change is one of the significant exceptions in favour of the continental model of accusation. Based on the model of trial adopted in the continental procedure—and also before the ICC—the parties are expected not to conduct a trial combat but rather to participate in a dialogue to help the court to determine the material truth; this aim is highlighted by the fact that the Prosecutor is seen as an impartial authority who has investigated both the favourable and unfavourable circumstances for the accused in the course of the investigation.³⁰

The aim of the actions undertaken in the trial by the prosecutor is to prove the guilt of the accused. However, this aim may be achieved in line with different rules.

First, the moment in which evidence is found sufficient to prove the guilt of the accused is defined differently in each legal system. In England and the United States, the theory is that the guilt of the accused must be established beyond reasonable doubt. In continental tradition, the court must not convict the accused except where it has une intime conviction that he is guilty.³¹ It seems that in practice the degree of a judge’s conviction sufficient to consider the accused guilty of the actions charged against him does not differ in these systems in any way except for the name and the manner in which it is defined in the law.³²

The ad hoc tribunals adopted the Anglo-Saxon standard requiring that 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(A) ICTY RPE). In Prosecutor v. Tadić, the ICTY Trial Chamber explained that the “beyond reasonable doubt” test signifies that “the proof must be such as to exclude not every hypothesis or possibility of innocence, but every fair or rational hypothesis which may be derived from the evidence, except that of guilt”.³³ This formulation does not mean that the guilt should be proven “beyond a shadow of doubt” or with “an absolute certainty”. “Reasonable doubt” means a doubt that is founded on a reason.³⁴ The Appeals Chamber in Prosecutor v. Delalić indicated “that only those matters which are proved beyond reasonable doubt against an accused may be the subject of an accused’s sentence or taken into account in aggravation of that sentence”.³⁵

In proceedings before the ICC, according to the provision of Article 66(3) of the Rome Statute, “in order to convict the accused, the Court must be convinced of the guilt of the accused beyond reasonable doubt”. So far, this concept has not been explained in the case law. It should be assumed that the ICC will adopt the common law understanding of this notion, following in the footsteps of the ICTY, which relies on the English and US doctrines in its rulings. The ICC in The Prosecutor v. Lubanga made it clear that the Court bases on a construction of “guilt proven beyond reasonable doubt”. In this particular case, the Chamber concluded that when, based on the evidence, there is only one reasonable conclusion to be drawn from particular facts, this conclusion has been established beyond reasonable doubt.³⁶ Equally enigmatic was the Trial Chamber in the case of The Prosecutor v. Ngudjolo Chui, in which it gave an acquitting verdict assuming that there was a reasonable doubt as to the participation of the accused in the acts he was charged with (une doute raisonnable).³⁷

Second, each model of proceedings needs to specify the party on which the burden of proof is placed. Article 66(2) of the Rome Statute provides that “the onus is on the Prosecutor to prove the guilt of the accused”. Thus, it obliges the Prosecutor to get actively involved in the process of proving the guilt of the accused.³⁸ The Prosecutor’s failure to engage in the process or the ineffectiveness of his evidence should be identified with a lack of incriminating evidence and therefore results in the accused’s release from all or some of the charges brought against him. Moreover, it seems that the principle of presumption of innocence applicable before this Court is another indicator that the obligation of proving the guilt of the accused rests with the Prosecutor.

The acquittal of the accused is an obvious outcome of a prosecutor’s failure to prove the guilt. There is, however, a major difference in how this problem has been addressed in the proceedings before various international criminal tribunals.

In proceedings before the ad hoc tribunals, a special mechanism derived from common law was adopted, which allows for entering a judgment of acquittal at the close of the prosecution’s case and before the presentation of the defence’s case. It may happen in a situation if at the close of the Prosecutor’s case, the Trial Chamber is convinced that there is no evidence capable of supporting a conviction (so-called a no case to answer doctrine).³⁹ Thus, only when there is sufficient evidence to sustain a conviction on a particular charge is the defence called upon to produce exonerating evidence (Rule 98bis RPE ICTY).⁴⁰ A similar doctrine has not been so far adopted by the ICC. In The Prosecutor v. Ngudjolo Chui, the Trial Chamber acquitted the accused of charges made by the Prosecutor, but did so on the basis and under the influence of the evidence produced by the defence.⁴¹

The prosecutorial obligation to prove guilt proactively is balanced by the application of the so-called reverse burden of proof. It signifies an obligation imposed on the defence to prove its claims; for example, if the defence attorney challenges the credibility of a document presented by the prosecutor, he has to call an expert to establish the authenticity (or lack thereof) of the document. Before the ICTY, it has been assumed that the burden of proof is transferred in certain defined situations: when the defence demands exclusion of criminal responsibility due to the perpetrator’s insanity, as well as in any other circumstances excluding or reducing the responsibility, for example, when a guilty plea is claimed to have not been entered voluntarily. Similar to common law systems, the ICTY does not require the defence to prove these circumstances “beyond any doubt” but requires it only to indicate some degree of its credibility.⁴² In Anglo-Saxon systems, the accused has to meet a significantly lower evidentiary standard than the prosecutor. The standard of “balance of probabilities” borrowed from the civil law is sufficient.⁴³ For example, in Prosecutor v. Delalić, one of the accused claimed to be of “diminished capacity” at the time of committing the acts he was charged with.⁴⁴ The Trial Chamber stated that there is a presumption of sanity (even despite an absence of prosecutorial evidence) and that “every person charged with an offence is presumed to be of sound mind and to have been of sound mind at any relevant time until the contrary is proven”. In consequence, the Prosecutor did not have an obligation to produce evidence on the accused’s sanity.

Contrary to the ICTY practice, the ICC Statute in Article 67(1)(i) introduces a quite original solution as to the reverse burden of proof, protecting the accused from placing on him a burden of proof in general. It provides that the accused is entitled “Not to have imposed on him or her any reversal of the burden of proof or any onus of rebuttal”. This right was supposed to constitute an equivalent of a guarantee used in continental systems securing that the accused cannot be forced to be active in trial. However, according to some of the representatives of the Anglo-Saxon legal doctrine, these norms may create troublesome hurdles for the prosecution and provide the defence with a powerful tool. First, in the future jurisprudence, the ICC may adopt a conception that the accused is only required to raise a reasonable doubt as to his mental condition (demonstrating only the probability of this condition), and there will be no need to prove this fact beyond reasonable doubt (as it happened before the ICTY). The second conclusion is more extreme: the Court may apply this rule to impose the burden on the prosecution to establish sanity. Undoubtedly, adopting this theory would lead to consequences unintended by the drafters of the Statute and would place on the Prosecutor an impossible task. Such an interpretation of this provision seems to be contrary not only to the hitherto practice of the ICTY but also with the jurisprudence of the European Court of Human Rights. The latter Court has admitted that reverse burden provisions are known in all the domestic legal systems of criminal law, and therefore they are not contrary to the presumption of innocence principle.⁴⁵

Third, in the case of evidentiary proceedings before international criminal tribunals, the basic problem associated with the unique nature of cases handled by these tribunals has to be taken into account for purposes of selection of the appropriate model of guilt proving. The nature of these cases forces the prosecutor to prepare them more extensively than in national proceedings and to prepare a comprehensive evidentiary material in support of each of his arguments. In the case of certain offences, such as crimes against humanity, the prosecutor has to present the circumstances that underlay the committed crimes falling within the tribunal’s interest, for example, the evidence that “the act has been committed as part of a widespread or systematic attack directed against any civilian population, with knowledge of the attack” (Article 7 of the Rome Statute). This requirement signifies that he has to present evidence in support of the fact that not only “an attack” took place but that it was “widespread” and “systematic”, conducted with a certain knowledge. It often requires evidence of a political and demographical character. Complex circumstances of the committed crimes and the type of crime elements that the prosecutor has to prove have led to acquittal in numerous cases, when one of the elements of a certain crime has not been proved adequately.⁴⁶

The course of a trial before international criminal tribunals has taken on a form typical for common law systems. It is regulated by stiff rules (as it is aptly observed: “the adversarial debate is structured and painstakingly regulated”).⁴⁷ First of all, the order of presentation of evidence by each party to the trial is strictly defined. Second, the manner of interrogating each of the witnesses and the sequence of asking questions by a given party to the trial are also subject to strict regulation.

It has been acknowledged in common law systems that since the evidence presented in the trial comes solely from the parties, and the judge has very limited options to interfere with the manner of the presentation, evidentiary material should be presented in a strictly defined order.⁴⁸ The trial begins with opening statements. In the United States, prior to the presentation of evidence, both parties may present their “opening statements”, where they can state “what evidence will be represented, to make it easier for the jurors to understand what is to follow and to relate parts of the evidence and testimony to the whole” – it is an introduction to the evidentiary proceedings, “it is not an occasion for argument” yet.⁴⁹ It constitutes rather “an element of trial advocacy”.⁵⁰ After the parties’ opening statements, the prosecution is the first to present its case-in-chief. During the prosecution case, the defence may cross-examine prosecution witnesses but may not present any exculpatory material yet. The defence may only begin to present its case after the prosecution case is closed. The defence case may be then followed by rebuttal of the prosecutor, i.e. the response to the defence’s arguments. Rebuttal evidence can only consist of evidence that refutes the defence case but not new evidence that merely supports the prosecution case. He may not continue to present charges and evidence to support them. Generally, once the prosecution case is completed, further evidence of the prosecution may not be presented. It is solely up to the judge’s discretion whether he allows the prosecution to supplement its evidence. It requires the court’s decision to reopen the prosecution’s case. If the prosecution raises new issues in its rebuttal evidence, the defence can meet them by presenting evidence in rejoinder. In consequence, it also gives the defence the right to supplement its case with new evidence.

In England and Wales, the order of presentation of evidence in the trial is similar. In the beginning of the trial, the prosecution gives the members of the jury an overall view of the case (the prosecution opening). Then the prosecution calls witnesses to give oral statements and tender in evidence written statements that are read to the jury (the prosecution case). After the prosecution finishes hearing of witnesses, the defence may ask prosecution witnesses questions in cross-examination. After the prosecution evidence has been adduced, prosecuting counsel closes his case by saying “that is the case for the prosecution” or words to that effect. The prosecution may not in general call evidence after it has closed its case. There are, however, four exceptions to the general rule when a judge may allow the prosecution to call additional evidence: when in the course of the defence case, a matter arises “which no human ingenuity could have foreseen”; if a witness was not available to it before it closed its case (but only if the prosecutor shows that he had been sufficiently diligent in preparing his case); where the prosecution omits to present evidence of a purely formal nature (such as “a steamroller is made mainly of iron or steel”)⁵¹; when evidence relates to matters going into the witness’s credibility in order to rebut the answer the prosecution receives in cross-examination of the other party witness (such as proving the existence of previous convictions).

In continental states, the manner of presentation of evidence has taken on a more flexible form. Although it is also generally assumed that evidence should be presented in a specific order, the manner of presentation of evidence in the trial is subordinated to two major principles:

Generally, the trial is structured as a uniform official enquiry by a trial judge, who plays a leading role in eliciting evidence from the witnesses. The hearing of evidence is managed by the judge in a way he deems best for the goal of ascertaining the truth. The parties’ counsels can only “assist” the judge in the presentation of the evidence. According to Article 369 CCP, evidence in support of the charges should, if possible, be taken before evidence in support of the defence. There is nothing, however, that could prevent evidentiary proceedings from taking a different course—depending on the judge’s decision. As a matter of fact, in practice he usually adopts his own vision of the course of proceedings. The presiding judge should also permit the parties to express themselves on any matter that is to be resolved.

The judge also plays a leading role in the German trial: he both manages the presentation of evidence in the trial and interrogates the witnesses. He keeps bringing evidence to the trial until he is convinced that his vision of the case is consistent with the material truth. The sequence of presentation of evidence also depends on the judge’s decision. The provisions of criminal procedure mention only one rule in relevance to the sequence of evidentiary proceedings: witnesses and experts named by the public prosecution office shall first be examined by the public prosecution office. Those named by the defendant shall first be examined by defence counsel (Article 367 § 1 CCP, § 238, 239 and 240 StPO). What is interesting is that in the continental systems, the prosecution presents its case only after the accused is called to give his statement at the very beginning of the trial. For the representatives of the common law tradition, this in fact means that the case of the prosecution is presented after the case of the defence.⁵² There is little doubt that it is advantageous to the prosecution, “as the prosecutor may sit back and expect that leads or evidence damaging to the defendant will come out of his interrogation. Also, the prosecutor may hope that the concocted story of a guilty defendant will crumble in the light of testimony of subsequent witnesses”.⁵³

In the proceedings before the ICTY, the evidence, as a rule, is presented in line with the order known from common law systems and the scheme according to which evidence is submitted is predominantly “strictly adversarial”. The general principle is that evidence should be called at the proper time and in the order laid out in the Rules. Rule 85(A) provides that evidence at the trial is presented in the following sequence:

The Trial Chamber characterised the nature of rebuttal evidence as “evidence to refute a particular piece of evidence which has been adduced by the defence”, with the result that it is “limited to matters that arise directly and specifically out of defence evidence”.⁵⁴ At the same time, rejoinder evidence is limited to those matters arising out of rebuttal that could not have been reasonably foreseen by the defence. The Prosecutor cannot hold back evidence as a matter of tactics, in order to use it later during the trial, e.g. during a cross-examination of a witness. If he fails to present all the evidence of a key importance to his case, there is no going back.

In Prosecutor v. Kristić, the Trial Chamber did not admit several pieces of evidence “that went into the heart of the prosecution case” as part of the rebuttal case.⁵⁵ The Chamber found that the Prosecutor appeared to have made a tactical decision to use a piece of evidence during cross-examination rather than during his case-in-chief in order to achieve a better “explosive effect”, which, in his opinion, would not have been achieved if it had been presented earlier, together with other prosecution evidence.⁵⁶ For this reason, the judges concluded that this evidence did not meet the conditions that rendered it admissible at this stage of the proceedings. Producing new evidence is only possible when the Trial Chamber permits to reopen the case of the prosecution. Before the Chamber reopens the case, it must be satisfied that the evidence the prosecution seeks to introduce is “newly obtained”, that is, obtained after the close of the case-in-chief, and moreover that it could not have been found and presented at the earlier stage of the proceedings, even though due diligence had been exercised. In Prosecutor v. Delalić, the prosecution was not permitted to call additional four witnesses as part of his rebuttal case, as their testimony related to issues that did not relate to the evidence called by the defence. However, when the Prosecutor sought leave of the Trial Chamber to reopen his case to call additional witnesses, this request was also rejected. It stated that “it is essential to the Prosecution that it should adduce all evidence critical to the guilt of the accused so as to establish his guilt at the close of its case”.⁵⁷ It went further to state that the rebuttal case “must not be constructed as a carte blanche for the Prosecution to adduce evidence at a later stage in the proceedings which should properly have been presented as part of its original case”.

Ten years later, this very restrictive rule was somewhat loosened: in Prosecutor v. Popović, the Trial Chamber concluded that the occurrence of new evidence made it possible to reopen the prosecution case, although it was not “newly obtained evidence”. According to the Chamber, the term “new evidence” should also include evidence that existed before but has acquired new meaning only in the light of other “newly obtained evidence”.⁵⁸ In this case, the Prosecutor could not have anticipated that specific documents would become significant until he discovered the meaning of other evidence. At the same time, we can find in the jurisprudence clear factors that were to be determinative of the discretion of the Trial Chamber to admit evidence: it was to be of “high probative value” and “significant”, to the extent that “the injustice of rejecting it should be irresistible”, and not merely circumstantial, corroborative or reinforcing the prosecution-case-in-chief.⁵⁹

According to the common law doctrine, compliance with the rules pertaining to rebuttal is of key importance for the efficiency of the proceedings. Adoption of too flexible rules for challenging the opposite party’s arguments could result in turning this stage into a repeated prosecution case. On the other hand, it has also been noted that an exceedingly restrictive approach to rebuttal prompts the prosecutor to present his evidence as exhaustively as possible so as to avoid the necessity of adding new evidence if the defence succeeds in challenging his arguments.⁶⁰ This attitude in turn leads to a protracted presentation of evidence. However, it can also be argued that it also obliges him to organise the evidentiary material in a comprehensive manner so as not to repeat the same arguments and call the same witnesses several times. It seems that the task of an international criminal tribunal judge is to strike the right balance between the following two obligations: on the one hand, he is expected not to handle the decision to admit new evidence too restrictively, in order to allow for submission of evidence presentation to be as comprehensive as possible. On the other hand, however, he is expected to deny the possibility to produce new evidence after closing the prosecution case that it failed to produce at an earlier stage when a party cannot show its diligence in finding it earlier. From the common law point of view, in such a situation, prosecution would expect that it can supply additional evidence at even the latest stage of the proceedings and would not be forced to apply due diligence during the case-in-chief presentation.⁶¹

However, there is also a possibility to react to certain extraordinary circumstances that may arise in a case. Namely, such an order of presentation of evidence is only obligatory if the Trial Chamber does not decide to vary it. It has discretion to do it “in the interests of justice”. Such a variation may therefore be introduced when certain circumstances prevent the presentation of evidence in proper order, such as the necessity of interposing a witness due to illness.⁶²

The ICC has adopted unique rules for presentation of evidence that do not follow the model of a strict adversarial approach.

Its legal framework is silent on the issue in what sequence evidence is to be presented. The Statute merely provides that the presiding judge may give directions for the conduct of proceedings, including to ensure that they are conducted in a fair and impartial manner (Article 64(8)(b)). The Rules of Procedure and Evidence, on the other hand, provide for three ways in which the course of the evidentiary proceedings may be regulated.

In the beginning, there is no mention of opening statements—in contrast with closing statements, which are explicitly provided for in Rule 141(2). This solution seems rather characteristic of the conduct of trial in the continental tradition. This lacuna does not mean that there is no possibility to make such a statement: Regulation 54(a) of the Court Regulations stipulates that at a status conference the Trial Chamber may issue an order regarding “the length and content of (…) opening and closing statements”. As a matter of fact, it has been concluded that such statements seem to be envisaged as “components of the ICC trial process”.⁶³

As to the order of presentation of evidence, firstly, the presiding judge shall determine how the hearing is to be conducted depending on the circumstances of the given case. In particular, he may establish the order and the conditions under which he intends the evidence to be presented (Rule 122 RPE). This power is only discretionary; the judge may also find that there is no need for him to get engaged in the course of the trial.

Secondly, when a judge does not give directions, the Rules offer to the parties a possibility to agree on the order and manner in which the evidence will be submitted. However, even the parties’ agreement does not exclude the presiding judge’s right to provide directions on the course of evidentiary proceedings. As priority should always be given to the provisions included in the Statute rather than those in the Rules, the latter are applied only when the provision of the Statute does not provide otherwise. In consequence, if, pursuant to the provisions of the Statute, the presiding judge considers it advisable and justified by the content of this provision that the course of evidentiary proceedings should be managed, the agreement of the parties may cover only those components of the evidentiary proceedings that have not been regulated by the judge’s order.

Finally, if no agreement can be reached by the parties, the presiding judge shall issue directions (Rule 140(1) RPE).

Moreover, the Regulations of the Court provide that the presiding judge, in consultation with the other members of the Chamber, shall determine the mode and order of questioning witnesses and presenting evidence so as to make the questioning of witnesses and the presentation of evidence fair and effective for the determination of the truth and in order to avoid delays and ensure the effective use of time (Regulation 43). On the basis of the provision, it can be assumed that even if the time limit for the presentation of evidence by the Prosecutor is set, the Chamber may still review the length of questioning witnesses in order to prevent unnecessary delays and to maintain effective use of time.⁶⁴ Usually this is also what happens in judicial practice: judges indicate precisely how much time is given to the party to present its arguments. However, it is not clear if, in a situation when the parties agree on the sequence of questioning, the Chamber may still intervene in the mode and order of presenting evidence. We may assume that it is possible, as the Rules of Procedure and Evidence do not prevail in a situation of a conflict with Regulations of the Court; they are of the same legal force.

The manner of regulating the evidentiary proceedings may then follow the way known from the ad hoc tribunals, as well as any other way that the parties or the judge considers appropriate for a given case. It is thus left to the discretion of a judge to decide whether the style of trial is to be judge-steered or adversarial, that is, whether the trial should be conducted by a judge with wide powers as in continental law systems or whether the parties as the main actors should present evidence as in common law systems; as it can be put: the Statute remains open for both forms.⁶⁵

In the first ICC’s case, the parties concluded an agreement in which they opted for an adversarial model at trial, where the order of presentation of evidence was strictly followed.⁶⁶ “This is not surprising given the fact that the bench’s presiding judge, Sir Adrian Fulford from the United Kingdom, has a common law background”.⁶⁷ It should be stressed that the agreement was concluded basing on the prosecution’s proposal. According to the prosecution, it was more favourable to them to present all of its incriminating evidence at the beginning of the trial. The Prosecutor concluded that only having a complete picture of such evidence would enable the accused to decide how to exercise his procedural rights—whether to use the right to silence.⁶⁸ In his opinion, this model will also allow to present the prosecution case in a well and effectively organised manner. However, on the request of the defence and with the co-operation of the Chamber such a trial order was incorporated: after presentation of the prosecution case, the Chamber’s evidence and evidence submitted by the participating victims in person were submitted and the defence presented its evidence in the final stage after which the prosecution’s response in the form of rebuttal was authorised. Also, although the defence objected to the prosecution’s proposal to present a response to evidence via rebuttal, such right was authorised by the Trial Chamber, which concluded that the Statute and the Rules are “sufficiently broadly framed to allow this kind of evidence to be introduced”.⁶⁹ However, in the second trial, in The Prosecutor v Katanga, the Trial Chamber chose to issue the consolidated directions on the conduct of the proceedings from the outset. According to these directions, trial was to be organised in distinct phases, including the right of the Chamber to intervene at all times and to order the production of evidence necessary to assist the Chamber in establishing the truth. These directions did not envisage rebuttal stage, as the Chamber concluded that this stage may be permitted in exceptional circumstances only. In The Prosecutor v. Bemba, the ICC followed the previous example and issued consolidated directions on the conduct of the trial pursuant to Rule 140.⁷⁰ However, in this case the Trial Chamber approach was less “managerial”, as it granted the parties greater autonomy in developing their cases: “it is for the parties to determine the manner in which they will present their cases”—it concluded.⁷¹ Nonetheless, it continued to state that this discretion is not unlimited but subject to the Chamber’s statutory duties to ensure a fair and expeditious trial and to guarantee full respect to the rights of the accused. Finally, quite oppositely, in The Prosecutor v. Banda and Jerbo, the sequence of presenting evidence is governed by the parties’ joint submissions filed upon the Trial Chamber’s invitation.⁷² Flexibility of solutions was particularly important in this case, as the parties agreed on the facts of the case. It seemed most appropriate to leave them full discretion as to the organisation of the presentation of evidence in such a case. Usually, the order of presentation of evidence follows the scheme of adversarial debate with two parties presenting their arguments then submitting replies to the other party’s arguments with the judge giving the floor to the parties in sequence.

If we think about the consequences of the model of evidentiary proceedings before the ICC for the Prosecutor, the most important difference in relation to the regulations applied before the ad hoc tribunals is that there is no reference to “prosecution case” and “defence case”.⁷³ Therefore, there is no obligation to present first all the evidence in support of the accusation and only then proceed to the evidence prepared by the defence (by all the stages of cross-examination). This attitude resulted in both the ad hoc tribunals in unacceptable delays in presenting evidence. The restrictive approach to rebuttal prompts the parties to present their evidence as excessively as possible in order to avoid the necessity of bringing additional evidence in case the other party successfully challenges the presented reasoning. Regardless of the merit-based preparation of evidentiary material, the ICTY Prosecutor’s failure to follow the rules of evidentiary proceedings resulted in the rejection of his arguments by the court and the acquittal of the accused. The separation of a trial into a prosecution case and a defence case, which both relate to a plurality and variety of counts, each of which may furthermore cover numerous events, and then the presentation of evidence with regard to the same count and event by the prosecution on the one side and the defence on the other side leads to a consequence that it takes months, if not years, to present the case. In such a case, it was all the more difficult to keep the presentation of evidence with regard to its relevance under control (both for the parties and for the judges).⁷⁴

At present, due to the application of a more flexible procedure before the ICC, the Prosecutor does not need to submit the entire evidentiary material during the presentation of his case for fear that he will not be able to return to this phase at a later stage. Thanks to this procedural flexibility, the parties do not overwhelm the Court with a vast amount of evidence from the very beginning of the trial “just in case”. The flexible order of evidence presentation makes it possible to assume that the evidence will be presented by topic, in a sequence, relative to specific charges or to specific elements of the crime, instead of being presented all at once. This model of evidence presentation is often referred to as a “thematic organisation model”.⁷⁵ In this model, neither prosecution nor defence has a distinguishable case of their own of which they are “masters”. Instead, the order in which the hearing of evidence at trial progresses is organised per substantive topics and specific charges rather than by formal adversarial requirements. The model follows substantive rather than procedural logic. Before the prosecution and the defence can continue to the next fact that requires proving, they need to present all evidence, pertaining to a specific charge or its element or even topic. Each stage of presentation of evidence—evidence for the prosecution, evidence for the defence, rebuttal and rejoinder—may address subsequent charges one by one. However, as both the Rome Statute and the Rules are not conclusive as to whether the parties should present their evidence in a coherent block or organised by topics, the presentation may also take up a model adopted by the parties for the needs of a given case. Therefore, trials may follow either the approach of organising the trial enquiry per party or the approach under which the presentation of evidence is structured per topic, basing on the continental model of trial (“a variable model”).⁷⁶ However, it seems that in practice the ICC has been consistent in considering the evidence for the prosecution and evidence for the defence as the two phases of the trial par excellence. ⁷⁷ The same practice shows that it cannot be stated that the prosecution’s right to rebut evidence submitted by the defence can be taken for granted. In spite of full flexibility of rules of conduct of the evidentiary proceedings, it seems that the ICC judges most often follow a certain pattern—the one used before the ad hoc tribunals.

The rules of evidentiary proceedings relate also to the manner of interrogating witnesses. In the common law tradition, the central meaning is given to cross-examination. The common law lawyers put emphasis on cross-examination as the central safeguard and truth-seeking mechanism of the criminal trial, seen as a contest between two parties and their versions of events. It is perceived as a major instrument of the prosecution and the guarantee of the rights of the accused; it is the most secure method of verifying the authenticity and completeness of a witness’s claims and of his credibility.⁷⁸ At the same time, it is an institution in which major differences between the two legal traditions in question manifest themselves.

In the United States, this right is guaranteed by The Sixth Amendment to the US Constitution. The order of the subsequent stages of witness interrogation is strictly defined. The first examination of a witness is called direct examination, which is conducted by the party calling the witness. The next step is cross-examination by a party other than the one who called the witness. The scope of questioning is restricted here. It may relate only to matters covered on direct examination and enquiries into the credibility of the witness. Afterwards, the party calling the witness conducts redirect examination, which is limited to the issues raised during the cross-examination. New issues cannot be raised. This stage is used to clarify any ambiguities that had occurred in cross-examination, as well as to strengthen the credibility of the evidence challenged by the defence. The introduction of new evidence is not possible. At each of these stages, there are different rules for asking questions. For instance, leading questions should not be used on direct examination (except as necessary to develop the witness’s testimony). However, ordinarily, the court should allow leading questions on cross-examination.⁷⁹ Each deviation from the strictly defined rules may lead to the opposite party’s objection and to the judge’s overruling of the question.

In England and Wales, following the examination-in-chief, a witness will be cross-examined by the advocate for the party not calling the witness. The purpose of cross-examination is to challenge each component of the witness’s deposition that is at odds with the version presented by the party, to obtain information that could support cross-examiner’s version and to undermine the witness’s credibility. This stage is used to “weaken the testimony of the witness, either by casting doubt about his testimony, or by eliciting facts favourable to the cross-examiner, or by discrediting the credit of the witness in the eyes of the jury”.⁸⁰ During the cross-examination, a party may only ask questions that are relevant. A question is relevant if it concerns “an issue in the case, i.e. it relates directly to whether the accused committed the offence, or relates to the fact which increases or decreases the likelihood of his having done so”.⁸¹ However, it differs from the United States in that the cross-examination may go beyond the issues raised during the main hearing and the witness’s credibility—it may tackle any issue relevant for the case. As far as the witness’s credibility is concerned, the questions asked are usually aimed at demonstrating that his current testimony is in conflict with the depositions made earlier in the proceedings. The cross-examiner may also want to demonstrate that the witness has been bribed by the other party, that there exists a special personal relationship between the witness and the other party, that he has previously been penalised or that his personal or health-related conditions and characteristics render his testimony unbelievable. If any of these circumstances has been proven during the cross-examination, the judge is obliged to instruct the jury that the testimony of such a witness may have only a limited evidentiary effect.⁸² In England, however, the witness has a chance to explain any testimony contradictions that arose during the cross-examination. The cross–examination ends with the witness providing a final answer to a question (the so-called finality rule). Cross-examination is followed, sometimes, by re-examination by the advocate for the party calling the witness. The purpose of re-examination is limited to clarifying matters that have arisen out of testimony that has been shaken under cross-examination. Its objective is to remedy any damage to the witness’s credibility arising from the cross-examination and to explain the contradictions that have occurred in his statement.⁸³

In the continental system, the rules pertaining to the sequence of questioning are optional. Usually, trials follow the unitary mode of questioning, which is applied indiscriminately to all witnesses whether they are called to testify in favour or against the accused. This is a consequence of the fact that all witnesses are considered to be “witnesses of the court” rather than “partisan witnesses”. The Polish criminal procedure provides that after a person examined has expressed himself freely, other persons may ask questions in the following order as called by the presiding judge: the state prosecutor, subsidiary prosecutor, attorney of the subsidiary prosecutor, private prosecutor, attorney of the private prosecutor, civil plaintiff, attorney of the civil plaintiff, expert, defence counsel, the accused and members of the panel of judges (Article 370 CCP). The optional character of the questioning sequence leaves plenty of liberty to the judge in shaping the course of an interrogation. As a rule, however, the party upon whose request the witness has been admitted asks questions before the other parties. This is also the case in the German procedure, where both the prosecutor and the defence counsel are the first to interrogate witnesses they have called. Usually, however, it is the judge who is in charge of asking questions of key importance for the case. He conducts the bulk of examination. In German criminal trial, the presiding judge shall conduct the hearing, examine the defendant and take the evidence. In the Polish model of trial, the members of the panel of judges may, when necessary, ask additional questions at any time. In German trial, however, the presiding judge may ask the witnesses and experts such questions as he deems necessary for further clarification in the case, but only after the examination conducted by the parties (§ 239 StPO).⁸⁴ It is worth mentioning that also this rule changes in the Polish system of criminal procedure. The new Article 370 § 1 CCP states that the members of the bench are allowed to pose questions to an interrogated person only when all the other parties finished their interrogation. In those systems, the cross-examination, although possible, does not play as significant a role as in the Anglo-Saxon systems. In the majority of cases, it is not held at all during the trial due to the insignificant activity of the parties.

The Charter of the IMT in Nuremberg regulated the principles of the interrogation to only a limited extent. It provided that “the Prosecution and the Defense shall interrogate and may cross-examine any witnesses and any Defendant who gives testimony”. It was concluded that this right, however, does not adduce to the questioning of a witness by a represented defendant. Additionally, the Tribunal could ask any question to any witness and to any defendant at any time (Article 24(g) and (f) of the Charter).

In proceedings before the ICTY, the right to examine, or have examined, the witnesses against him and to obtain the attendance and examination of witnesses on his behalf under the same conditions as witnesses against him became one of the rights guaranteed to the accused by the Statute (Article 21(4)). The provisions regulating this stage of proceedings replicate a classical common law model of conduct of examination: cross-examination is subject to restrictive rules. Evidentiary proceedings follow a prescribed pattern: the examination-in-chief, cross-examination and re-examination. As a rule, the party calling the witness manages the examination.⁸⁵ As in the Anglo-Saxon model of trial, cross-examination is limited to the subject matter of the evidence-in-chief and matters affecting the credibility of the witness and, where the witness is able to give evidence relevant to the case for the cross-examining party, to the subject matter of that case (Rule 90(H) RPE ICTY). Cross-examination is a testimonial case following the examination-in-chief of the other party’s witnesses. Its objective is to elicit information that has emerged from examination-in-chief that would serve to undermine the case of the other party: e.g., aim to show that the witness is testifying falsely, incompletely or inconsistently with his previous statements or refuses to answer a question.⁸⁶

The Trial Chamber may, in the exercise of its discretion, permit enquiry into additional matters. If it considers it necessary, it may admit further questions, including those that do not pertain to the main subject of the examination. The scope of interrogation may also be expanded when it turns out that the witness’s statements contradict the case of the party that called him. The party may explain to the witness the nature of the problem—in order to provide the witness with an opportunity to comment on the contradictory versions of the events, to deal with any matters in his evidence that are disputed and not to limit him only to responding to questions.⁸⁷ During the re-examination, on the other hand, the party calling the witness may ask him questions to clarify any ambiguities or new issues that have resulted from the cross-examination. Thus, the party that summoned the witness is given the “final word”. However, if during the re-examination other issues are brought up than those revealed during the examination-in-chief, the opposite party may subject the witness to the cross-examination procedure, but only in relation to these new issues. A judge may at any stage put any question to the witness (Rule 85(B)). Also, upon his intervention, the party may continue with an examination to clarify any new issues that have arisen.⁸⁸ As a result, the scope of cross-examination held before the ICTY is broader than the scope of examination conducted before US courts. It is more similar to the English system in that it leaves the judge more liberty to go beyond the basic examination principles.

The Rules of Procedure and Evidence provide only for general rules that should be applied during an examination. According to Rule 140(2), a party that submits evidence by way of a witness has the right to question that witness. In the second phase, the prosecution and the defence have the right to question that witness about relevant matters related to the witness’s testimony and its reliability, the credibility of the witness and other relevant matters. The defence shall always have the right to be the last to examine a witness. This model resembles the common law structure of examination. However, the Rules do not use the term cross-examination. It is assumed that this “culturally neutral” phrasing of this provision was deliberate in order not to predetermine the use of this procedural element in a spirit of one legal system but to establish a sui generis solution.⁸⁹ Moreover, the Rules are silent as to the problem of re-examination—whether a party has the right to repeatedly question the same witness after the cross-examination by the other party. From the judicial practice, it would seem that there is such a possibility. However, even if the party considers that is has no right to re-examine the witness, questions posed by a judge may clarify certain issues. The Trial Chamber has the right to question a witness before or after a witness is questioned by a party (but never within the questioning). Therefore, the judges should abstain from interrupting the party during an examination. The same solution was adopted in the German criminal trial—notwithstanding the wide powers of a judge. It is claimed that this solution before the ICC allows avoiding a situation when a judge interferes with a party’s line of questioning and thus frustrates the adopted tactics. However, as it is observed, the ICC judges in practice “have interpreted the quite unambiguous provision of Rule 140(2)(c) as authorizing their intervention not only before, or after, the questioning by the parties, but virtually any time”.⁹⁰

No limits have been determined in proceedings before the ICC within which the cross-examination of the opposite party’s witnesses is permissible. No decision was made to implement the principle present in the RPE ICTY to limit cross-examination to the claims raised in the examination-in-chief or to questions pertaining to the witness’s credibility. At the ICC, according to Rule 140(2)(b), both parties may question the witness of the other party not only about relevant matters related to the witness’s testimony and its reliability, the credibility of the witness, but also about all the “other relevant matters”. The concept of “other relevant matters”, as it was explained in the case law, should be understood to include “inter alia, trial issues (e.g. matters which impact on the guilt or innocence of the accused such as the credibility or reliability of the evidence), sentencing issues (mitigating or aggravating factors), and reparation issues (properties, assets and harm suffered)”.⁹¹ In The Prosecutor v. Lubanga, the ICC Trial Chamber pointed out that a party may question a witness it has not called about matters that go beyond the scope of the witness’s initial evidence. Quite oppositely than in the common law model, the parties were encouraged to put such part of their case as is relevant to the testimony of a witness, inter alia, to avoid recalling witnesses unnecessarily.

Moreover, the Regulations of the Court grant to the judges the power to control (and intervene in) the examination of witnesses. Regulation 43 provides that the presiding judge shall, in consultation with the other members of the Chamber, determine the mode and order of questioning witnesses and presenting evidence so as to

However, this power has not been used frequently. It has served more to adjudicate current problems of protection of witnesses rather than to influence the line and sequence of questioning by a party.⁹²

The lack of a definitive verb and the use of the phrase “may be questioned” cause that the order in which the evidence would be presented is left open.⁹³ Moreover, there is no direct indication that any cross-examination could take place. Due to the application of the flexible rules of evidentiary proceedings, it is possible to go beyond the fixed structure of interrogation adopted in common law states. On the other hand, it is also possible to stick to it. Despite the effort of the drafters of the Statute to avoid the term “cross-examination”, the participants of the trials before the ICC appear to ignore the difference between this term and the term used in the Statute: “questioning by the party other than calling a witness”.⁹⁴ In practice, the examination of witnesses is conducted in compliance with the principles of cross-examination and “resorting to the adversarial language for the sake of convenience”.⁹⁵ However, although in cases against Mr. Bemba and Mr. Lubanga Trial Chambers preferred using neutral terms, in The Prosecutor v. Katanga and Ngudjolo, the ICC did formally adopt the traditional common law terminology.⁹⁶

There is a tendency to “clear” the course of a trial before the ICC of stiff rules of evidentiary proceedings that are applied in common law systems. As there is no jury, there is also no need to protect the jurors from improperly presented evidence. The provisions provide only a framework for the procedures to be adopted. The details are left to the presiding judge to decide. The absence of rigid rules of examination makes it likely that the debate during trial at the ICC will be much more free and open than it is in the case of ICTY or in adversarial trial in general.⁹⁷ As an example, we can imagine such an order of a trial: first, the judges may put questions at the beginning of the testimony or ask the witnesses to “testify freely” (as it is the case in the Polish criminal trial or even in some cases adjudicated before the ICTY⁹⁸), only then to proceed to the questioning by the parties stage. The “free witness narration” allows the judge to make his own determinations. Moreover, he does not have to rely on the list of questions that both parties prepared for the given witness. It may help the judges to figure out the course of events and not limit themselves to listening to the witness’s testimony as guided by the parties. There is no doubt this model means a stronger judicial control over the course of a trial.

The lack of rigid rules leads to a situation in which managing the course of evidentiary proceedings in each case is left to the presiding judge. It is noted that the uncertainty as to how trials are to be conducted and leaving the matter in the hands of the judges may give rise to numerous doubts and necessitate the development of defined rules for witness examination during initial proceedings before the Court.⁹⁹