Part Five
PRE-TRIAL PROCEEDINGS
Section 1: Indictments Rule 47: Submission of Indictment by the Prosecutor
(A) An indictment, submitted in accordance with the following procedure, shall be reviewed by a Judge designated in accordance with Rule 28 for this purpose.
(B) The Prosecutor, if satisfied in the course of an investigation that there is sufficient evidence to provide reasonable grounds for believing that a suspect has committed a crime within the jurisdiction of the Tribunal, shall prepare and forward to the Registrar an indictment for confirmation by a Judge, together with supporting material.
(C) The indictment shall set forth the name and particulars of the suspect, and a concise statement of the facts of the case and of the crime with which the suspect is charged.
(D) The Registrar shall forward the indictment and accompanying material to the designated Judge, who will inform the Prosecutor of the scheduled date for review of the indictment.
(E) The reviewing Judge shall examine each of the counts in the indictment, and any supporting materials the Prosecutor may provide, to determine, applying the standard set forth in Article 18 of the Statute, whether a case exists against the suspect.
(F) The reviewing Judge may:
(i) Request the Prosecutor to present additional material in support of any or all counts, or to take any further measures which appear appropriate;
(ii) Confirm each count;
(iii) Dismiss each count; or
(iv) adjourn the review so as to give the Prosecutor the opportunity to modify the indictment.
(G) The indictment as confirmed by the Judge shall be retained by the Registrar, who shall prepare certified copies bearing the seal of the Tribunal. If the accused does not understand either of the official languages of the Tribunal and if the language understood is known to the Registrar, a translation of the indictment in that language shall also be prepared, and a copy of the translation attached to each certified copy of the indictment.
(H) Upon confirmation of any or all counts in the indictment:
(i) The Judge may issue an arrest warrant, in accordance with Sub?Rule 55 (A), and any orders as provided in Article 19 of the Statute; and
(ii) The suspect shall have the status of an accused.
(I) The dismissal of a count in an indictment shall not preclude the Prosecutor from subsequently bringing an amended indictment based on the acts underlying that count if supported by additional evidence.
Rule 48: Joinder of Accused
Persons accused of the same or different crimes committed in the course of the same transaction may be jointly charged and tried.
Rule 48 bis: Joinder of Indictments
The Prosecutor may join confirmed indictments of persons accused of the same or different crimes committed in the course of the same transaction, for purpose of a joint trial, with leave granted by a Trial Chamber pursuant to Rule 73.
Rule 49: Joinder of Crimes
Two or more crimes may be joined in one indictment if the series of acts committed together form the same transaction, and the said crimes were committed by the same accused.
Rule 50: Amendment of Indictment
(A) The Prosecutor may amend an indictment, without prior leave, at any time before its confirmation, but thereafter, until the initial appearance of the accused before a Trial Chamber pursuant to Rule 62, only with leave of the Judge who confirmed it but, in exceptional circumstances, by leave of a Judge assigned by the President. At or after such initial appearance, an amendment of an indictment may only be made by leave granted by a Trial Chamber pursuant to Rule 73. If leave to amend is granted, Rule 47 (G) and Rule 53 bis apply mutatis mutandis to the amended indictment.
(B) If the amended indictment includes new charges and the accused has already appeared before a Trial Chamber in accordance with Rule 62, a further appearance shall be held as soon as practicable to enable the accused to enter a plea on the new charges.
(C) The accused shall have a further period of thirty days in which to file preliminary motions pursuant to Rule 72 in respect of the new charges.
Rule 51: Withdrawal of Indictment
(A) The Prosecutor may withdraw an indictment, without prior leave, at any time before its confirmation, but thereafter, until the initial appearance of the accused before a Trial Chamber pursuant to Rule 62, only with leave of the Judge who confirmed it but, in exceptional circumstances, by leave of a Judge assigned by the President. At or after such initial appearance an indictment may only be withdrawn by leave granted by a Trial Chamber pursuant to Rule 73.
(B) The withdrawal of the indictment shall be promptly notified to the suspect or the accused and to the counsel of the suspect or accused.
Rule 52: Public Character of Indictment
Subject to Rule 53, upon confirmation by a Judge of a Trial Chamber, the indictment shall be made public.
Rule 53: Non-disclosure
(A) In exceptional circumstances, a Judge or a Trial Chamber may, in the interests of justice, order the non-disclosure to the public of any documents or information until further order.
(B) When confirming an indictment the Judge may, in consultation with the Prosecutor, order that there be no public disclosure of the indictment until it is served on the accused, or, in the case of joint accused, on all the accused.
(C) A Judge or Trial Chamber may, in consultation with the Prosecutor, also order that there be no disclosure of an indictment, or part thereof, or of all or any part of any particular document or information, if satisfied that the making of such an order is required to give effect to a provision of the Rules, to protect confidential information obtained by the Prosecutor, or is otherwise in the interests of justice.
Rule 53 bis: Service of Indictment
(A) Service of the indictment shall be effected personally on the accused at the time the accused is taken into the custody of the Tribunal or as soon as possible thereafter.
(B) Personal service of an indictment on the accused is effected by giving the accused a copy of the indictment certified in accordance with Rule 47 (G).
Section 2: Orders and Warrants Rule 54: General Provision
At the request of either party or proprio motu, a Judge or a Trial Chamber may issue such orders, summonses, subpoenas, warrants and transfer orders as may be necessary for the purposes of an investigation or for the preparation or conduct of the trial.
Rule 55: Execution of Arrest Warrants
(A) A warrant of arrest shall be signed by a Judge and shall bear the seal of the Tribunal. It shall be accompanied by a copy of the indictment, and a statement of the rights of the accused. These rights include those set forth in Article 20 of the Statute, and in Rules 42 and 43 mutatis mutandis, together with the right of the accused to remain silent, and to be cautioned that any statement he makes shall be recorded and may be used in evidence.
(B) The Registrar shall transmit to the national authorities of the State in whose territory or under whose jurisdiction or control the accused resides, or was last known to be, three sets of certified copies of:
(i) The warrant for arrest of the accused and an order for his surrender to the Tribunal;
(ii) The confirmed indictment;
(iii) A statement of the rights of the accused; and if necessary a translation thereof in a language understood by the accused.
(C) The Registrar shall instruct the said authorities to:
(i) Cause the arrest of the accused and his transfer to the Tribunal;
(ii) Serve a set of the aforementioned documents upon the accused;
(iii) Cause the documents to be read to the accused in a language understood by him and to caution him as to his rights in that language; and
(iv) Return one set of the documents together with proof of service, to the Tribunal.
(D) When an arrest warrant issued by the Tribunal is executed, a member of the Prosecutor's Office may be present as from the time of arrest.
Rule 56: Cooperation of States
The State to which a warrant of arrest or a transfer order for a witness is transmitted shall act promptly and with all due diligence to ensure proper and effective execution thereof, in accordance with Article 28 of the Statute.
Rule 57: Procedure after Arrest
Upon the arrest of the accused, the State concerned shall detain him, and shall promptly notify the Registrar. The transfer of the accused to the seat of the Tribunal, or to such other place as the Bureau may decide, after consultation with the Prosecutor and the Registrar, shall be arranged by the State authorities concerned, in liaison with the authorities of the host country and the Registrar.
Rule 58: National Extradition Provisions
The obligations laid down in Article 28 of the Statute shall prevail over any legal impediment to the surrender or transfer of the accused or of a witness to the Tribunal which may exist under the national law or extradition treaties of the State concerned.
Rule 59: Failure to Execute a Warrant of Arrest or Transfer Order
(A) Where the State to which a warrant of arrest or transfer order has been transmitted has been unable to execute the warrant of arrest or transfer order, it shall report forthwith its inability to the Registrar, and the reasons therefore.
(B) If, within a reasonable time after the warrant of arrest or transfer order has been transmitted to the State, no report is made on action taken, this shall be deemed a failure to execute the warrant of arrest or transfer order and the Tribunal, through the President, may notify the Security Council accordingly.
Rule 60: Publication of Indictment
At the request of the Prosecutor, a form of advertisement shall be transmitted by the Registrar to the national authorities of any State or States, for publication in newspapers or for broadcast via radio, transmission via Internet or television, notifying publicly the existence of an indictment and calling upon the accused to surrender to the Tribunal and inviting any person with information as to the whereabouts of the accused to communicate that information to the Tribunal.
Rule 61: Procedure in Case of Failure to Execute a Warrant of Arrest
(A) If, within a reasonable time, a warrant of arrest has not been executed, and personal service of the indictment has consequently not been effected, the Judge who confirmed the indictment shall invite the Prosecutor to report on the measures taken. When the Judge is satisfied that:
(i) The Registrar and the Prosecutor have taken all reasonable steps to secure the arrest of the accused, including recourse to the appropriate authorities of the State in whose territory or under whose jurisdiction and control the accused to be served resides or was last known to be; and
(ii) If the whereabouts of the accused are unknown, the Prosecutor and the Registrar have taken all reasonable steps to ascertain those whereabouts, including by seeking publication of advertisement pursuant to Rule 60, the Judge shall order that the indictment be submitted by the Prosecutor to his Trial Chamber.
(B) Upon obtaining such an order the Prosecutor shall submit the indictment to the Trial Chamber in open court, together with all the evidence that was before the Judge who initially confirmed the indictment and any other evidence submitted to him after confirmation of the indictment. The Prosecutor may also call before the Trial Chamber and examine any witness whose statement has been submitted to the confirming Judge.
(C) If the Trial Chamber is satisfied on that evidence, together with such additional evidence as the Prosecutor may tender, that there are reasonable grounds for believing that the accused has committed all or any of the crimes charged in the indictment, it shall so determine. The Trial Chamber shall have the relevant parts of the indictment read out by the Prosecutor together with an account of the efforts to effect service referred to in Sub-Rule (A) above.
(D) The Trial Chamber shall also issue an international arrest warrant in respect of the accused which shall be transmitted to all States. Upon request by the Prosecutor or proprio motu, after having heard the Prosecutor, the Trial Chamber may order a State or States to adopt provisional measures to freeze the assets of the accused, without prejudice to the rights of third parties.
(E) If, during the hearing, the Prosecutor satisfies the Trial Chamber that the failure to effect personal service of the indictment was due in whole or in part to a failure or refusal of a State to co-operate with the Tribunal in accordance with Article 28 of the Statute, the Trial Chamber shall so certify. After consulting the Presiding Judges of the Chambers, the President shall notify the Security Council thereof in such manner as he thinks fit.
Rule 62: Initial Appearance of Accused
(A) Upon his transfer to the Tribunal, the accused shall be brought before a Trial Chamber or a Judge thereof without delay, and shall be formally charged. The Trial Chamber or the Judge shall:
(i) Satisfy itself or himself that the right of the accused to counsel is respected;
(ii) Read or have the indictment read to the accused in a language he speaks and understands, and satisfy itself or himself that the accused understands the indictment;
(iii) Call upon the accused to enter a plea of guilty or not guilty on each count; should the accused fail to do so, enter a plea of not guilty on his behalf;
(iv) In case of a plea of not guilty, instruct the Registrar to set a date for trial;
(v) In case of a plea of guilty:
(a ) if before a Judge, shall refer the plea to the Trial Chamber so that it may act in accordance with Rule 62 (B); or
(b ) if before the Trial Chamber, act in accordance with Rule 62 (B);
(B) If an accused pleads guilty in accordance with Rule 62 (A)(v), or requests to change his plea to guilty, the Trial Chamber shall satisfy itself that the guilty plea:
(i) is made freely and voluntarily;
(ii) is an informed plea;
(iii) is unequivocal; and
( iv) is based on sufficient facts for the crime and accused's participation in it, either on the basis of independent indicia or of lack of any material disagreement between the parties about the facts of the case.
Thereafter the Trial Chamber may enter a finding of guilt and instruct the Registrar to set a date for the sentencing hearing.
Rule 63: Questioning of the Accused
(A) Questioning by the Prosecutor of an accused, including after the initial appearance, shall not proceed without the presence of counsel unless the accused has voluntarily and expressly agreed to proceed without counsel present. If the accused subsequently expresses a desire to have counsel, questioning shall thereupon cease, and shall only resume when the accused's counsel is present.
(B) The questioning, including any waiver of the right to counsel, shall be audio-recorded or video-recorded in accordance with the procedure provided for in Rule 43. The Prosecutor shall at the beginning of the questioning caution the accused in accordance with Rule 42 (A)(iii).
Rule 64: Detention on Remand
Upon his transfer to the Tribunal, the accused shall be detained in facilities provided by the host country or by another country. The President may, on the application of a party, request modification of the conditions of detention of an accused.
Rule 65: Provisional Release
(A) Once detained, an accused may not be provisionally released except upon an order of a Trial Chamber.
(B) Provisional release may be ordered by a Trial Chamber only in exceptional circumstances, after hearing the host country and only if it is satisfied that the accused will appear for trial and, if released, will not pose a danger to any victim, witness or other person.
(C) The Trial Chamber may impose such conditions upon the provisional release of the accused as it may determine appropriate, including the execution of a bail bond and the observance of such conditions as are necessary to ensure the presence of the accused at trial and the protection of others.
(D) Any decision rendered under this Rule shall be subject to appeal in cases where leave is granted by a bench of three Judges of the Appeals Chamber, upon good cause being shown. Applications for leave to appeal shall be filed within seven days of the impugned decision.
(E) If necessary, the Trial Chamber may issue a warrant of arrest to secure the presence of an accused who has been provisionally released or is for any other reason at large. The provisions of Section 2 of Part Five shall apply mutatis mutandis.
Rule 65 bis: Status Conferences
A status conference may be convened by a Trial Chamber or a Judge thereof. Its purpose is to organize exchanges between the parties so as to ensure expeditious trial proceedings.
Section 3: Production of Evidence Rule 66: Disclosure of materials by the Prosecutor
Subject to the provisions of Rules 53 and 69;
(A) The Prosecutor shall disclose to the Defence:
i) Within 30 days of the initial appearance of the accused copies of the supporting material which accompanied the indictment when confirmation was sought as well as all prior statements obtained by the Prosecutor from the accused, and
ii) No later than 60 days before the date set for trial, copies of the statements of all witnesses whom the Prosecutor intends to call to testify at trial; upon good cause shown a Trial Chamber may order that copies of the statements of additional prosecution witnesses be made available to the defence within a prescribed time.
(B) At the request of the defence, the Prosecutor shall, subject to Sub-Rule (C), permit the defence to inspect any books, documents, photographs and tangible objects in his custody or control, which are material to the preparation of the defence, or are intended for use by the Prosecutor as evidence at trial or were obtained from or belonged to the accused.
(C) Where information or materials are in the possession of the Prosecutor, the disclosure of which may prejudice further or ongoing investigations, or for any other reasons may be contrary to the public interest or affect the security interests of any State, the Prosecutor may apply to the Trial Chamber sitting in camera to be relieved from the obligation to disclose pursuant to Sub-Rule (A) and (B). When making such an application the Prosecutor shall provide the Trial Chamber, and only the Trial Chamber, with the information or materials that are sought to be kept confidential.
Rule 67: Reciprocal Disclosure of Evidence
Subject to the provisions of Rules 53 and 69:
(A) As early as reasonably practicable and in any event prior to the commencement of the trial:
(i) The Prosecutor shall notify the defence of the names of the witnesses that he intends to call to establish the guilt of the accused and in rebuttal of any defence plea of which the Prosecutor has received notice in accordance with Sub-Rule (ii) below;
(ii) The defence shall notify the Prosecutor of its intent to enter:
(a) The defence of alibi; in which case the notification shall specify the place or places at which the accused claims to have been present at the time of the alleged crime and the names and addresses of witnesses and any other evidence upon which the accused intends to rely to establish the alibi;
(b) Any special defence, including that of diminished or lack of mental responsibility; in which case the notification shall specify the names and addresses of witnesses and any other evidence upon which the accused intends to rely to establish the special defence.
(B) Failure of the defence to provide such notice under this Rule shall not limit the right of the accused to rely on the above defences.
(C) If the defence makes a request pursuant to Rule 66 (B), the Prosecutor shall in turn be entitled to inspect any books, documents, photographs and tangible objects, which are within the custody or control of the defence and which it intends to use as evidence at the trial.
(D) If either party discovers additional evidence or information or materials which should have been produced earlier pursuant to the Rules, that party shall promptly notify the other party and the Trial Chamber of the existence of the additional evidence or information or materials.
Rule 68: Disclosure of Exculpatory Evidence
The Prosecutor shall, as soon as practicable, disclose to the defence the existence of evidence known to the Prosecutor which in any way tends to suggest the innocence or mitigate the guilt of the accused or may affect the credibility of prosecution evidence.
Rule 69: Protection of Victims and Witnesses
(A) In exceptional circumstances, either of the parties may apply to a Trial Chamber to order the non-disclosure of the identity of a victim or witness who may be in danger or at risk, until the Chamber decides otherwise.
(B) In the determination of protective measures for victims and witnesses, the Trial Chamber may consult the Victims and Witnesses Support Unit.
(C) Subject to Rule 75, the identity of the victim or witness shall be disclosed in sufficient time prior to the trial to allow adequate time for preparation of the prosecution and the defence.
Rule 70: Matters not Subject to Disclosure
(A) Notwithstanding the
provisions of Rules 66 and 67, reports, memoranda, or other internal documents
prepared by a party, its assistants or representatives in connection with the
investigation or preparation of the case, are not subject to disclosure or notification
under the aforementioned provisions.
(B) If the Prosecutor is in possession of information which has been provided to him on a confidential basis and which has been used solely for the purpose of generating new evidence, that initial information and its origin shall not be disclosed by the Prosecutor without the consent of the person or entity providing the initial information and shall in any event not be given in evidence without prior disclosure to the accused.
(C) If, after obtaining the consent of the person or entity providing information under this Rule, the Prosecutor elects to present as evidence any testimony, document or other material so provided, the Trial Chamber, notwithstanding Rule 98, may not order either party to produce additional evidence received from the person or entity providing the initial information, nor may the Trial Chamber for the purpose of obtaining such additional evidence itself summon that person or a representative of that entity as a witness or order their attendance.
(D) If the Prosecutor calls as a witness the person providing or a representative of the entity providing information under this Rule, the Trial Chamber may not compel the witness to answer any question the witness declines to answer on grounds of confidentiality.
(E) The right of the accused to challenge the evidence presented by the Prosecution shall remain unaffected subject only to limitations contained in Sub-Rules (C) and (D).
(F) Nothing in Sub-Rule (C) or (D) above shall affect a Trial Chamber's power under Rule89(C) to exclude evidence if its probative value is substantially outweighed by the need to ensure a fair trial.
Section 4: Depositions Rule 71: Depositions
(A) At the request of either party, a Trial Chamber may, in exceptional circumstances and in the interests of justice, order that a deposition be taken for use at trial, and appoint, for that purpose, a Presiding Officer.
(B) The motion for the taking of a deposition shall be in writing and shall indicate the name and whereabouts of the witness whose deposition is sought, the date and place at which the deposition is to be taken, a statement of the matters on which the person is to be examined, and of the exceptional circumstances justifying the taking of the deposition.
(C) If the motion is granted, the party at whose request the deposition is to be taken shall give reasonable notice to the other party, who shall have the right to attend the taking of the deposition and cross-examine the witness.
(D) The deposition may also be given by means of a video-conference.
(E) The Presiding Officer shall ensure that the deposition is taken in accordance with the Rules and that a record is made of the deposition, including cross-examination and objections raised by either party for decision by the Trial Chamber. He shall transmit the record to the Trial Chamber.
Section 5: Preliminary Motions Rule 72: Preliminary Motions
(A) Preliminary motions by either party shall be brought within thirty days following disclosure by the Prosecutor to the Defence of all the material envisaged by Rule 66 (A) (i).
(B) Preliminary motions by the accused are:
i) Objections based on lack of jurisdiction;
ii) Objections based on defects in the form of the indictment;
iii) Applications for severance of crimes joined in one indictment under Rule 49, or for separate trials under Rule 82 (B);
iv) objections based on the denial of request for assignment of counsel.
(C) The Trial Chamber shall dispose of preliminary motions in limine litis.
(D) Decisions on preliminary motions are without interlocutory appeal, save in the case of dismissal of an objection based on lack of jurisdiction, where an appeal will lie as of right.
(E) Notice of appeal envisaged in Sub-Rule (D) shall be filed within seven days from the impugned decision.
(F) Failure to comply with the time limits prescribed in this Rule shall constitute a waiver of the rights. The Trial Chamber may, however, grant relief from the waiver upon showing good cause.
(G) Objections to the form of the indictment, including an amended indictment, shall be raised by a party in one motion only, unless otherwise allowed by a Trial Chamber.
(H) For purposes of Rule 72(B)(i) and (D) an Aobjection based on lack of jurisdiction@ refers exclusively to a motion which challenges an indictment on the ground that it does not relate to:
(i ) any of the persons indicated in Articles 1, 5, 6 and 8 of the Statute;
( ii ) the territories indicated in Articles 1, 7 and 8 of the Statute;
( iii) the period indicated in Articles 1, 7, and 8 of the Statute, or(iv) any of the violations indicated in Articles 2, 3, 4 and 6 of the Statute.
(I) An appeal brought under Rule 72 (D) my not be proceeded with if a bench of three Judges of the Appeals Chamber, assigned by the presiding Judge of the Appeals Chamber, decides that the appeal is not capable of satisfying the requirements of paragraph (H), in which case the appeal shall be dismissed.
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