K. Vriend

Defending the 'undefendable'? Taking judicial notice of genocide

This chapter focuses on the phenomenon of taking judicial notice of adjudicated facts and facts of common knowledge, which is of increasing importance in the practice of the ad hoc Tribunals. It gives a brief outline of the position of the defense in international criminal proceedings. The chapter provides an overview of the practice of judicial notice in international criminal law, as it has developed in the law and practice of the ad hoc Tribunals. At the center of the chapter is a critical analysis of the ICTR Karemera decision, where the appeals chamber took judicial notice of genocide. The taking of judicial notice of adjudicated facts and facts of common knowledge is clearly an invention unique to international criminal tribunals. The most important contemporary international criminal tribunals, the ICTY, ICTR and ICC, are composed of three main organs, the Prosecutor, the judiciary and the Registrar. Keywords:ad hoc Tribunals; genocide; international criminal law; judicial notice; Karemera decision

Diversions, Shortcuts and the Concept of Fairness

This chapter assesses the applicability of human rights standards to diversions and shortcuts to proof. The case-law of the European Court of Human Rights provides the most authoritative interpretation of the concept of fairness in criminal proceedings. Fairness is regarded as a principle that underlies the enforcement of criminal law. This entails that fairness applies in case of the full criminal trial, when the case is diverted, and when a shortcut to proof is used. More specifically, the concept of fairness in criminal proceedings is rooted in the idea of participation. Proceedings may be called fair if the accused has been able to participate effectively in the handling of his case, either by way of a diversion or a shortcut to proof. Four aspects of participation in criminal proceedings were identified and discussed in detail: non-compulsion; informed involvement; the ability to challenge the evidence, and the right to a reasoned judgment. These four aspects were derived from the participatory model of proof, as described by legal scholars Jackson and Summers.

Why Fairness Matters

The aim of this study was to analyse how the concept of fairness regulates and limits the use of avoidance mechanisms in the enforcement of criminal law. The archetypical trial context was explored and functioned as the starting point of the analysis. Any derogation from this ideal type must be accounted for in terms of fairness. In the Introduction, a distinction was made between avoidance mechanisms that operate outside the trial context (the diversions) and those that operate within the trial context (the shortcuts to proof). They have in common that they infringe on the concept of the full criminal trial in which incriminating evidence is both presented and discussed or challenged. The avoidance mechanisms were derived from the Dutch and international criminal justice systems. Avoidance mechanisms can be discerned in all types of criminal cases, including the handling of minor offences as well as cases involving the most serious violations of (international) criminal law. The systems discussed provided for a good overview of manners to avoid the full criminal trial. They also show the great diversity of these avoidance mechanisms.

Avoiding a Full Criminal Trial: Evading Fairness?

In this chapter the diversions and shortcuts, described in the previous chapters, are critically evaluated in light of the participatory model of proof. Each diversion and shortcut is analysed with the four elements of the participatory model as guidelines: non-compulsion, informed involvement, the ability to challenge the evidence and the element of a reasoned judgment. The main question of the chapter is whether the accused is able to participate effectively when the full criminal trial is avoided.

Diversions and Shortcuts in Dutch Law of Criminal Procedure

In this chapter diversions and shortcuts to proof in the Dutch criminal justice system are discussed. First, the concept of a full criminal trial within the Dutch criminal justice system is explained. Three diversions are discussed: the punitive order, the transaction, and the conditional dismissal the characteristics of each diversion is discussed, as well as the procedural safeguards that exist in respect to each diversion. Finally, five shortcuts to proof are discussed in the context of the Dutch criminal justice system: facts of common knowledge, chain evidence, confessions, cases ad informandum, and appeal proceedings.

Diversions and Shortcuts in the Law of International Criminal Procedure

In this chapter diversions and shortcuts in international criminal proceedings are discussed. Two diversions are identified in the proceedings before the ICTY, ICTR, and ICC: the guilty plea and the admission of guilt. Four shortcuts to proof are discerned in international criminal proceedings: agreed facts, judicial notice of facts of common knowledge, judicial notice of adjudicated facts and documentary evidence, and appeal proceedings.

Full Criminal Proceedings in Decline

Full criminal proceedings are avoided on many occasions. Criminal cases may be diverted from the courts and handled in administrative procedures, cases may be handled solely by the prosecutor or they are handled in a simplified manner by the court. A distinction is made between diversions and shortcuts. Diversions are avoidance mechanisms that infringe upon the principle of nulla poena sine iudicio. Shortcuts to proof infringe upon the full criminal trial because they allow for an abbreviated presentation and discussion of the evidence in front of the trier of fact. Diversions and shortcuts, also referred to as avoidance mechanisms, have to comply with the notion of fairness in criminal proceedings. The notion of fairness is derived from the case-law of the European Court of Human Rights. This book examines avoidance mechanisms that infringe upon the ideal type of conducting full criminal proceedings in Dutch and international criminal proceedings.

Avoiding a full criminal trial

In modern societies, full criminal trials are avoided on many occasions. This thesis is concerned with mechanisms that either divert from or speed up the proceedings. Koen Vriend argues that the fair trial rights as established by the European Court of Human Rights (ECtHR) under Article 6 of the European Convention on Human Rights (ECHR) provide a normative framework that does not only apply in a full criminal trial, but that it can also be used for diverted and shortened proceedings. He shows that the concept of fairness - as derived from ECtHR case law - is a fundamental principle that underlies all criminal law enforcement. It provides for the appropriate framework to assess whether diverted or shortened proceedings are fair and legitimate.