An Introduction To The International Criminal Court - Institute for ...

118 introduction to the international criminal court
from one country to another. Particularly in Europe, States have recently
begun rethinking their approach to criminal procedure, largely in reaction
to judgments of the European Court of Human Rights. 3
Under the adversarial procedure, which is the general rule in common
law countries, the authorities responsible for prosecution prepare a criminal
charge inspired either by a private complaint or on their own initiative.
Although generally bound to respect standards of fairness and the presumption
of innocence, their efforts focus on building a case against the accused.
When the trial begins, there is no evidence before the judge. Evidence is
admitted in accordance with specific and often quite restrictive rules, and
its admission may be contested by the defence. Many of these strict rules
exist because questions of fact will be decided by lay jurors who lack the
training and instincts of professional judges in the assessment of the probity
of different types of evidence. For example, the lay juror may have difficulty
determining the value of indirect or ‘hearsay’ evidence, whereas the
professional judge knows that it is often quite unreliable. At trial, the prosecution
will attempt to lead incriminating evidence, and will simply ignore
exculpatory evidence, as this is counterproductive to its own case. Under
certain national systems, the prosecution must provide the defence with
any favourable evidence that is in its possession, but the obligation rarely
goes any further. When the prosecution’s case is complete, if the evidence is
insufficient to establish guilt, the defence may move to dismiss the charges.
Where the evidence appears sufficient, the defence may then decide to reply
with its own evidence, whose admissibility is subject to the same rules as for
the prosecution.
Under the inquisitorial system, instructing magistrates prepare the case
by collecting evidence and interviewing witnesses, often unbeknownst to
the accused. The instructing magistrate is a judicial official, who is bound
to complete the job with neutrality and impartiality, and who must collect
evidence of both guilt and innocence. The evidence compiled, including
witness statements, is then filed in court prior to the start of the trial itself.
Usually, the trial becomes more adversarial at this point, because the prosecution
and the defence each participate in the judicial debates. The trial
judges may then assess the evidence in the case file, or, at the request of one
or other of the parties or on their own initiative, require that additional evidence
be presented. Rules of evidence are not nearly as technical under the
inquisitorial as under the adversarial system, mainly because the evidence
3 Mireille Delmas-Marty, Pour un droit commun, Paris: Editions du Seuil, 1994.