361 / 536
347
CYIL 7 ȍ2016Ȏ
APPLICABLE LAW, INTERPRETATION, INHERENT AND IMPLIED POWERS…
is sustainable only if the consequence of the finding that there is no case to answer
is the acquittal of the accused. The possibility of future re-prosecution nevertheless
comes into irreconcilable conflict with the rights of the accused.
Next, the principle of good faith and the corresponding requirement of effective
interpretation are hardly compatible with the majority ruling, taking into account that
several provisions of the Rome Statute are totally disregarded – besides overlooking
Article 66 and Article 67, the majority does not put forward arguments that would
take into consideration Article 20 and Article 84 of the ICC Statute (
cf. infra
).
One might argue that criminal proceedings could not be inevitably concluded
only by judgment on conviction or acquittal and that other options are available for
criminal court. When considering alternatives of termination of criminal proceedings,
the ECHR opined that ‘generally such proceedings end with an official notification
to the accused that he or she is no longer to be pursued on those charges such as would
allow a conclusion that the situation of that person could no longer be considered to
be substantially affected. While this is commonly brought about by an acquittal or
a conviction (including a conviction upheld on appeal), the Court also recognised
[…] that proceedings could end through a unilateral decision taken in favour of the
accused.’
22
What is important, according to the ECHR, it must be a decision taken in
favor
of the accused. This requirement would be met e.g. by issuance of a decision to
stay proceedings that would exclude the possibility of a new prosecution for the same
conduct. Definitively, a decision on vacation of charges that leaves open a chance of
future prosecution for the same conduct puts the accused in a less favorable position
compared to an acquittal, all the more so if this procedural outcome is not expressly
provided in the Rome Statute. This form of termination decision is incompatible
with the case-law of the ECHR and therefore with Article 21(3) of the ICC Statute.
Another human rights argument might be presented here: as far as procedural
rules are concerned, the important criterion is that they are sufficiently foreseeable
to keep with the overreaching principle of fairness.
23
The ECHR observed that
the primary purpose of procedural rules is to protect the defendant against any
abuse of authority and formulated the opinion that uncertainty concerning rules of
criminal proceedings leads to violation of Article 6 of the ECHR.
24
It goes without
saying that the ICC has significantly deferred to the case-law of the ECHR on the
right to a fair trial and reasserted that this right should be considered a fundamental
22
R. v. the United Kingdom
, ECHR, Appl. No. 33506/05, 4 January 2007, p. 6.
23
SLUITER, Göran et al.
International Criminal Procedure: Principles and Rules
. Oxford: OUP, 2013, p. 50.
24
Cf
.
Coëme v. Belgium
, ECHR, Applications Nos. 32492/96, 32547/96, 32548/96, 33209/96 and 33210/96,
22 June 2000, § 103. It is correct to say that this case concerned a lack of procedural rules. Nevertheless,
in the opinion of the author, the unforeseeable interpretation of the statutory provision triggers fully
comparable uncertainty.