Medverkan i NRK

Jag medverkade idag i NRK Dagsnytt 18 om "A$AP Rocky i retten".

The "no case to answer" standard and the process of fact-finding in the Gbagbo case

Trial Chamber I issued yesterday its reasons for the oral decision of 15 January 2019 in the Gbagbo case. The decision of the majority is quite short, instead one needs to read the reasons of Judge Geoffrey Henderson and the opinion of Judge Cuno Tarfusser to understand the majority.

The introduction of the "no case to answer" procedure at the ICC
I have had some concern about the introduction of the "no case to answer" procedure at the ICC since such a procedure is neither provided for in the Rome Statute nor in the Rules of Procedure and Evidence. I have previously held the same view as Burrow (2010 in Khan et al., p. 691) that the confirmation of charges proceedings could fulfil the same purpose, namely to ensure that only cases in which the prosecution’s case is sufficiently strong to commit the person to trial, are confirmed (Klamberg, 2013, p. 147). The "no case to answer" procedure does not fit well with the other potential features of the ICC procedural framework as adopted in some of the cases, as illustrated by the Gbagbo case. Judge Henderson comments in the following way about the fact that the Trial Chamber has not made any admissibility rulings.

this Trial Chamber did not make any admissibility rulings. This means that there has been absolutely no filter on what the parties were able to submit into the case record. This has resulted in the case record being flooded with documents of doubtful authenticity as well as documents containing significant anonymous hearsay. This sits uncomfortably with the traditional Adversarial/Common Law no-case to answer test, which instructs Chambers to consider the Prosecutor’s evidence at its highest. (para. 4)

However, I will not devote the rest of this blog post arguing that it was wrong to introduce the "no case to answer" procedure at the ICC. The Appeals Chamber has in Ntaganda confirmed, that trial chambers may decide to conduct a "no case to answer" procedure on the basis of their power to rule on relevant matters pursuant to article 64(6)(f) of the Statute and rule 134(3) of the Rules (Judgement 5 september 2017, para. 44). Thus, it is procedure available at the ICC and none of the parties - not even the prosecution - appear to argue that the availability of the procedure is wrong as such. However, the mere availability of the procedure may have consequences for other parts of the ICC procedural framework, including for the confirmation of charges proceedings and admission of evidence. The different components of the systems are interrelated and there are some limits on the suitability of different procedural combinations.

The "no case to answer" standard and the process of fact-finding
Instead I will focus on the "no case to answer" standard in the Gbagbo case. It would however  restrict this discussion to be only about a "standard" since my view is that evidentiary standards also have consequences for the method of evaluating evidence, it would therefore also be suitable to describe as a process of fact-finding. In other words, how did Judge Henderson go about when deciding to end the case against Mr Laurent Gbagbo and Mr Charles Blé Goudé?

Inventory of potential components or steps to take when evaluating evidence
Before we assess how Judge Henderson reasoned we could make an inventory of potential components or steps to take when evaluating evidence. I have previously (Klamberg, 2013 and Klamberg, 2015) discussed different components or steps to take in relation to evaluating evidence. I have also argued that this depends on the stage of the proceedings. This begs the question, which steps has Judge Henderson taken? In order to make the final determination of guilt all steps need to be taken at some stage of the proceedings, including:

1. The judge must ascertain what elements and facts in issue need to be established
2. The evidence has to be structured with, applying the following components and questions.
i) Is the evidence relevant in order to prove the charge? If the proposition is deconstructed into parts, one may exclude irrelevant circumstances.
ii) What is the bearing of the evidence, is it a part of the evidence for the prosecution or for the defence?
iii) What kind of evidence has been submitted? Is it “direct” or “circumstantial” evidence?
Yvonne McDermott has similarly pointed to the utility of Wigmorean Analysis (McDermott, 2015).
3. The probative value and weight relevant for each fact in issue has to be determined. Reliability and credibility are relevant factors when assessing probabative value.
4. If several evidential facts, i.e. several pieces of evidence (for example witness testimony, documents, etc), are relevant to a fact in issue, the Court has to weigh the pieces against each other. I try to avoid the phrase "holistic evaluation of evidence", but if the phrase is ever to be used it is in this context when weighing evidence pieces of evidence against each other in order to asses a specific fact in issue. At this stage of evaluating evidence, statistical methods could be used with caution. Frequency-type probability is useful for assessing DNA evidence and similar types of evidence, but arguably not for assessing the entire body of evidence in a case. Other probability methods could be used with caution - as thumb rules only - when assessing corroborative and circumstantial evidence.
5. When the probative value of the evidence has been determined the court must be satisfied that it is strong enough to meet the standard of proof. Three factors have to be considered before a final determination is made as to whether the standard has been satisfied.
i) The court must first weigh the evidence in favour or against the proposition.
ii) Second, the requirement on the standard for an adequate investigation must be satisfied. If the standard for an adequate investigation has not been satisfied and the evidence is not robust, the judges have the options to a) do nothing during the trial and wait until the final deliberations to acquit the accused; b) dismiss the case through a summary judgment or c) order the production of more evidence.
iii) Third, as part of evaluating whether the weight of the evidence meet the standard of proof, the judges should test and eliminate alternative hypotheses which could give a different reasonable explanation to the charges made by the prosecution.

I am going to read Judge Henderson's reasons with these steps in mind.

The "no case to answer" standard and the process of fact-finding at the ad hoc tribunals
Let us first consider the procedure at the ad hoc tribunals. The original ICTY rules of procedure and evidence had no specific rule concerning motions to dismiss the prosecution case through a summary judgment. In both the Tadić case and the Delalić et al. case motions of no-case-to-answer were filed. In both cases the Trial Chambers examined the motions, which shows the Chambers’ concern for the rights of the accused (Tadić, ICTY T. Ch., 13 September 1996 and Delalić et al.  ICTY T. Ch., 18 March 1998). The Trial Chamber rejected the motions on their merits. However, they could also have dismissed the motions on the ground that, at the time, there was no rule of no-case-to-answer and the accused was entitled to be presumed innocent. As a consequence of these decisions Rule 98 bis was adopted allowing for filing of motions of acquittal. The rule went even further, conferring on the Trial Chamber at the close of the prosecutor’s case the proprio motu power to enter a judgment of acquittal on any count if there is no evidence capable of supporting a conviction. In Jelisić the Appeals Chamber set the standard with regard to the test to be applied under rule 98 bis, namely whether the “evidence, if believed, is insufficient for any reasonable trier of fact to find that guilt has been proved beyond reasonable doubt.” The test is not whether the trier would in fact arrive at a conviction beyond reasonable doubt on the prosecution evidence (if accepted) but whether it could (Jelisić, ICTY A. Ch., 5 July 2001, para. 37).

The "no case to answer" standard and the process of fact-finding in Ruto and Sang
ICC Trial Chamber V(A) adopted a similar approach in Ruto and Sang stating that "the test to be applied in determining a ‘no case to answer’ motion […] is whether there is evidence on which a reasonable Trial Chamber could convict", adding that "the test to be applied in determining a ‘no case to answer’ motion […] is whether there is evidence on which a reasonable Trial Chamber could convict" (Ruto and Sang, Decision No. 5 on the Conduct of Trial Proceedings (Principles and Procedure on ‘No Case to Answer’ Motions), 3 June 2014, ICC-01/09-01/11-1334, para. 32.).

The "no case to answer" standard and the process of fact-finding in Gbabgo 
Kevin Jon Heller hoped in January 2019 to see the standard of proof expressed in the phrase “evidence (if accepted) upon which a reasonable tribunal of fact could be satisfied beyond reasonable doubt of the guilt of the accused” in the forthcoming decision.

The majority decided not to follow Ruto and Sang (Henderson, paras. 1-8; Cuno Tarfusser, para. 67)

Considering the approach to admissibility taken in the Gbabgo case Judge Henderson stated that "[i]t cannot be assumed ... that all the evidence on the record has at least some minimal probative value" (para. 5) and decided to adopt a different approach by engaging in "a full review of the evidence submitted and relied upon by the Prosecutor" (para. 8). What standard of evidence does that entail? Judge Henderson explains that "a decision that there is no case to answer is not a formal judgment of acquittal on the basis of the application of the beyond reasonable doubt standard in accordance with article 74 of the Statute" (para. 17) and does not use that phrase in any other instance of his reasons. Does that mean that Kevin Jon Heller should be disappointed? What is the standard used by Judge Henderson?

My reading is that of Judge Henderson reasons is that he takes all the five steps that I have described above in evaluating the evidence. I would like to highlight some of the steps taken.

1. Judge Henderson explains in para. 91 and parts IV-VI which elements and facts in issue that need to be established. The evidence submitted by the Prosecution is structured in the manner understood by the Judges and an assessment is made of the probative value and weight relevant for each fact.

2. Above I use the phrase "standard for an adequate investigation" and robustness which relates to question whether the prosecutor has gathered evidence that covered all the facts in issue, a matter of quantity. Judge Henderson does not use these word but appears to question the investigation, as illustrated in the following phrase.

As will be noted several times throughout this opinion, although the available evidence is voluminous, a lot of essential information is still missing. Whether this is due to the information being unavailable to the Prosecutor or to the fact that the Prosecutor did not look (hard enough) for it is not for me to say." (para. 5)

He also finds the available evidence far from complete (para. 67).

3. In part IX of the reasons Judge Henderson entertains as an option to ending the case, the idea of recharacterising the charged facts and circumstances under regulation 55. This would under subregulation 3(b) allow the parties to call a new witness or to present other evidence. This option is dismissed since none of the parties has made a serious effort to raise the question of the existence of an armed conflict during the period relevant to the charges.

4. Judge Henderson describes in part III the prosecutor's case theory as a "narrative", he criticises the Prosecutor's "one-sided version of the situation in Côte d’Ivoire" (para. 66), presents an alternative to the Prosecutor's case theory of the President being in control (para. 67) and points to "alternative reading" of the evidence (para. 1171).  Judge Henderson describes how the Prosecutor has failed to prove that "the combined effect of all her evidence is greater than the sum of the individual (non-incriminating) parts" (para. 88).

Judge Cuno Tarfusser appears to have a similar approach when he states the following.

the evidence on the record not only fails to convince me that any of the charged incidents did indeed occur pursuant to the Prosecutor’s narrative, but is rather suitable to point to one or more alternative readings which are equally, if not more, plausible. (para. 75)

In other words, the Prosecutor has failed in eliminating all reasonable, alternative explanations to the Prosecutor's case theory. Judge Cuno Tarfusser's statement suggests that the Prosecutor even has failed to reach the balance of probabilities standard.

In conclusion, the Judge Henderson has taken steps in relation to "no case to answer" motion which are very close or almost identical to a finding under the "beyond reasonable doubt" standard. Is an appeal by the Prosecution warranted, has the trial chamber used the wrong evidentiary standard? My reading of the Judge Henderson's reasons is that it is not only a blow against the Prosecution, is also a rebuffal of the confirmation of charges decision. Evidence may have been missing already with a lower standard, as suggested by the dissenting opinion of Pre-Trial Judge Christine Van den Wyngaert.

Making the procedural framework coherent and efficient
As argued above, the mere availability of the "no case to answer "procedure may have consequences for other parts of the ICC procedural framework, including for the confirmation of charges proceedings and admission of evidence. I am not sure if the ICC has got their approach to admissibility of evidence right, not even if one has a civil law approach. In para. 20 of Judge Henderson's reasons one may read that "the Chamber by majority decided that decisions on the admissibility and relevance of the evidence submitted by a party ... will be deferred to the final judgment". This should be compared with Judge Cuno Tarfusser who argues that the evidence should have been seriously filtered in  order to shape the trial (para. 20). On the other hand he argues that "to the so-called admissibility ruling system, and [his] preference for a system whereby the evidence as a whole is considered within the context of the final determinations of the trial" (para. 69). I would argue that it is fine to asses credibility and reliability in the final judgement, but even in continental European systems one may find mechanisms whereby judges consider relevance before the evidence is allowed to be presented and be part of the submitted evidence.

Setting the record straight how detention and indictment works in Sweden – as illustrated by the Assange case

I have written the blog post "Setting the record straight how detention and indictment works in Sweden – as illustrated by the Assange case" on Völkerrechtsblog, 3 July 2019. You can also read it below. 

Setting the record straight how detention and indictment works in Sweden – as illustrated by the Assange case

In a recently published text, Nils Melzer, UN Special Rapporteur on Torture, Human Rights Chair, Geneva Academy and Professor of International Law at the University of Glasgow, felt “repulsion and disbelief”, starting off with stating that Assange “has never been charged with a sexual offence” in Sweden. If one’s understanding of criminal procedure is based only on English law or common law, this is a serious allegation, if you are arrested in the UK you have to be charged within 24 hours. This account implies that the Swedish authorities have decided to seek Assange’s detention and extradition to Sweden without giving the grounds for these actions.  It would suggest that Sweden is a lawless society.

However, if one accepts that different countries and legal systems may offer the same legal safeguards without necessarily using the same language (English), one will soon understand that Assange has received due notification for the grounds for which the Swedish authorities have sought his detention and extradition. I have previously explained this in response to questions posed by journalists from the UK, colleagues in UK, by legal practitioners as well as academics. Generally, there has not been much need to explain this since most understand that different countries use different terms. Considering that Nils Melzer has a senior position in academia and in the UN system, I feel the need to write this blog post in order to prevent any further misunderstandings in this regard. Sweden, as any country, has its flaws. However, it is still a country where the rule of law is strong. Assange has been given the reasons by Swedish authorities for the decisions seeking his detention and requesting his extradition.

First, we need to find a common ground on how to compare different legal systems since Melzer appears to analyse Swedish law (which is a civil law country) through a common law lens. Anita Frohlich has explained that when comparing different legal system one should take three steps: (1) state the problem in purely functional terms, without being influenced by one’s own legal system; (2) examine how the different legal systems resolve the legal problem; (3) compare and evaluate how the different systems deal with the problem. I have similarly argued – in a text not dealing with the Assange case – when comparing a procedural feature in different legal systems that this should not be done “on the basis of its formal designation, but rather on what real and potential situations it aims to solve” (Klamberg, 2013, p. 15).

Turning to the matter at hand, charging.

According to English law, if you have been arrested, the police can detain you in custody for a maximum of 24 hours before they must either charge you with the offence, release you under police bail to return at a later date for further questioning, or release you without charge. The police can keep you in custody for 96 hours (4 days). After that, further detention has to be reviewed by a judge.

Chapter 24, section 9 of the Swedish code of judicial procedure provides that “When a person is apprehended or arrested or when an order for arrest under Section 8, first paragraph is executed, he shall be informed of the offence for which he is suspected and the grounds for his arrest.”

If the police and prosecution want to keep the person detained for a period longer than 4 days, a request must be made to and reviewed by a court (see Chapter 24, section 13). Chapter 24, section 14 of the Swedish code of judicial procedure provides that “The person [the prosecutor] who requests the detention shall state the grounds upon which the request is based".

Thus, the legal safeguards in Sweden and UK appear almost identical. This is no coincidence. Many of these safeguards follow from the fact that both countries are parties to the European Convention on Human Rights. The only difference is the language, not the substance. While English law uses the term “charge”, Swedish law uses the phrase “offence for which he is suspected and the grounds for his arrest”.

The European Court of Human Rights has in its case law explained the following.

“63. The Court reiterates that under Article 5 § 2 of the Convention any person arrested must be told, in simple, non-technical language that he can understand, the essential legal and factual grounds for his arrest, so as to be able, if he sees fit, to apply to a court to challenge its lawfulness in accordance with Article 5 § 4. Whilst this information must be conveyed promptly, it need not be related in its entirety by the arresting officer at the very moment of the arrest. Whether the content and promptness of the information conveyed were sufficient is to be assessed in each case according to its special features. Moreover, when a person is arrested on suspicion of having committed a crime, Article 5 § 2 neither requires that the necessary information be given in a particular form, nor that it consists of a complete list of the charges held against the arrested person. Furthermore, when a person is arrested with a view to extradition, the information given may be even less complete. However, this information should be provided to the detained in an adequate manner, so that the person knows why he has been deprived of his liberty” (Nowak v. Ukraine, Application no. 60846/10, Judgment 31 March 2011, para. 63)

Thus, the important requirement is that Assange is informed of the grounds for the decision to detain him. The detention of Assange has been reviewed several times by Swedish courts. Each time the prosecutor has to give the detained and the courts reasons, including what crimes Assange is suspected of. This has been reviewed several times by courts at lower instance and, in addition, two times by the Supreme Court of Sweden (2 September 2010 and 11 May 2015): The request for extradition was reviewed by British courts, including the UK Supreme Court (20 May 2012). There is no uncertainty concerning the offences which Assange is suspected to have committed. He has been formally notified and the measures have been reviewed by courts at all levels.

Lastly, some words about the concept of “indictment”, it is a term used both in Swedish and English law. The indictment comes at the very end of the investigation in Sweden. When the investigation is completed, the suspect is formally notified and given a copy of the prosecutor’s case file (including the evidence). The accused is given the opportunity to add information or to ask the prosecutor to conduct further investigations. Once this is completed, the prosecution may issue the “institution of the prosecution” which is the indictment (in Swedish: stämningsansökan). If the accused is detained the idea is that the trial in court should start very soon, within, two weeks. This is done in the interest of the accused since he or she should be presumed to be innocent and since defendant has the right to an expeditious trial.

Chapter 45, section 14 (in Swedish, the provision has been updated, the translation to English is old, now with a two-week time limit) provides the following.

“If the defendant is under arrest or in detention, the main hearing shall be held within two weeks from the date of the institution of the prosecution”

The procedural framework for serving the indictment assumes that the detained person who is about to go to trial is in Sweden and in the custody of the police, not in another country or taking refuge in an embassy. That is why the Swedish prosecutor closed the case 19 May 2017. It was very difficult to take the procedural steps necessary before an indictment could be served.

The English courts have understood and accepted this. They understand that England is not the only country in the world offering due process and they understand that we (outside of the UK) do not need to transplant English terminology into our laws. On a personal note, I appreciate that the English judges did not adopt a British colonial and imperialist approach when evaluating the legal system of Sweden. On 2 November 2011, the English High Court Of Justice, Queen’s Bench Division, Divisional Court, wrote the following (para. 153):

“Although it is clear a decision has not been taken to charge him, that is because, under Swedish procedure, that decision is taken at a late stage with the trial following quickly thereafter. In England and Wales, a decision to charge is taken at a very early stage; there can be no doubt that if what Mr Assange had done had been done in England and Wales, he would have been charged and thus criminal proceedings would have been commenced. If the commencement of criminal proceedings were to be viewed as dependent on whether a person had been charged, it would be to look at Swedish procedure through the narrowest of common law eyes. Looking at it through cosmopolitan eyes on this basis, criminal proceedings have commenced against Mr Assange.”

Now, what is the correct description of the stage of proceedings against Assange in Sweden? Assange is still a suspect for alleged rape in Sweden and he has been formally notified of this. In contrast to how it was until 2017, there is not at present a decision authorising his arrest. On 3 June 2019 the Uppsala District Court decided that there is probable cause for the suspicion of rape, less serious incident, and that there is a risk that Julian Assange will “fail to appear or in some other way avoid participation in the investigation and the following proceedings”. However, the district court decided not to issue a decision order “[s]ince Julian Assange is serving a prison sentence the public prosecutor can proceed with the preliminary investigation by issuing a European Investigation Order.” Once the Swedish investigation is completed, the Swedish prosecutor may choose to seek Assange’s surrender to Sweden with the assistance of UK authorities, to issue the indictment and summons to appear in court in Sweden for trial.

There are several relevant objections that Assange can make in relation to requests for extradition from the USA and to some extent in relation to the request from Sweden, but the different terminology used in Swedish and English law is not one of them.

 

Mark Klamberg is a Research Fellow at the University of Oxford and Professor in International Law and Deputy Director of the Stockholm Center for International Law and Justice at Stockholm University.

 

Cite as: Mark Klamberg, “Setting the record straight how detention and indictment works in Sweden – as illustrated by the Assange case”, Völkerrechtsblog, 3 July 2019, doi: 10.17176/20190703-112608-0.