Goran Klemencic

Contact: goran_klemencicyahoo.com

The Admissibility of Evidence Obtained in Violation of Human Rights in the proceedings before the International Criminal Court

My research topic is a study of the different aspects of the admissibility of evidence obtained in violation of the Rome Statute and the internationally recognised human rights in the proceedings before the International Criminal Court (ICC). In particular, I seek to explore the rationale and the scope of possible application of the exclusionary rule as prescribed by Article 69(7) of the Rome Statute.

I argue that the ICC should adopt the rationale of the exclusionary rule as a necessary component of a fair process of adjudication: the exclusionary rule should be seen as a prescriptive rule, i.e. as a logical procedural sanction for statutory and human rights violations. Here it may be interpreted either as a right of the accused, or as a judicial remedy to protect the integrity of the criminal process itself, or both. I also call for its broad interpretation, which would embrace a modality of the "fruits of the poisonous tree" doctrine ( i.e. evidence obtained on the basis of inadmissible evidence).

However, there is a number of important theoretical and practical obstacles for the application of the exclusionary rule posed by the normative choices in the Rome Statute itself and the unique nature of the ICC as an international adjudication forum. There are "policy" consideration s - acquitting guilty parties because of excluding reliable material evidence; practical problems exists - arising from the unique position of the ICC which proceedings are remote from the source of evidence, have limited oversight over the collection of evidence, etc.

On the normative side, the Rome Statute is relatively hostile to the exclusionary rule. It favours reliability of evidence over the rights of the accused. It favours substantive truth over procedural fairness. According to the Statute no evidence is subject to mandatory exclusion. The admissibility of evidence lies in the discretion of the Court and is subject to a two-pronged test: a) the evidence must be obtained by means of a violation of the Rome Statute or internationally recognized human rights; b) admission of the evidence would be antithetical to and would seriously damage the integrity of the proceedings. The threshold for exclusion (especially the second part of the test) is obviously high.

In this respect, I intend to dissect the relevant elements of the ICC applicable law (Statute, RPE, principles and rules of international law etc.) which – while deriving from different models of criminal procedure –, have direct impact on the interpretation of Art. 69 (7). The unanswered questions are plenty.

Which rights of the accused under the Statute and which internationally recognised human rights can possibly be violated in the process of the collection of evidence ? In relation to the rights enumerated in the Statute the answer is not overly complicated.

It is different, however, with the term "internationally recognised human rights". How to identify them and how (if at all) do they regulate methods of obtaining evidence on which the Statute is silent?

Part of the answer to the above requires a comparative analysis of similar (and not so similar) modalities of the exclusionary rule as applied in some national legal systems. The selected legal systems of research will primarily include jurisdictions which had the most influence on the normative solutions provided in the Rome Statute (e.g. UK, USA, Canada, Germany, France and Italy ).

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