Instytucja proofing of witnesses przed międzynarodowymi trybunałami karnymi

Palestra 2014, nr 7/8, s. 17-26.

Model kontradyktoryjności w postępowaniu przed Międzynarodowym Trybunałem Karnym

Państwo i Prawo 2014, nr 10, s. 54-67.

Proceedings before international criminal courts are conducted according to the principle of adversarial proceedings. The elements of procedure that create the specific form of adversarial proceedings have been adapted from different legal systems, both adversarial and non-adversarial. The foundations of criminal trial are non-adversarial: the aim of the trial is to establish the objective truth and the prosecutor becomes an impartial authority of the administration of justice. However, the technical rules of proceedings are based on adversarial systems. Firstly, the parties are responsible for introducing evidence. Secondly, the conduct of the trial is characteristic of these systems: both the consequences of presentation of evidence and the method of examining witnesses. The role of a judge is based on a mixed solution. On the one hand, the judge’s powers are similar to these of a common law judge; on the other hand, they use them in a way known from non-adversarial systems, fulfilling their obligation to establish the objective truth. Consequently, proceedings before international criminal courts have become a sui generis procedure, establishing a new form of adversarial proceedings.

Model oskarżenia przed Międzynarodowym Trybunałem Karnym

Współautorstwo: Wiliński, Paweł

Warszawa : Wydawnictwo C. H. Beck, 2014

Seria: Monografie Prawnicze

ISBN 9788325562328; 9788325562335 (ebook)

XLIV, 381 stron. Akty prawne na stronach XXXIII-XXXVI. Orzecznictwo na stronach XXXVII-XLIV.; Bibliografia na stronach XVII-XXXII. Indeks.

Publikacja dofinansowana przez Instytut Nauk Prawnych PAN.

Selection of Defendants before the ICC : between the Principle of Opportunism and Legalism

Polish Yearbook of International Law 2014, nr 1, s. 187-224.

International criminal tribunals had to make a choice between the principles of opportunism and legalism or decide to use a mixture of these both. They had to decide whether a prosecutor should become “the minister of justice” (as in the principle of legalism) or “the first judge” (evaluating in the frames of principle of opportunism the reasonable basis for prosecuting). This article addresses prosecutorial discretion before the ICC with respect to selecting defend­ants. Firstly, it analyzes the main differences between opportunism and legalism of pros­ecution. It also presents models of accusation functioning before the historical and existing international criminal tribunals – which usually opted for opportunism of prosecution. Be­fore the ICC the conditions on which the Prosecutor may initiate an investigation are set in Art. 53(1) of the Statute: “The Prosecutor shall, having evaluated the information made available to him or her, initiate an investigation unless he or she determines that there is no reasonable basis to proceed under this Statute.” It is interesting to observe that this phrase may be interpreted in many various ways, depending on the model of accusation the author belongs to: those coming from the Anglo­Saxon tradition have tendency to search for elements of opportunism; those from civil law states assume that the model of accusation operates according to the principle of legalism. There is also a number of mixed options presented, according to which the ICC operates according to a mixture of these two principles. Finally, the article presents different rules adopted by the ICC Prosecutor (or proposed), which govern the choice of the defendants.