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Corte penale internazionale - Statuto in lingua inglese Appunti scolastici Premium

La dispensa fa riferimento alle lezioni di Diritto Internazionale, tenute dalla Prof. ssa Alessandra Lanciotti nell'anno accademico 2011.
Il documento riporta il testo in inglese dello Statuto della Corte Penale Internazionale. Lo Statuto si compone delle seguenti parti: preambolo, istituzione... Vedi di più

Esame di Diritto Internazionale docente Prof. A. Lanciotti

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ESTRATTO DOCUMENTO

(b) Request the presence of and question persons being investigated, victims and

witnesses;

(c) Seek the cooperation of any State or intergovernmental organization or

arrangement in accordance with its respective competence and/or mandate;

(d) Enter into such arrangements or agreements, not inconsistent with this Statute, as

may be necessary to facilitate the cooperation of a State, intergovernmental organization or

person; (e) Agree not to disclose, at any stage of the proceedings, documents or information

that the Prosecutor obtains on the condition of confidentiality and solely for the purpose of

generating new evidence, unless the provider of the information consents; and

(f) Take necessary measures, or request that necessary measures be taken, to ensure

the confidentiality of information, the protection of any person or the preservation of evidence.

Article 55

Rights of persons during an investigation

1. In respect of an investigation under this Statute, a person:

(a) Shall not be compelled to incriminate himself or herself or to confess guilt;

(b) Shall not be subjected to any form of coercion, duress or threat, to torture or to any

other form of cruel, inhuman or degrading treatment or punishment;

(c) Shall, if questioned in a language other than a language the person fully

understands and speaks, have, free of any cost, the assistance of a competent interpreter and such

translations as are necessary to meet the requirements of fairness; and

(d) Shall not be subjected to arbitrary arrest or detention, and shall not be deprived of

his or her liberty except on such grounds and in accordance with such procedures as are

established in this Statute.

2. Where there are grounds to believe that a person has committed a crime within the

jurisdiction of the Court and that person is about to be questioned either by the Prosecutor, or by

national authorities pursuant to a request made under Part 9, that person shall also have the

following rights of which he or she shall be informed prior to being questioned:

(a) To be informed, prior to being questioned, that there are grounds to believe that he

or she has committed a crime within the jurisdiction of the Court;

(b) To remain silent, without such silence being a consideration in the determination of

guilt or innocence;

(c) To have legal assistance of the person’s choosing, or, if the person does not have

legal assistance, to have legal assistance assigned to him or her, in any case where the interests of

justice so require, and without payment by the person in any such case if the person does not have

sufficient means to pay for it; and

(d) To be questioned in the presence of counsel unless the person has voluntarily

waived his or her right to counsel. Article 56

Role of the Pre-Trial Chamber in relation to a unique investigative opportunity

1. (a) Where the Prosecutor considers an investigation to present a unique opportunity to

take testimony or a statement from a witness or to examine, collect or test evidence, which may

not be available subsequently for the purposes of a trial, the Prosecutor shall so inform the

Pre-Trial Chamber. 29

(b) In that case, the Pre-Trial Chamber may, upon request of the Prosecutor, take such

measures as may be necessary to ensure the efficiency and integrity of the proceedings and, in

particular, to protect the rights of the defence.

(c) Unless the Pre-Trial Chamber orders otherwise, the Prosecutor shall provide the

relevant information to the person who has been arrested or appeared in response to a summons in

connection with the investigation referred to in subparagraph (a), in order that he or she may be

heard on the matter.

2. The measures referred to in paragraph 1 (b) may include:

(a) Making recommendations or orders regarding procedures to be followed;

(b) Directing that a record be made of the proceedings;

(c) Appointing an expert to assist;

(d) Authorizing counsel for a person who has been arrested, or appeared before the

Court in response to a summons, to participate, or where there has not yet been such an arrest or

appearance or counsel has not been designated, appointing another counsel to attend and represent

the interests of the defence;

(e) Naming one of its members or, if necessary, another available judge of the Pre-

Trial or Trial Division to observe and make recommendations or orders regarding the collection

and preservation of evidence and the questioning of persons;

(f) Taking such other action as may be necessary to collect or preserve evidence.

3. (a) Where the Prosecutor has not sought measures pursuant to this article but the Pre-

Trial Chamber considers that such measures are required to preserve evidence that it deems would

be essential for the defence at trial, it shall consult with the Prosecutor as to whether there is good

reason for the Prosecutor’s failure to request the measures. If upon consultation, the Pre-Trial

Chamber concludes that the Prosecutor’s failure to request such measures is unjustified, the Pre-

Trial Chamber may take such measures on its own initiative.

(b) A decision of the Pre-Trial Chamber to act on its own initiative under this

paragraph may be appealed by the Prosecutor. The appeal shall be heard on an expedited basis.

4. The admissibility of evidence preserved or collected for trial pursuant to this article, or the

record thereof, shall be governed at trial by article 69, and given such weight as determined by the

Trial Chamber. Article 57

Functions and powers of the Pre-Trial Chamber

1. Unless otherwise provided in this Statute, the Pre-Trial Chamber shall exercise its

functions in accordance with the provisions of this article.

2. (a) Orders or rulings of the Pre-Trial Chamber issued under articles 15, 18, 19, 54,

paragraph 2, 61, paragraph 7, and 72 must be concurred in by a majority of its judges.

(b) In all other cases, a single judge of the Pre-Trial Chamber may exercise the

functions provided for in this Statute, unless otherwise provided for in the Rules of Procedure and

Evidence or by a majority of the Pre-Trial Chamber.

3. In addition to its other functions under this Statute, the Pre-Trial Chamber may:

(a) At the request of the Prosecutor, issue such orders and warrants as may be required

for the purposes of an investigation;

(b) Upon the request of a person who has been arrested or has appeared pursuant to a

summons under article 58, issue such orders, including measures such as those described in

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article 56, or seek such cooperation pursuant to Part 9 as may be necessary to assist the person in

the preparation of his or her defence;

(c) Where necessary, provide for the protection and privacy of victims and witnesses,

the preservation of evidence, the protection of persons who have been arrested or appeared in

response to a summons, and the protection of national security information;

(d) Authorize the Prosecutor to take specific investigative steps within the territory of

a State Party without having secured the cooperation of that State under Part 9 if, whenever

possible having regard to the views of the State concerned, the Pre-Trial Chamber has determined

in that case that the State is clearly unable to execute a request for cooperation due to the

unavailability of any authority or any component of its judicial system competent to execute the

request for cooperation under Part 9.

(e) Where a warrant of arrest or a summons has been issued under article 58, and

having due regard to the strength of the evidence and the rights of the parties concerned, as

provided for in this Statute and the Rules of Procedure and Evidence, seek the cooperation of

States pursuant to article 93, paragraph 1 (k), to take protective measures for the purpose of

forfeiture, in particular for the ultimate benefit of victims.

Article 58

Issuance by the Pre-Trial Chamber of a warrant of arrest or a summons to appear

1. At any time after the initiation of an investigation, the Pre-Trial Chamber shall, on the

application of the Prosecutor, issue a warrant of arrest of a person if, having examined the

application and the evidence or other information submitted by the Prosecutor, it is satisfied that:

(a) There are reasonable grounds to believe that the person has committed a crime

within the jurisdiction of the Court; and

(b) The arrest of the person appears necessary:

(i) To ensure the person’s appearance at trial,

(ii) To ensure that the person does not obstruct or endanger the investigation or

the court proceedings, or

(iii) Where applicable, to prevent the person from continuing with the

commission of that crime or a related crime which is within the jurisdiction

of the Court and which arises out of the same circumstances.

2. The application of the Prosecutor shall contain:

(a) The name of the person and any other relevant identifying information;

(b) A specific reference to the crimes within the jurisdiction of the Court which the

person is alleged to have committed;

(c) A concise statement of the facts which are alleged to constitute those crimes;

(d) A summary of the evidence and any other information which establish reasonable

grounds to believe that the person committed those crimes; and

(e) The reason why the Prosecutor believes that the arrest of the person is necessary.

3. The warrant of arrest shall contain:

(a) The name of the person and any other relevant identifying information;

(b) A specific reference to the crimes within the jurisdiction of the Court for which the

person’s arrest is sought; and

(c) A concise statement of the facts which are alleged to constitute those crimes. 31

4. The warrant of arrest shall remain in effect until otherwise ordered by the Court.

5. On the basis of the warrant of arrest, the Court may request the provisional arrest or the

arrest and surrender of the person under Part 9.

6. The Prosecutor may request the Pre-Trial Chamber to amend the warrant of arrest by

modifying or adding to the crimes specified therein. The Pre-Trial Chamber shall so amend the

warrant if it is satisfied that there are reasonable grounds to believe that the person committed the

modified or additional crimes.

7. As an alternative to seeking a warrant of arrest, the Prosecutor may submit an application

requesting that the Pre-Trial Chamber issue a summons for the person to appear. If the Pre-Trial

Chamber is satisfied that there are reasonable grounds to believe that the person committed the

crime alleged and that a summons is sufficient to ensure the person’s appearance, it shall issue the

summons, with or without conditions restricting liberty (other than detention) if provided for by

national law, for the person to appear. The summons shall contain:

(a) The name of the person and any other relevant identifying information;

(b) The specified date on which the person is to appear;

(c) A specific reference to the crimes within the jurisdiction of the Court which the

person is alleged to have committed; and

(d) A concise statement of the facts which are alleged to constitute the crime.

The summons shall be served on the person.

Article 59

Arrest proceedings in the custodial State

1. A State Party which has received a request for provisional arrest or for arrest and surrender

shall immediately take steps to arrest the person in question in accordance with its laws and the

provisions of Part 9.

2. A person arrested shall be brought promptly before the competent judicial authority in the

custodial State which shall determine, in accordance with the law of that State, that:

(a) The warrant applies to that person;

(b) The person has been arrested in accordance with the proper process; and

(c) The person’s rights have been respected.

3. The person arrested shall have the right to apply to the competent authority in the custodial

State for interim release pending surrender.

4. In reaching a decision on any such application, the competent authority in the custodial

State shall consider whether, given the gravity of the alleged crimes, there are urgent and

exceptional circumstances to justify interim release and whether necessary safeguards exist to

ensure that the custodial State can fulfil its duty to surrender the person to the Court. It shall not be

open to the competent authority of the custodial State to consider whether the warrant of arrest

was properly issued in accordance with article 58, paragraph 1 (a) and (b).

5. The Pre-Trial Chamber shall be notified of any request for interim release and shall make

recommendations to the competent authority in the custodial State. The competent authority in

the custodial State shall give full consideration to such recommendations, including any

recommendations on measures to prevent the escape of the person, before rendering its decision.

6. If the person is granted interim release, the Pre-Trial Chamber may request periodic

reports on the status of the interim release.

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7. Once ordered to be surrendered by the custodial State, the person shall be delivered to the

Court as soon as possible. Article 60

Initial proceedings before the Court

1. Upon the surrender of the person to the Court, or the person’s appearance before the Court

voluntarily or pursuant to a summons, the Pre-Trial Chamber shall satisfy itself that the person has

been informed of the crimes which he or she is alleged to have committed, and of his or her rights

under this Statute, including the right to apply for interim release pending trial.

2. A person subject to a warrant of arrest may apply for interim release pending trial. If the

Pre-Trial Chamber is satisfied that the conditions set forth in article 58, paragraph 1, are met, the

person shall continue to be detained. If it is not so satisfied, the Pre-Trial Chamber shall release the

person, with or without conditions.

3. The Pre-Trial Chamber shall periodically review its ruling on the release or detention of

the person, and may do so at any time on the request of the Prosecutor or the person. Upon such

review, it may modify its ruling as to detention, release or conditions of release, if it is satisfied that

changed circumstances so require.

4. The Pre-Trial Chamber shall ensure that a person is not detained for an unreasonable

period prior to trial due to inexcusable delay by the Prosecutor. If such delay occurs, the Court

shall consider releasing the person, with or without conditions.

5. If necessary, the Pre-Trial Chamber may issue a warrant of arrest to secure the presence of

a person who has been released. Article 61

Confirmation of the charges before trial

1. Subject to the provisions of paragraph 2, within a reasonable time after the person’s

surrender or voluntary appearance before the Court, the Pre-Trial Chamber shall hold a hearing to

confirm the charges on which the Prosecutor intends to seek trial. The hearing shall be held in the

presence of the Prosecutor and the person charged, as well as his or her counsel.

2. The Pre-Trial Chamber may, upon request of the Prosecutor or on its own motion, hold a

hearing in the absence of the person charged to confirm the charges on which the Prosecutor

intends to seek trial when the person has:

(a) Waived his or her right to be present; or

(b) Fled or cannot be found and all reasonable steps have been taken to secure his or

her appearance before the Court and to inform the person of the charges and that a hearing to

confirm those charges will be held.

In that case, the person shall be represented by counsel where the Pre-Trial Chamber

determines that it is in the interests of justice.

3. Within a reasonable time before the hearing, the person shall:

(a) Be provided with a copy of the document containing the charges on which the

Prosecutor intends to bring the person to trial; and

(b) Be informed of the evidence on which the Prosecutor intends to rely at the hearing.

The Pre-Trial Chamber may issue orders regarding the disclosure of information for the

purposes of the hearing.

4. Before the hearing, the Prosecutor may continue the investigation and may amend or

withdraw any charges. The person shall be given reasonable notice before the hearing of any

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amendment to or withdrawal of charges. In case of a withdrawal of charges, the Prosecutor shall

notify the Pre-Trial Chamber of the reasons for the withdrawal.

5. At the hearing, the Prosecutor shall support each charge with sufficient evidence to

establish substantial grounds to believe that the person committed the crime charged. The

Prosecutor may rely on documentary or summary evidence and need not call the witnesses

expected to testify at the trial.

6. At the hearing, the person may:

(a) Object to the charges;

(b) Challenge the evidence presented by the Prosecutor; and

(c) Present evidence.

7. The Pre-Trial Chamber shall, on the basis of the hearing, determine whether there is

sufficient evidence to establish substantial grounds to believe that the person committed each of

the crimes charged. Based on its determination, the Pre-Trial Chamber shall:

(a) Confirm those charges in relation to which it has determined that there is sufficient

evidence, and commit the person to a Trial Chamber for trial on the charges as confirmed;

(b) Decline to confirm those charges in relation to which it has determined that there is

insufficient evidence;

(c) Adjourn the hearing and request the Prosecutor to consider:

(i) Providing further evidence or conducting further investigation with respect

to a particular charge; or

(ii) Amending a charge because the evidence submitted appears to establish a

different crime within the jurisdiction of the Court.

8. Where the Pre-Trial Chamber declines to confirm a charge, the Prosecutor shall not be

precluded from subsequently requesting its confirmation if the request is supported by additional

evidence.

9. After the charges are confirmed and before the trial has begun, the Prosecutor may, with

the permission of the Pre-Trial Chamber and after notice to the accused, amend the charges. If the

Prosecutor seeks to add additional charges or to substitute more serious charges, a hearing under

this article to confirm those charges must be held. After commencement of the trial, the Prosecutor

may, with the permission of the Trial Chamber, withdraw the charges.

10. Any warrant previously issued shall cease to have effect with respect to any charges which

have not been confirmed by the Pre-Trial Chamber or which have been withdrawn by the

Prosecutor.

11. Once the charges have been confirmed in accordance with this article, the Presidency shall

constitute a Trial Chamber which, subject to paragraph 9 and to article 64, paragraph 4, shall be

responsible for the conduct of subsequent proceedings and may exercise any function of the Pre-

Trial Chamber that is relevant and capable of application in those proceedings.

PART 6. THE TRIAL

Article 62

Place of trial

Unless otherwise decided, the place of the trial shall be the seat of the Court.

34 Article 63

Trial in the presence of the accused

1. The accused shall be present during the trial.

2. If the accused, being present before the Court, continues to disrupt the trial, the Trial

Chamber may remove the accused and shall make provision for him or her to observe the trial and

instruct counsel from outside the courtroom, through the use of communications technology, if

required. Such measures shall be taken only in exceptional circumstances after other reasonable

alternatives have proved inadequate, and only for such duration as is strictly required.

Article 64

Functions and powers of the Trial Chamber

1. The functions and powers of the Trial Chamber set out in this article shall be exercised in

accordance with this Statute and the Rules of Procedure and Evidence.

2. The Trial Chamber shall ensure that a trial is fair and expeditious and is conducted with

full respect for the rights of the accused and due regard for the protection of victims and witnesses.

3. Upon assignment of a case for trial in accordance with this Statute, the Trial Chamber

assigned to deal with the case shall:

(a) Confer with the parties and adopt such procedures as are necessary to facilitate the

fair and expeditious conduct of the proceedings;

(b) Determine the language or languages to be used at trial; and

(c) Subject to any other relevant provisions of this Statute, provide for disclosure of

documents or information not previously disclosed, sufficiently in advance of the commencement

of the trial to enable adequate preparation for trial.

4. The Trial Chamber may, if necessary for its effective and fair functioning, refer

preliminary issues to the Pre-Trial Chamber or, if necessary, to another available judge of

the Pre-Trial Division.

5. Upon notice to the parties, the Trial Chamber may, as appropriate, direct that there be

joinder or severance in respect of charges against more than one accused.

6. In performing its functions prior to trial or during the course of a trial, the Trial Chamber

may, as necessary:

(a) Exercise any functions of the Pre-Trial Chamber referred to in article 61,

paragraph 11;

(b) Require the attendance and testimony of witnesses and production of documents

and other evidence by obtaining, if necessary, the assistance of States as provided in this Statute;

(c) Provide for the protection of confidential information;

(d) Order the production of evidence in addition to that already collected prior to the

trial or presented during the trial by the parties;

(e) Provide for the protection of the accused, witnesses and victims; and

(f) Rule on any other relevant matters.

7. The trial shall be held in public. The Trial Chamber may, however, determine that special

circumstances require that certain proceedings be in closed session for the purposes set forth in

article 68, or to protect confidential or sensitive information to be given in evidence.

8. (a) At the commencement of the trial, the Trial Chamber shall have read to the

accused the charges previously confirmed by the Pre-Trial Chamber. The Trial Chamber shall

35

satisfy itself that the accused understands the nature of the charges. It shall afford him or her the

opportunity to make an admission of guilt in accordance with article 65 or to plead not guilty.

(b) At the trial, the presiding judge may give directions for the conduct of proceedings,

including to ensure that they are conducted in a fair and impartial manner. Subject to any

directions of the presiding judge, the parties may submit evidence in accordance with the

provisions of this Statute.

9. The Trial Chamber shall have, inter alia, the power on application of a party or on its own

motion to:

(a) Rule on the admissibility or relevance of evidence; and

(b) Take all necessary steps to maintain order in the course of a hearing.

10. The Trial Chamber shall ensure that a complete record of the trial, which accurately

reflects the proceedings, is made and that it is maintained and preserved by the Registrar.

Article 65

Proceedings on an admission of guilt

1. Where the accused makes an admission of guilt pursuant to article 64, paragraph 8 (a), the

Trial Chamber shall determine whether:

(a) The accused understands the nature and consequences of the admission of guilt;

(b) The admission is voluntarily made by the accused after sufficient consultation with

defence counsel; and

(c) The admission of guilt is supported by the facts of the case that are contained in:

(i) The charges brought by the Prosecutor and admitted by the accused;

(ii) Any materials presented by the Prosecutor which supplement the charges

and which the accused accepts; and

(iii) Any other evidence, such as the testimony of witnesses, presented by the

Prosecutor or the accused.

2. Where the Trial Chamber is satisfied that the matters referred to in paragraph 1 are

established, it shall consider the admission of guilt, together with any additional evidence

presented, as establishing all the essential facts that are required to prove the crime to which the

admission of guilt relates, and may convict the accused of that crime.

3. Where the Trial Chamber is not satisfied that the matters referred to in paragraph 1 are

established, it shall consider the admission of guilt as not having been made, in which case it shall

order that the trial be continued under the ordinary trial procedures provided by this Statute and

may remit the case to another Trial Chamber.

4. Where the Trial Chamber is of the opinion that a more complete presentation of the facts

of the case is required in the interests of justice, in particular the interests of the victims, the Trial

Chamber may:

(a) Request the Prosecutor to present additional evidence, including the testimony of

witnesses; or

(b) Order that the trial be continued under the ordinary trial procedures provided by

this Statute, in which case it shall consider the admission of guilt as not having been made and

may remit the case to another Trial Chamber.

5. Any discussions between the Prosecutor and the defence regarding modification of the

charges, the admission of guilt or the penalty to be imposed shall not be binding on the Court.

36 Article 66

Presumption of innocence

1. Everyone shall be presumed innocent until proved guilty before the Court in accordance

with the applicable law.

2. The onus is on the Prosecutor to prove the guilt of the accused.

3. In order to convict the accused, the Court must be convinced of the guilt of the accused

beyond reasonable doubt. Article 67

Rights of the accused

1. In the determination of any charge, the accused shall be entitled to a public hearing, having

regard to the provisions of this Statute, to a fair hearing conducted impartially, and to the following

minimum guarantees, in full equality:

(a) To be informed promptly and in detail of the nature, cause and content of the

charge, in a language which the accused fully understands and speaks;

(b) To have adequate time and facilities for the preparation of the defence and to

communicate freely with counsel of the accused’s choosing in confidence;

(c) To be tried without undue delay;

(d) Subject to article 63, paragraph 2, to be present at the trial, to conduct the defence

in person or through legal assistance of the accused’s choosing, to be informed, if the accused does

not have legal assistance, of this right and to have legal assistance assigned by the Court in any

case where the interests of justice so require, and without payment if the accused lacks sufficient

means to pay for it;

(e) To examine, or have examined, the witnesses against him or her and to obtain the

attendance and examination of witnesses on his or her behalf under the same conditions as

witnesses against him or her. The accused shall also be entitled to raise defences and to present

other evidence admissible under this Statute;

(f) To have, free of any cost, the assistance of a competent interpreter and such

translations as are necessary to meet the requirements of fairness, if any of the proceedings of or

documents presented to the Court are not in a language which the accused fully understands and

speaks; (g) Not to be compelled to testify or to confess guilt and to remain silent, without such

silence being a consideration in the determination of guilt or innocence;

(h) To make an unsworn oral or written statement in his or her defence; and

(i) Not to have imposed on him or her any reversal of the burden of proof or any onus

of rebuttal.

2. In addition to any other disclosure provided for in this Statute, the Prosecutor shall, as soon

as practicable, disclose to the defence evidence in the Prosecutor’s possession or control which he

or she believes shows or tends to show the innocence of the accused, or to mitigate the guilt of the

accused, or which may affect the credibility of prosecution evidence. In case of doubt as to the

application of this paragraph, the Court shall decide.

Article 68

Protection of the victims and witnesses and their participation in the proceedings

1. The Court shall take appropriate measures to protect the safety, physical and psychological

well-being, dignity and privacy of victims and witnesses. In so doing, the Court shall have regard

37

to all relevant factors, including age, gender as defined in article 7, paragraph 3, and health, and

the nature of the crime, in particular, but not limited to, where the crime involves sexual or gender

violence or violence against children. The Prosecutor shall take such measures particularly during

the investigation and prosecution of such crimes. These measures shall not be prejudicial to or

inconsistent with the rights of the accused and a fair and impartial trial.

2. As an exception to the principle of public hearings provided for in article 67, the

Chambers of the Court may, to protect victims and witnesses or an accused, conduct any part of

the proceedings in camera or allow the presentation of evidence by electronic or other special

means. In particular, such measures shall be implemented in the case of a victim of sexual

violence or a child who is a victim or a witness, unless otherwise ordered by the Court, having

regard to all the circumstances, particularly the views of the victim or witness.

3. Where the personal interests of the victims are affected, the Court shall permit their views

and concerns to be presented and considered at stages of the proceedings determined to be

appropriate by the Court and in a manner which is not prejudicial to or inconsistent with the rights

of the accused and a fair and impartial trial. Such views and concerns may be presented by the

legal representatives of the victims where the Court considers it appropriate, in accordance with

the Rules of Procedure and Evidence.

4. The Victims and Witnesses Unit may advise the Prosecutor and the Court on appropriate

protective measures, security arrangements, counselling and assistance as referred to in article 43,

paragraph 6.

5. Where the disclosure of evidence or information pursuant to this Statute may lead to the

grave endangerment of the security of a witness or his or her family, the Prosecutor may, for the

purposes of any proceedings conducted prior to the commencement of the trial, withhold such

evidence or information and instead submit a summary thereof. Such measures shall be exercised

in a manner which is not prejudicial to or inconsistent with the rights of the accused and a fair and

impartial trial.

6. A State may make an application for necessary measures to be taken in respect of the

protection of its servants or agents and the protection of confidential or sensitive information.

Article 69

Evidence

1. Before testifying, each witness shall, in accordance with the Rules of Procedure and

Evidence, give an undertaking as to the truthfulness of the evidence to be given by that witness.

2. The testimony of a witness at trial shall be given in person, except to the extent provided

by the measures set forth in article 68 or in the Rules of Procedure and Evidence. The Court may

also permit the giving of viva voce (oral) or recorded testimony of a witness by means of video or

audio technology, as well as the introduction of documents or written transcripts, subject to this

Statute and in accordance with the Rules of Procedure and Evidence. These measures shall not be

prejudicial to or inconsistent with the rights of the accused.

3. The parties may submit evidence relevant to the case, in accordance with article 64. The

Court shall have the authority to request the submission of all evidence that it considers necessary

for the determination of the truth.

4. The Court may rule on the relevance or admissibility of any evidence, taking into account,

inter alia, the probative value of the evidence and any prejudice that such evidence may cause to a

fair trial or to a fair evaluation of the testimony of a witness, in accordance with the Rules of

Procedure and Evidence.

5. The Court shall respect and observe privileges on confidentiality as provided for in the

Rules of Procedure and Evidence.

38

6. The Court shall not require proof of facts of common knowledge but may take judicial

notice of them.

7. Evidence obtained by means of a violation of this Statute or internationally recognized

human rights shall not be admissible if:

(a) The violation casts substantial doubt on the reliability of the evidence; or

(b) The admission of the evidence would be antithetical to and would seriously

damage the integrity of the proceedings.

8. When deciding on the relevance or admissibility of evidence collected by a State, the

Court shall not rule on the application of the State’s national law.

Article 70

Offences against the administration of justice

1. The Court shall have jurisdiction over the following offences against its administration of

justice when committed intentionally:

(a) Giving false testimony when under an obligation pursuant to article 69,

paragraph 1, to tell the truth;

(b) Presenting evidence that the party knows is false or forged;

(c) Corruptly influencing a witness, obstructing or interfering with the attendance or

testimony of a witness, retaliating against a witness for giving testimony or destroying, tampering

with or interfering with the collection of evidence;

(d) Impeding, intimidating or corruptly influencing an official of the Court for the

purpose of forcing or persuading the official not to perform, or to perform improperly, his or her

duties; (e) Retaliating against an official of the Court on account of duties performed by that

or another official;

(f) Soliciting or accepting a bribe as an official of the Court in connection with his or

her official duties.

2. The principles and procedures governing the Court’s exercise of jurisdiction over offences

under this article shall be those provided for in the Rules of Procedure and Evidence. The

conditions for providing international cooperation to the Court with respect to its proceedings

under this article shall be governed by the domestic laws of the requested State.

3. In the event of conviction, the Court may impose a term of imprisonment not exceeding

five years, or a fine in accordance with the Rules of Procedure and Evidence, or both.

4. (a) Each State Party shall extend its criminal laws penalizing offences against the

integrity of its own investigative or judicial process to offences against the administration of

justice referred to in this article, committed on its territory, or by one of its nationals;

(b) Upon request by the Court, whenever it deems it proper, the State Party shall

submit the case to its competent authorities for the purpose of prosecution. Those authorities shall

treat such cases with diligence and devote sufficient resources to enable them to be conducted

effectively. 39

Article 71

Sanctions for misconduct before the Court

1. The Court may sanction persons present before it who commit misconduct, including

disruption of its proceedings or deliberate refusal to comply with its directions, by administrative

measures other than imprisonment, such as temporary or permanent removal from the courtroom,

a fine or other similar measures provided for in the Rules of Procedure and Evidence.

2. The procedures governing the imposition of the measures set forth in paragraph 1 shall be

those provided for in the Rules of Procedure and Evidence.

Article 72

Protection of national security information

1. This article applies in any case where the disclosure of the information or documents of a

State would, in the opinion of that State, prejudice its national security interests. Such cases

include those falling within the scope of article 56, paragraphs 2 and 3, article 61, paragraph 3,

article 64, paragraph 3, article 67, paragraph 2, article 68, paragraph 6, article 87, paragraph 6 and

article 93, as well as cases arising at any other stage of the proceedings where such disclosure may

be at issue.

2. This article shall also apply when a person who has been requested to give information or

evidence has refused to do so or has referred the matter to the State on the ground that disclosure

would prejudice the national security interests of a State and the State concerned confirms that it is

of the opinion that disclosure would prejudice its national security interests.

3. Nothing in this article shall prejudice the requirements of confidentiality applicable under

article 54, paragraph 3 (e) and (f), or the application of article 73.

4. If a State learns that information or documents of the State are being, or are likely to be,

disclosed at any stage of the proceedings, and it is of the opinion that disclosure would prejudice

its national security interests, that State shall have the right to intervene in order to obtain

resolution of the issue in accordance with this article.

5. If, in the opinion of a State, disclosure of information would prejudice its national security

interests, all reasonable steps will be taken by the State, acting in conjunction with the Prosecutor,

the defence or the Pre-Trial Chamber or Trial Chamber, as the case may be, to seek to resolve the

matter by cooperative means. Such steps may include:

(a) Modification or clarification of the request;

(b) A determination by the Court regarding the relevance of the information or

evidence sought, or a determination as to whether the evidence, though relevant, could be or has

been obtained from a source other than the requested State;

(c) Obtaining the information or evidence from a different source or in a different

form; or

(d) Agreement on conditions under which the assistance could be provided including,

among other things, providing summaries or redactions, limitations on disclosure, use of

in camera or ex parte proceedings, or other protective measures permissible under the Statute and

the Rules of Procedure and Evidence.

6. Once all reasonable steps have been taken to resolve the matter through cooperative

means, and if the State considers that there are no means or conditions under which the

information or documents could be provided or disclosed without prejudice to its national security

interests, it shall so notify the Prosecutor or the Court of the specific reasons for its decision, unless

a specific description of the reasons would itself necessarily result in such prejudice to the State’s

national security interests.

40

7. Thereafter, if the Court determines that the evidence is relevant and necessary for the

establishment of the guilt or innocence of the accused, the Court may undertake the following

actions:

(a) Where disclosure of the information or document is sought pursuant to a request

for cooperation under Part 9 or the circumstances described in paragraph 2, and the State has

invoked the ground for refusal referred to in article 93, paragraph 4:

(i) The Court may, before making any conclusion referred to in

subparagraph 7 (a) (ii), request further consultations for the purpose of

considering the State’s representations, which may include, as appropriate,

and ex parte;

hearings in camera

(ii) If the Court concludes that, by invoking the ground for refusal under

article 93, paragraph 4, in the circumstances of the case, the requested State

is not acting in accordance with its obligations under this Statute, the Court

may refer the matter in accordance with article 87, paragraph 7, specifying

the reasons for its conclusion; and

(iii) The Court may make such inference in the trial of the accused as to the

existence or non-existence of a fact, as may be appropriate in the

circumstances; or

(b) In all other circumstances:

(i) Order disclosure; or

(ii) To the extent it does not order disclosure, make such inference in the trial

of the accused as to the existence or non-existence of a fact, as may be

appropriate in the circumstances.

Article 73

Third-party information or documents

If a State Party is requested by the Court to provide a document or information in its

custody, possession or control, which was disclosed to it in confidence by a State,

intergovernmental organization or international organization, it shall seek the consent of the

originator to disclose that document or information. If the originator is a State Party, it shall either

consent to disclosure of the information or document or undertake to resolve the issue of

disclosure with the Court, subject to the provisions of article 72. If the originator is not a State

Party and refuses to consent to disclosure, the requested State shall inform the Court that it is

unable to provide the document or information because of a pre-existing obligation of

confidentiality to the originator. Article 74

Requirements for the decision

1. All the judges of the Trial Chamber shall be present at each stage of the trial and

throughout their deliberations. The Presidency may, on a case-by-case basis, designate, as

available, one or more alternate judges to be present at each stage of the trial and to replace a

member of the Trial Chamber if that member is unable to continue attending.

2. The Trial Chamber’s decision shall be based on its evaluation of the evidence and the

entire proceedings. The decision shall not exceed the facts and circumstances described in the

charges and any amendments to the charges. The Court may base its decision only on evidence

submitted and discussed before it at the trial.

3. The judges shall attempt to achieve unanimity in their decision, failing which the decision

shall be taken by a majority of the judges. 41

4. The deliberations of the Trial Chamber shall remain secret.

5. The decision shall be in writing and shall contain a full and reasoned statement of the Trial

Chamber’s findings on the evidence and conclusions. The Trial Chamber shall issue one decision.

When there is no unanimity, the Trial Chamber’s decision shall contain the views of the majority

and the minority. The decision or a summary thereof shall be delivered in open court.

Article 75

Reparations to victims

1. The Court shall establish principles relating to reparations to, or in respect of, victims,

including restitution, compensation and rehabilitation. On this basis, in its decision the Court may,

either upon request or on its own motion in exceptional circumstances, determine the scope and

extent of any damage, loss and injury to, or in respect of, victims and will state the principles on

which it is acting.

2. The Court may make an order directly against a convicted person specifying appropriate

reparations to, or in respect of, victims, including restitution, compensation and rehabilitation.

Where appropriate, the Court may order that the award for reparations be made through

the Trust Fund provided for in article 79.

3. Before making an order under this article, the Court may invite and shall take account of

representations from or on behalf of the convicted person, victims, other interested persons or

interested States.

4. In exercising its power under this article, the Court may, after a person is convicted of a

crime within the jurisdiction of the Court, determine whether, in order to give effect to an order

which it may make under this article, it is necessary to seek measures under article 93,

paragraph 1.

5. A State Party shall give effect to a decision under this article as if the provisions of

article 109 were applicable to this article.

6. Nothing in this article shall be interpreted as prejudicing the rights of victims under

national or international law. Article 76

Sentencing

1. In the event of a conviction, the Trial Chamber shall consider the appropriate sentence to

be imposed and shall take into account the evidence presented and submissions made during the

trial that are relevant to the sentence.

2. Except where article 65 applies and before the completion of the trial, the Trial Chamber

may on its own motion and shall, at the request of the Prosecutor or the accused, hold a further

hearing to hear any additional evidence or submissions relevant to the sentence, in accordance

with the Rules of Procedure and Evidence.

3. Where paragraph 2 applies, any representations under article 75 shall be heard during the

further hearing referred to in paragraph 2 and, if necessary, during any additional hearing.

4. The sentence shall be pronounced in public and, wherever possible, in the presence of the

accused.

42 PART 7. PENALTIES

Article 77

Applicable penalties

1. Subject to article 110, the Court may impose one of the following penalties on a person

convicted of a crime referred to in article 5 of this Statute:

(a) Imprisonment for a specified number of years, which may not exceed a maximum

of 30 years; or

(b) A term of life imprisonment when justified by the extreme gravity of the crime and

the individual circumstances of the convicted person.

2. In addition to imprisonment, the Court may order:

(a) A fine under the criteria provided for in the Rules of Procedure and Evidence;

(b) A forfeiture of proceeds, property and assets derived directly or indirectly from

that crime, without prejudice to the rights of bona fide third parties.

Article 78

Determination of the sentence

1. In determining the sentence, the Court shall, in accordance with the Rules of Procedure

and Evidence, take into account such factors as the gravity of the crime and the individual

circumstances of the convicted person.

2. In imposing a sentence of imprisonment, the Court shall deduct the time, if any, previously

spent in detention in accordance with an order of the Court. The Court may deduct any time

otherwise spent in detention in connection with conduct underlying the crime.

3. When a person has been convicted of more than one crime, the Court shall pronounce a

sentence for each crime and a joint sentence specifying the total period of imprisonment. This

period shall be no less than the highest individual sentence pronounced and shall not exceed

30 years imprisonment or a sentence of life imprisonment in conformity with article 77,

paragraph 1 (b). Article 79

Trust Fund

1. A Trust Fund shall be established by decision of the Assembly of States Parties for the

benefit of victims of crimes within the jurisdiction of the Court, and of the families of such

victims.

2. The Court may order money and other property collected through fines or forfeiture to be

transferred, by order of the Court, to the Trust Fund.

3. The Trust Fund shall be managed according to criteria to be determined by the Assembly

of States Parties. Article 80

Non-prejudice to national application of penalties and national laws

Nothing in this Part affects the application by States of penalties prescribed by their

national law, nor the law of States which do not provide for penalties prescribed in this Part. 43

PART 8. APPEAL AND REVISION

Article 81

Appeal against decision of acquittal or conviction or against sentence

1. A decision under article 74 may be appealed in accordance with the Rules of Procedure

and Evidence as follows:

(a) The Prosecutor may make an appeal on any of the following grounds:

(i) Procedural error,

(ii) Error of fact, or

(iii) Error of law;

(b) The convicted person, or the Prosecutor on that person’s behalf, may make an

appeal on any of the following grounds:

(i) Procedural error,

(ii) Error of fact,

(iii) Error of law, or

(iv) Any other ground that affects the fairness or reliability of the proceedings

or decision.

2. (a) A sentence may be appealed, in accordance with the Rules of Procedure and

Evidence, by the Prosecutor or the convicted person on the ground of disproportion between the

crime and the sentence;

(b) If on an appeal against sentence the Court considers that there are grounds on

which the conviction might be set aside, wholly or in part, it may invite the Prosecutor and the

convicted person to submit grounds under article 81, paragraph 1 (a) or (b), and may render a

decision on conviction in accordance with article 83;

(c) The same procedure applies when the Court, on an appeal against conviction only,

considers that there are grounds to reduce the sentence under paragraph 2 (a).

3. (a) Unless the Trial Chamber orders otherwise, a convicted person shall remain in

custody pending an appeal;

(b) When a convicted person’s time in custody exceeds the sentence of imprisonment

imposed, that person shall be released, except that if the Prosecutor is also appealing, the release

may be subject to the conditions under subparagraph (c) below;

(c) In case of an acquittal, the accused shall be released immediately, subject to the

following: (i) Under exceptional circumstances, and having regard, inter alia, to the

concrete risk of flight, the seriousness of the offence charged and the

probability of success on appeal, the Trial Chamber, at the request of the

Prosecutor, may maintain the detention of the person pending appeal;

(ii) A decision by the Trial Chamber under subparagraph (c) (i) may be

appealed in accordance with the Rules of Procedure and Evidence.

4. Subject to the provisions of paragraph 3 (a) and (b), execution of the decision or sentence

shall be suspended during the period allowed for appeal and for the duration of the appeal

proceedings.

44 Article 82

Appeal against other decisions

1. Either party may appeal any of the following decisions in accordance with the Rules of

Procedure and Evidence:

(a) A decision with respect to jurisdiction or admissibility;

(b) A decision granting or denying release of the person being investigated or

prosecuted;

(c) A decision of the Pre-Trial Chamber to act on its own initiative under article 56,

paragraph 3;

(d) A decision that involves an issue that would significantly affect the fair and

expeditious conduct of the proceedings or the outcome of the trial, and for which, in the opinion of

the Pre-Trial or Trial Chamber, an immediate resolution by the Appeals Chamber may materially

advance the proceedings.

2. A decision of the Pre-Trial Chamber under article 57, paragraph 3 (d), may be appealed

against by the State concerned or by the Prosecutor, with the leave of the Pre-Trial Chamber. The

appeal shall be heard on an expedited basis.

3. An appeal shall not of itself have suspensive effect unless the Appeals Chamber so orders,

upon request, in accordance with the Rules of Procedure and Evidence.

4. A legal representative of the victims, the convicted person or a bona fide owner of

property adversely affected by an order under article 75 may appeal against the order for

reparations, as provided in the Rules of Procedure and Evidence.

Article 83

Proceedings on appeal

1. For the purposes of proceedings under article 81 and this article, the Appeals Chamber

shall have all the powers of the Trial Chamber.

2. If the Appeals Chamber finds that the proceedings appealed from were unfair in a way that

affected the reliability of the decision or sentence, or that the decision or sentence appealed from

was materially affected by error of fact or law or procedural error, it may:

(a) Reverse or amend the decision or sentence; or

(b) Order a new trial before a different Trial Chamber.

For these purposes, the Appeals Chamber may remand a factual issue to the original Trial

Chamber for it to determine the issue and to report back accordingly, or may itself call evidence to

determine the issue. When the decision or sentence has been appealed only by the person

convicted, or the Prosecutor on that person’s behalf, it cannot be amended to his or her detriment.

3. If in an appeal against sentence the Appeals Chamber finds that the sentence is

disproportionate to the crime, it may vary the sentence in accordance with Part 7.

4. The judgement of the Appeals Chamber shall be taken by a majority of the judges and

shall be delivered in open court. The judgement shall state the reasons on which it is based. When

there is no unanimity, the judgement of the Appeals Chamber shall contain the views of the

majority and the minority, but a judge may deliver a separate or dissenting opinion on a question

of law.

5. The Appeals Chamber may deliver its judgement in the absence of the person acquitted or

convicted. 45

Article 84

Revision of conviction or sentence

1. The convicted person or, after death, spouses, children, parents or one person alive at the

time of the accused’s death who has been given express written instructions from the accused to

bring such a claim, or the Prosecutor on the person’s behalf, may apply to the Appeals Chamber to

revise the final judgement of conviction or sentence on the grounds that:

(a) New evidence has been discovered that:

(i) Was not available at the time of trial, and such unavailability was not

wholly or partially attributable to the party making application; and

(ii) Is sufficiently important that had it been proved at trial it would have been

likely to have resulted in a different verdict;

(b) It has been newly discovered that decisive evidence, taken into account at trial and

upon which the conviction depends, was false, forged or falsified;

(c) One or more of the judges who participated in conviction or confirmation of the

charges has committed, in that case, an act of serious misconduct or serious breach of duty of

sufficient gravity to justify the removal of that judge or those judges from office under article 46.

2. The Appeals Chamber shall reject the application if it considers it to be unfounded. If it

determines that the application is meritorious, it may, as appropriate:

(a) Reconvene the original Trial Chamber;

(b) Constitute a new Trial Chamber; or

(c) Retain jurisdiction over the matter,

with a view to, after hearing the parties in the manner set forth in the Rules of Procedure and

Evidence, arriving at a determination on whether the judgement should be revised.

Article 85

Compensation to an arrested or convicted person

1. Anyone who has been the victim of unlawful arrest or detention shall have an enforceable

right to compensation.

2. When a person has by a final decision been convicted of a criminal offence, and when

subsequently his or her conviction has been reversed on the ground that a new or newly

discovered fact shows conclusively that there has been a miscarriage of justice, the person who

has suffered punishment as a result of such conviction shall be compensated according to law,

unless it is proved that the non-disclosure of the unknown fact in time is wholly or partly

attributable to him or her.

3. In exceptional circumstances, where the Court finds conclusive facts showing that there

has been a grave and manifest miscarriage of justice, it may in its discretion award compensation,

according to the criteria provided in the Rules of Procedure and Evidence, to a person who has

been released from detention following a final decision of acquittal or a termination of the

proceedings for that reason.

46 PART 9. INTERNATIONAL COOPERATION AND JUDICIAL ASSISTANCE

Article 86

General obligation to cooperate

States Parties shall, in accordance with the provisions of this Statute, cooperate fully with

the Court in its investigation and prosecution of crimes within the jurisdiction of the Court.

Article 87

Requests for cooperation: general provisions

1. (a) The Court shall have the authority to make requests to States Parties for

cooperation. The requests shall be transmitted through the diplomatic channel or any other

appropriate channel as may be designated by each State Party upon ratification, acceptance,

approval or accession.

Subsequent changes to the designation shall be made by each State Party in accordance

with the Rules of Procedure and Evidence.

(b) When appropriate, without prejudice to the provisions of subparagraph (a),

requests may also be transmitted through the International Criminal Police Organization or any

appropriate regional organization.

2. Requests for cooperation and any documents supporting the request shall either be in or be

accompanied by a translation into an official language of the requested State or one of the working

languages of the Court, in accordance with the choice made by that State upon ratification,

acceptance, approval or accession.

Subsequent changes to this choice shall be made in accordance with the Rules of

Procedure and Evidence.

3. The requested State shall keep confidential a request for cooperation and any documents

supporting the request, except to the extent that the disclosure is necessary for execution of the

request.

4. In relation to any request for assistance presented under this Part, the Court may take such

measures, including measures related to the protection of information, as may be necessary to

ensure the safety or physical or psychological well-being of any victims, potential witnesses and

their families. The Court may request that any information that is made available under this Part

shall be provided and handled in a manner that protects the safety and physical or psychological

well-being of any victims, potential witnesses and their families.

5. (a) The Court may invite any State not party to this Statute to provide assistance under

this Part on the basis of an ad hoc arrangement, an agreement with such State or any other

appropriate basis.

(b) Where a State not party to this Statute, which has entered into an ad hoc

arrangement or an agreement with the Court, fails to cooperate with requests pursuant to any such

arrangement or agreement, the Court may so inform the Assembly of States Parties or, where the

Security Council referred the matter to the Court, the Security Council.

6. The Court may ask any intergovernmental organization to provide information or

documents. The Court may also ask for other forms of cooperation and assistance which may be

agreed upon with such an organization and which are in accordance with its competence or

mandate.

7. Where a State Party fails to comply with a request to cooperate by the Court contrary to

the provisions of this Statute, thereby preventing the Court from exercising its functions and

powers under this Statute, the Court may make a finding to that effect and refer the matter to the

47

Assembly of States Parties or, where the Security Council referred the matter to the Court, to the

Security Council. Article 88

Availability of procedures under national law

States Parties shall ensure that there are procedures available under their national law for

all of the forms of cooperation which are specified under this Part.

Article 89

Surrender of persons to the Court

1. The Court may transmit a request for the arrest and surrender of a person, together with the

material supporting the request outlined in article 91, to any State on the territory of which that

person may be found and shall request the cooperation of that State in the arrest and surrender of

such a person. States Parties shall, in accordance with the provisions of this Part and the procedure

under their national law, comply with requests for arrest and surrender.

2. Where the person sought for surrender brings a challenge before a national court on the

basis of the principle of ne bis in idem as provided in article 20, the requested State shall

immediately consult with the Court to determine if there has been a relevant ruling on

admissibility. If the case is admissible, the requested State shall proceed with the execution of the

request. If an admissibility ruling is pending, the requested State may postpone the execution of

the request for surrender of the person until the Court makes a determination on admissibility.

3. (a) A State Party shall authorize, in accordance with its national procedural law,

transportation through its territory of a person being surrendered to the Court by another State,

except where transit through that State would impede or delay the surrender.

(b) A request by the Court for transit shall be transmitted in accordance with

article 87. The request for transit shall contain:

(i) A description of the person being transported;

(ii) A brief statement of the facts of the case and their legal characterization;

and

(iii) The warrant for arrest and surrender;

(c) A person being transported shall be detained in custody during the period of

transit; (d) No authorization is required if the person is transported by air and no landing is

scheduled on the territory of the transit State;

(e) If an unscheduled landing occurs on the territory of the transit State, that State may

require a request for transit from the Court as provided for in subparagraph (b). The transit State

shall detain the person being transported until the request for transit is received and the transit is

effected, provided that detention for purposes of this subparagraph may not be extended beyond

96 hours from the unscheduled landing unless the request is received within that time.

4. If the person sought is being proceeded against or is serving a sentence in the requested

State for a crime different from that for which surrender to the Court is sought, the requested State,

after making its decision to grant the request, shall consult with the Court.

Article 90

Competing requests

1. A State Party which receives a request from the Court for the surrender of a person under

article 89 shall, if it also receives a request from any other State for the extradition of the same

48

person for the same conduct which forms the basis of the crime for which the Court seeks the

person’s surrender, notify the Court and the requesting State of that fact.

2. Where the requesting State is a State Party, the requested State shall give priority to the

request from the Court if:

(a) The Court has, pursuant to article 18 or 19, made a determination that the case in

respect of which surrender is sought is admissible and that determination takes into account the

investigation or prosecution conducted by the requesting State in respect of its request for

extradition; or

(b) The Court makes the determination described in subparagraph (a) pursuant to the

requested State’s notification under paragraph 1.

3. Where a determination under paragraph 2 (a) has not been made, the requested State may,

at its discretion, pending the determination of the Court under paragraph 2 (b), proceed to deal

with the request for extradition from the requesting State but shall not extradite the person until the

Court has determined that the case is inadmissible. The Court’s determination shall be made on an

expedited basis.

4. If the requesting State is a State not Party to this Statute the requested State, if it is not

under an international obligation to extradite the person to the requesting State, shall give priority

to the request for surrender from the Court, if the Court has determined that the case is admissible.

5. Where a case under paragraph 4 has not been determined to be admissible by the Curt, the

requested State may, at its discretion, proceed to deal with the request for extradition from the

requesting State.

6. In cases where paragraph 4 applies except that the requested State is under an existing

international obligation to extradite the person to the requesting State not Party to this Statute, the

requested State shall determine whether to surrender the person to the Court or extradite the

person to the requesting State. In making its decision, the requested State shall consider all the

relevant factors, including but not limited to:

(a) The respective dates of the requests;

(b) The interests of the requesting State including, where relevant, whether the crime

was committed in its territory and the nationality of the victims and of the person sought; and

(c) The possibility of subsequent surrender between the Court and the requesting

State.

7. Where a State Party which receives a request from the Court for the surrender of a person

also receives a request from any State for the extradition of the same person for conduct other than

that which constitutes the crime for which the Court seeks the person’s surrender:

(a) The requested State shall, if it is not under an existing international obligation to

extradite the person to the requesting State, give priority to the request from the Court;

(b) The requested State shall, if it is under an existing international obligation to

extradite the person to the requesting State, determine whether to surrender the person to the Court

or to extradite the person to the requesting State. In making its decision, the requested State shall

consider all the relevant factors, including but not limited to those set out in paragraph 6, but shall

give special consideration to the relative nature and gravity of the conduct in question.

8. Where pursuant to a notification under this article, the Court has determined a case to be

inadmissible, and subsequently extradition to the requesting State is refused, the requested State

shall notify the Court of this decision. 49

Article 91

Contents of request for arrest and surrender

1. A request for arrest and surrender shall be made in writing. In urgent cases, a request may

be made by any medium capable of delivering a written record, provided that the request shall be

confirmed through the channel provided for in article 87, paragraph 1 (a).

2. In the case of a request for the arrest and surrender of a person for whom a warrant of

arrest has been issued by the Pre-Trial Chamber under article 58, the request shall contain or be

supported by:

(a) Information describing the person sought, sufficient to identify the person, and

information as to that person’s probable location;

(b) A copy of the warrant of arrest; and

(c) Such documents, statements or information as may be necessary to meet the

requirements for the surrender process in the requested State, except that those requirements

should not be more burdensome than those applicable to requests for extradition pursuant to

treaties or arrangements between the requested State and other States and should, if possible, be

less burdensome, taking into account the distinct nature of the Court.

3. In the case of a request for the arrest and surrender of a person already convicted, the

request shall contain or be supported by:

(a) A copy of any warrant of arrest for that person;

(b) A copy of the judgement of conviction;

(c) Information to demonstrate that the person sought is the one referred to in the

judgement of conviction; and

(d) If the person sought has been sentenced, a copy of the sentence imposed and, in

the case of a sentence for imprisonment, a statement of any time already served and the time

remaining to be served.

4. Upon the request of the Court, a State Party shall consult with the Court, either generally

or with respect to a specific matter, regarding any requirements under its national law that may

apply under paragraph 2 (c). During the consultations, the State Party shall advise the Court of the

specific requirements of its national law. Article 92

Provisional arrest

1. In urgent cases, the Court may request the provisional arrest of the person sought, pending

presentation of the request for surrender and the documents supporting the request as specified in

article 91.

2. The request for provisional arrest shall be made by any medium capable of delivering a

written record and shall contain:

(a) Information describing the person sought, sufficient to identify the person, and

information as to that person’s probable location;

(b) A concise statement of the crimes for which the person’s arrest is sought and of the

facts which are alleged to constitute those crimes, including, where possible, the date and location

of the crime;

(c) A statement of the existence of a warrant of arrest or a judgement of conviction

against the person sought; and

(d) A statement that a request for surrender of the person sought will follow.

50

3. A person who is provisionally arrested may be released from custody if the requested State

has not received the request for surrender and the documents supporting the request as specified in

article 91 within the time limits specified in the Rules of Procedure and Evidence. However, the

person may consent to surrender before the expiration of this period if permitted by the law of the

requested State. In such a case, the requested State shall proceed to surrender the person to the

Court as soon as possible.

4. The fact that the person sought has been released from custody pursuant to paragraph 3

shall not prejudice the subsequent arrest and surrender of that person if the request for surrender

and the documents supporting the request are delivered at a later date.

Article 93

Other forms of cooperation

1. States Parties shall, in accordance with the provisions of this Part and under procedures of

national law, comply with requests by the Court to provide the following assistance in relation to

investigations or prosecutions:

(a) The identification and whereabouts of persons or the location of items;

(b) The taking of evidence, including testimony under oath, and the production of

evidence, including expert opinions and reports necessary to the Court;

(c) The questioning of any person being investigated or prosecuted;

(d) The service of documents, including judicial documents;

(e) Facilitating the voluntary appearance of persons as witnesses or experts before the

Court; (f) The temporary transfer of persons as provided in paragraph 7;

(g) The examination of places or sites, including the exhumation and examination of

grave sites;

(h) The execution of searches and seizures;

(i) The provision of records and documents, including official records and

documents;

(j) The protection of victims and witnesses and the preservation of evidence;

(k) The identification, tracing and freezing or seizure of proceeds, property and assets

and instrumentalities of crimes for the purpose of eventual forfeiture, without prejudice to the

rights of bona fide third parties; and

(l) Any other type of assistance which is not prohibited by the law of the requested

State, with a view to facilitating the investigation and prosecution of crimes within the jurisdiction

of the Court.

2. The Court shall have the authority to provide an assurance to a witness or an expert

appearing before the Court that he or she will not be prosecuted, detained or subjected to any

restriction of personal freedom by the Court in respect of any act or omission that preceded the

departure of that person from the requested State.

3. Where execution of a particular measure of assistance detailed in a request presented

under paragraph 1, is prohibited in the requested State on the basis of an existing fundamental

legal principle of general application, the requested State shall promptly consult with the Court to

try to resolve the matter. In the consultations, consideration should be given to whether the

assistance can be rendered in another manner or subject to conditions. If after consultations the

matter cannot be resolved, the Court shall modify the request as necessary. 51

4. In accordance with article 72, a State Party may deny a request for assistance, in whole or

in part, only if the request concerns the production of any documents or disclosure of evidence

which relates to its national security.

5. Before denying a request for assistance under paragraph 1 (l), the requested State shall

consider whether the assistance can be provided subject to specified conditions, or whether the

assistance can be provided at a later date or in an alternative manner, provided that if the Court or

the Prosecutor accepts the assistance subject to conditions, the Court or the Prosecutor shall abide

by them.

6. If a request for assistance is denied, the requested State Party shall promptly inform the

Court or the Prosecutor of the reasons for such denial.

7. (a) The Court may request the temporary transfer of a person in custody for purposes

of identification or for obtaining testimony or other assistance. The person may be transferred if

the following conditions are fulfilled:

(i) The person freely gives his or her informed consent to the transfer; and

(ii) The requested State agrees to the transfer, subject to such conditions as that

State and the Court may agree.

(b) The person being transferred shall remain in custody. When the purposes of the

transfer have been fulfilled, the Court shall return the person without delay to the requested State.

8. (a) The Court shall ensure the confidentiality of documents and information, except as

required for the investigation and proceedings described in the request.

(b) The requested State may, when necessary, transmit documents or information to

the Prosecutor on a confidential basis. The Prosecutor may then use them solely for the purpose of

generating new evidence.

(c) The requested State may, on its own motion or at the request of the Prosecutor,

subsequently consent to the disclosure of such documents or information. They may then be used

as evidence pursuant to the provisions of Parts 5 and 6 and in accordance with the Rules of

Procedure and Evidence.

9. (a) (i) In the event that a State Party receives competing requests, other than for

surrender or extradition, from the Court and from another State pursuant to

an international obligation, the State Party shall endeavour, in consultation

with the Court and the other State, to meet both requests, if necessary by

postponing or attaching conditions to one or the other request.

(ii) Failing that, competing requests shall be resolved in accordance with the

principles established in article 90.

(b) Where, however, the request from the Court concerns information, property or

persons which are subject to the control of a third State or an international organization by virtue

of an international agreement, the requested States shall so inform the Court and the Court shall

direct its request to the third State or international organization.

10. (a) The Court may, upon request, cooperate with and provide assistance to a State

Party conducting an investigation into or trial in respect of conduct which constitutes a crime

within the jurisdiction of the Court or which constitutes a serious crime under the national law of

the requesting State.

(b) (i) The assistance provided under subparagraph (a) shall include, inter alia:

a. The transmission of statements, documents or other types of

evidence obtained in the course of an investigation or a trial

conducted by the Court; and

b. The questioning of any person detained by order of the Court;

52 (ii) In the case of assistance under subparagraph (b) (i) a:

a. If the documents or other types of evidence have been obtained

with the assistance of a State, such transmission shall require the

consent of that State;

b. If the statements, documents or other types of evidence have been

provided by a witness or expert, such transmission shall be subject

to the provisions of article 68.

(c) The Court may, under the conditions set out in this paragraph, grant a request for

assistance under this paragraph from a State which is not a Party to this Statute.

Article 94

Postponement of execution of a request in respect

of ongoing investigation or prosecution

1. If the immediate execution of a request would interfere with an ongoing investigation or

prosecution of a case different from that to which the request relates, the requested State may

postpone the execution of the request for a period of time agreed upon with the Court. However,

the postponement shall be no longer than is necessary to complete the relevant investigation or

prosecution in the requested State. Before making a decision to postpone, the requested State

should consider whether the assistance may be immediately provided subject to certain conditions.

2. If a decision to postpone is taken pursuant to paragraph 1, the Prosecutor may, however,

seek measures to preserve evidence, pursuant to article 93, paragraph 1 (j).

Article 95

Postponement of execution of a request in respect of an admissibility challenge

Where there is an admissibility challenge under consideration by the Court pursuant to

article 18 or 19, the requested State may postpone the execution of a request under this Part

pending a determination by the Court, unless the Court has specifically ordered that the Prosecutor

may pursue the collection of such evidence pursuant to article 18 or 19.

Article 96

Contents of request for other forms of assistance under article 93

1. A request for other forms of assistance referred to in article 93 shall be made in writing. In

urgent cases, a request may be made by any medium capable of delivering a written record,

provided that the request shall be confirmed through the channel provided for in article 87,

paragraph 1 (a).

2. The request shall, as applicable, contain or be supported by the following:

(a) A concise statement of the purpose of the request and the assistance sought,

including the legal basis and the grounds for the request;

(b) As much detailed information as possible about the location or identification of

any person or place that must be found or identified in order for the assistance sought to be

provided;

(c) A concise statement of the essential facts underlying the request;

(d) The reasons for and details of any procedure or requirement to be followed;

(e) Such information as may be required under the law of the requested State in order

to execute the request; and

(f) Any other information relevant in order for the assistance sought to be provided. 53

3. Upon the request of the Court, a State Party shall consult with the Court, either generally

or with respect to a specific matter, regarding any requirements under its national law that may

apply under paragraph 2 (e). During the consultations, the State Party shall advise the Court of the

specific requirements of its national law.

4. The provisions of this article shall, where applicable, also apply in respect of a request for

assistance made to the Court. Article 97

Consultations

Where a State Party receives a request under this Part in relation to which it identifies

problems which may impede or prevent the execution of the request, that State shall consult with

the Court without delay in order to resolve the matter. Such problems may include, inter alia:

(a) Insufficient information to execute the request;

(b) In the case of a request for surrender, the fact that despite best efforts, the person

sought cannot be located or that the investigation conducted has determined that the person in the

requested State is clearly not the person named in the warrant; or

(c) The fact that execution of the request in its current form would require the

requested State to breach a pre-existing treaty obligation undertaken with respect to another State.

Article 98

Cooperation with respect to waiver of immunity and consent to surrender

1. The Court may not proceed with a request for surrender or assistance which would require

the requested State to act inconsistently with its obligations under international law with respect to

the State or diplomatic immunity of a person or property of a third State, unless the Court can first

obtain the cooperation of that third State for the waiver of the immunity.

2. The Court may not proceed with a request for surrender which would require the

requested State to act inconsistently with its obligations under international agreements pursuant to

which the consent of a sending State is required to surrender a person of that State to the Court,

unless the Court can first obtain the cooperation of the sending State for the giving of consent for

the surrender. Article 99

Execution of requests under articles 93 and 96

1. Requests for assistance shall be executed in accordance with the relevant procedure under

the law of the requested State and, unless prohibited by such law, in the manner specified in the

request, including following any procedure outlined therein or permitting persons specified in the

request to be present at and assist in the execution process.

2. In the case of an urgent request, the documents or evidence produced in response shall, at

the request of the Court, be sent urgently.

3. Replies from the requested State shall be transmitted in their original language and form.

4. Without prejudice to other articles in this Part, where it is necessary for the successful

execution of a request which can be executed without any compulsory measures, including

specifically the interview of or taking evidence from a person on a voluntary basis, including

doing so without the presence of the authorities of the requested State Party if it is essential for the

54

request to be executed, and the examination without modification of a public site or other public

place, the Prosecutor may execute such request directly on the territory of a State as follows:

(a) When the State Party requested is a State on the territory of which the crime is

alleged to have been committed, and there has been a determination of admissibility pursuant to

article 18 or 19, the Prosecutor may directly execute such request following all possible

consultations with the requested State Party;

(b) In other cases, the Prosecutor may execute such request following consultations

with the requested State Party and subject to any reasonable conditions or concerns raised by that

State Party. Where the requested State Party identifies problems with the execution of a request

pursuant to this subparagraph it shall, without delay, consult with the Court to resolve the matter.

5. Provisions allowing a person heard or examined by the Court under article 72 to invoke

restrictions designed to prevent disclosure of confidential information connected with national

security shall also apply to the execution of requests for assistance under this article.

Article 100

Costs

1. The ordinary costs for execution of requests in the territory of the requested State shall be

borne by that State, except for the following, which shall be borne by the Court:

(a) Costs associated with the travel and security of witnesses and experts or the

transfer under article 93 of persons in custody;

(b) Costs of translation, interpretation and transcription;

(c) Travel and subsistence costs of the judges, the Prosecutor, the Deputy Prosecutors,

the Registrar, the Deputy Registrar and staff of any organ of the Court;

(d) Costs of any expert opinion or report requested by the Court;

(e) Costs associated with the transport of a person being surrendered to the Court by a

custodial State; and

(f) Following consultations, any extraordinary costs that may result from the

execution of a request.

2. The provisions of paragraph 1 shall, as appropriate, apply to requests from States Parties to

the Court. In that case, the Court shall bear the ordinary costs of execution.

Article 101

Rule of speciality

1. A person surrendered to the Court under this Statute shall not be proceeded against,

punished or detained for any conduct committed prior to surrender, other than the conduct or

course of conduct which forms the basis of the crimes for which that person has been surrendered.

2. The Court may request a waiver of the requirements of paragraph 1 from the State which

surrendered the person to the Court and, if necessary, the Court shall provide additional

information in accordance with article 91. States Parties shall have the authority to provide a

waiver to the Court and should endeavour to do so.

Article 102

Use of terms

For the purposes of this Statute:

(a) “surrender” means the delivering up of a person by a State to the Court, pursuant

to this Statute. 55

(b) “extradition” means the delivering up of a person by one State to another as

provided by treaty, convention or national legislation.

PART 10. ENFORCEMENT

Article 103

Role of States in enforcement of sentences of imprisonment

1. (a) A sentence of imprisonment shall be served in a State designated by the Court

from a list of States which have indicated to the Court their willingness to accept sentenced

persons.

(b) At the time of declaring its willingness to accept sentenced persons, a State may

attach conditions to its acceptance as agreed by the Court and in accordance with this Part.

(c) A State designated in a particular case shall promptly inform the Court whether it

accepts the Court’s designation.

2. (a) The State of enforcement shall notify the Court of any circumstances, including

the exercise of any conditions agreed under paragraph 1, which could materially affect the terms

or extent of the imprisonment. The Court shall be given at least 45 days’ notice of any such known

or foreseeable circumstances. During this period, the State of enforcement shall take no action that

might prejudice its obligations under article 110.

(b) Where the Court cannot agree to the circumstances referred to in subparagraph (a),

it shall notify the State of enforcement and proceed in accordance with article 104, paragraph 1.

3. In exercising its discretion to make a designation under paragraph 1, the Court shall take

into account the following:

(a) The principle that States Parties should share the responsibility for enforcing

sentences of imprisonment, in accordance with principles of equitable distribution, as provided in

the Rules of Procedure and Evidence;

(b) The application of widely accepted international treaty standards governing the

treatment of prisoners;

(c) The views of the sentenced person;

(d) The nationality of the sentenced person;

(e) Such other factors regarding the circumstances of the crime or the person

sentenced, or the effective enforcement of the sentence, as may be appropriate in designating the

State of enforcement.

4. If no State is designated under paragraph 1, the sentence of imprisonment shall be served

in a prison facility made available by the host State, in accordance with the conditions set out in

the headquarters agreement referred to in article 3, paragraph 2. In such a case, the costs arising

out of the enforcement of a sentence of imprisonment shall be borne by the Court.

Article 104

Change in designation of State of enforcement

1. The Court may, at any time, decide to transfer a sentenced person to a prison of another

State.

2. A sentenced person may, at any time, apply to the Court to be transferred from the State of

enforcement.

56


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DESCRIZIONE DISPENSA

La dispensa fa riferimento alle lezioni di Diritto Internazionale, tenute dalla Prof. ssa Alessandra Lanciotti nell'anno accademico 2011.
Il documento riporta il testo in inglese dello Statuto della Corte Penale Internazionale. Lo Statuto si compone delle seguenti parti: preambolo, istituzione della Corte, giurisdizione, principi generali di diritto penale, assistenza giudiziaria.


DETTAGLI
Corso di laurea: Corso di laurea magistrale in giurisprudenza
SSD:
Università: Perugia - Unipg
A.A.: 2011-2012

I contenuti di questa pagina costituiscono rielaborazioni personali del Publisher Atreyu di informazioni apprese con la frequenza delle lezioni di Diritto Internazionale e studio autonomo di eventuali libri di riferimento in preparazione dell'esame finale o della tesi. Non devono intendersi come materiale ufficiale dell'università Perugia - Unipg o del prof Lanciotti Alessandra.

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