The criminal procedure at the ICTY, as established by the Rules of Procedure and Evidence, is a unique blend of the adversarial and inquisitorial models.
The standard of proof applied is proof beyond a reasonable doubt. The burden of proof is on the Prosecution. Throughout the proceedings, the accused is entitled to the presence and services of defence counsel. If the accused lacks the means to pay counsel, the expenses will be covered by the Tribunal. The accused also has the right to use his/her own language during the entire course of the proceedings (Rule 3).
The procedure at the ICTY can be summarised as follows:
The Prosecutor has to be “satisfied (…) that there is sufficient evidence to provide reasonable grounds for believing that a suspect has committed a crime within the jurisdiction of the Tribunal
- The Prosecutor initiates investigations on the basis of information from various sources. In deciding whether to proceed with an investigation, the Prosecutor has complete discretion and independence.
The Prosecutor has to be “satisfied (…) that there is sufficient evidence to provide reasonable grounds for believing that a suspect has committed a crime within the jurisdiction of the Tribunal.” This is called a prima facie case. Once this is determined, the Prosecutor will issue an indictment and submit it to a judge for confirmation. The confirming Judge then reviews the indictment and, if the Judge believes there are enough grounds, confirms the indictment. If not, the indictment will be returned to the Prosecution.
The Judge may also issue an arrest warrant at that time. In exceptional circumstances, a judge or Trial Chamber may order that the indictment remain under seal until it is served on the accused. In accordance with the Tribunal’s completion strategy, the Office of the Prosecutor submitted its final indictments by 31 December 2004.
- Once the accused is detained or voluntarily surrenders, he/she is immediately transferred to the UN Detention Unit in The Hague. As soon as possible thereafter, the detainee shall have his/her initial appearance at which time (or within the following 30 days) the accused may plead guilty or not guilty to each count of the indictment.
- If the accused pleads guilty, and the Trial Chamber is satisfied that the requirements have been fulfilled, it may enter a finding of guilt and instruct the Registrar to set a date for the sentencing hearing.
The Rules also provide for a plea agreement procedure (Rule 62 ter). The Prosecutor and the Defence may agree that, upon the accused entering a plea of guilty to the indictment or to one or more counts of the indictment, the Prosecutor can apply to the Trial Chamber to amend the indictment accordingly and ask for a sentence within a specific range or agree to the sentencing range suggested by the Defence. The Trial Chamber is not bound by any such agreement.
- If the accused pleads not guilty, a hearing will be held. If the accused refuses to enter a plea, the judges will enter a plea of not guilty on his/her behalf.
- After the initial appearance and before the beginning of trial (the pre-trial phase), the accused can apply to the Trial Chamber for provisional release. If the judges so order, the accused may be released until the beginning of trial. Provisional release is subject to conditions imposed by the Trial Chamber, which include the mandatory presence of the accused for trial, and the protection of witnesses.
- A pre-trial judge is appointed by the Presiding Judge of the Trial Chamber to coordinate communication between the parties during the pre-trial phase and ensure that there is no undue delay in the proceedings.
- At trial, the evidence is presented in the following order: evidence for the Prosecution, evidence for the Defence, prosecution evidence in rebuttal, defence evidence in rebuttal, evidence ordered by the Trial Chamber and, lastly, any relevant information that may assist the Trial Chamber in determining the appropriate sentence if the accused is found guilty. In each case, an examination-in-chief, cross-examination and re-examination are allowed to both parties.
At the end of the trial, the Prosecution may present closing arguments, followed by the Defence. The Prosecution can then present a rebuttal argument to which the Defence may present a rejoinder.
Judgement is rendered by a majority of the judges and is accompanied by a reasoned opinion in writing.
- After the trial is closed by the Presiding Judge, the Trial Chamber deliberates in private. Judgement is rendered by a majority of the judges and is accompanied by a reasoned opinion in writing. Separate or dissenting opinions may be attached to the judgement.
- A convicted person may be sentenced to imprisonment for a term up to and including the remainder of his/her life. There is no death penalty at the ICTY. Those convicted will serve their sentences in states that have indicated their willingness to accept convicted persons and signed an agreement to that effect with the ICTY.
- In case of acquittal, the accused is released immediately. If the Prosecutor advises the Trial Chamber of his/her intention to appeal, the Trial Chamber can issue an order (on the Prosecutor’s request) for the continued detention of the accused, pending the determination of the appeal.
- There are extensive appeal proceedings at the ICTY, available to both the defendant and the Prosecutor. Additional evidence may also be presented if the Appeals Chamber considers that the interests of justice so require. There are five judges sitting on an appeal and the judgement on appeal will also be rendered by a majority of the judges and accompanied by a reasoned opinion in writing. Separate or dissenting opinions may be attached to the judgement.
- If a new fact is discovered which was not available through either the trial or appellate proceedings, and could not have been discovered through the exercise of due diligence, either party can ask for a review of the judgement. The judgement in such proceedings is also subject to appeals by both sides.