CYIL Vol. 7, 2016

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.

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