Visions of Justice: Liber Amicorum Mirjan Damaška [1 ed.] 9783428550227, 9783428150229

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Studies in International and European Criminal Law and Procedure Volume 26

Visions of Justice Liber Amicorum Mirjan Damaška

Edited by Bruce Ackerman, Kai Ambos and Hrvoje Sikirić

Duncker & Humblot · Berlin

ACKERMAN/AMBOS/SIKIRIĆ (Eds.)

Visions of Justice

Studies in International and European Criminal Law and Procedure Edited by Prof. Dr. Dr. h.c. Kai Ambos, Judge at the District Court, Göttingen

Volume 26

Mirjan Damaška

Visions of Justice Liber Amicorum Mirjan Damaška

Edited by Bruce Ackerman, Kai Ambos and Hrvoje Sikirić

Duncker & Humblot · Berlin

Bibliographic information published by the Deutsche Nationalbibliothek The Deutsche Nationalbibliothek lists this publication in the Deutsche Nationalbibliografie; detailed bibliographic data are available in the Internet at http://dnb.d-nb.de.

All rights reserved. No part of this book may be reproduced, translated, or utilized in any form or by any means, electronic or mechanical, without the expressed written consent of the publisher. © 2016 Duncker & Humblot GmbH, Berlin Typesetting: Konrad Triltsch GmbH, Ochsenfurt Printing: Meta Systems Publishing & Printservices GmbH, Wustermark Printed in Germany ISSN 1867-5271 ISBN 978-3-428-15022-9 (Print) ISBN 978-3-428-55022-7 (E-Book) ISBN 978-3-428-85022-8 (Print & E-Book) Printed on no aging resistant (non-acid) paper according to ISO 9706

Internet: http://www.duncker-humblot.de

Inhaltsverzeichnis Hrvoje Sikiric´ Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

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Bruce Ackerman My Debt to Mirjan Damasˇka . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

17

Kai Ambos The International Criminal Justice System and Prosecutorial Selection Policy .

23

Ennio Amodio Rethinking Evidence under Damasˇka’s Teaching . . . . . . . . . . . . . . . . . . . . . . . . .

51

Teresa Armenta-Deu Beyond Accusatorial or Inquisitorial Systems: A Matter of Deliberation and Balance . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

57

Károly Bárd Can the Jury Survive after the Judgment of the European Court of Human Rights in Taxquet v. Belgium? . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

77

Steven G. Calabresi The Comparative Constitutional Law Scholarship of Professor Mirjan Damasˇka: A Tribute . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

95

Oscar G. Chase “Supreme” Courts and the Imagination of the Real: An Essay in Honor of Mirjan Damasˇka . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 111 Davor Derencˇ inovic´ and Steven W. Becker The Serbian War Crimes Act and Quasi-universal Jurisdiction – Reflections on an Unprecedented Jurisdictional Experiment . . . . . . . . . . . . . . . . . . . . . . . . . . . . 145 Zlata Ðurd¯evic´ Legal and Political Limitations of the ICC Enforcement System: Blurring the Distinctive Features of the Criminal Court . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 163 Izhak Englard The Faces of Justice and State Authority: A Review of the Reviews . . . . . . . . . 199

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Inhaltsverzeichnis

Albin Eser Changing Structures: From the ICTY to the ICC . . . . . . . . . . . . . . . . . . . . . . . . . 213 John D. Jackson Re-visiting ‘Evidentiary Barriers to Conviction and Models of Criminal Procedure’ after Forty Years . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 235 Heike Jung Rituals and Procedure . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 259 Máximo Langer In the Beginning was Fortescue: On the Intellectual Origins of the Adversarial and Inquisitorial Systems and Common and Civil Law in Comparative Criminal Procedure . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 273 Mitchel de S.-O.-l’E. Lasser On the Comparative Autonomy of Forms and Ideas . . . . . . . . . . . . . . . . . . . . . . 301 James G. Stewart The Strangely Familiar History of the Unitary Theory of Perpetration . . . . . . . . 325 Katja Sˇ ugman Stubbs An Increasingly Blurred Division between Criminal and Administrative Law . . 351 Michele Taruffo Globalizing Procedural Justice – Some General Remarks . . . . . . . . . . . . . . . . . . 371 Stephen C. Thaman Reanchoring Evidence Law to Formal Rules: A Step toward Protecting the Innocent from Conviction for Capital Crimes? . . . . . . . . . . . . . . . . . . . . . . . . . . . . 383 Ksenija Turkovic´ and Kresˇimir Kamber One Face of Human Rights for Two Faces of Criminal Justice: A European Perspective . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 411 Zuo Weimin and Fu Xin Legal Transplant in the Criminal Procedure Law of China: Experiences and Reflections . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 437 Harmen van der Wilt The Continuing Story of the International Criminal Court and Personal Immunities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 457

Introduction Hrvoje Sikiric´* I met Professor Mirjan Damasˇka in person for the first time in the summer of 2013 when he came to the Faculty of Law and informed us of his late wife Marija’s and his own wish to establish a foundation with the Faculty. A year later, the Marija and Mirjan Damasˇka Foundation was established. As the then Dean, I had a privilege of acting as its administrator. The main purpose of the Marija and Mirjan Damasˇka Foundation is to enhance cooperation in the field of higher education and research between the Zagreb Faculty of Law and foreign law schools and scientific institutions, especially those of the United States of America. The aim of the Foundation is to finance postgraduate studies and postdoctoral research projects of young legal scholars, dissemination of results of their scientific work and international scientific colloquia. The Faculty of Law is of the opinion that the establishment of Damasˇka’s Foundation will considerably increase the Faculty’s visibility and its international profile. At a broader social level, especially at the level of the University of Zagreb, the Foundation is also an unparalleled example of an act of academic philanthropy in Croatia which I sincerely hope will not remain an isolated example and will soon be followed by similar initiatives by Croatian scientists living abroad. As an immediate act of gratitude to Professor Damasˇka, the Faculty of Law of the University of Zagreb, together with the Foundation, organised an international conference in his honour entitled The Administration of Justice – Past Experience and Challenges for the Future, held in Cavtat, Croatia, from 29 to 30 May 2015. This Conference was the third expression of recognition and appreciation by this Faculty, Professor Damasˇka’s first academic home, of everything this outstanding scholar and human being has done. In 2006, on the occasion of its 230th Anniversary, an international meeting entitled Global Legal Trends – Comparative Perspective was organised as part of the programme in honour of Professor Damasˇka.1 In 2012, on the pro-

* Hrvoje Sikiric´, Full Professor, University of Zagreb, Faculty of Law, Head of Department of Private International Law; Administrator of the Marija and Mirjan Damasˇka Foundation; Dean of the Faculty in the academic years 2013/2014 and 2014/2015. 1 Five conferences had been organised in honour of Professor Damasˇka before the Conference in Cavtat: in Bielefeld (1987), Siena (1988), San Francisco (1988), Zagreb (2006) and New Haven (2008).

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posal of the Faculty’s Council, the Senate of the University of Zagreb awarded Professor Damasˇka the title of doctor honoris.2 The Administration of Justice – Past Experience and Challenges for the Future, Liber Amicorum in Honour of Professor Mirjan Damasˇka, the book you are holding, is a collection of essays presented at the Cavtat International Conference and subsequently prepared for publication.3 We are particularly pleased to draw attention to the fact that the year of the conference, 2015, and the year of the publication of the Liber Amicorum, 2016, are also the years of a few anniversaries connected with Professor Damasˇka’s life and work. The year 2015 was the 60th anniversary of his graduation from the University of Zagreb and the 55th anniversary of his doctoral degree received from the University of Ljubljana. In 2016, he celebrates the 60th anniversary of his comparative law diploma in Luxembourg and the 55th anniversary of his first arrival in the United States of America as a “Fellow in Criminal Law” at the University of Pennsylvania Law School, the 50th anniversary of his second stay in America as a visiting professor of comparative law at Pennsylvania Law School, and the 45th anniversary of his departure from Croatia and the beginning of a new life in the USA. This year also marks 40 years since his teaching engagement at Yale Law School and 30 years since the first edition of his book “The Faces of Justice”, as well as 20 years since the date he was awarded the Sterling Professorship of Law at Yale University. The decision to choose ‘Administration of Justice’ as the main topic of the conference was made for a special purpose, since this is the field of law which has played a significant role in Damasˇka’s opus as a whole and the area of law to which both his masterpieces, The Faces of Justice and State Authority: A Comparative Approach to the Legal Process4 and Evidence Law Adrift5 relate. We wanted this area to be thoughtfully and imaginatively re-examined in the Liber Amicorum based on the topics of Damasˇka’s work from various angles by leading scholars who are experts in common law, civil law and the Far Eastern traditions. As a result, we have an enlightening and engaging set of 21 papers representing a fitting tribute to Damasˇka’s work and honouring his lifetime achievements. The Liber Amicorum is a collection of tributes (essays) that in an original and insightful way tease out all three key areas of Damasˇka’s monumental scholarship, 2 Professor Damasˇka also holds an honorary degree of the University of Pavia (Italy) (2005). 3 This is the second Festschrift in honour of Professor Damasˇka. The first one was John Jackson/Máximo Langer/Peter Tillers (Eds.): Crime, Procedure and Evidence in a Comparative and International Context: Essays in Honour of Professor Mirjan Damasˇka, Hart Publishing, Oxford 2008. 4 Mirjan Damasˇka: The Faces of Justice and State Authority: A Comparative Approach to the Legal Process, Yale University Press, New Haven 1986. 5 Mirjan Damasˇka: Evidence Law Adrift, Yale University Press, 1st ed., New Haven 1997; 2nd ed., New Haven 2013.

Introduction

9

comparative and foreign procedure, the law of evidence and international criminal law, and explore the relevance of his work to other fields of law. The diversity and the number of legal cultures of the contributors clearly show the depth, richness and far-reaching nature of Damasˇka’s opus, transmitted in the universe like radio waves whose intellectual echo is felt across the globe. It confirms in the best possible way the brilliant appraisal given by Professor Harold Koh6, former Dean of Yale Law School, who said that Damasˇka, in all three key areas of his work, served as an “intellectual bridge” between the two legal cultures, civil and common law.7 This appraisal is also true of Professor Damasˇka’s life. He has divided his life between two different legal cultures, between his native country, Croatia, and his adoptive country, the United States of America. In both countries, he has reached the top of the legal academy. In Croatia, at the Faculty of Law in Zagreb, he acquired the rank of Full Professor, and served briefly as Acting Dean. Already then, he was one of the leading scholars in his field, also known in European criminal law circles. In the United States of America, where he settled when he was 40 years old, he taught for six years at the University of Pennsylvania, before moving to Yale in 1976. He spent the rest of his academic career first as a Ford Foundation Professor of Foreign and Comparative Law and then as Sterling Professor of Law, the highest academic rank available at Yale University, awarded only to a very small number of truly outstanding faculty. In both countries, he received the most prestigious recognition for his academic achievements. He is the only lawyer elected as a Fellow of both the Croatian Academy of Sciences and Arts and the American Academy of Arts and Sciences. In Croatia, he was awarded a medal of merit, the Rud¯er Bosˇkovic´ Award for Legal Science (Order of Danica Hrvatska with the Image of Rud¯er Bosˇkovic´). In the USA, he was presented with a lifetime achievement award by the American Society of Comparative Law. The text that I am writing is not written in the way introductory texts to a Festschrift are usually done – just describing briefly the scientific contribution of the person they are dedicated to. The domains of my work and interest are private international law (conflict of laws), European private international law and international commercial arbitration. Professor Damasˇka did write about conflict of laws, but we know very well that the key areas of his work are comparative and foreign procedure, the law of evidence and international criminal law. Therefore, in the remaining text, I shall not write about his opus. Opus eius ipsum loquitur.8 Indeed, those inspired by his work have already said so much about it.9 In this book several authors have also offered fervent encomiums to his work. 6

Harold Hongju Koh is Sterling Professor of International Law at Yale Law School. Harold Hongju Koh: Mirjan Damasˇka: A Bridge Between Legal Cultures, in: Jackson/ Langer/Tillers (Eds.), Essays in Honour of Professor Mirjan Damasˇka, pp. 29 – 35, 30 – 35. 8 His work speaks for itself. 9 See e. g. John Jackson/Máximo Langer: Introduction: Damasˇka and Comparative Law, in: Jackson/Langer/Tillers (Eds.), Essays in Honour of Professor Mirjan Damasˇka, pp. 1 – 27; Koh, above n 7, at p. 33, n 9. 7

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I enrolled in legal studies at the Faculty of Law in Zagreb four years after Professor Damasˇka had already left for America. Older students, who were lucky to have had him as their lecturer, were always talking about him as an excellent professor, a compelling lecturer whose lectures were full of colourful metaphors and jokes. Some people, whom I became acquainted with later, told me a great deal about Professor Damasˇka’s human virtues. In the past three years, I have had the opportunity on several occasions to speak more with him and hear some details about his life in both Croatia and the USA. I have heard his opinion on many things, his views about the similarities and differences between the two academic communities where he was active, about the societies and cultures in which he lived, and about the individuals who were important in his life, or had a strong influence on him. He would also tell me about his friends and events that I was familiar with, or did not know anything about.10 During our conversations, I tried to understand his feelings, the joys of his life, his doubts, hopes or disappointments. I must admit I thought a considerable amount about what he told me concerning himself and his life experience. While thinking about this, two questions came to my mind. What are the virtues that he possesses and has cherished in his “life in two different cultures”? What has his “life in two different cultures” been like? Were the decisions that he made worth it? What price has he paid for living “two professional lives”? Many people he mentioned in our conversations could perhaps offer their answers to these questions, but in the text below I shall attempt to give mine. I humbly hope I can offer them, although I have known Professor Damasˇka only for a relatively short time. What I am going to say may sound hyperbolic, but the human virtues that I have recognised in Professor Damasˇka and in his “life in two different cultures” are those that were recognised as far back as in Greek philosophy (Plato) and praised in the Book of Wisdom.11 They were considered as “cardinal virtues”, for their role is a pivotal one while all other values are grouped around them. These main virtues are: prudence, justice, fortitude and temperance. They are the virtues on which all the remaining human virtues hinge. On this occasion, I would like to add only two more: love and humility. Prudence12 is the quality of making the right decision, a virtue that immediately guides the judgment of conscience. The best, but at the same time the most painful, example of Damasˇka’s adherence to this virtue was when he decided to leave Croatia. It happened in late December 1971, after the conservative Communist regime, headed by Tito, violently suppressed a liberal movement, the so-called “Croatian Spring”. 10 About Damasˇka’s life and work, see: Máximo Langer: Interview with Mirjan Damasˇka, in Jackson/Langer/Tillers (Eds.), Essays in Honour of Professor Mirjan Damasˇka, pp. 415 – 438. 11 “Or if one loves righteousness,/whose works are virtues,/She teaches moderation and prudence,/righteousness and fortitude,/and nothing in life is more useful than these.” Wis. 8:7. 12 The virtue that disposes practical reason to discern our true good in every circumstance and to choose the right means of achieving it. See Catechism of the Catholic Church (CCM), 1806.

Introduction

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Bitterly disappointed by the repression that followed, he left his homeland and settled in the United States of America. As an independent intellectual involved in the liberalisation of communist rule, he could not stay in a country where an authoritarian regime would impose ideological inhibitions on law and on legal science. Possessing very high ethical values, he could not accept having to compromise his ethical principles. He simply followed the voice of his conscience and, together with his wife, left Croatia. Bruce Ackerman,13 one of his best friends, said that Professor Damasˇka left Croatia “to gain the scholarly freedom to reflect upon the great crises of legality of the twentieth century”.14 At the same time, it was an act of fortitude, a moral virtue that ensures firmness in difficulties,15 to stay the course and resist all kinds of pressure. He was aware that, by leaving his home country, he would be living as an intellectual in a different culture and intellectual milieu, as a lawyer in a different legal system, and as a scholar in a different academic community. He now says that his adaptation to life in the United States was terrible and that without the support of his wife, Marija, he would not have made it.16 He had to learn about American culture and history. Being a foreign lawyer, he had to start his legal education ab ovo; his previous experience as a visiting professor was far from sufficient when he was confronted with the commitments of a full professor’s teaching load, or with various administrative duties at the law school. I believe that his “second professional life” was made possible and was supported by his fortitude. Indeed, you must be very courageous to remain committed to what you are working on, you must be reluctant to follow the established theoretical approaches, and must always be ready to develop your own conceptual instruments and your own methods. He was a person who wanted to be able to say to himself that what he had written was concocted by him: “It may be wrong, but it is original, and it is mine”.17 Thanks to such an approach, he has created an opus with a transformative impact on international and comparative law. Justice is the moral virtue of giving every individual his or her due.18 How is it manifested by Professor Damasˇka? If you are a university professor, this virtue is best shown in your attitude towards students. His former students told me about his strict but always just conduct at examinations. There was no other way to pass 13 Bruce A. Ackerman is Sterling Professor of Law and Political Science at Yale Law School. 14 Bruce A. Ackerman: My Debt to Mirjan Damasˇka, 118 Yale L.J. Pocket Part 171, 2009, pp. 171 – 176, at p. 171. 15 The moral virtue that moderates the attraction of pleasures and provides balance in the use of created goods. See CCM, 1808. 16 Langer, above n. 10, at p. 426. 17 Langer, above n. 10, at p. 430. 18 The moral virtue that consists of the constant and firm will to give due to God and neighbour. … Justice towards men disposes one to respect the rights of each and to establish in human relationships the harmony that promotes equity with regard to persons and to the common good. See CCM, 1807.

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the exam but to prove knowledge. I know that he remained the same at Yale Law School. The most significant example of such behaviour, which was at the same time an act of prudence as well as fortitude, was when he failed the son of the former Yugoslav leader, President Tito. Previously warned by two Communist party activists that Tito’s son would sit for the exam, Professor Damasˇka quickly realised that he was a bright young man but spoiled rotten by the special treatment he regularly received. It is still fresh in Professor Damasˇka’s memory how the young man talked “a blue streak” to create the impression before the audience that he was well prepared. However, what he said was nonsense because he actually did not know anything.19 Professor Damasˇka did what his conscience told him to do and he failed the President’s son. This is again an example of how he could never compromise his ethical principles and would follow them courageously, taking whatever risk that this entailed. Where do I see temperance in Damasˇka’s life? He has obviously subordinated his passions to his intellectual spirit and to performing his scholarly work, the work that, together with keeping close ties with his homeland and Alma Mater, I believe he considered to be his mission. As I have already said, although his work in many ways has been transformational, and he has won appreciation worldwide, he has remained modest. There is no need to define the virtue of love. However, there are two kinds of love that I have in mind when describing Professor Damasˇka: the first is the one which I would describe as amor universitatis, or the love he has shown and witnessed for both his academic homes. The second one is amor patriae, i. e. love towards his homeland. Amor universitatis is, just like Professor Damasˇka’s life, divided between Alma mater (the University of Zagreb Faculty of Law) and his adopted academic home, Yale Law School. As a scholar from the University of Zagreb, and former Dean of the Faculty of Law, I will focus on his devotion to the University of Zagreb and its Faculty of Law. In 1990, Professor Damasˇka co-founded the New England Association of Alumni and Friends of Zagreb University. In 2012 Professor Damasˇka was awarded the title of doctor honoris of the University of Zagreb. At the end of his speech at the ceremony, overwhelmed by emotions, he said: “Because my soul has remained in Croatia, my Apollonian and Dionysian instincts are often confronted with an undefined outcome. These conflicts make this honorary doctorate awarded by my Alma Mater additionally precious because it relieves these conflicts. The recognition given to me by the University of Zagreb gives me, namely, not only Apollonian satisfaction because for me, this University is also a symbol of my beloved Croatia, and it is, therefore, very close to my Dionysian instincts. Now it seems to me that these two confronted components of my personality have shaken hands….. Let the University of Zagreb live long, blossom and grow!”20 What remarkable words to express amor Almae Matris! 19

Langer, above n. 10, at p. 435. Mirjan Damasˇka: Zahvala odrzˇ ana na dodjeli pocˇ asnog doktorata na Sveucˇ ilisˇtu u Zagrebu 28. lipnja 2012., (Mirjan Damasˇka: Expression of Gratitude Given at the Doctor Ho20

Introduction

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Both Professor Damasˇka and his late wife Marija, who passed away in 2013, were proud of being graduates of the Faculty of Law of the University of Zagreb. I consider the establishment of the Marija and Mirjan Damasˇka Foundation to be a stellar expression of affection of these two former students towards the Zagreb Faculty of Law, of their feeling of being part of it and being dedicated to it. Moreover, for me personally, it is at the same time a wonderful example of a decision made as a result of a blessed and truly lived matrimonial unity inspired by a never lost love for their country. During his stay at Yale Law School, Professor Damasˇka enabled several talented young scholars from the Faculty of Zagreb to obtain their doctoral degree from Yale, or to go to Yale to do their research studies. As regards Professor Damasˇka’s American academic home, I know at first hand that he is deeply honoured as a professor at this distinguished university and one of America’s top law schools, Yale University School of Law. Amor patriae. Indeed, both Professor Damasˇka and his wife, throughout their lives, have remained truly attached to Croatia, their beloved homeland. Were I to describe their patriotism, the most illustrative way would be to use the words of the Croatian poet, Drago Ivanisˇevic´, from his poem Hrvatska (= Croatia): “Wherever I go, Croatia is with me”. Their home in New Haven is also a part of Croatia. At Yale, Croatia is in Professor Damasˇka’s heart. His acts of amor patriae have been numerous. Let me only remind readers of the activities before and after Croatia’s independence. From the very beginning of the Yugoslav crisis, Damasˇka supported Croatia’s independence. In 1990, he was a member of an expert group formed at Yale Law School to comment on the request of the President of Croatia (at the time one of the constituent republics of the Yugoslav Federation) on the draft of an international treaty to convert Yugoslavia from a federation into a confederation. He signed an Appeal for Peace in Croatia published in the New York Times in November 1991. After Croatia became an independent State, he selflessly continued to put his knowledge and experience at the disposal of his native country. He has periodically advised the Croatian government in its relations with the International War Crimes Tribunal for the Former Yugoslavia, and the International Court of Justice in The Hague. He was appointed Amicus Curiae of the International War Crimes Tribunal for the Former Yugoslavia in the matter of transferring cases to domestic courts. He was appointed special adviser to the Prime Minister of Croatia, and agent of the Republic of Croatia before the International Court of Justice, heading a team of Croatian and English lawyers in the case of Croatia v. Serbia. His immense work in these matters remained mostly undisclosed to the public because of the duty of confidentiality, and therefore was not valued in the manner in which it ought to have been. Humility is a virtue that enables us to overcome selfishness and habitually serve others. Professor Damasˇka has developed a habit of being at the service of his students, colleagues, faculties, society at large. He has humbly served as an exceptional noris Ceremony at the University of Zagreb, 28 June 2012), Hrvatski ljetopis za kazneno pravo i praksu (Croatian Annual of Criminal Law and Practice) 19 (2012) 1, pp. 380 – 386, at p. 386.

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lecturer, a faithful colleague, a reliable friend, a committed dean, a trustworthy member of society (community), and a loyal patriot. Gratitude and admiration for his service have been extended to him on many occasions. I shall conclude my reflection on Damasˇka’s virtues with three important thoughts. A Roman Stoic philosopher, Seneca, in his essay “On Anger” reminds us how the road to virtues is difficult and strenuous: Arduum in virtutes et asperum iter est.21 An Old Latin proverb teaches us that what is acquired by virtue lasts very long: Durata virtute parata. Both these maxims can be particularly well applied to Damasˇka’s work and life. His life in two different cultures has been full of challenges. Damasˇka has successfully overcome all of them and his opus created in these two cultures will last and will be honoured. The third maxim comes from the great orator, Cicero, who said that honour was the reward of virtue: Honor est praemium virtutis.22 Professor Damasˇka merits honour for his virtues. Was it easy to have two professional lives, to live in two different legal cultures? Was it worth it, or was there a price to be paid? Let us hear Professor Damasˇka’s answer: “I paid a price for it: I’m not completely at home in America, and I’m no longer completely at home in my native Croatia. To purloin Heidegger’s phrase, I am struggling ‘to be at home in homelessness’ – Heimischwerden in Unheimischsein.”23 He continues: “I am not completely at home in American law: there are many things here that I find alien. On the other hand, when I go back to Continental Europe, the local conception of lawyering often looks to me overly technical and narrow. I am no longer at home there either. Mine is a strange perspective on law: I look at things as if I were located in the Azores Islands, somewhere in the middle of the Atlantic Ocean.”24 In his already cited speech at the University of Zagreb on the occasion of his doctor honoris, he said the following. “When people ask me if I am satisfied with my decision, I usually answer by adjusting Nietzsche’s distinction of the Apollonian and Dionysian instincts we all have. If I put emphasis on the intellectual aspects of my Apollonian orientation, it turns out that it was good that I left home: had I stayed in my country, professionally, I wouldn’t have achieved what I achieved abroad. However, the satisfaction of our intellectual needs and our professional achievements are only a part of our life experience. If I take into consideration my Dionysian emotions, the evaluation of my leaving this country becomes very confused. I cannot say that the life in America does not provide any Dionysian satisfaction, but the style of life in the old country is closer to my primeval needs. There are days when memories of my old country are soaked with nostalgia and when they rise to the surface, above the layers of so many years, it then seems to me that I would have been happier had I stayed in my home country. I am not one of those living in the diaspora who can fully adjust to life in another country and are never nostalgic. In my experience, Horace’s words are 21

Seneca, De ira, 2, 13, 1. Cicero, De oratore, 81. 23 Langer, above n. 10, at p. 434. 24 Langer, above n. 10, at p. 428. Ibid. at p. 428. 22

Introduction

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very true: those who leave and go across the sea, change the climate but not their soul: Caelum non animam mutant qui trans mare currunt.25 Since my soul has remained in Croatia, my Apollonian and Dionysian instincts are often confronted with an undefined outcome.”26 What about the “life in two cultures”? Has it been worth it? My answer is yes. In fact, having read Professor Damasˇka’s answer several times, and thinking about our conversation, it seems to me that a moral dilemma hides behind this question that he often poses to himself: does he owe anything to his people, his ancestors, because he left, lived another life far from his home country “where he left his soul”? In other words, wouldn’t he have done more for them had he stayed and lived his first life, the life in his home country? Had he stayed, could he have done more, apart from just his academic work; perhaps come to a position of influence and do something “that really makes a difference”?27 Has he, one way or the other, betrayed his homeland, his ancestors? My answer is the following: this is a false dilemma. A debt that he is because of “memories soaked with nostalgia” heeling towards his country, his people, his ancestors, does not exist. Why? Because he has done for his country much more than he, in his modesty, is willing to accept. Prior to 1991, the year of Croatia’s independence and the introduction of democracy, a person of his political, religious and ethical conviction would not have been able to do any kind of work, apart from his scientific and professional one, to promote values different from those advocated by the political elite. After 1991, precisely thanks to his work and reputation gained during the twenty years of his second life and the fact that he put his expert knowledge and experience at Croatia’s disposal, he has been able to do a great deal for his country. I am convinced that because of his expert assistance in the proceedings before international courts, particularly before the International War Crimes Tribunal for the Former Yugoslavia, sinister accusations dealing with the most sensitive issues of international public and criminal laws, based on the idea of equating the aggressor and the victim, were rejected. Had they been accepted, Croatia, as a newly established State, would have had a negative image in the international community. Thanks to Professor Damasˇka’s professional help, Croatia’s difficult journey after its independence and its heavy losses remained bright, and the country preserved its reputation. His ancestors, just like mine, dreamed of Croatia’s independence and they would be very proud of his immeasurable contribution. We are all very grateful for what Professor Damasˇka has done. It is a contribution that can, and should, turn his undermined Dionysian satisfaction into absolute joy. This is why his moral dilemma should disappear, for there is no debt. Professor Damasˇka’s life in two different cultures has made a lot of sense. I must admit that meeting Professor Damasˇka is something I cherish as one of the greatest gifts during my office at the Faculty of Law, first as Deputy Dean and then 25

Horace, Epistelarum liber primus, XI, 27. Damasˇka, above n. 20, at p. 386. 27 Langer, above n. 10, at p. 434.

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also as Dean. The fact that during my term of office the Damasˇka Foundation was established is also one of the most important events and gifts of my mandate. Someone might say that it all happened accidentally. I disagree. I believe that all these gifts happened by the Providence that we both understand. I am sure that Professor Damasˇka feels the same. Professor Damasˇka’s exceptional legal opus represents a valuable gift globally and it is part of the legal heritage of humanity. The establishment of the Damasˇka Foundation is also a precious gift given by Professor Damasˇka and his wife Marija to their Alma Mater. His service to Croatia with his incomparable intellectual force is Professor Damasˇka’s personal gift to his Homeland. With these gifts, he has made an indelible mark on legal theory at the international level, on the future of his first academic home, and on his relationship with his native country. Or, as his favourite poet Horace would say, with these gifts he has built a monument that will last longer than bronze: Exegit monumentum aere perennius.28 This Liber Amicorum is an expression of gratitude of those who have been and will continue to be inspired by Professor Damasˇka’s monumental work. Gratias Tibi ago Mirjan Damasˇka!29

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Horace, Odes, Bk III, XXX.1. Thank you Mirjan Damasˇka!

My Debt to Mirjan Damasˇka Bruce Ackerman* Mirjan walked into my life in the Fall of 1972. I was 29, he was 41, but both of us were at the beginning of our academic careers in America. I was a lucky guy. My DNA was programmed for standardized tests: This curious aptitude propelled me out of a poor neighborhood in New York City to Harvard College and Yale Law School. I had served as a law clerk for Henry Friendly and John Harlan, and followed up by writing a couple of long articles–voila, this proved to be a recipe for a full professorship at the University of Pennsylvania. I was, to put it mildly, confident in my bright shiny intellectual tools and expansive about the rich possibilities of life in America–in short, I was naïve, breathtakingly naïve. Mirjan had come to Penn via a different route. He was a leading participant in the liberalization of communist life during the “Croatian Spring” of the 1960s–and had been bitterly disappointed by the repression that followed. With reluctance, he and his wife Maria had decided to uproot themselves from their beloved Zagreb. They were rebuilding their lives from the ground up. Mirjan looked on in disbelief as I happily babbled about the mind-blowing implications of John Rawls and Guido Calabresi for the study of law. Mirjan did not come to America to herald a decisive advance in jurisprudence. He went into exile to gain the scholarly freedom to reflect upon the great crises of legality of the twentieth century. His brooding Slav soul was a standing rebuke to my sunny American optimism about the future. Not a recipe for a marriage made in Heaven–but so much the worse for recipes. It was intellectual love at first sight, and soon enough Maria and Susan joined us to create a quadrilateral of friendship that was a centerpiece of our lives for more than thirty-five years. American legal education–then and now–is stunningly parochial. My student days at Yale Law School were a time of great intellectual ferment. Teachers like Alexander Bickel, Charles Black, Robert Bork, Guido Calabresi, Ronald Dworkin, and Charles Reich were engaged in an exhilarating conversation exploring the ultimate aims and nature of law. But in all their teaching, the legal world beyond America was the merest blur on the horizon: England was a (partial) exception, but a great fog appeared at the Channel, and the Continent was permanently obscured from view. Until Mirjan entered my life. For him, comparative law wasn’t the learned accumulation of curious details from far-off places, or even the restatement of familiar * Sterling Professor of Law and Political Science at Yale Law School.

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platitudes contrasting adversarial and inquisitorial systems. He was engaged in a stunningly ambitious project–drawing on Weber and other social theorists to develop a profound reinterpretation of the Western legal tradition. The key questions, he convinced me, arose from competing visions of the state and the competing structures of authority that had emerged in the West over the past millennium. The Continental world was dominated by an activist state that sought to impress one or another set of ideals on a recalcitrant society through a well-organized cadre of bureaucrats-selected first from the Church and later from increasingly secular universities. The English-speaking world, in contrast, was governed by the philosophy of a reactive state, which aimed principally to resolve disputes through a coordinated structure of local notables presiding over jury trials. Damasˇka insisted that we can gain a deeper understanding of Western law only by locating particular legal doctrines within these competing visions of the state and authority. Damasˇka has, of course, developed these insights in the field of comparative procedure in classic works like The Faces of Justice and State Authority. But early on, I was convinced that his thesis had a far wider range of application. His insights were crucial in helping me place my own understanding of the fundamental philosophical challenges of the late twentieth century. The West was moving beyond the classic dichotomies of the night-watchman state, on the one hand, and authoritarianism, on the other. American political philosophy was trying to define a middle way-elaborating principles of justice that respected freedom but insisted on a just distribution of educational and economic opportunities for all citizens. John Rawls is, of course, the most famous exponent of this activist form of liberalism. As one of my tutors at Harvard College, he convinced me of the importance of this enterprise. During the early years of my life-time conversation with Damasˇka, I was spending most of my time writing Social Justice in the Liberal State, in which I tried to further develop the philosophical foundations of the activist liberal project. As I talked with Mirjan, I became convinced that his evolving reflections enabled philosophical liberals to move beyond utopian speculation and consider the distinctive challenges involved in creating activist liberal states in the real world. His framework pinpoints the legal tensions that arise as Anglo-American systems tried to negotiate the transition from a reactive state to a more activist liberalism. As the aims of the state became more ambitious, Damasˇka predicted that the American tradition of reactive governance would be challenged by a new cadre of techno-bureaucrats charged with the task of correcting market failures and providing millions of citizens with the prerequisites of social justice. He was right. His brilliant books have immensely aided American lawyers in understanding the institutional and doctrinal tensions that have resulted as activist bureaucracies have challenged traditional judges, and as judges have taken on new activist tasks. As we talked about his exciting project over countless lunches, I thought that I might contribute something to the larger enterprise that Mirjan had pioneered. His work consistently emphasized the procedural aspects of the great transition to

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activist and bureaucratic modes of justice. But perhaps his focus on process could be supplemented by a parallel inquiry into the substance of legal discourse: Did the transition from a reactive to an activist state encourage American lawyers to talk about substantive law in a new way? This question has shaped my entire scholarly career, but Damasˇka’s influence is most obvious, perhaps, in my books Private Property and the Constitution and Reconstructing American Law. My central concern was to show how the substantive categories of American law were slowly transforming themselves as the American state adopted more activist notions of liberal justice. Following Damasˇka’s lead, my argument was built around a dichotomy that distinguished betwee two competing models of legal discourse: Ordinary Observing and Scientific Policymaking. The model of Ordinary Observing tracked Damasˇka’s model of the traditional English speaking world of coordinate authority and the reactive state. In this legal universe, lawyers talk to juries in ordinary language, urging them to apply prevailing social norms to resolve the individual dispute presented at trial. My model of Scientific Policymaking elaborated on the implications of Damasˇka’s recognition that America was developing a more activist and hierarchical style of government during the course of the twentieth century. In the legal universe dominated by Scientific Policymaking, lawyers no longer talk primarily to juries, supervised by gentlemen-judges. They talk to specialists in the bureaucracy and professionals in the judiciary about the best way to implement the large ideals of liberal justice that lie at the core of the state’s activist project. In the spirit of Damasˇka and Weber, I am dealing in ideal types here. The real world of American law represents fascinating, and often confusing, mixtures of Scientific Policymaking and Ordinary Observing. One great challenge is to clarify these discursive mixtures and to map them on to Damasˇka’s parallel work on coordinate and hierarchical styles of governance. I tried to provide a case study in Private Property and the Constitution, but to put it mildly, there is a lot more to be done. At the same time, Damasˇka’s work raises a larger question. Following Weber, he emphasized the specialist ethos of rule-elaboration that governed bureaucratic and juridical life on the Continent. But as we discussed the rise of the activist state, Damasˇka helped me see that Americans were elaborating a new form of Scientific Policymaking that was quite distinct from the nineteenth century legal science developed in Europe. The key sources for the new legal science were the “law and economics” movement and post-Rawlsian liberal philosophy. My book, Reconstructing American Law, tried to sketch this larger transformation in American legal discourse. The book explored how “law and economics” provided a fundamentally new way to describe the factual dimension of the problems confronting the legal system. The new analytic scheme permitted lawyers to liberate themselves from “common-sense” descriptions of problems that might persuade lay-jurors and substitute a system of description that would impress a new breed of legal specialists trained

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in the use of computers and quantitative methods. Moving from facts to norms, I explored how the methods of liberal political philosophy might be used by lawyers, judges, and bureaucrats to implement principles of social justice within an empirical understanding of problems that was compatible with cutting-edge social science. This distinctive mix of liberal political philosophy and “law and economics” was, in short, providing the rising activist state with the analytic tools it needed for the responsible pursuit of social justice and economic efficiency in a liberal political order. Reconstructing American Law was published a couple of years before Damasˇka’s Faces of Justice, and its preface contains a fulsome acknowledgement of Mirjan’s great influence. My shameless effort to ride on Damasˇka’s coattails did not have the desired effect. While Mirjan’s book was recognized almost immediately as a classic, my call for a philosophical law and economics helped launch a great debate between the Yale and Chicago Law Schools, where Richard Posner’s anti-philosophical version of law and economics became a leading paradigm. This debate continues to the present, and it will not be resolved for a long time to come. Only one thing is clear. We won’t be able to understand this struggle over the future of legal analysis without Damasˇka’s insights into the very different aspirations of the activist and reactive forms of government that coexist in America, as well as the country’s distinctive combination of coordinate and hierarchical modes of authority. Damasˇka’s work will become increasingly important over the next generation. The activist liberal state is on the rise throughout the world, and this development will provoke similar debates over the future of Scientific Policymaking in many countries. Up until now, Continental lawyers and scholars have largely been bemused observers of the alarming American Methodenstreit proceeding in mysterious Angloland. Whatever the rise of Scientific Policymaking may mean for the United States, Europeans have been more or less content to continue relying on the older forms of legal science they inherited from the nineteenth century. But if I am right, liberal law and economics will have a much more general appeal to all nations struggling to define a “third way” between simplistic forms of laissez-faire and equally simplistic forms of governmental command and control. Little wonder, then, that advocates of liberal law and economics in Europe and Asia are challenging the older forms of legal rationality that Weber took for granted in his discussion of the European Rechtsstaat, and which Damasˇka took as the baseline for his comparative work. While Weber’s lawyer-bureaucrat-judges of the nineteenth century were rule-followers, the lawyer-bureaucrat-judges of the twenty-first century will be more intellectually ambitious. Using the methods of law and economics, they will be in a position to move beyond rules to a more principled form of decisionmaking, using political philosophy to gain a more refined understanding of the legal requirements of social justice and economic efficiency in a liberal state. We are, of course, at an early stage in this larger reorientation of legal theory and practice. The new challenge to Weberian thought-ways will be resolved over the

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course of the next few generations, leading to many surprising hybrids and intellectual experiments over the course of the next century. These twists and turns will undoubtedly make Damasˇka’s efforts, and my own, seem almost childlike in their naivety. I can easily envision some legal antiquarian of the twenty-second century shaking his head in disbelief when he accidentally comes upon some moldy volumes by the two of us in the (last remaining) Library of Printed Books. But let me assure my friends in the twenty-second century that, however childlike our scholarly investigations may appear, my lifelong conversation with Mirjan has been a joy while it lasted, and that we wish them well as they confront the surprising transformations of the rule of law that lie ahead.

The International Criminal Justice System and Prosecutorial Selection Policy Kai Ambos*

I. Preliminary Remarks Mirjan Damasˇka has quite early warned of the too high expectations linked to the international criminal justice system, including the International Criminal Court (‘ICC’ or ‘Court’).1 In a paper published in 2008 on ‘the point of international criminal justice’ Damasˇka identified various problems of the goals of the Ad Hoc Tribunals, especially their ‘overabundance’ leading to exaggerated expectations.2 As a cure he recommended reduced (more realistic) aspirations with a focus on the didactic objective of international criminal trials, i. e., their ‘socio-pedagogical’ mission ‘of strengthening the public sense of accountability for human rights violations’.3 In other words, Damasˇka rightly points to the Court’s role in strengthening the public * Professor of Criminal Law, Criminal Procedure, Comparative Law and International Criminal Law at the Georg-August Universität Göttingen; Judge at the District Court (Landgericht), Göttingen. – The author thanks Alain Zysset, Mark Drumbl, Antony Duff, Fréderic Mégret, Saira Mohamed and James Stewart for useful comments at the ‘Wrongs Across Borders Conference’ of the Robina Institute of Criminal Law and Criminal Justice, University of Minnesota Law School, March 27 & 28 2015. I also thank Dr. Rod Rastan, Office of the Prosecutor, ICC, for very useful written comments as well as Dr. Alexander Heinze for updating the paper. Last but not least, I thank stud.iur. Joschka Schlake for the help in formatting the paper. 1 For other important contributions by Damasˇka on International Criminal Law and Justice see Negotiated Justice in International Criminal Courts, Journal of International Criminal Justice (‘JICJ’) 2 (2004), 1018 – 39 (arguing, on the basis of a comparative analysis of bargained justice, that in international courts it can only be justified in exceptional circumstances for practical reasons) and Unacknowledged Presences in International Criminal Justice, JICJ 10 (2012), 1239 – 56 (arguing, taking the ICTY Gotovina et al case as an example, that international criminal proceedings often have an unintended impact on unindicted persons or States as well). 2 See in particular Damasˇka, What is the Point of International Criminal Justice?, ChicagoKent Law Review (‘Chi-Kent. L. Rev.’), 83 (2008), 329, 331 et seq.; in the same vein Damasˇka, Problematic Features of International Criminal Procedure, in: Cassese (ed.), The Oxford Companion to International Criminal Justice, Oxford 2009, p. 175, at pp. 177 – 9. 3 Damasˇka, Chi-Kent. L. Rev., supra note 2, 340 et seq. (347); in the same vein Damasˇka, supra note 2 (Oxford Companion), 184 (‘strengthening moral inhibitions against egregious human rights violations …’), 186; Damasˇka, Reflections on Fairness in International Criminal Justice, JICJ 10 (2012), 611, 614 (judges as ‘moral teachers’).

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confidence in the rule of (international criminal) law with a view to the actual enforcement of the principle of individual criminal responsibility under international law. In dealing with the ‘challenges’ to this didactic function he also discussed the problem of selective enforcement.4 Concluding, he generally suggested, also referring to the ICC, more ‘modesty in setting objectives’ to avoid ‘[d]isillusionment stemming from unfulfilled expectations and inconsistencies’.5 In a paper published one year later Damasˇka analysed the ICC as a court between ‘aspiration and achievement’.6 The main thrust of his argument then was that the ‘endogenous powerlessness’7 of international criminal tribunals, especially the ICC, manifest in the complete dependence on State cooperation at basically all levels and exacerbated by too ambitious victim participation procedures, creates ‘discrepancies between promise and achievement’ which ultimately undermine its legitimacy.8 While these disparities cannot be completely eliminated, they may be reduced by ‘streamlining its procedures and scaling-down its ambitions’, i. e., again, by selective enforcement (a focus on the most responsible and the gravest crimes) and a restrictive interpretation of the victims participation rights.9 This paper builds on these thoughts and thus takes a closer look at two broad issues which are, at first sight, unrelated but in fact are heavily dependent on each other. The ‘International Criminal Justice System’ is a three-tiered, interrelated and dynamic system whose goal it is to reduce impunity for international core crimes. The ICC is but one element of this system suffering from a series of constraints (‘endogenous powerlessness’) which force it to use its scarce resources in a highly efficient and rational manner. To that effect, the Prosecutor of the Court has to select situations and cases and determine her investigative priorities. In other words, selective enforcement, as correctly identified by Damasˇka, is the Court’s main challenge and, at the same time, hope to cope with an otherwise hopeless situation of overburdening and burnout. This, however, leads to a system of distributive instead of retributive justice and may undermine the legitimacy of the Court if prosecutorial decisions cannot be adequately explained and justified countering the feeling that the ICC is a Court for individuals of weak States.10 While it is difficult to fight such gut feelings the only way forward is to further develop fair, rational and transparent criteria for selection and prioritization of situations and cases taking into account the above mentioned ‘socio-pedagogical’ mission of the Court and, rather sooner than later, open formal investigations into non-African cases. 4

Damasˇka, Chi-Kent. L. Rev., supra note 2, 347 et seq. (360 et seq.). Ibid., 364 – 5. 6 Damasˇka, The International Criminal Court between Aspiration and Achievement, UCLA Journal of International Law and Foreign Affairs, 14 (2009), 19. 7 Ibid., 21; in the same vein Damasˇka, supra note 3, JICJ, 613 (‘innate powerlessness’). 8 Damasˇka, supra note 6, 19 et seq. (20 – 1). 9 Ibid., 32 et seq. (32). 10 See also Damasˇka, Chi-Kent. L. Rev., supra note 2, 361. 5

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II. The International Criminal Justice System 1. The Inter-/supranational Level International Criminal Law’s strong grounding in criminal law, together with its actual enforcement by international criminal Tribunals and the ICC, converts it into criminal law on a supranational level, fully encompassing the well-known principles of a liberal criminal justice system, in particular the principles of legality, culpability and fairness.11 The institutionalization of International Criminal Law (‘ICL’) with the establishment of the ICC entails the creation of a single penal system of the international community12 – understood as a major group of States bound together by common values13 and in this sense as the collective agent of this system14 – extending 11 This view gains more and more ground in the international literature see Robinson, The Identity Crisis of International Criminal Law, Leiden Journal of International Law (‘LJIL’), 21 (2008), 925 – 6, 961 – 2 speaking of a ‘liberal system of criminal justice‘ (although warning of ICL’s illiberal tendencies derived from a human rights and victims oriented discourse, 927 et seq.); Sander, Unravelling the Confusion Concerning Successor Superior Responsibility in the ICTY Jurisprudence, LJIL, 23 (2010), 105, 125 et seq. calling for the respect for criminal law principles, in particular the principle of culpability. 12 I follow here Andreas Paulus’ distinction between international community and society: ‘The term “international community” is sometimes used interchangeably with the term ”international society”. As a more extensive inquiry has shown, the usage is far from uniform. Nevertheless, one may say – with the necessary caution – that a community adds a normative element, a minimum of subjective cohesion to the social bond between its members. Whereas society emphasizes factual interconnections and interrelations, community looks to values, beliefs and subjective feelings.’ (Paulus, International Law and International Community, in: Armstrong (ed.), Handbook of International Law, London 2009, pp. 44, 45 [references omitted]; for a more profound study Paulus, Die Internationale Gemeinschaft im Völkerrecht, München 2001). A liberal concept of international community rests on the universal human rights as common values (ibid, 45, 48). 13 I have tried elsewhere to explain the normative basis of ICL and international criminal justice by trying to demonstrate that a supranational ius puniendi (‘without a sovereign’) may be ‘inferred from a combination of the incipient supranationality of the world order (understood normatively as an order of values) and the concept of a world society composed of world citizens whose law – the “world citizen law” (“Weltbürgerrecht”) – is derived from universal, indivisible and interculturally recognized human rights predicated upon a Kantian concept of human dignity.’ (in Ambos, Punishment without a Sovereign? The Ius Puniendi Issue of International Criminal Law, Oxford Journal of Legal Studies 33 (2013), 293 with further references). For a similar account, Duff, Authority and Responsibility in International Criminal Law, in: Besson/Tasioulas (eds.), The Philosophy of International Law, Oxford 2010, 589, at pp. 599 et seq. (identifying ‘our shared humanity’ as the punishing agent in ICL and understanding humanity ‘as a moral community’ which is attacked by each attack against one of its members); Corrias/Gordon, Judging in the Name of Humanity, JICJ 13 (2015), 97 et seq. (considering the global public as humanity, the international criminal tribunals as representatives of public humanity and humanity itself as the basis of their authority claim over the community or public); on the cosmopolitan, global human rights aspiration Mégret, What Sort of Global Justice is ‘International Criminal Justice?’, JICJ 13 (2015), 77, at 85 et seq.; crit. of ‘humanity’ as object of reference (‘the We-s’) of ICL Tallgren, The Voice of the International, JICJ 13 (2015), 135, 142 et seq.

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beyond the core areas of substantive and procedural law towards other branches of criminal law (law of sanctions, enforcement of sentences, judicial assistance etc.). This new penal system suffers, of course, from many, in particular practical limitations,15 and its primary focus is on criminal prosecutions and trials, i. e., accountability in classical criminal law terms,16 leaving aside alternative approaches to justice as they are especially advanced by the transitional justice discourse.17 In any case, this new penal system represents only one – the supranational – element of the new ‘International Criminal Justice System’ and is thus incomplete without the operation of the national criminal justice systems to be looked at now. 2. The National Level The other element of the international criminal justice system is represented by the national criminal justice systems which operate at its first and third level as can be seen in the following figure.

14 The recourse to the international community as the agent of ICL is quite common (see, instead of many, Triffterer, Universeller Menschenrechtsschutz auch durch das Völkerstrafrecht?, in: Politische Studien, Die universelle Geltung der Menschenrechte, Sonderheft 1/1995, p. 32, 38; Zahar/Sluiter, International Criminal Law: A Critical Introduction, VII [‘criminal law of the international community’]; Jescheck, Schlußworte, in: Sieber/Albrecht (eds.), Strafrecht und Kriminologie unter einem Dach, Berlin 2006, 152, 160 [‘das allgemeine, gleiche Völkerstrafrecht und die international Strafgerichtsbarkeit als Kontrollsystem …’]; Reuss, Zivilcourage als Strafzweck des Völkerstrafrechts, Berlin 2012, p. 54) but it rings hollow if the normative basis of this affirmation is not further developed (for a recent critique see Corrias/Gordon, supra note 13, at 101 [‘loosely conceived international legal community’]; Tallgren, supra note 13, 146 et seq. [inquiring the ‘We’ of international community]). For this normative basis see the previous footnote. 15 For a recent critique of the ICC’s financial dependence on its basically western ‘shareholders’ and the implications for the material conditions of criminal prosecutions see Kendall, Commodifying Global Justice, JICJ 13 (2015), 113. 16 In this sense international criminal justice is a classical form of international justice, in the same vein Mégret, supra note 13, 77, at 79 et seq. (‘minimalist repressive project’). 17 See on the insofar broad concept of justice, including, inter alia, truth commissions, measures of restoration, socioeconomic transformation etc. Ambos, The legal framework of transitional justice. A systematic study with a special focus on the role of the ICC, in: Ambos/ Large/Wierda (eds.), Building a Future on Peace and Justice. Studies on Transitional Justice, Conflict Resolution and Development, Berlin 2009, pp. 19, 22 – 3, 40 et seq. So understood international criminal justice does not aspire to a monopolization of global justice marginalizing alternative approaches; on this risk see Nouwen/Werner, Monopolizing Global Justice, JICJ, 13 (2015), 157.

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Thus, the main responsibility to investigate, prosecute and adjudicate international crimes lies with the territorial State. Only if it fails to live up to its corresponding duty the ICC has a right and perhaps the possibility to intervene. This is a consequence of the complementarity principle which gives the territorial State jurisdictional primacy. In fact it gives primacy to any State ‘which has jurisdiction over it’,18 i. e., which has jurisdiction over the respective international core crime.19 This certainly includes the traditional jurisdictional bases in international (criminal) law, i. e., apart from territoriality and its derivations (flag principle, ubiquity, effects doctrine), the principles of (passive or active) nationality and of protection. But does it also include less traditional principles like aut dedere aut iudicare (principle of representation) and universal jurisdiction? In other words, does a State which claims jurisdiction for extra-territorial events on the basis of the representational or universality principle (‘Pinochet situation’) set aside the jurisdiction of the ICC? The question has not been addressed by the case law so far. On the face of it, the formulation ‘jurisdiction over it’ seems to imply a broad interpretation including all titles of jurisdiction.20 Also, it is fair to assume that the negotiating States did not want to leave it to the Court to decide about their national jurisdiction. In other words, it is up to a State how it frames its (prescriptive) jurisdiction and how this jurisdiction then operates with regard to the ICC within the framework of the complementarity regime. On the other hand, arguably, the rationale of the establishment of the ICC and teleology of the complementarity regime calls for a restrictive interpretation. The complementarity regime regulates the relation between national jurisdictions and the Court. One of the reasons to set up the Court was to avoid far-fetched third State jurisdiction for extraterritorial events, not least to avoid diplomatic tensions between the States concerned. In practical terms, such jurisdiction entails many problems regarding access to evidence, investigations on the ground etc. Of course, the Court has to struggle with 18

Art. 17 (1)(a) ICC Statute (‘ICCS’). The provision does not apply to other international criminal tribunals; insofar a possible conflict of jurisdiction must be solved at the procedural level, for example, by not opening a formal investigation according to Art. 53 (1)(c), (2)(c) ICCS. 20 See also the same formulation in Art. 18 (1), (2) and 19 (2)(b). See also para. 6 of the Preamble of the ICCS referring to a State’s ‘duty’ to prosecute where ‘its criminal jurisdiction’ is established. 19

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the same problems but one would assume that, as an international institution embedded in the international system, it can better cope with the respective problems and, in any case, its intervention does not generate the kind of tensions known from interstate jurisdictional conflicts. Thus, while it is reasonable to give States with a close jurisdictional link (territoriality, nationality) jurisdictional primacy over the Court this makes less sense with regard to a jurisdictional title which renounces such a link.21 Importantly, this is not so much a normative claim – as the normative basis for universal jurisdiction is the same for the national or supranational level – but a decision based on practical and policy considerations. In any case, a State is free to limit its universal jurisdiction to cases which are not investigated by the ICC, thereby giving primacy to the Court in universal jurisdiction cases. As we will see below, Germany has done so. If neither the State ‘which has jurisdiction over it’ nor the ICC is willing or able to deal with the respective criminal situation, the third level represented in our figure – intervention by third States on the basis of universal jurisdiction – comes into play. In other words, impunity gaps at the national level, especially at the level of territorial States which neither prosecute international crimes nor accede to the ICC Statute (‘ICCS’), call for action by third States as enforcers of ICL (under the assumption that such enforcement is legally, politically and morally necessary). Of course, this three-tiered system is dynamic and interrelated. Thus, for example, a third State may abstain from prosecution on the basis of universal jurisdiction if the territorial State, pursuant to a regime change, is now willing and able to take up the prosecution. Further, the system does not only operate vertically – upwards or downwards – between States and the ICC but also on the level of horizontal, inter-State cooperation (extradition and other mutual assistance in criminal matters). To improve this cooperation the EU model of an enhanced cooperation system – based, on the one hand, on the principle of mutual recognition (European Arrest Warrant and other mechanisms) and, on the other, on tight cooperation between police forces, prosecutors and judiciaries (Europol, Eurojust, European Prosecutor)22 – may serve as a model here although it is clear that it will remain unique for a time to come. Cooperation between the ICC and States may be mutually beneficial, in terms of concrete investigation results but also with a view to the exchange of experiences and knowledge.

21 Cf. Benvenuti, Complementarity of the ICC to National Criminal Jurisdictions, in: Lattanzi/Schabas (eds.), Essays on the Rome Statute of the ICC, Vol. 1, Fagnano Alto 1999, pp. 48 – 9; Kreß, Völkerstrafrecht in Deutschland, Neue Zeitschrift für Strafrecht (‘NStZ’) 2000, 625; Höpfel, Der Beitrag des Internationalen Gerichtshofs zur Strafrechtsentwicklung, in: Arnold et al. (eds.), Menschengerechtes Strafrecht. Festschrift (‘FS’) für Albin Eser, München 2005, p. 773. 22 Ambos, Internationales Strafrecht, 4th edn., München 2014, § 12.

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3. The German Example The German law and practice may serve as a good example for a system which, first, at the level of the substantive law, introduces an absolute, genuine or ‘true’ principle of universal jurisdiction23 but, then, at the procedural level, cuts back this unlimited jurisdiction for practical reasons. The German law provides for absolute universal (prescriptive and adjudicative) jurisdiction since the respective rule does not depend on any traditional link (place of commission, nationality, significant national interests) nor is it, at least in the German Code of ICL (CICL, Völkerstrafgesetzbuch), made dependent upon a factual requirement like the presence of the suspect on German territory (sometimes called conditional or limited universal jurisdiction – the terminology is somewhat confusing). In fact, section 1 CICL, with the explicit wording ‘bears no relation to Germany’,24 revokes the traditional jurisprudence of the Federal Supreme Court (Bundesgerichtshof, ‘BGH’) which always demanded a domestic link.25 This unlimited universal jurisdiction does not constitute a violation of the principle of non-intervention if one takes the – quite widespread – view that the prosecution of the international core crimes (codified by Sections 6 – 12 CICL) lies in the interest of humanity26 and thus cannot be regarded as a domestic issue of the States where the crime was committed.27 This was the rationale of the position of the German delegation at the Rome Diplomatic Conference arguing in favour of the inclusion of universal jurisdiction in the ICCS.28 Thus, from an international law perspective this extension of German jurisdiction gives little cause for concern. The policy implications of universal jurisdiction are, of course, an entirely different matter – 23 Cf. sect. 1 of the German Code of ICL (Völkerstrafgesetzbuch, CICL). The author was a member of the Expert Working Group established by the Federal Ministry of Justice to draft this CICL. 24 Cf. the motives in Lüder/Vormbaum (eds.), Materialien zum Völkerstrafgesetzbuch, Münster 2003, p. 26 (‘Referentenentwurf’ according to BR-Drucks. 29/02). Cf. also Werle, Konturen eines deutschen Völkerstrafrechts, Juristenzeitung (‘JZ’) 2001, 885 (890); Werle/ Jeßberger, Das Völkerstrafgesetzbuch, JZ 2002, 724 (729); Zimmermann, Bestrafung völkerrechtlicher Verbrechen durch deutsche Gerichte nach In-Kraft-Treten des Völkerstrafgesetzbuchs, Neue Juristische Wochenschrift (‘NJW’) 2002, 3068 (3069); Abgeordneter (member of parliament) Pick, Erste Lesung vom 22. März 2002, in: Lüder/Vormbaum (eds.), Völkerstrafgesetzbuch, Münster 2003, p. 80; Zypries, Strafverfolgung von Völkerrechtsverbrechen: Eine Herausforderung für die deutsche Justiz, in: Theissen/Nagler (eds.), Der IStGH fünf Jahre nach Rom, 2004, p. 11 (14). 25 See BGH NStZ 1994, 232 (233); BGH NStZ 1999, 236; Strafverteidiger (‘StV’) 1999, 240; Entscheidungen des Bundesgerichtshofs in Strafsachen (‘BGHSt’) 45, 64 (65 et seq., 68 et seq.), though clearly for war crimes (69). Cf. also for case-law Ambos, supra note 22, § 6 mn. 1, 4 et seq. 26 See motives in Lüder/Vormbaum, supra note 24, p. 26. 27 For the normative foundation of universal jurisdiction in more detail see Ambos, supra note 22, § 3 mn. 94. 28 The author was a member of the German delegation. In the end, the German position did not prevail: Art. 12 ICCS rather provides for the principles of territoriality and active personality (for more on this see Ambos, supra note 22, § 8 mn. 7 et seq.).

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think only of the prosecution attempts of Rumsfeld or Sharon by Spain and Belgium and the consequences this had for the law of jurisdiction of these countries – and this was one of the reasons that the German legislator, advised, inter alia, by the Federal Prosecutor (Attorney General in U.S. terms) cut back the unlimited substantive principle of universal jurisdiction by a procedural restriction in the Criminal Procedure Code (Strafprozessordnung, CPC).29 Sect. 1 CICL fits first the German criminal prosecution of international crimes within an international criminal justice system as explained above, i. e., a three-tiered system which – to avoid impunity for serious human rights violations – relies primarily on the territorial/suspect/victim States; second, it relies on the ICC and if applicable other international criminal courts;30 and third, on third States on the basis of universal jurisdiction.31 This system entails a conditional subsidiarity of the universal jurisdiction principle which sect. 153 f CPC secures by directing the Prosecutor’s discretion. The overall aim of the provision is to counter an alleged overload of the judiciary32 through so-called ‘forum-shopping’ with regard to international crimes33 and to limit criminal proceedings to ‘reasonable cases’.34 The conflicting procedural principles of legality (mandatory prosecution) and opportunity (discretion) are adjusted in accordance with the particularities of (international) crimes committed abroad as opposed to the rules for ordinary crimes committed abroad where the Prosecutor has a broad discretion to terminate proceedings.35 29

Sect. 153 f Code of Criminal Procedure (‘CPC’, Strafprozessordnung). Cf. Ambos, supra note 22, § 6 mn. 58 et seq. 31 Cf. Ambos, supra note 22, § 3 mn. 21. Also Keller, Goltdammer’s Archiv für Strafrecht (‘GA’) 2006, 34 et seq., 37; Kurth, Zeitschrift für internationale Strafrechtsdogmatik (‘ZIS’; www.zis-online.com) 2006, 81, 84; see also for a flexible principle of universal jurisdiction Vest, Zum Universalitätsprinzip bei Völkerrechtsverbrechen, Schweizerische Zeitschrift für Strafrecht (‘ZStrR’) 123 (2005), 331 et seq.; for primacy of third States over the ICC see Report of the International Commission of Inquiry on Darfur to the United Nations SecretaryGeneral pursuant to Security Council Resolution 1564 of 18 September 2004, 2005, para. 616: ‘(…) the ICC should defer to national courts other than those of Sudan which genuinely undertake proceedings on the basis of universal jurisdiction. Conc. Delmas-Marty, Interactions between National and International Criminal Law in the Preliminary Phase of Trial at the ICC, JICJ, 4 (2006), 6. 32 See motives in Lüder/Vormbaum, supra note 24, p. 60; Werle, Konturen eines deutschen Völkerstrafrechts, JZ 2001, 890. For similar efforts in Great Britain where the prosecution of persons is limited to those who after the commission of a crime reside in Great Britain, O’Keefe, Universal Jurisdiction, JICJ, 2 (2004), 757 et seq.; for the discussion in Switzerland Vest, supra note 31, 314 et seq. 33 On this danger of an arbitrary expansionist choice of place of jurisdiction see Kurth, supra note 31, 83. 34 Zypries, supra note 24, p. 14. 35 Cf. sect. 153c subs. 1 CPC. See motives in: Lüder/Vormbaum, supra note 24, pp. 59 et seq.; Kreß, NStZ 2000, 625; Jeßberger, Das Völkerstrafgesetzbuch: Herausforderung und Verpflichtung für die deutsche Justiz, in: Theissen/Nagler, supra note 24, p. 48; Beulke, § 153 f, in: Volker et al. (eds.), Löwe/Rosenberg (‘LR’), Die Strafprozessordnung und das Gerichtsverfassungsgesetz, 26th edn., Berlin: De Gruyter, 2008, mn. 9. 30

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The newly introduced sect. 153 f CPC refers to all offences of the CICL (sect. 6 – 14), although only the crimes (‘Verbrechen’) of sect. 6 – 12 fall under the principle of universal jurisdiction while for the misdemeanours (‘Vergehen’) of sect. 13 and 14 the general criminal law (sect. 3 et seq. StGB) remains applicable. Insofar one could have left it with the application of the general rules and the broader prosecutorial discretion.36 To put it more simply, the discretion as a result of the so-called opportunity principle (Opportunitätsgrundsatz) is structured in two directions (without losing sight of the superior goal of preventing impunity37): In case of crimes committed abroad with a domestic link – i. e. when the accused38 is present in Germany39 and/or when he/she is a German40 national – it follows from the cited rules e contrario that an obligation to prosecute exists in principle; there could only then be a refrain from prosecuting a German national when the offence is being prosecuted before an international court or by the territorial or victim State,41 since in this case the overall goal (to avoid impunity) could also be achieved.42 If, however, there is no domestic link whatsoever – when a German is neither involved as victim nor as perpetrator,43 and no suspect of such offence is residing in Germany, and such residence is not to be anticipated either44 – the prosecution may in particular (‘insbesondere’) be dispensed of, if – avoidance of impunity! – an international court or the territorial/suspect/victim State prosecutes the offence. The same applies – as an exception to the duty to prosecute crimes45 –, where the foreigner accused of an offence committed abroad is residing in Germany, but there are no German victims to deplore46 and his/her transfer to an international court or, as the case may be, his/her extradition to the prosecuting 36

Sect. 153c CPC as explained in previous note with accompanying text. See also Weßlau, § 153 f, in: Wolter (ed.), Systematischer Kommentar (‘SK’) zur Strafprozessordnung, 4th edn., Köln: Wolters Kluwer, 2011, mn. 5. 37 See motives in: Lüder/Vormbaum, supra note 24, p. 60; see also Schoreit, § 153 f, in: Hannich et al. (eds.), Karlsruher Kommentar (‘KK’) zur Strafprozessordnung: StPO, 7th edn., München: C. H. Beck, 2013 mn. 2; Beulke, supra note 35, mn. 4. 38 The rule wrongly refers to the accused (cf. Beulke, supra note 35, mn. 14; Weigend, Das Völkerstrafgesetzbuch – nationale Kodifikation internationalen Rechts, in: Triffterer (ed.), Gedächtnisschrift (‘GS’) für Theo Vogler, Heidelberg 2004, p. 209 with fn 49). 39 Sect. 153 f subs. 1 cl. 1 CPC. 40 Sect. 153 f subs. 1 cl. 2 CPC. 41 Sect. 153 f subs. 1 cl. 2 CPC. 42 Sect. 28 (in conjunction with 68) Internationaler Strafgerichtshof Gesetz (‘IStGHG’), German cooperation law with the ICC, BGBl. I 2002, p. 2144) supports this since there is basically a refrain from prosecuting a German national when there is an ICC surrender request (cf. Beulke, supra note 35, mn 24; Weßlau, supra note 36, mn. 8). For an English translation of the law see http://department-ambos.uni-goettingen.de/index.php/forschung/projekte/transla tions, last visited 20 April 2016. 43 Sect. 153 f subs. 2 nos. 1, 2 CPC. 44 Sect. 153 f subs. 2 no. 3 CPC. 45 Sect. 153 f subs. 1 cl. 1 CPC e contrario. 46 Sect. 153 f subs. 2 cl. 2 in conjunction with cl. 1 no. 2 CPC.

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State47 is permissible and intended.48 Besides, it follows that in case of ‘purely’ foreign offences – with no anticipated residence of the accused – the Federal Prosecutor General could dispense with prosecuting even when there is no other jurisdiction willing to prosecute (but see below).49 The provision thus adopts a ‘jurisdictional hierarchy by stages’ (‘gestufte Zuständigkeitspriorität’)50 according to which foreign courts with a close link to the relevant conduct and, as the case may be, the ICC are given primacy, to a large extent, for the cases where the link to Germany, for the reasons indicated above, is too weak. There are of course difficulties in interpreting the general tendency of the provision given that the original ‘ought to’ (‘soll’)51 has been replaced by ‘may’ (‘kann’). While this is understood as making clear that there should be ‘normally’52 and, as the case may be, ‘regularly’53 a refrain in prosecuting the mentioned cases, ‘may’ seems, on the other hand, to imply that a partial withdrawal of universal jurisdiction through the procedural backdoor is neither intended nor is it excluded that the prosecutor could make use of its competence to prosecute.54 Also, the – above mentioned – broad discretionary powers of the prosecutor in the case of purely foreign offences is not to be understood as a withdrawal from the principle of universal jurisdiction, but it is rather guided by the merely practical consideration that in such cases criminal proceedings in Germany would not be very promising.55 In other words, the costs generated by such unnecessary investigations ought to be avoided and only cases with realistic chances of success ought to be prosecuted.56 In any case, the overall aim of preventing impunity could, however, even in the case of ‘purely foreign offences’, lead to a reduction of prosecutorial discretion in favour of the initiation of proceedings in order to support investigation in another

47

Sect. 153 f subs. 2 cl. 2 in conjunction with clause. 1 no. 4 CPC. Sect. 153 f subs. 2 cl. 2 CPC. Cf. the motives in: Lüder/Vormbaum, supra note 24, pp. 60 et seq. 49 Cf. sect. 153 f subs. 1 cl. 1 in conjunction with 153c subs. 1 no. 1 and 2 CPC; for motives see Lüder/Vormbaum, supra note 24, p. 61; Weigend, supra note 38, p. 209; Schoreit, supra note 37, mn. 3. 50 See motives in: Lüder/Vormbaum, supra note 24, p. 61; Weigend, supra note 38, p. 209. 51 For the old wording see the expert draft in: BMJ (ed.), Arbeitsentwurf eines Gesetzes zur Einführung des VStGB, 2001, p. 14 and the official government draft (‘Referentenentwurf’) in: Lüder/Vormbaum, supra note 24, p. 20. 52 Weigend, supra note 38, p. 209. 53 Schoreit, supra note 37, mn. 7. 54 Cf. Report of Legal Committee of the Bundestag in: Lüder/Vormbaum, supra note 24, p. 88; Beulke, supra note 35, mn. 32. 55 See motives in: Lüder/Vormbaum, supra note 24, p. 61; also see Beulke, supra note 35, mn. 5; Singelnstein/Stolle, Völkerstrafrecht und Legalitätsprinzip, ZIS 2006, 120. 56 Cf. also Schoreit, supra note 37, mn. 3. 48

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country or by the ICC.57 The reduction of the discretion also follows from the broad understanding of residence within German territory for insofar suffices any (voluntary or involuntary) contact with German territory (e. g. temporary stay, transfer) which would permit detention.58

III. Prosecutorial Strategy, Policy and Selection 1. Ideal and Real Criminal Justice Systems The flip side of impunity gaps at both the first and third level of the international criminal justice system, i. e., at the level of the national criminal justice systems, is an (increasingly) high number of international crimes which may be referred to the ICC. In fact, the ICC thus turns into the lone enforcer of ICL, at least the most visible one. But can it practically cope with the prosecutorial burden this implies? The answer is, of course, as admitted by the OTP itself,59 in the negative and this has further implications for the kind of justice that is delivered by the Court. In an ideal system of (criminal) justice each suspect receives the quantum of retributive justice deserved in line with the wrongfulness of the respective conduct and the ensuing blame (culpa) to be accorded to her. In the real world matters are more complicated though. In practically all domestic criminal justice systems justice is distributed selectively according to certain, often policy-based criteria.60 Of course, one would expect that criminal justice systems of developed liberal democracies (Rechtsstaaten) dispose of fairer selection mechanisms than less democratic, rather authoritarian systems but ultimately these are only distinctions of degree. Be that as it may, international criminal justice, as represented by the ICC, is also a real system but with certain peculiarities, mainly its subject matter focus on macro57 On ‘provisional investigations’ or ‘investigatory help’ see (also in connection with sect. 153 f subs. 2 CPC) motives in: Lüder/Vormbaum, supra note 24, p. 61; Weigend, supra note 38, p. 209; Schoreit, supra note 37, mn. 9; Beulke, supra note 35, mn. 42; Weßlau, supra note 36, mn. 11. On the successful cooperation between the ICC and the German prosecutorial authorities in the FDLR investigations see ICC-ASP, Report of the Court on complementarity, ICC-ASP/10/23, 11 November 2011, paras. 37 – 42. 58 See motives in: BMJ, supra note 51, p. 86; Lüder/Vormbaum, supra note 24, p. 61; also see Beulke, supra note 35, mn. 15; Weßlau, supra note 36, mn. 9. 59 Cf. ICC-ASP, Report of the Court on the Basic Size of the Office of the Prosecutor, ICCASP/14/21, 7 August 2015, where it is acknowledged that the current size of the OTP is ‘below the required level’ (para. 4) and therefore an increase to a ‘basic size’ is demanded (staff increase from 405 to 540 persons, para. 11) in order to at least meet the expected demand ‘without having to overprioritise activities and constantly overstretch resources …’ (para. 8). 60 See also Damasˇka, Chi-Kent. L. Rev., supra note 2, 362 – 3 (referring to the discrimination from a historical perspective). From a comparative perspective, with a view to mandatory prosecution or prosecutorial discretion (principle of opportunity), see Kuczyn´ska, The Accusation Model before the International Criminal Court, Cham et al. 2015, pp. 94 – 106.

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criminality which, albeit limited to currently three major crimes (with the crime of aggression61 not yet in force), in fact entails an expansion of jurisdiction beyond the classical limits of territoriality and the contours of traditional, individualistic criminal law. More concretely speaking, the ICC faces massive and complex situations of criminality in distant territories but does not dispose of sufficient humane and other resources to deal with this challenge nearly adequately. The Court suffers thus, again in Damasˇka’s words, from an ‘endogenous powerlessness’62 and this more so than the international Ad Hoc Tribunals because these have not had only a more limited mandate but also always received the specific support of certain interested States or groups of States. At any event the Court’s criminal justice project is not one of classical retributive but of distributive criminal justice where the main challenge is not so much the fair or just delivery of sanctions to individual defendants but the fair distribution of justice to a selected number of suspects/perpetrators.63 In making this selection it is an enormous challenge for the Court, as quite rightly pointed out by Damasˇka,64 to avoid the impression that it only prosecutes individuals of weak States and thus reproduces the structural inequalities between States existing at the international level.65 If this were the case the Court would discriminate on the basis of nationality and rightly face the charge to use disturbing double standards. Matters are further complicated by the fact that suspects are not selected as bare individuals – as normally is the case in domestic proceedings – but as representatives of certain perpetrator groups (the Serbs, the Croats, the Hutus, the Tutsies …) and thus the selection entails the distribution of blame to their respective States or groups. As convincingly argued by Mégret, ‘the choice of indictees is always seen as also reflecting some distributive allocation of blame between different national or sub-national groups’; selection ‘is likely to be interpreted as a veritable verdict on the relative responsibilities of various communities …’66 This, in fact, explains why States make it their national cause 61 Arts. 8bis (definition of aggression) and 15bis,ter (exercise of jurisdiction over the crime of aggression) ICCS. For more details see Ambos, Treatise on International Criminal Law, Vol. II: The Crimes and Sentencing, Oxford 2014, pp. 184 et seq. According to Art. 15ter (3), the ICC ‘shall exercise jurisdiction over the crime of aggression in accordance with this article, subject to a decision to be taken after 1 January 2017 by the same majority of State Parties as is required for the adoption of an amendment to the Statute’. 62 Damasˇka, supra note 6, 21. 63 Cf. Mégret, supra note 13, 81 (‘justice between rather than justice to’), 83 – 4 (fair distribution), 89, 95. See generally Schabas, Selecting Situations and Cases, in: Stahn (ed.), The Law and Practice of the International Criminal Court, Oxford 2015, p. 365 (‘extreme selectivity’ of the international system of criminal prosecution); De Meester, The Investigation Phase in International Criminal Procedure, Cambridge et al. 2015, pp. 270 – 1. 64 Damasˇka, Chi-Kent. L. Rev., supra note 2, 360 et seq. 65 On this structural inequality also regarding the ‘ICL we’ Tallgren, supra note 13, 155. 66 Mégret, supra note 13, 90; also 84 (‘distributing blame’), 94 (‘… distribution of cases, ultimately, interacts with forms of justice that are better understood as inter-community or, quite simply, international.’). A similar point has previously made by Damasˇka, Unac-

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to get their nationals acquitted, at least if they belong to the high echelons of civilian or military power. Croatia’s active involvement in the ICTY appeals proceedings against Gotovina and Markacˇ concerning ‘Operation Storm’ is a case in point.67 Against this background it is evident that the rational, fair and transparent selection and prioritization of cases, accompanied by a coherent prosecution strategy, turns out to be of utmost importance for the success and legitimacy of any international criminal tribunal,68 especially the ICC69 given that its Prosecutor (who is in charge of selection)70 has potentially a universal reach and not only the power to seknowledged Presences, supra note 1, JICJ 10 (2012), 1239 et seq. with regard to unindicted persons or States. 67 Damasˇka himself has represented Croatia on various occasions, including in the first Rule 11bis referral hearings relating to Ademi and Norac where he – together with Prof. Davor Krapac – argued in favour of deferral to the national level based on the rank and role of the accused (cf. ‘Brief Amici Curiae on the Question whether the Case Prosecutor v. Rahim Ademi and Mirko Norac may be transferred from the ICTY to the Courts of the Republic of Croatia’, Case No. IT-04 – 78-PT, 11 February 2005). 68 For an instructive comparative evaluation of the selection policies and practices of international criminal tribunals see Vlaming, Selection of Defendants, in: Reydams/Wouters/ Ryngaert (eds.), International Prosecutors, Oxford 2012, pp. 547 – 70; deGuzman/Schabas, Initiation of Investigations and Selection of Cases, in: Sluiter et al. (eds.), International Criminal Procedure: Principles and Rules, Oxford 2013, pp. 133 – 54; also Locke, Indictments, in: Reydams/Wouters/Ryngaert (eds.), International Prosecutors, Oxford 2012, pp. 607 – 12; specifically on the ICTY Angermaier, Case Selection and Prioritization Criteria in the Work of the International Criminal Tribunal for the Former Yugoslavia, in: Bergsmo (ed.), Criteria for Prioritizing and Selecting Core International Crimes Cases, Oslo 2010, pp. 27 – 43; on the ICTR Obote-Odora, Case Selection and Prioritization Criteria in the Work of the International Criminal Tribunal for Rwanda, in: Bergsmo (ed.), Criteria, Oslo 2010, pp. 45 – 67; Schabas, Selecting Cases at the International Criminal Tribunal for Rwanda, in: Jalloh and Marong (eds.), Promoting accountability under international law for gross human rights violations in Africa: essays in honour of prosecutor Hassan Bubacar Jallow, Leiden, Boston 2015, pp. 58 et seq. Crit. of all attempts so far Mégret, supra note 13, 82 (arguing that they ‘ultimately fail to treat the question of distributive justice seriously.’). 69 See previously Ambos/Stegmiller, Prosecuting International Crimes at the International Criminal Court, Crime, Law and Social Change, 58 (2012), 392. See also HRW, The Selection of Situations and Trial before the International Criminal Court, 26 October 2006 (https://www. hrw.org/news/2006/10/26/selection-situations-and-cases-trial-international-criminal-court, last accessed 20 April 2016), p. 7; HRW, ICC: Case Selection leaves Unfinished Business, 2011 (http://www.hrw.org/sites/default/files/reports/icc0911webwcover.pdf), pp. 4, 46; Bergsmo, The Theme of Selection and Prioritization Criteria and Why it is Relevant, in: Bergsmo (ed.), Criteria, Oslo 2010, pp. 8, 12, 14; Vlaming, supra note 68, pp. 542 – 3; Locke, supra note 68, p. 614; Côté, Independence and Impartiality, in: Reydams/Wouters/Ryngaert (eds.), International Prosecutors, Oxford 2012, pp. 354 – 5; deGuzman/Schabas, supra note 68, pp. 131 – 2; from a victims’ perspective Dicker, Making Justice Meaningful for Victims, in: Bergsmo (ed.), Criteria, Oslo 2010, pp. 267 – 8; Bock, Das Opfer vor dem Internationalen Strafgerichtshof, Berlin 2010, p. 606. 70 See also Prosecutor v Bemba, No. ICC-01/05 – 01/08-453, PTC II Decision on Request for Leave to Submit Amicus Curiae Observations Pursuant to Rule 103 of the Rules of Procedure and Evidence, para. 10 (17 July 2009) (leaving the ‘issue of selection of cases’ to the Prosecutor); ICC-OTP, Draft Policy Paper on Case Selection and Prioritisation (2016), para. 5,

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lect individual cases/defendants but also – for the first time in history – entire situations for investigations.71 We will now turn to the development of such criteria of selection and prioritization, after some words on the distinction between situation and case. 2. Situations and Cases The complex process of selecting defendants and concrete charges72 can be divided into two main steps: first, the primary selection of situations – ‘generally defined in terms of temporal, territorial and in some cases personal parameters’73 – and second, the subsequent extraction of cases – i. e. ‘specific incidents during which one or more crimes (…) seems to have been committed by one or more identified sus-

available at https://www.icc-cpi.int/iccdocs/otp/29.02.16_Draft_Policy-Paper-on-Case-Selec tion-and-Prioritisation_ENG.pdf, last accessed 21 April 2016. 71 Ambos/Stegmiller, supra note 69, 392; also Ambos/Bock, Procedural Regimes, in: Reydams/Wouters/Ryngaert (eds.), International Prosecutors, Oxford 2012, pp. 532, 541; Smeulers/Weerdesteijn/Hola, The Selection of Situations by the ICC, International Criminal Law Review (‘ICLR’), 15 (2015), 2. 72 In the case against Lubanga, the Prosecutor decided to concentrate on the recruitment and use of child soldiers and suspended investigations concerning other alleged crimes, in particular sex crimes, Prosecutor v Lubanga, No. ICC-01/04 – 01/06-170, Prosecutor’s Information on Further Investigations, para. 7 (28 June 2006). As expected the OTP did not bring additional charges in the course of the appeals proceedings. Thus, already the first case finished by the ICC shows that the selection of charges entails another discretionary decision that might enlarge the impunity gab, see Bock, supra note 71, pp. 322 – 3; Bock, Wiedergutmachung im Völkerstrafverfahren vor dem Internationalen Strafgerichtshof nach Lubanga, ZIS, 8 (2013), 302; Ambos/Bock, supra note 71, p. 538; also Seils, The Selection and Prioritization of Cases by the Office of the Prosecutor of the International Criminal Court, in: Bergsmo (ed.), Criteria, Oslo 2010, pp. 73 – 5; generally on the OTP’s failure to charge Lubanga with sex crimes Ambos, The First Judgment of the International Criminal Court (Prosecutor v. Lubanga), ICLR12, (2012), 137 – 8 with note 156; on its impact on the reparation decision Bock, ZIS, 8 (2013), 302 – 3. 73 Prosecutor v Lubanga, No. ICC-01/04-101-tEN-Corr, para. 65; see also Olásolo, The Prosecutor of the ICC before the Initiation of Investigations, ICLR, 3 (2003), pp. 99 – 100; Kleffner, Complementarity in the Roman Statute and National Criminal Jurisdictions, Oxford 2008, p. 199; WCRO, The Relevance of a Situation to the Admissibility and Selection of Cases Before the International Criminal Court, 2009 (https://www.wcl.american.edu/war crimes/icc/documents/WCRO_Report_on_Situation_October2009.pdf, last accessed 20 April 2016), pp. 21 – 2; Schabas, supra note 63, 366 – 8. While the Lubanga Chamber suggests that these parameters define a ‘situation’ cumulatively (‘temporal, territorial and in some cases personal parameters’ [emphasis added]), the OTP’s recent Draft Policy Paper on Case Selection and Prioritisation lists those parameters alternatively (‘temporal, territorial or personal parameters’ [emphasis added]), see ICC-OTP, Draft Policy Paper on Case Selection and Prioritisation (2016), supra note 70, para. 4. On the definition also Stegmiller, The Pre-Investigation Stage of the ICC: Criteria for Situation Selection, Berlin 2011, pp. 100 – 14; on the drafting history of the terms ‘situation’ and ‘case’ in the ICCS, ibid, pp. 95 – 100.

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pects’74 – from these situations.75 In a nutshell the procedural development from a situation to a case goes as follows:76 (1) The Office of the Prosecutor (‘OTP’): (a) obtains notitia criminis; (b) starts a preliminary examination;77 (c) identifies a situation; (d) checks, with regard to the situation as a whole, the criteria set out in Article 53(1), also applicable to Article 15(3) ICCS, pursuant to Rule 48 Rules of Procedure and Evidence (‘RPE’) ICC; (e) starts a formal investigation (in the case of a referral), or asks for authorization of a formal investigation (in the case of proprio motu proceedings under Article 15 ICCS) in the sense of Article 54 ICCS; (f) investigates and ideally identifies individual suspects; and (g) ultimately applies for a warrant of arrest or summons to appear if the reasonable grounds standard of Article 58(1) and (7) ICCS are met. (2) The Pre-Trial Chamber (‘PTC’) issues a warrant of arrest or summons to appear. 74 Prosecutor v Lubanga, No. ICC-01/04-101-tEN-Corr, Decision on the applications for participation in the proceedings of VPRS-1, VPRS-2, VPRS-3, VPRS-4, VPRS-5, VPRS-6, para. 65 (17 January 2006). See also Prosecutor v Gaddafi, No. ICC-01/11 – 01/11-547-Red, AC Judgment on the Appeal of Libya Against the Decision of Pre-Trial Chamber I of 31 May 2013 entitled ‘Decision on the Admissibility of the Case Against Saif Al-Islam Gaddafi’, para. 1 (21 May 2014) (defining ‘case’ with regard to investigated suspect and alleged conduct); crit. ibid., Dissenting Opinion Judge Anita Usˇacka, No. ICC-01/11 – 01/11-547-Anx2, paras. 24 et seq. On this definition, adopted in the subsequent case law, also Olásolo, The Triggering Procedure of the International Criminal Court, Leiden 2005, pp. 40 – 7; Stegmiller, supra note 73, pp. 115 – 9; Marchesi/Chaitidou, Article 14, in: Triffterer/Ambos (eds.), Commentary on the Rome Statute of the International Criminal Court, 3rd edn., München, Oxford, Baden-Baden, 2016, mn. 29, 36. In its Draft Policy Paper on Case Selection and Prioritisation, the OTP adds to this definition ‘within a given situation’ (‘“cases” […] comprise specific incidents within a given “situation” during which […]’, ICC-OTP, Draft Policy Paper on Case Selection and Prioritisation (2016), supra note 70, para. 4 [emphasis added]). However, given that the Lubanga Chamber requires cases not to exceed the parameters of a situation (Prosecutor v Lubanga, No. ICC-01/04 – 01/06-8-US-Corr, PTC I Decision Concerning Pre-Trial Chamber I’s Decision of 10 February 2006 and the Incorporation of Documents into the Record of the Case against Mr Thomas Lubanga Dyilo, para. 21 (24 February 2006)) it is clear that there are cases that do exceed these parameters; this does not mean that they cannot be characterized as ‘cases’ in the first place. 75 Reg. 34 – 5 RegOTP. 76 cf. Stegmiller, supra note 73, pp. 119, 215 – 223 (modified). 77 The investigation phase can be subdivided into a ‘preliminary examination’ and a ‘formal investigation’. Thus, the preliminary examination prepares the decision to open (or not) a formal investigation. On the detailed structure of the preliminary examinations according to the recent OTP policy paper see Ambos, Treatise on International Criminal Law, Vol. III: International Criminal Procedure, Oxford 2016, pp. 335 et seq.

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Only with this last step does a formal or legal case exist. At any rate, the procedural stages mentioned above are blurry in practice since the OTP will most likely focus on individuals before a ‘legal case’ in the sense of Article 58 arises. In fact, a case could be formed at three potential stages: (1) during preliminary examination and investigation stages; (2) at the moment the Prosecutor makes an application for an arrest warrant or summons to appear; or (3) when the PTC issues a decision to issue a warrant of arrest or summons to appear.78 Therefore, one may distinguish between cases in a broad and narrow sense. While the later refer to the (strict) legal cases that only come into being once a warrant of arrest or summons to appear is issued, (potential) cases in a broad sense, i. e., not yet legally defined cases,79 may evolve factually very early during investigations and even at the preliminary examination stage. As soon as the OTP bundles allegations against one or more specific individuals, and possibly even generates a ‘case file’ with their names, a case in the broader sense arises. Such a broad case constitutes, in fact, a ‘case hypothesis’, i. e., a likely set of cases that arises from the investigation of a situation.80 The design of a solid case hypothesis is fundamental for the subsequent process, and it must cover: (1) the status of authority or role of the suspect; (2) the structure of the organization instrumental to the crime and subordinated or associated to the suspect; (3) the pattern and modus operandi of the criminal events; and (4) a conclusion on the mode of responsibility.81

78 Rastan, What is a ‘Case’ for the Purpose of the Rome Statute?, Criminal Law Forum (‘CLF’), 19 (2008), 440. 79 Pre-Trial Chamber II, Situation in the Republic of Kenya, No. ICC-01/09-3, Request for Authorisation of an Investigation pursuant to Article 15, paras. 51, 107 (26 November 2009) and Situation in the Republic of Kenya, No. ICC-01/09-19, paras. 50, 182, 188 (assessment of admissibility ‘against certain criteria defining a “potential case” …’). 80 Originally Rastan, supra note 78, 441; now Reg. 34 RegOTP; also, ICC-OTP, Draft Policy Paper on Case Selection and Prioritisation (2016), supra note 70, para. 4; without explicitly using the term ‘case hypothesis’, ICC-OTP, Report on Preliminary Examinations Activities 2013 (http://www.icc-cpi.int/iccdocs/otp/OTP-Pre-Exam-2014.pdf, last accessed 21 April 2016), paras. 43 and 46. See also Burke-White/Kaplan, Shaping the Contours of Domestic Justice: The International Criminal Court and an Admissibility in the Uganda Situation, in: Stahn et al. (eds.), The Emerging Practice of the International Criminal Court, Leiden 2009, p. 88: ‘investigative hypothesis’ (also in JICJ, 7 (2009), 260). 81 Agirre Aranburu, Gravity of Crimes and Responsibility of the Suspect, in: Bergsmo (eds.), Criteria, Oslo 2010, pp. 148 – 9. See also the requirements of the Document Confirming the Charges (‘DCC’) pursuant to Regulation 52 of the Regulations of the Court (‘RegCourt’).

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At any rate, it is clear that cases – understood broadly or narrowly – may only result from a long and thorough investigation82 and they cannot exceed the parameters of the respective situation.83 Within a situation, the OTP originally applied a sequential or ‘sequenced’ approach,84 i. e., it investigated specific cases within a situation one after another rather than all at once, whereby cases inside the situation are selected according to gravity. Indeed, gravity has an important role to play in the context of selection as we will see below. Later, the Office has become more flexible also carrying out simultaneous investigations85 and replacing the term ‘sequenced’ by the more flexible concept of ‘focused investigations’.86 Lately, this concept has been replaced by the ‘principle of indepth, open-ended investigations’ and the Office works with ‘multiple case hypoth-

82 See also Stigen, The Relationship between the International Criminal Court and National Jurisdictions, Leiden 2008, p. 91; Kleffner, supra note 73, pp. 195 – 203; Razesberger, The International Criminal Court: The Principle of Complementarity, Frankfurt/Main 2006, 32 – 3; Stahn, Judicial Review of Prosecutorial Discretion: Five Years on Carsten Stahn, in: Stahn et al., Emerging Practice, Leiden 2009, p. 268. 83 Cf. Marchesi/Chaitidou, supra note 74, mn. 31 – 32 discussing the relevant case law re Prosecutor v Mbarushimana. 84 ICC-OTP, Report on the Activities performed during the first three years (June 2003 – June 2006), 12 September 2006 (https://www.icc-cpi.int/NR/rdonlyres/D76 A5D89-FB64 – 47 A9 – 9821 – 725747378AB2/143680/OTP_3yearreport20060914_English.pdf, last accessed 21 April 2016), p. 8; id, Report on Prosecutorial Strategy, 14 September 2006 (http://www. icc-cpi.int/en_menus/icc/structure%20of%20the%20court/office%20of%20the%20prosecutor/ reports%20and%20statements/statement/Pages/report%20on%20prosecutorial%20strategy. aspx, last accessed 21 April 2016, p. 5. On a previous draft paper on criteria for the selection of situations and cases see also Seils, supra note 72, pp. 56 – 7; ICC-OTP, Update on Communications Received by the Prosecutor, 10 February 2006 (https://www.icc-cpi.int/NR/rdonlyres/ F596D08D-D810 - 43 A2 - 99BB-B899B9C5BCD2/277421/OTP_Update_on_Communica tions_10_February_2006.pdf, last accessed 21 April 2016), pp. 1, 5; ICC-OTP, Report on Activities, 12 September 2006, p. 8; see also Swaak-Goldman, Outlining the Three-Year Report, in: ICC-OTP, Second Public Hearing of the Office of the Prosecutor, 2006 (http:// www.icc-cpi.int/en_menus/icc/structure%20of%20the%20court/office%20of%20the%20pro secutor/network%20with%20partners/public%20hearings/second%20public%20hearing/ses sion%202/Pages/outlining%20the%20three_year%20report%20%E2%80%93%20ms_%20oli via%20swaak-goldman.aspx, last accessed 21 August 2016), session 1: interested States; Guariglia, The Selection of Cases by the Office of the Prosecutor of the International Criminal Court, in: Stahn et al. (eds.), Emerging Practice, Leiden 2009, p. 215. Sceptical Mattioli, in ICC-OTP, Second public hearing, 2006, Session 2: NGOs and other experts, who fears ‘delays in the investigations and consequences for the preservation of evidence or serious problems of perception for the Office; similarly, Bernard, in ibid; Dicker, in ibid, Session 4: NGOs and other experts (‘selective justice’); Schiff, Building the International Criminal Court, Cambridge 2008, pp. 118 – 19. 85 For example in the Kenya situation, see Ambos/Stegmiller, supra note 69, 395. 86 ICC-OTP, Prosecutorial Strategy 2009 – 2012, 2010 (http://www.icc-cpi.int/en_menus/ icc/structure%20of%20the%20court/office%20of%20the%20prosecutor/reports%20and%20sta tements/statement/Pages/prosecutorial%20strategy%202009%20_%202012.aspx, last accessed 21 April 2016), paras. 2, 3, 15, 18 et seq.

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eses’.87 In any case, with the abolishment of the rather formal sequenced approach and the simultaneous pursuit of multiple case hypotheses each investigation is governed by the facts on the ground and the concrete progress of the sub-investigations. In other words, any abstract conceptual approach has practical limits and need to be flexible enough to be adjusted to the concrete investigation at hand and the overall capacity of the OTP.88 The same applies to prioritization: it is not general but situation- and case-specific. Upon completion of each case the Office examines whether other cases in the situation warrant investigation – bearing in mind the gravity and admissibility thresholds of the ICCS – or whether to select a new situation.89 At this stage the above briefly mentioned distinction between selection and prioritization may come into play: An investigator/prosecutor may select certain cases and then prioritize among them, for example pursuant to a special focus of the investigation. More concretely speaking: A prosecutor may select certain cases in a given situation and prioritize the charges of sexual violence90 or the ones concerning child soldiers. Apart from prioritization of charges within cases there may also be a need to prioritize between cases, e. g., to prioritize the suspect just arrested over others still on the run, or the investigation into a specific crime scene since the others are not accessible. Of course, all this, again, calls for convincing criteria why these and not other crimes. We will return to this point below. 3. Grand Strategy and small Policy: Any Use for Selection and Prioritization? As we have seen, situation selection comes before case selection. In fact, the former is related to the trigger (referral) mechanisms of the ICC regime and thus it is often – in the case of Security Council and State referrals – not up to the Prosecu87 ICC-OTP, Strategic Plan 2016 – 2018, 2015 (https://www.icc-cpi.int/iccdocs/otp/ENOTP_Strategic_Plan_2016 - 2018.pdf, last accessed 21 April 2016), paras. 13, 35; id., Strategic Plan 2012 – 2015, 2013 (https://www.icc-cpi.int/en_menus/icc/structure%20of%20the% 20court/office%20of%20the%20prosecutor/policies%20and%20strategies/Documents/OTPStrategic-Plan-2012 - 2015.pdf, last accessed 21 April 2016), paras. 4a, 23; cf. also Guariglia/ Rogier, Selection of Situations and Cases, in: Stahn (ed.), The Law and Practice of the International Criminal Court, Oxford 2015, pp. 361 – 2. 88 See already supra note 59. 89 ICC-OTP, Update on Communications, supra note 84, pp. 1, 5. On a possible application of the concept of ‘completion’ (as understood within the framework of the completion strategy of the Ad Hoc Tribunals) to ICC situations, see Evenson/Smith, Completion, Legacy, and Complementarity, in: Stahn (ed.), The Law and Practice of the International Criminal Court, Oxford 2015, pp. 1263 et seq. 90 See, however, crit. on ‘thematic prosecution of sex crimes’ Ambos, Thematic Investigations and Prosecution of International Sex Crimes: Some Critical Comments from a Theoretical and Comparative Perspective, in: Bergsmo (ed.), Thematic Prosecution of International Sex Crimes, Oslo 2012, 291, pp. 301 et seq.

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tor/Court which situation to examine. Notwithstanding, as we shall see, the criteria for either situation or case selection cannot be distinguished so neatly in practice. As a general rule, it follows from the principles of equality before the law and nondiscrimination91 that selection decisions must not be ‘based on impermissible motives such as, inter alia, race, colour, religion, opinion, national or ethnic origin.’92 The Prosecutor is thus required to investigate all sides of a conflict without favoring or discriminating any person or groups.93 In fact, this is a prerequisite to overcome the victor’s justice stigma attached to international criminal justice since the Nuremberg and Tokyo precedents.94 Apart from these human rights constraints, however, the Prosecution is relatively95 free to develop its own prosecutorial policy. The need to integrate these broad discretionary powers into a transparent and coherent prosecutorial strategy is acknowledged by Regulation 14 of the OTP Regulations (‘RegOTP’).96 It obliges the OTP to make its strategy public and make use of policy papers that reflect the key principles and criteria of this strategy.97

91

Articles 21 (3), 67 (1) ICCS. Prosecutor v Delalic´ et al., No. IT-96 – 21-A, Judgement, para. 605 (20 February 2001); see also Prosecutor v Bizimungu et al., No. ICTR-2000 – 56-T, Decision on Defence Motions for Stay of Proceedings and for Adjournment of the Trial, including Reasons in Support of the Chamber’s Oral Ruling delivered on Monday 20 September, para. 26 (24 September 2004); Côté, supra note 69, pp. 364, 366 – 70; deGuzman/Schabas, supra note 68, p. 167. 93 ICC-OTP, Draft Policy Paper on Case Selection and Prioritisation (2016), supra note 70, para. 15. On the principle of objectivity in more detail De Meester, supra note 63, pp. 295 et seq. See also Côté, supra note 69, p. 370; deGuzman/Schabas, supra note 68, p. 167; see also Mégret, Accountability and Ethics, in: Reydams/Wouters/Ryngaert (eds.), Prosecutors, Oxford 2012, p. 439; Takemura, Prosecutorial Discretion in International Criminal Justice: Between Fragmentation and Unification, in: van den Herik/Stahn (eds.), The Diversification and Fragmentation of International Criminal Law, Leiden 2012, p. 643. Against this background, the decision of the ICTY Prosecution not to investigate alleged war crimes committed by NATO Forces during ‘Operation Allied Forces’ was heavily criticized, see Ambos/Bock, supra note 71, p. 502 with further references. In general on the difficulty and necessity of prosecuting peacekeepers on the international level see O’Brien, Prosecutorial Discretion as an Obstacle to Prosecution of United Nations Peacekeepers by the International Criminal Court, JICJ, 10 (2012), 525. 94 Côté, supra note 69, p. 370. In more detail on the limited competencies of the IMT and the IMTFE which had no jurisdiction over alleged war crimes of the Allies Ambos/Bock, supra note 71, pp. 491 – 2, 497 – 8 with further references. 95 Legal limitations on the Prosecutor’s discretionary powers flow in particular from the principle of complementarity. 96 See also No. 17 of the UN Guidelines on the Role of Prosecutors (‘In countries where prosecutors are vested with discretionary functions, the law or published rules or regulations shall provide guidelines to enhance fairness and consistency of approach in taking decisions in the prosecution process, including institution or waiver of prosecution.’). 97 A good example in this regard is ICC-OTP, Policy Paper on Preliminary Examinations, 2015 (https://www.icc-cpi.int/iccdocs/otp/OTP-PE-rep-2015-Eng.pdf, last accessed 21 April 2016). It sets out the principles and criteria of preliminary examinations (paras. 1 et seq.) and aims to promote transparency (para. 14). See also the recent OTP Strategy Plan 2016 – 2018, 92

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So far, the OTP has already issued several documents, and, following a respective Draft paper of 2006,98 recently issued a new ‘Draft Policy Paper on Case Selection and Prioritisation’.99 After the 2003 Policy Paper already attempted to define a general prosecutorial strategy, in particular by highlighting some priority tasks,100 this latest Draft Policy Paper draws on its central point to focus on those suspects who bear the greatest responsibility for the most serious crimes,101 thus leaving the task of closing the ensuing impunity gap for middle and low-rank perpetrators to national justice systems.102 On the second level, the ensuing general guiding principle of ‘focused investigations and prosecutions’ is concretized, modified and further developed by four strategy papers laying down some key strategic issues: (i) the Strategy 2006 – 2009,103 (ii) the Strategy 2009 – 2012,104 (iii) the Strategy 2012 – 2015105 and (iv) the Strategy 2016 – 2018.106 According to the latter, building on the plan 2012 – 2015,107 the OTP currently faces six external challenges108 and pursues nine 2015, supra note 87, especially para. 36 (referring to the policy paper on preliminary examinations and to case identification and prioritisation within a formal investigation). 98 ICC-OTP, Criteria for Selection of Situations and Cases, [unpublished] draft policy paper (2006). 99 ICC-OTP, Draft Policy Paper on Case Selection and Prioritisation (2016), supra note 70. 100 ICC-OTP, Paper on some Policy Issues before the Office of the Prosecutor, 2003 (https://www.icc-cpi.int/NR/rdonlyres/1FA7C4C6-DE5F-42B7 - 8B25 - 60AA962ED8B6/ 143594/030905_Policy_Paper.pdf, last accessed 21 April 2016), p. 1. 101 ICC-OTP, Draft Policy Paper on Case Selection and Prioritisation (2016), supra note 70, paras. 41 – 3. One, however, must not confuse the OTP’s policy choice to limit prosecutions to certain high caliber cases with the admissibility threshold as a legal barrier to bring certain cases, in particular with the gravity threshold of Article 17 (1) (d) ICCS; thereto infra sect. 4. For a focus on the most responsible at the ICTY see Rule 28(A) RPE ICTY (additional screening of indictment, introduced as part of completion strategy in 2004, to ensure that it ‘concentrates on one or more of the most senior leaders suspected of being most responsible …’). At the SCSL, the mandate was at the outset limited to ‘persons who bear the greatest responsibility’ (Article 1(1) SCSLS). 102 ICC-OTP, Policy Paper, supra note 100, p. 7. As to the historical origin of the policy of targeting senior leaders/persons most responsible Locke, supra note 68, p. 607. The OTP may, however, ‘also decide to prosecute lower level-perpetrators where their conduct has been particularly grave or notorious’, ICC-OTP, Draft Policy Paper on Case Selection and Prioritisation (2016), supra note 70, para. 41. 103 ICC-OTP, Report on Prosecutorial Strategy, supra note 84; on the respective draft paper see Seils, supra note 72, pp. 71 – 2. 104 ICC-OTP, Prosecutorial Strategy 2009 – 2012, supra note 86; detailed analysis by Ambos/Stegmiller, supra note 69, 394 – 407. 105 ICC-OTP, Strategic Plan 2012 – 2015, supra note 87. 106 ICC-OTP, Strategic Plan 2016 – 2018, supra note 87. 107 ICC-OTP, Strategic Plan 2016 – 2018, supra note 87, paras. 1 – 2 (seeing a ‘promising trend’ in its shift of strategy brought about by the Plan 2012 – 2015). 108 ICC-OTP, Strategic Plan 2016 – 2018, supra note 87, para. 3 (referring to the (i) increasing complex security environment, (ii) necessity of cooperation, (iii) ‘high pace of technological evolution’ impacting on evidence gathering and presentation, (iv) time period

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strategic goals organized around three major themes.109 At the third level, the 2016 Draft Policy Paper and several other OTP policy papers clarify other key issues and policy criteria regarding selection and prioritization,110 such as the ‘interests of justice’,111 the focus on incidents that are ‘most representative of the scale and impact of the crimes’ and on ‘crimes that have been traditionally under-prosecuted’;112 victim’s participation,113 preliminary examinations114 and the prosecution of sexual and gender based crimes115. In sum, the OTP’s long anticipated Draft Policy Paper on Case Selection and Prioritisation draws on strategy papers, which clarify the Office’s strategic objectives for a time period of three to four years, and policy papers addressing particular funbetween the crimes and their investigation with the ensuing problem of preservation of evidence, (v) insufficient resources and (vi) lack of coordination of relevant actors). 109 ICC-OTP, Strategic Plan 2016 – 2018, supra note 87, para. 4 (the first four referring to the ‘performance of the Office’s mandate’: (i) Conduct impartial, independent, high-quality, efficient and secure preliminary examinations, investigations and prosecutions; (ii) continue to integrate a gender perspective in all areas of the work and to implement the policies in relation to sexual and gender based crimes and crimes against children; (iii) further improve the quality and efficiency of the preliminary examinations, the investigations and the prosecutions; (iv) further adapt the Office’s investigative and prosecutorial capabilities and network to the complex and evolving scientific and technological environment; the second four referring to the ‘conditions to fulfil the Office’s mandate’: (v) achieve a basic size which can respond to the demands [see insofar ICC-ASP, supra note 59]; (vi) contribute to strengthening cooperation, and promoting general support towards the mandate and activities of the Office; (vii) adapt the Office’s protection strategies to the new security challenges; (viii) ensure a professional, accountable, transparent and efficient management of the Office; and the last referring to better coordination in investigation and prosecution: (ix) develop with partners a coordinated investigative and prosecutorial strategy to close the impunity gap. 110 ICC-OTP, Draft Policy Paper on Case Selection and Prioritisation (2016), supra note 70, paras. 4, 12. On the governing principles of the selection process by the OTP, see also Guariglia/Rogier, Selection of Situations and Cases, in: Stahn (ed.), The Law and Practice of the International Criminal Court, Oxford 2015, pp. 358 – 9. 111 ICC-OTP, Policy Paper on the Interests of Justice, 2007 (http://www.icc-cpi.int/iccdocs/ asp_docs/library/organs/otp/ICC-OTP-InterestsOfJustice.pdf, last accessed 21 April 2016). The concept is explicitly mentioned in Article 53 (1)(c) and (2)(c) ICCS. 112 Regulation 34 (2) RegOTP; ICC-OTP, Draft Policy Paper on Case Selection and Prioritisation (2016), supra note 70, paras. 44 – 5. 113 ICC-OTP, Policy Paper on Victims’ Participation, 2010 (http://www.icc-cpi.int/iccdocs/ asp_docs/RC2010/RC-ST-V-M.1-ENG.pdf, last accessed 21 April 2016). 114 ICC-OTP, Report Preliminary Examinations, supra note 80; on the respective draft paper see Ambos/Stegmiller, supra note 69, 397 – 9; see also the OTP’s annual reports on Preliminary Examination Activities from 2011 – 2015. 115 ICC-OTP, Policy Paper on Sexual and Gender-Based Crimes, 2014 (https://www.icccpi.int/iccdocs/otp/Policy_Paper_on_Sexual_and_Gender-Based_Crimes-20_June_2014-ENG. pdf, last accessed 21 April 2016). Crit. of the ICC practice so far, but optimistic given the new course under Prosecutor Bensouda as evidenced by the OTP policy paper, Hayes, Sexual Violence at the ICC, in: Stahn (ed.), The Law and Practice of the International Criminal Court, Oxford 2015, pp. 801 et seq.

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damental issues on which the Office wants to provide more clarity and transparency, not least for itself.116 The strategy papers are valid working agendas which – due to their temporal limitation – also give the OTP the opportunity to critically evaluate and, if necessary, adjust its strategy on a regular basis. A good example is the Office’s decision, already mentioned above, to complement its sequential with a simultaneous approach. Originally, the OTP has, in line with its focus on persons most responsible, adopted a sequential approach, investigating cases within a situation one after another and selecting them according to their gravity.117 Later, the OTP has been more flexible and, for example in the Kenya proceedings, moved to simultaneous investigations, bringing two cases for prosecution at the same time.118 Accordingly, the Strategy 2009 – 2012 – albeit adhering to the policy of focused investigations119 – did no longer explicitly contain the sequential approach; the new approach was confirmed by the subsequent Strategy Plans.120 Another shift in strategy was introduced by the Strategic Plan 2012 – 2015 and confirmed by the most recent one. As the evidentiary standards adopted by the Pre-Trial Chambers at the confirmation stage were higher than expected by the OTP, the Office decided to replace the policy of focused investigations by ‘the principle of in-depth, open-ended investigations while maintaining focus’.121 In particular in situations, in which the OTP has limited investigative possibilities, this approach is meant to allow for ‘a strategy of gradually building upwards’, which means that the OTP will ‘first investigate and prosecute a limited number of midand high-level perpetrators in order to ultimately have a reasonable chance to convict the most responsible.’122 Depending on the evidence available, the OTP even consid116

ICC-OTP, Draft Policy Paper on Case Selection and Prioritisation (2016), supra note 70, para. 1. 117 ICC-OTP, Policy Paper, 2003, supra note 98, p. 5; for critique see HRW, Selection, supra note 69, p. 5 (‘negative implications for the perception of the prosecutor’s impartiality’); Ambos, The Colombian Peace Process and the Principle of Complementarity of the International Criminal Court, Berlin 2010, p. 38. 118 For example the cases against William Samoei Ruto and Joshua Arap Sang. 119 ICC-OTP, Prosecutorial Strategy 2009 – 2012, supra note 86. 120 Supra notes 105 and 107. 121 ICC-OTP, Strategic Plan 2012 – 2015, supra note 87, paras. 4, 23; also ICC-OTP, Strategic Plan 2016 – 2018, supra note 87, para. 34; ICC-OTP, Draft Policy Paper on Case Selection and Prioritisation (2016), supra note 70, para. 41. 122 ICC-OTP, Strategic Plan 2012 – 2015, supra note 87, para. 22; also ICC-OTP, Strategic Plan 2016 – 2018, supra note 87, para. 34; referring to the latest Strategic Plan ICC-OTP, Draft Policy Paper on Case Selection and Prioritisation (2016), supra note 70, para. 41 (‘In order to perform an objective and open-ended investigation, the Office will first focus on the crime base in order to identify the organisations (including their structures) and individuals allegedly responsible for their commission. That may entail the need to consider the investigation and prosecution of lower level perpetrators to build the evidentiary foundations for case(s) against those most responsible’).

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ers limiting itself to the prosecution of low level perpetrators, who committed particular grave and notorious crimes, instead of initiating proceedings against persons most responsible with dubious prospects of success.123 The aim was to be ‘trial-ready’ as early as possible, in any case not later than at the stage of the confirmation proceedings.124 While these examples show that a certain flexibility is useful and even necessary, in order to be able to react to legal or jurisprudential changes,125 the current OTP approach, although approved by the most recent strategy paper and Draft Policy Paper on Case Selection and Prioritisation,126 still suffers from the lack of a comprehensive, overall strategy.127 The Strategic Plan 2012 – 2015, for example, emphasizes the prioritization of sexual and gender-based crimes and crimes against children.128 However, while there is no doubt that these crimes should be investigated thoroughly, neither the Strategic Plan and the 2003 Policy Paper nor the 2014 Policy Paper on Sexual and Gender-Based Crimes129 and the recent Draft Policy Paper on Case Selection and Prioritisation give any reason why these crimes should be prioritized instead of others. Even the Draft Policy Paper on Case Selection and Prioritisation still fails to explain the underlying rationale, if any, of its prioritization policy.130 In addition, the ‘Case Prioritisation Criteria’131 listed in the Draft Policy Paper do not live up to the expectations, since the OTP contents itself with the combination of a rather gen123

ICC-OTP, Strategic Plan 2012 – 2015, supra note 87, para. 22; referring to the latest Strategic Plan ICC-OTP, Strategic Plan 2016 – 2018, supra note 87, para. 34; ICC-OTP, Draft Policy Paper on Case Selection and Prioritisation (2016), supra note 70, para. 41 (‘The Office may also decide to prosecute lower level-perpetrators where their conduct has been particularly grave or notorious’). 124 ICC-OTP, Strategic Plan 2012 – 2015, supra note 87, paras. 3, 4, 18, 23; also ICC-OTP, Strategic Plan 2016 – 2018, supra note 87, para. 34. 125 See also Goldston, More Candour about Criteria, JICJ, 8 (2010), 403. 126 ICC-OTP, Strategic Plan 2016 – 2018, supra note 87, paras. 1, 13 et seq. (arguing that the improved results, especially in terms of confirmations of charges, demonstrate that the shift in strategy was appropriate and successful); ICC-OTP, Draft Policy Paper on Case Selection and Prioritisation (2016), supra note 70, paras. 1, 4. 127 Critically also HRW, Business, supra note 69, pp. 46 – 7. 128 ICC-OTP, Strategic Plan 2012 – 2015, supra note 87, paras. 58 – 63; also ICC-OTP, Strategic Plan 2016 – 2018, supra note 87, para. 37 (‘In prioritising investigations, the Office will continue to pay particular attention to prosecuting specific forms of crime. In line with the SGBC [Sexual and Gender Based Crimes] Policy, the Office has committed to focusing in particular on the investigation and prosecution of SGBC.’). 129 ICC-OTP, Policy Paper on Sexual and Gender-Based Crimes, supra note 115, para. 7 (stressing that ‘charges for sexual and gender-based crimes are brought wherever there is sufficient evidence to support such charges’). 130 See for example the philosophical justification of the prioritization of sex crimes by deGuzman, Giving Priority to Sex Crime Prosecutions, ICLR, 11 (2011), 515; deGuzman, An Expressive Rationale for the Thematic Prosecution of Sex Crimes, in: Bergsmo (ed.), Thematic Prosecution, Oslo 2012, p. 11. 131 ICC-OTP, Draft Policy Paper on Case Selection and Prioritisation (2016), supra note 70, paras. 46 – 50.

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eral reference to ‘the same factors that guide the case selection’ and what it calls ‘operational criteria’ such as the availability of evidence, international cooperation and the Office’s resources.132 Moreover, the kind and nature of the crime, and the social alarm caused by the crime may also serve as important criteria for prioritization. While the former might play a role within gravity as case selection (and therefore prioritization) requirement,133 the social alarm caused by the crime was rejected as a factor of gravity by the ICC Appeals Chamber (see below); it might, however, be covered by the operational criterion of ‘the potential impact of investigations and prosecutions on the occurrence of ongoing or future crimes’,134 which could serve to reflect the expressivist function of the investigation of a certain case. Of course, if one takes a universal perspective here one may argue that the wider public’s desire for a penal reaction with regard to certain, especially despicable crimes is satisfied for a certain period of time once such crimes, e. g. child soldiering or sex crimes, have been prosecuted and judged. This ratione materiae element may be complemented by other factors such as the impact of a prioritization in a given national context – e. g. peace negotiations could render the investigation of a person taking part in these negotiations not in the ‘interests of justice’. Thus, this latter concept turns out to be an important normative criterion of selection/prioritization. Be that as it may, the OTP’s Draft Policy Paper on Case Selection and Prioritisation must be measured against the demands of the – above mentioned – Regulation 14 RegOTP which requires a general and coherent prosecutorial strategy in one master document serving as the overall guidance. This is more than just a formal point. To have one main document with the overall general or specific goals of a prosecution strategy indicates the general direction for the Office and this not only for the interested public but also for the personnel working in the Office. It is also more practical to have the overall strategy in one document instead of in various documents which are produced at different times and focus on different topics. Only a master document can set out a leitmotif from which focused strategies can be developed and on the basis of which periodic reflection can take place.135 The 2003 Policy Paper (albeit unrestricted in terms of time) could not fulfill this function: It was too general to serve as a meaningful guidance and – more importantly – was at least partly overturned by the current Strategic Plan.136 The Draft Policy Paper on Case Selection and Prioritisation certainly strives to provide more concrete guidelines. Due to its at times vague and deliberately undetermined phrasing however, it is not able to over132 ICC-OTP, Draft Policy Paper on Case Selection and Prioritisation (2016), supra note 70, para. 47. 133 See ICC-OTP, Draft Policy Paper on Case Selection and Prioritisation (2016), supra note 70, paras. 34 – 40 and infra sect. 4. 134 ICC-OTP, Draft Policy Paper on Case Selection and Prioritisation (2016), supra note 70, para. 47 lit f. 135 Ambos/Stegmiller, supra note 69, 394. 136 See the change from the policy of focused investigations to the principle of in-depth, open-ended investigations as described above, supra note 121 and accompanying text.

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come the generality of the 2003 Policy Paper. Of course, there are also arguments against the comprehensive approach implicit in one master document or even the possibility to elaborate such a document in a meaningful way. The dynamics of international crimes, investigations and jurisdictional triggers makes it difficult if not impossible to formulate a general strategy in a comprehensive and reliable manner without taking recourse to generalities and platitudes. The Court is not the master of its investigations, new crime situations may come up virtually from day to day and may be referred to it by States or the Security Council. Given this volatility of the Court’s situation- and caseload it seems to be more prudent to elaborate general strategies only for limited time periods. At any rate, the Draft Policy Paper on Case Selection and Prioritisation is a necessary tool to make the OTP’s approach to selection/prioritization more transparent and also serve a general guidance. 4. Gravity and Selection A situation which does not overcome the gravity threshold within the meaning of Article 17(1)(d) ICCS will not be investigated by the Prosecutor. This is negative selection. In fact, the factors determining gravity according to the OTP – ‘scale, nature, manner of commission, and impact’137 – may serve at the same time as selection criteria.138 Lately, the OTP has complemented its primarily purely quantitative approach to gravity with qualitative considerations.139 The jurisprudence on gravity is not set137 Regulation 29(2) RegOTP; ICC-OTP, Policy Paper Preliminary Examinations, supra note 97, paras. 9, 59 et seq.; ICC-OTP, Report Preliminary Examinations, 2015 (https://www. icc-cpi.int/iccdocs/otp/OTP-PE-rep-2015-Eng.pdf, last accessed 21 April 2016), para. 7. See previously ICC-OTP, Prosecutorial Strategy 2009 – 2012, supra note 86, para. 20; ICC-OTP, Report on Activities, 12 September 2006, supra note 84, p. 6 and ICC-OTP, Report Prosecutorial Strategy, 2006, supra note 84, p. 5. See also Seils, supra note 72, p. 57; for a critical discussion Kontorovich, When Gravity Fails: Israeli Settlements and Admissibility at the ICC, Israel Law Review (‘IsLR’) 47 (2014), 387 et seq.; on the ensuing discretion of the OTP see Rohrer, Legalitäts- oder Opportunitätsprinzip beim Internationalen Strafgerichtshof, Köln 2010, pp. 234 et seq. For an empirical assessment of the OTP’s selection of situations with a view to their gravity see Smeulers/Weerdesteijn/Hola, supra note 71, 1 et seq. (concluding, on the basis of an analysis of secondary data on violence and human rights violations, that ‘the Prosecutor is generally focusing on the gravest situations where international crimes are supposedly committed’ [1, 35 – 6, 38] but at the same time admitting intrinsic limitations of their approach, especially their focus on broad country situations different from the OTP’s approach on narrower situations/potential cases [36 – 8]; also the focus on broad country situations does not account for the – procedurally more important – selection of cases within a given situation). 138 On gravity in a broader sense as a concept to guide the exercise of prosecutorial discretion with a view to the identification and prioritisation of cases Rastan, Complementarity: Contest or Collaboration? in: Bergsmo (ed.), Complementarity and the Exercise of Universal Jurisdiction for Core International Crimes, Oslo 2010, p. 83, 97. 139 ICC-OTP, Policy Paper Preliminary Examinations, 2013, supra note 97, para. 61; see also ICC-OTP, Situation in Mali – Article 53 Report, 2013 (http://www.icc-cpi.int/en_menus/ icc/situations%20and%20cases/situations/icc0112/Documents/SASMaliArticle53_1PublicRe portENG16Jan2013.pdf, last accessed 21 April 2016), para. 143.

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tled. The Lubanga PTC’s proposal of various factors, quite similar to the OTP ones,140 has been reversed by the Appeals Chamber.141 It held that the PTC’s gravity test is flawed and thus constitutes an error of law.142 In particular, as to the social alarm criterion, the Chamber held that it has no basis in the Statute and would politicize the gravity determination by relying on ‘subjective and contingent reactions to crimes rather than upon their objective gravity’.143 Further, as to the status and role of the suspect – a criterion used by the OTP only as an additional factor with regard to its focus on the ‘most responsible’144 – the Chamber correctly pointed out that the ‘predictable exclusion of many perpetrators’ on these grounds ‘could severely hamper the preventive, or deterrent role of the Court (…)’.145 However, the Chamber did not propose an alternative test.146 In perhaps the most profound subsequent PTC decision in the Kenya proceedings gravity was assessed ‘against the backdrop of a po140 Cf. Prosecutor v Lubanga and Ntaganda, No. ICC-01/04 – 02/06-20-Anx2, paras. 29, 42, 46, 50 – 4, 63 (proposing as some abstract criteria regarding a case the nature and social impact [‘social alarm’] of the crimes [systematic or large-scale?], the manner of commission [e. g. particular brutality or cruelty] and the status and role of the suspected perpetrators [are they the most responsible?]); crit. Boas et al. (eds.), International Criminal Procedure, Cambridge 2011, p. 84. 141 Prosecutor v Lubanga Dyilo, No. ICC-01/04-169, Judgment on the Prosecutor’s Appeal against the Decision of PTCI entitled ‘Decision on the Prosecutor’s Application for Warrant of Arrest, Article 58’, paras. 54 – 82 (espec. 68 – 82) (13 July 2006), reclassified as public on 23 September 2009; conc. Prosecutor v Al Bashir, No. ICC-02/05 – 01/09-3, Decision on the Prosecutor’s Application for a Warrant of Arrest Against Omar Hassan Ahmad Al Bashir, para. 48 with note 51 (4 March 2009); for an analysis see Stegmiller, supra note 73, pp. 322 et seq., 335 – 6. 142 Prosecutor v Lubanga Dyilo, No. ICC-01/04-169, para. 82. See on the respective standard pursuant to Article 81(1)(a)-(iii) ICCS Staker/Eckelmans, Article 81, in: Triffterer/ Ambos (eds.), Commentary on the Rome Statute of the International Criminal Court, München 2016, mn. 34 et seq. 143 Prosecutor v Lubanga Dyilo, No. ICC-01/04-169, para. 72. 144 See supra note 122; see also previously Guariglia, supra note 84, pp. 214 – 5; Schabas, Prosecutorial Discretion and Gravity, in: Stahn et al (eds.), Emerging Practice, Leiden 2009, p. 243; calling for flexibility if using this criterion at all WCRO, The Gravity Threshold of the International Criminal Court, American Journal of International Law, 23 (2008), pp. 43 – 51 (esp. 50 – 1); in a similar vein Seils, supra note 72, p. 56. 145 Prosecutor v Lubanga Dyilo, No. ICC-01/04-169, para. 75. See also Seils, supra note 72, p. 56. 146 Crit. of the Appeals Chamber therefore and generally of its too strict approach Schabas/ El Zeidy, Article 17, in: Triffterer/Ambos (eds.), Commentary on the Rome Statute of the International Criminal Court, München 2016, mn. 30. Judge Pikis, in his separate and partly dissenting opinion, tried to determine gravity without, however, proposing a concrete test (Prosecutor v Lubanga Dyilo, No. ICC-01/04-169, Separate and partly dissenting opinion of Judge Georghios M. Pikis, paras. 38 – 41). Judge Pikis focused on the ordinary meaning of the term and understands it as ‘weightiness’ (para. 39) excluding cases ‘unworthy of consideration’ by the Court, i. e. cases that are ‘insignificant in themselves’; ‘where the criminality on the part of the culprit is wholly marginal; borderline cases’ (para. 40) and holds a crime to be insignificant if ‘the acts constituting the crime are wholly peripheral to the objects of the law in criminalising the conduct’ (ibid).

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tential case within the context of a situation’, thereby examining whether the suspects ‘bear the greatest responsibility’ (sic!) and the gravity of the respective crimes, ‘guided by factors such as the scale, nature, manner of commission, impact of crimes committed on victims and the existence of aggravating circumstances …’147 In its confirmation decision PTC II explicitly rejects the Lubanga PTC test148 and the Defence argument that sufficient gravity only exists in case of active conduct or direct perpetration.149 As to the positive factors to be taken into account for the determination of sufficient gravity the Chamber refers to the (sentencing) Rule 145(1)(c) RPE ICC and quotes, by way of example, ‘scale, nature and manner of commission of the alleged crimes, their impact on victims, and the existence of any aggravating circumstances’.150 With this the Chamber does not only confirm the OTP criteria but also puts gravity as a primary consideration (‘litmus test’) in the context of sentencing151 on the same footing, from a conceptual perspective, as gravity as an admissibility criterion. In other words, there is but one uniform concept of gravity, equally valid at the pre-investigation (admissibility) and sentencing stage of the proceedings. This, in turn, means that the rich jurisprudence of the ICTY, ICTR and SCSL on gravity in sentencing,152 albeit not formally binding for the ICC, may provide important elements of a general gravity concept. In sum, ultimately, each decision depends on the concrete circumstances of the respective situation/case but it is clear that the above mentioned qualitative considerations, e. g., looking at the nature of the underlying conflict and the status of the suspects, may outweigh a quantitative assessment which would otherwise entail a rejection of sufficient gravity.153

147

Situation in Kenya, No. ICC-01/09-19, PTC Decision pursuant to Article 15, para. 188; affirming the gravity in paras. 198 – 200 (31 March 2010). 148 Prosecutor v Kirimi Muthaura, Muigai Kenyatta and Hussein Ali, No. ICC-01/09 – 02/ 11-382-Red, Decision on the Confirmation of Charges, para. 44 (23 January 2012). 149 Ibid., paras. 46, 47. 150 Ibid., para. 50. 151 See Ambos, Treatise on International Criminal Law, Vol II: The Crimes and Sentencing, Oxford 2014, pp. 291 et seq. 152 See Ambos, supra note 151, pp. 291 – 2 on the case law; on the Ad Hoc Tribunals’ jurisprudence in detail also Stegmiller, supra note 73, pp. 341 – 9. 153 On this basis affirming gravity in the UK/Iraq situation Schabas/El Zeidy, supra note 146, mn. 30. Such (broader) qualitative considerations may also influence the gravity assessment of crimes committed in the occupied Palestinean territories, including the (possible) crime of transfer under Article 8(2)(b)(viii) ICCS; they are understated by Kontorovich, supra note 137, 388 – 90, 391 – 92.

Rethinking Evidence under Damasˇka’s Teaching Ennio Amodio*

I. We all know that Prof. Damasˇka received his early education as a jurist in Zagreb and first taught criminal procedure in this University. Yet, at a certain time in his life, he crossed the ocean to continue his research work in the United States of America, where he has taught in that nation’s most celebrated universities. This detachment from the European Continent marked a drastic turning point in his thinking. Wearing comparative spectacles, he saw what nobody had been able to spot before him. In studying the United States’ system of penal justice, and comparing it with the one he was familiar with in his native land and elsewhere in Europe, Prof. Damasˇka brought out a mostly unexplored territory, and fixed its boundaries and the key to its reading. True, some scholars in the United States, Britain and on the Continent had already devoted some attention to the comparison of the adversary criminal procedure in common law with the inquisitorial procedure prevailing in civil law countries.1 And it should also be remembered that the earliest shows of interest in comparative studies of criminal procedure date back to the time of the French Revolution, when such institutes of the English criminal process as the jury trial, the justice of the peace and the grand jury were transplanted in France, on the wave of so sweeping an enthusiasm as to lead one scholar to say that the fall of the ancien régime was “a criminal procedure revolution”.2 Still, these had been landings on minor islands, far less significant, in extent and consequence, than the huge mainland of comparative criminal procedure that novel Columbus, Mirjan Damasˇka, had made known.3 The discovery could only be made * Professor Emeritus of Criminal Procedure, University of Milan, Italy. 1 For a history of these studies in Italy, see Amodio, Ennio, La procedura penale comparata tra istanze di riforma e chiusure ideologiche (1870 – 1989), Processo penale, diritto europeo e common law, Giuffrè, Milan, 2003, p. 3. 2 Müller, Gerard, Lessons of Comparative Criminal Procedure, The American University Law Review, 15, 1966, p. 344. 3 The one jurist who can be regarded as a forerunner of M. Damasˇka, in his cultural richness and comparative fineness, was the prominent German scholar and politician of the 19th century, Karl Joseph Mittermayer. A Symposium was dedicated to him in Heidelberg in

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by a scholar firmly rooted in the European philosophical and political culture, from Weber to the thinkers of the Hegelian Left. From this privileged observatory, Prof. Damasˇka succeeded in unveiling the different faces of criminal justice in the common law countries as compared with the Continent, by tracing its steps back from norms and practices to the load-bearing pillars of the procedural building. This has been confirmed by Damasˇka himself in his most important book published in English, where he writes that “the idea for this book stemmed from a felt need to reconcile my native and my adopted legal culture.”4 Within this framework, such procedural forms as plea bargaining, discovery devices or the file of the case can hardly be grasped unless they are viewed in light of the authority structures that characterise the individual procedural systems.5 He thus arrived at a redefinition of the conventional distinction between adversarial and inquisitorial systems in the light of the organisation of authority. While the authority structure prevailing in the Anglo-American model reflects a horizontal distribution of authority that matches a coordinate ideal, the machinery of justice on the European Continent reflects a hierarchical ideal embodied by professionalisation and the vertical ordering of officialdom. The adversary system in common law is, thus, a fact-finding method congenial to a reactive state whose functions are limited to “providing a supporting framework within which its citizens pursue their chosen goals.”6 The inquisitorial system under Continental criminal procedure is, however, the child of an activist state, in which “social problems and social policies are dissolved into state problems and state policies.”7 Hence, the model of a “policy-implementing justice”, which structures the judicial proceeding as an inquest, as opposed to the contest that marks the “conflict-solving process” in the reactivist state’s ideology. This is the new world Mirjan Damasˇka discovered. Criminal procedure has physiognomic traits that can be unveiled not only by observing the operations public prosecutors, law-enforcement bodies, defence counsel and judges perform in their daily work, but also by pointing up the roles and objectives the state assigns to its officials.8 One could think, in fact, of a “horizontal integration” of criminal procedure, as it shows through the judicial apparatus at work along with the norms. Still, one should 1987. (See Vortäge und Materialen, I, 1988). However, Mittermayer’s huge comparative work had not yet matured the awareness of the ideological implication of penal justice that is to be found in Damasˇka’s. 4 Damasˇka, Mirjan, The Faces of Justice and State Authority, Yale University, New Haven, 1986, p. XI. 5 Damasˇka (1986), p. 73: “Political factors play a central role in accounting for the grand contours of procedural systems.” 6 Damasˇka (1986), p. 73. 7 Damasˇka (1986), p. 81. 8 Damasˇka (1986), p. 47: “The question is not only what sort of procedure we want, but also what kind of officialdom we have.”

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not forget another of Damasˇka’s teachings, that the practical, operational aspect of criminal procedure should be considered as well. In this respect, one could use the label “vertical integration” to stress the need to move from the norms down to the lower level of their actual operation. Thus, when a comparative study of criminal procedure is embarked on, merely focusing on the system of “professorial law” without knowing how the legal practice works in different systems may have a distorting impact.9

II. The reflection on the contrast between two different systems of penal justice patterned after two different authority systems has brought out the differences in the rules of evidence between the accusatorial and the inquisitorial procedures. The main feature of the former model is each party’s central control over evidence-gathering and proof-taking in a competitive exercise. In the latter model, however, evidence primarily falls within the judge’s responsibility, since he has the duty to search for the truth even when faced with the parties’ inaction. Thus, while an involved mesh of rules referred to as the law of evidence has evolved in England and in the United States of America, the free-proof method has become firmly established in the European Continent since the French Revolution. However, the study of the American law of evidence infused mistrust about this fact-finding method in Prof. Damasˇka’s mind. The Christopher Columbus who had discovered that new continent, “comparative criminal procedure”, then became a modern Francis Bacon, who, after experimentally analysing the rules of evidence in common law, perceived their limits as lacking in clarity and being hardly effectual in terms of cognitive results. Mirjan Damasˇka sees two distinctive properties in the Anglo-American law of evidence. First, the exclusionary rules are intended to prevent “a possible misuse of evidence.” They preclude the decision-maker from using evidentiary material that is apt to be overvalued or to generate a biasing effect on him. Secondly, the evidentiary system reveals an intrinsic complexity, which also becomes manifest in its “departure from methods of inquiry that prevail in the social practice.”10 In his view, these are the causes that brought about the decline of evidence law. As the jury trial is gradually disappearing from the Anglo-American system of criminal justice, the mesh of exclusionary rules developed to prevent the jury from committing errors in assessing evidence is also losing its raison d’être. Furthermore –– Damasˇka has observed –– factual information is most unlikely, in terms of rational knowledge, to spring effectually out of the clash between prosecution and defence.

9

See Damasˇka (1986), p. 35, footnote 34. Damasˇka, Mirjan, Evidence Law Adrift, Yale University, New Haven, 1997, p. 24.

10

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The contest between the partisan players at trial may disrupt the proper course of the establishment of the truth, especially if the opposing forces cannot rely on equal resources in preparing their cases for trial.11 Hence the conclusion –– perhaps a surprising one for a Continental legal scholar –– that the Anglo-American law of evidence is inadequate to elicit the truth since it fails to ensure an “accurate and trustworthy knowledge.” Much as the Continental procedure may be limited by the trial judge’s prior knowledge of the files, it is comparatively more successful in meeting the need for a “dispassionate, rational inquiry.”12

III. It seems to me that Damasˇka’s thought has been influenced by the degenerative effects of the “sporting theory” of the Anglo-American procedure. Yet, if the exclusionary rules are removed from the context of a system in which the judge passively watches the fight between the parties, then it can clearly be seen that the evidentiary barriers that have arisen from the common law experience are invaluable, nay indispensable, even in the non-jury trials of the Continental system. The Italian Code of Criminal Procedure of 1989 is a case in point. We have rejected the “romantic” version of free proof as the judge’s power to reach an indecipherable, perhaps irrational, belief. Consequently, we have developed a number of exclusionary rules based on both intrinsic policies and extrinsic policies, by providing for a motion to suppress evidence unlawfully obtained (not usable evidence under Art. 191 of the Criminal Procedure Code). Therefore, in the Italian system, the judge knows that he cannot go beyond certain barriers, and, since he is required to set out the reasons for his decision, he is forced to point up any evidence as might have been obtained in breach of the exclusionary rules. In addition, there is no risk that either party may hinder the establishment of the truth, since the judge is empowered to ask questions and, though exceptionally, to summon new witnesses, subject to the prohibition for him to acquaint himself in advance with the file containing the pre-trial statements made by the accused and the witnesses.13 Thus, an adversary system has been built which is compatible with the Continental tradition. A not entirely passive judge delivers a decision based on evidence gathered 11

Damasˇka (1997), p. 100 – 101. Damasˇka (1997), p. 102. 13 Since the second half of the 1990 s, after the Italian parliament and case law had amended some fundamental principles of the new accusatorial model, the adversary principles have been reintroduced in Italy, up to the point that the Italian Constitution has been supplemented to accommodate the rule of the due process of law (see Amodio, Ennio, The Accusatorial System Lost and Regained: Reforming Criminal Procedure in Italy, American Journal of Comparative Law, 52, 489, 2004). 12

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and presented by the prosecutor and by the defence counsel. The drifting of the Anglo-American law of evidence helps the system floating onto the shores of the European Continent. In M. Damasˇka’s thought, the response to the predicament of the law of evidence is expected to come from the spreading of scientific proof. Undoubtedly, the development of technologies has made science an increasingly important component of criminal trials in Europe as well. Precisely because, as Damasˇka has observed, “justice cannot become obscurantist, closing its door to new technologies and methods of investigation,”14 the Italian Code of Criminal Procedure allows the judge to take evidence not provided for by law if it is found to be suitable to ensure the search for the truth and does not impair a person’s moral freedom (Art. 189). Yet, it would be delusory to believe that scientific proof can provide guarantees of absolute certainty to the decision maker. Since the trial must reconstruct past events, even scientific rules are ultimately bound to exhibit a fringe of vagueness in practical application. The experience built in trials for criminal negligence (e. g. in relation to aircraft or train accidents) has shown that, in the conflict between expert witnesses, it is always the judge the one who provides the most correct yardstick for a decision. In the evolution of Damasˇka’s thinking, mistrust for the law of evidence, now regarded by him as drifting away, is gradually replaced by the hope for a bright future fostered by the rationality of science. In the transition, comes to the fore the personality of a jurist who does not, even when he argues in Bacon’s empiricist spirit15, lose his enthusiasm for all things new that comes from Columbus’s faith.

14 Damasˇka, Mirjan, Free Proof and its Detractors, American Journal of Comparative Law, 43, 1995, 356. 15 The same spirit led Bentham to reject the English law of evidence and to support a natural system based on common sense and reason. See Twining, William, Theories of Evidence: Bentham and Wigmore, Stanford University Press, Stanford, 1985, p. 48.

Beyond Accusatorial or Inquisitorial Systems: A Matter of Deliberation and Balance* Teresa Armenta-Deu**

I. The Main Criminal Procedural Law Systems (A Brief Reference) I share, in principle, Damasˇka’s constructive words when he highlights the amazing diversity of systems with all their different combinations of more or less commonly accepted features and the mere survival of the basic meaning of the opposing models: adversarial procedural model/non-adversarial procedural model, and most crucially, the vast amount of thoughts on this issue, in which conclusions curiously differ or even strongly clash, at least according to the most frequently used parameters, mainly of this pair: adversarial/inquisitorial systems and accusatorial/inquisitorial systems.1 The prevailing confusion stems from the lack of clarity of which criteria to use in order to define the specific features of both, and from the instability or lack of agreement on the meaning of the categories used, to which is added the impact of variables such as the attitude towards the state’s authority and other political, social, historical, cultural or teleological features which inexorably leads to avoiding radical assessments or overly dogmatic conclusions. It is very likely that the initial inquisitorial-accusatorial dichotomy has outlived its usefulness and the categories involved must be subjected to a necessary agreement regarding their meaning. It is also likely that the use of many of these categories, mainly, accusatorial principle, system or model (all used interchangeably) have been mishandled either consciously or unconsciously based on interests or simply lack sufficient rigour. But it is equally true that many of the characteristics usually attributed to the accusatorial system are recognizable in all trials in today’s democratic societies and with the changes that stem from these or other options, a common heritage must be acknowledged and established in all the respective criminal proce* This work was carried out with aid for research: (R & D “Legal certainty and effectiveness of justice (critical points on the procedural reforms with the added perspective of comparative law) (2013 – 42159P)). ** University of Girona (Spain). 1 Damasˇka, Mirjan R., Las caras de la justicia y el poder del estado (Análisis comparado del proceso legal), Ed. Jurídica de Chile, Santiago de Chile, 2000, p. 13. In fact: how to indicate the author: Beyond this essential meaning, uncertainties begin.

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dural codes based on international conventions on human rights and the universal proclamation of the citizen’s minimum guarantees in the administration of justice. Both are a common acquis which would include the public nature of the trial, discrepancies in allegations and in taking evidence, the right to defence and the presumption of innocence, the judge’s impartiality and the right against self-incrimination, respect for which would significantly constrain any possible differences between models, plus a long list of principles and rights whose protection would ultimately form the common denominator for a “fair trial”2. Today it is hard to find one pure accusatorial, adversarial or inquisitorial model or a truly homologous mixed model. The significant number of rights and guarantees and therefore possible combinations form such a wide range of resulting systems that one must refer to the aforementioned minimum standards for a fair trial, starting inexorably from a foregone conclusion: having bridged the list of minimum standards, an assessment of the outcome will depend essentially on a game of checks and balances to achieve a balance between the rights and principles chosen. It should be mentioned that these principles, which are generally recognized as references in international human rights declarations and their interpretive jurisprudence bodies, are a recurring example of international consensus used when establishing this list of models. In this direction, one last issue must be avoided at all costs; the accumulation of distortions arising from mistakes, ignorance or biased analysis results in a loss of meaning for some categories that have served throughout history as a beacon of procedural law guarantees. And this consequence, one should not forget, can also be caused by ascribing more meaning to them than they actually deserve, diluting their defining features, which make them unrecognizable and arousing many hopes that inexorably lead to frustration.

II. The Initial Dichotomy – Inquisitorial – Accusatorial: The Essence of Both Configurations and a Brief Historical View Much has been written on the historical development of procedural systems and initially two main systems are allowed when “designing” or “building” criminal procedures: the accusatorial system and the inquisitorial system, whose most significant notes can be summarized as follows: the accusatorial system is characterized by demanding a tripartite process configuration, with a prosecutor, the defendant and a fair court in charge of judging, aimed at ensuring fairness but which can also jeopardize 2 Armenta-Deu, Teresa, Principios y Sistema del proceso penal español, in: Estudios de Justicia Penal, Marcial Pons, Madrid, 2013, pp. 47 – 68. In German: Auf dem Weg zu einer Reform des Strafprozesses? – Unabdingbare Prinzipien und kriminalpolitische Wahlmöglichkeiten, in: Festschrift für Claus Roxin, Walter de Gruyter GmbH&Co, Berlin, 2001, S. 1229 – 1243. Illuminati, Giulio, El sistema acusatorio en Italia, in: Bachmaier Winter (ed.), Proceso penal y sistemas acusatorios, Marcial Pons, Madrid, 2008, p. 146.

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the prosecution or at least be subjected to variations as a result of using discretion. The inquisitorial system, meanwhile, can concentrate the prosecution and the function of judging in one sole subject by eliminating the need for the existence of an accuser to judge, and this role is conducted by the judging body. The aim, in this case, is to ensure the prosecution of crimes at the cost of sacrificing fairness in this setting. The so-called “formal accusatorial system or mixed system”, which combines characteristic elements from the previous two by incorporating the prosecutor in the trial is, however, fully justified to ensure prosecuting the crime and thus achieving the goal of criminal law, first, and second, to ensure the separation of prosecution and judging functions. It is true that in this direction the monopoly system allows greater control over exercising prosecution, but it also raises serious doubts about impartiality in exercising the prosecution.3 Meanwhile the accusatorial process owes its original conception to an almost total assimilation between criminal law and civil law, in which the “compositio” took the place of punishment and became a subjective right attributed to individuals4 ; and it is important to recall that this would not look out of place today when compared to the adversarial system. The following characteristic features are outstanding in this model: the judge cannot proceed “ex officio” since a charge is needed for the trail to begin, the prosecutor investigates, determines the facts and the subject, collects the evidence and consequently sets the limits on the judge’s prosecuting powers (consistency), the process receives information based on the principles of duality, discrepancy and equality, weighing up evidence is freely done without aspiring to establish an objective concept of truth; and finally, the system is based on public justice and therefore the single case prevails.5 The validity of the aforementioned system in its original setting highlighted a number of defects such as not ensuring equality when subjects belonged to different social and economic classes, and a particularly major flaw which inevitably led to the lack of implementing an expansive criminal law assuming the state would avoid the drawbacks of the single public prosecution6. Paradoxically, a situation similar to that follows the current predominance of adversative trends and could also occur as a result of the greater or lesser convergence of civil and criminal procedures and the in3 Armenta-Deu, Teresa, Juicio de acusación, imparcialidad del acusador y derecho de defensa, Estudios de Justicia Penal, Marcial Pons, Madrid, 2014, pp. 155 – 173. 4 In Greece where the system was truly accusatorial and citizens both conducted the trial and faced the duty to investigate, while in Rome especially at the time of the Republic and later as implied by the reference made by Tacitus to “compositio” (fine as a penalty or compensation) in chapter 21 of his book “Germania”, see Ambos, Kai, El Principio Acusatorio y el Proceso Acusatorio: Un Intento de comprender su significado actual desde la perspectiva histórica, in: Bachmaier Winter (ed.), Proceso penal y sistemas acusatorios, Marcial Pons, Madrid, 2008, pp. 49 – 72. 5 Gómez-Orbaneja, Emilio, Comentarios a la Ley de Enjuiciamiento Criminal, Tomo II, Ed. Bosch, Barcelona, 1947, pp. 163 – 165. 6 Garraud, René, Traité théorique et pratique d’instruction criminelle et de procedure pénale, Vol. I, Recueil Sirey, París, 1907, p.164.

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corporation of mechanisms derived from bargaining in both, although in criminal proceedings they are seen as a lesser evil against the system’s inability to control crime.7 Faced with this situation and as criminal law passed from private to public, the state, through the figure of the judge, assumed the function of prosecuting, thus incorporating one of the main features of the inquisitorial system.8 Others may be listed as follows: the state automatically proceeds to start criminal proceedings without need for an individual to request so, and this body carries out the dual function of prosecuting and judging (the concept of citizen-prosecutor disappears); the judge himself investigates, defines the scope of what is to be tried and marks the boundaries of its consistency, the process is not configured as being dual or contradictory thus weakening the possibilities of defence when these are not eliminated, while weighing up evidence is established by law and is directly aimed at seeking the truth; finally, people’s courts disappear with the subsequent specializing of the function of judging; establishing another court at a higher level.9 Notwithstanding the fact that the resulting setting fails to correspond to the traditional process as actus trium personarum, it does correspond to a way of understanding the criminal justice system as a whole, as both organic, substantive and procedural, and thus it becomes a procedural system.10 It happens that the correct pair to be contrasted is not an accusatorial-inquisitorial process but an adversarial-inquisitorial process.11

III. Development Towards the Inquisitorial System and the Appearance of Mixed Systems With the appearance of public offences occurring hand in hand with the growth of cities, criminal law gradually split from civil law and progressively strengthened public power. Society did not ignore prosecution, but this could not exist without a prosecutor, who accepted the responsibility on starting the initiative, leading to the appearance of the Fiskalat, a special officer who was directly subjected to the feudal lord.12 On taking upon itself the right to punish, the state was forced to highlight the implicit duty of that right, with the function of inflicting punishment seen as a 7

Sklansky, David Alan, Anti-inquisitorialism, Harvard Law Review, 122, 2008, p. 1688. And in Rome at the time of the Empire the trial could be initiated ex officio (cognitio) in cases of serious crime (fire, theft, etc.). But significantly in the Germanic and canonical process from the twelfth century, a lawsuit lodged by an individual was no longer essential, just the mere lodging of a complaint or an extended rumour to start the “inquisitio” in order to ascertain the truth. Trusen, Winfried, Der Inquisitionprozess, in: Gelehrtes Recht in Mittelalter und in der frühen Neuzeit, 1997, pp. 81, 87 et seq., 142. 9 Gómez-Orbaneja, p. 165. 10 Montero Aroca, Juan, Principios del proceso penal (Una explicación basada en la razón), Tirant lo Blanch (Alternativa), Valencia, 1997, p. 29. 11 Damasˇka (2000), p. 12 et seq. 12 Schmidt, Eberhard, Einführung in die Geschichte der deutschen Strafrechtspflege, Vandenhoeck & Ruprecth 3ed, 1965, p.180. 8

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burden and tending to reinforce its interest in demanding a trial, originally established to favour the offender. A new configuration of punishment began, and its purpose changed from satisfying the right to revenge to deterring certain acts and if necessary rehabilitating the offender.13 As for configuring the trial, the state’s position as judge settled disputes impartially between parties, and was gradually forced to adapt to a period when trials were intended as a relationship in which the state itself was not involved in an artificial construction under which the incorporation of a body such as the public prosecutor enabled safeguarding judicial impartiality by entrusting prosecution and civil procedures to different subjects and thus preserving the accusatorial system.14 Trials in the Middle Ages moved towards a more official model, guided by the conviction that only those who had committed a crime should be tried, whatever the victim’s intention and will and where seeking evidence and truth did not rule out torture to ensure a confession as the main evidence of legal proof, without implying, however, that torture was inherent to an inquisitorial model.15 This officially accepted inquisitorial trial was implanted in the Melfi constitutions (Codification Project on Public and Criminal Law in Sicily) and later in the Constitutio Criminalis Carolina (CCC) from 1532, although the classic private accusatorial process was included there too.16 In sum, the inquisitorial process developed together with the emergence of the state and the need to strengthen legal certainty and efficiency of criminal justice, where penalties did not meet particular interests of revenge but to deter and even rehabilitate, in any case this did not leave to the discretion of a private party the power to conduct the lawsuit, and thus prosecuting crimes proved to be a determining factor.17 Beyond other considerations set out below, the inquisitorial process highlighted a high degree of effectiveness which we would today call general prevention,18 without forgetting that the inquisitorial and accusatorial processes still existed simultaneously and worked together and even used institutions from one system and another until a kind of mixed system emerged which corresponded to the political transition of these systems, where an interventionist state would find it easier to adapt to official settings, and a liberal state would better adapt to the adversarial model.19 Indeed, progress in the mixed system, also called a formal accusatorial system ran parallel to the influence of the ideas of the Enlightenment on the Napoleonic Code, seeking to combine the advantages of the two former systems and discard their flaws. After the French Revolution, when a model promoting wide-ranging citizen participation was adopted through the people’s juries (1789 and 1792), the Code 13

Trusen, pp. 81 – 87, 142. Gómez-Orbaneja, pp. 163 – 165. 15 Illuminati, p. 138 et seq. 16 Ambos (2008), p. 59. 17 Schmidt, p. 207. 18 Illuminati, p. 140. 19 Damasˇka (2000), p. 311 et seq.

14

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of 1795 restored written and secret investigations, and eliminated the elective nature of the public prosecutor,20 up to the Code d’Instruction criminelle in 1808, which appeared as the archetype of the continental criminal procedural codes of the eighteenth and nineteenth centuries. Having abolished juries, investigations were entrusted to judges through a secret written process, when it allowed them to find grounds to accuse, and transferred this to the General Prosecutor, who sent his indictment to the chambre d’accusation, where it was decided when to submit the defendant to a court jury (cour d’assises).21 It is at this point that the contradictory point appears: by appointing lawyers and allowing access to the dossier, thereby leading to transparency and orality. From this moment, the creation or incorporation of a public prosecutor marked a difference between the prosecuting and procedural duties and accepted the idea, a feature of the inquisitorial system, according to which investigating and prosecuting crimes became a public function that the state did not yield to the initiative of individuals, but at the same time, welcomed the other initiative, typical of the accusatorial system, under which the duty of prosecuting cannot be attributed to the judge since he cannot have either direct or indirect legislative powers.22 Parallel evolution followed after eliminating weighted evidence rules and led to the uselessness of torture, at least from this perspective, although it should be acknowledged that the system incorporated in the Code d’Instruction criminelle in 1808, despite forbidding reading the evidence collected, this was not punished with invalidity, a circumstance which, together with the judge’s knowledge of the contents of the dossier which could also be reported to the jury, contributed inexorably to the determining value of the proceedings in the investigation. However, bearing in mind the above, as an early assessment, it should be recalled that in the face of criticism towards the system, focusing on the confidentiality of proceedings, the use of torture and the judge’s absolute power, many achievements and progress in the system were made, including mainly: equality in criminal prosecutions, the search for factual truth and identifying offenders and protecting defendants through the regulatory process.23

IV. Defining and Critical Elements of the Adversarial System What features mark the essence of an adversarial system, and more specifically, the US model, is a hotly debated issue. For some authors it is certainly the jury, a

20

Nobili, Massimo, Il principio del libero convincimento del giudice, A. Giuffré, Milan, 1974, p.147. 21 Cordero, Franco, Procedura penale, Giuffré, Milano, 2003, p. 66 et seq. 22 Ambroise Casterot, Coralie, Procédure accusatoire/procedure inquisitoire, in: Cadiet, Loïc (ed.), Dictionnaire de la justice, PUF, 2004, p. 1058 et seq. 23 Ambos (2008), p. 64.

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procedural institution that has suffered fewer changes over the years;24 for others it is the trial’s character of confrontation with an absolutely passive judge, highlighted by the Confrontation clause and cross-examination, which provides the right to crossexamination of the defence and prosecutor before a jury.25 In any case, it is generally agreed that common law systems tend to shift burdens and responsibilities onto the parties rather than the judge when it comes to seeking, identifying and proving the facts, thus tending to portray the process as a bipolar confrontation, a system of dispute instead of a system of official investigation. This was mentioned by judge Roberts in a significant case (Sanchez v. Lamas), when he noted that what makes a system adversarial and not inquisitorial is the presence of a judge who does not lead the investigation and fact-finding, but uses factual elements provided by the parties for and against to decide. This argument has been used by some to discuss the value that must be accorded by the US to decisions reached by foreign and supranational courts to reject any that deviate from theirs, the only acceptable model.26 Next to this parameter, it is argued that the proof of guilt must be reached with facts discussed before a jury, never weighed up by the judge (6th Amendment), and since this is not done, any system that accepts confession as burden of proof against the defendant becomes inquisitorial to the extent that only contradictory and cross evidence before the jury or court is valid, and since this is not possible, the burden of proving the facts should be addressed in another way (5th Amendment).27 By contrast, in a recent publication, with the expressive title of “Anti-inquisitorialism”, after delving into the true meaning of the term “inquisitorial system,” concludes that there is no agreement on what defines that system28. And simultaneously, without denying the usefulness of examining the defining features of “anti-inquisitorialism” two relevant circumstances are reached: firstly, the system of criminal procedural law in the United States has incorporated features attributed to inquisitorial systems so that differences become almost unidentifiable;29 and secondly, the complexity and interdependence of the models means one must be cautious about importing external elements in order to prevent damage and a high risk of inefficiency arising from such imbalances this may cause, as in the case of Italy which can be 24 Burns, Robert P., The Death of the American Trial, The University of Chicago Press, Chicago, 2009, p. 4. 25 Sklansky (2008), p. 1634. Wigmore, John Henry, A Treatise on the Anglo-American System of Evidence in Trial at Common Law, 2012. 26 Jackson, Vicki C., Constitutional Engagement in a Transnational Era, Oxford University Press, 2013. 27 Packer, Herbert, The Limits of Criminal Sanction, Stanford, 1968, p. 163. 28 Sklansky (2008). This author divides the relevant aspects for comparison into: inquisitorialism and confrontation, Sentencing and Juries, Procedural Default, and Confessions and Self-Incrimination. 29 Sklansky (2008), p. 1677. Damasˇka, Mirjan R., The Uncertain Fate of Evidentiary Transplants: Anglo-American and Continental Experiments, The American Journal of Comparative Law, 1997, and Darbyshire, Penny, Mischief of Plea Bargaining and Sentencing, Criminal Law Review, 2000.

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seen as an example of the risk of reform that might involve “the worst of both worlds.”30 It should be noted, however, that despite a critical spirit of this model in the United States, although this occasionally leads to a comparison of other models, they always end up being rejected, avoiding casting any doubts on the adversarial system, despite its shortcomings and this proves to be the only one consistent with the requirements, principles and guarantees of their Constitution. However, criticism of various aspects cannot be ignored, among which three are worth mentioning. First, the absence of the duty of the court to verify the truth of the charges in the indictment process, which instead of preventing the US Congress and the Supreme Court from extending their inquisitorial powers to ascertain the truth through wiretapping, entering and searching homes and seizures,31 has had quite the opposite effect. Secondly, limiting the right to self-incrimination was backed by the US Supreme Court when it accepted laws requiring the defendant to disclose information prior to the trial, and the use of positive defence measures, such as alibis or pleas of insanity.32 And third, criticism surrounding the investigation stage before the Grand Jury, due to three considerations: allowing one to compel witnesses to testify in secret without first arguing the relevance of the testimony;33 the witness called to testify is not entitled to be assisted by counsel;34 and the future defendant may not see the investigation reports or know the results, nor is allowed to submit his own evidence or question the grounds of the indictment.35 Criticism is even made of the fact that unlike the European investigating prosecutor, the prosecutor before the grand jury has no obligation to submit exculpatory evidence even if he is aware of such.36 And, of course, “plea bargaining”, which from the outset was rejected by various courts, thus denying the prosecutor’s authority to reach compromises, due to its violating the legally established legal principles, and whose acceptance is due to the concurrence of several interests, and is especially the instrument through which 98 % of cases are resolved with high satisfaction of the various parties in the trial.37 And, moreover, any judgment obtained by 30

Grande, Elisabetta, Italian Criminal Justice: Borrowing and Resistance, The American Journal of Comparative Law, Vol. 48, 2 (2000). 31 “Crime Control Act” (1968) Títle III (18 U.S.C. 2510 et seq.). 32 Williams v. Florida, 399 U.S. 78, 82 (1970). 33 United States v. Dionisio, 410 U.S. 1, 10 – 13 (1973) cited by Thaman, Stephen, Aspectos accusatoriales, acusatorios e inquisitivos en el proceso penal de los Estados Unidos, in Bachmaier Winter (ed.), Proceso penal y sistemas acusatorios, Ed. Marcial Pons, Madrid, 2008, p. 164. 34 Federal Rules Crim. Pro. 6. 35 Costello v. United States, 350 U.S. 359, 363 – 364 (1956). 36 United States v. Williams, 504 U.S. 35, 53 – 54 (1992) cited by Thaman (2008), p. 164. 37 For defendants, it often mitigated the severity of the criminal code. For prosecutors and judges, it provided a quick and final disposition. But it was not always clear that the interest of the public in crime control was being properly served. Goldstein, Abraham S., Reflections on Two Models: Inquisitorial Themes in American Criminal Procedure, Stanford Law Review, Vol. 26, 5 (1974), with an abundance of quotes “Standards relating to pleas of guilty” (1968);

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guilty plea essentially denies the adversarial process and leads to greater pressures for the prosecutor when prosecution arguments are weaker and thus leads to a greater risk of acquittal in the trial;38 not forgetting, finally, a forced waiving of the privilege against self-incrimination and other constitutional rights such as the right to be tried by a jury and the repeated criticism of the secrecy of negotiations leading to the agreement, and also the prosecutor’s objectionable practices.39 Nevertheless, and as mentioned previously, these criticized features, and thus worthy of improving, lead to a thought that does not yield enough to unbalance other values of the adversarial system, such as the jury; the public nature of the trial; the weight of the testimony against the “written dossier”; the judge’s impartiality and independence; the attention paid to the defendant’s independence (both from the point of view of investigation (not seen as proof), and the many options offered to him); and the strength of the defence. These features underline the importance of the following achievements: the accuracy in investigating the facts, the defendant’s and citizens’ participation, better control of excessive use of power, and respect for human dignity, especially when American authors have begun to point out that there is no requirement that such advantages stem from the presence of the five aforementioned features, but, on the contrary, many can survive without the others which should really be removed (“Each Should stand on its own feet”).40 So it is alleged, in fact, that most defendants do not face their accusers in court and are not convicted by juries, since the vast majority of trials are solved by “plea bargaining” or with public defenders who suffer from such lack of means that the effectiveness of defence proves highly doubtful, both in terms of plea bargains in the trial41 or eventually because the system offers far from sufficient adversarial practices such as attending a defendant’s interrogation, and directly or indirectly trying to persuade him to accept a deal or limit his rights by pleading guilty. But there is nothing like inequality, which is the real “Achilles heel” of the system, and although it is argued that this inequality could be remedied by a political decision to invest enough money, reality always stubbornly insists on proving the opposite.42

Comment, Official Inducements to Plead Guilty: Suggested Morals for a Marketplace, 32 U. CHI. L. REVV, 167 (1964). 38 White, p. 167. In the same sense, Note: The unconstitutionality of plea bargaining, 83 Harv. L. R., 1970, p. 1387. 39 Note: Guilty Plea Bargaining: Compromises by Prosecutors to secure guilty pleas, 112 U. Pa. L. R., 1964, p. 865. 40 Damasˇka (2000), p. 28, Sklansky (2008), p. 1687. 41 Sklansky, David Alan, Quasi-affirmative Rights in Constitutional Criminal Procedure, 88 VA. L. REV., 2002. 42 Langer, Máximo: La dicotomía acusatorio-inquisitivo y la importación de mecanismos procesales de la tradición jurídica anglosajona. Algunas reflexiones a partir del “procedimiento abreviado”, in: Julio B. J. Maier & Alberto Bovino (eds.), El Procedimiento Abreviado 97, Instituto de Ciencia Procesal Penal, 2001, §§ IV and V.

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One final balanced assessment of all the foregoing considerations should not lead us to lose sight of the existence of a “legal nationalism” which maintains that the common law criminal justice system is “simply better than that of civil law” and is fairer, more human and more suited to liberal and democratic values.43 Thus the American adversarial process is seen and represented as the clear reflection of the due process of law,44 and this has almost uncritically been accepted by Latin American and continental reformers, yet proves to be inaccurate,45 and should be opposed due to complaints regarding their own system and the need to adjust any assessment to each country’s historical, legal and social circumstances and culture.

V. One Final “Twist of the Screw”: Critical Details about so-called Inquisitorial Systems The continental system (mixed or formal charge system) has been the subject of two specific criticisms: the lack of impartiality of the body responsible for investigating and treating people as objects of investigation rather than as subjects with rights. The first weakness has been addressed by distinguishing between the prosecutor’s investigative functions and the judge’s decision or by providing that the investigating judge will not sit in court. The second involves guaranteeing the defendant a series of broader rights at trial and fewer in the investigation process (providing information regarding the allegation, providing him with the aim and result of the investigation, requesting measures, etc.). From an adversarial perspective, however, it is important to preserve the judge’s absolute neutrality to balance any disagreement, even at the cost of one undeniable weakness: that a lack of good mechanisms to safeguard the rights of defence, the resulting inequality is huge and extremely unfair, and also from the accusatorial viewpoint, since it coincides with sufficiently finding ways to justify filing the action before acting, at the risk of reaching a stage which could lead to one that was meant to be avoided, i. e. using the defendant as source of proof and creating the so-called “penalty of sitting in the dock” or “penalty of appearing in the news” especially if the person charged is later found not guilty.46 Note, however, that both seek to preserve the judge’s impartiality, a parameter which today is also decisive in European trials and this can be formulated as follows: a) the prosecutor cannot judge, and hence there cannot be a trial if there is no charge and this must be filed by someone other than the judge; b) no person can be con43

Sklansky (2008), p. 1686. Taruffo, p. 274. 45 Montero Aroca (2008), p. 79 y 93. 46 This is used to describe the dishonour felt by the person whose detention appears in the media. One remedy for this undesirable effect is to include in the future reform of article 520 of the LECrim for the detention to take place “respecting the right to honour, privacy and image” which is enshrined in article 18 of the Spanish Constitution. 44

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demned for acts different to those he is accused of nor anyone other than the accused; c) the judge cannot hold the power to manage the investigation, which in turn implies that any contribution made in the trial is not part of the management powers but part of the accusatorial principle and managing the investigation refers to proving the facts submitted by the prosecution, while granting the judge the power to help parties verify the truth of events does not violate his impartiality.47 Moreover, entrusting the management of investigating to the public prosecutor -which has been erroneously explained as something inherent to the accusatorial system- simultaneously and almost inevitably casts doubts on the fairness of such regarding charges (whoever investigates cannot prosecute); not to mention the need to balance the powers of judges and prosecutors to avert the risk of concentrating both investigation and prosecution in just one body, and the risk increases when the obligation to bring criminal action is added to various mechanisms that lead to exercising discretional powers.48 The criticism levelled at trials in continental European countries under the pretext of “inquisitorialness” leads to nowhere and above all does not stem from a particularly legitimate position, as would be the case if it were the other way around. And this is not because there are no dogmatic grounds, but because the term “inquisitorial” involves overtones that exceed the lack of “adversativeness” and because such trials disregard the various configurations of the investigation stage and guarantees still used in different systems, which would eliminate criticism by implying judicial intervention (legal guarantee), and this clashes with the administrative set up of investigations prevailing in Britain, for example. The easy resort used by some to call the inquisitorial system a disqualifying method is misfortunate, among other things because they misuse a term which has clear historical reminiscences that are nowadays absolutely unrecognizable in continental procedural rules.49 To pass the crossroads one should remember that criticism, which may prove to be grounded, is always made from an Anglo-American perspective, and in some cases without providing any knowledge truly founded on the diversity of continental criminal proceedings, much less founded on reality. From this perspective one may see that they cite the reactive nature of the accusatorial system and the proactive nature of the inquisitorial system, which imposes an official charge on the criminal act as a duty, and furthermore, from this perspective, the inquisitorial system focuses on prosecuting crimes rather than how they are committed, which explains the use of suspects as the main source of evidence in investigations and trials, and the virtual absence of rules to ensure the burden to provide sufficient evidence regarding guilt and the judge’s tendency to sentence and use detention.50 Anyone who knows the conti47

Paragraph. 244,2 StPO; art. 349,1 Portuguese CPP; and art. 493 and 507 Italian CPP. In Italy the obbligatorietà dell’azione penale is regarded as a feature used to safeguard equality among citizens and the independence of the public ministry. Illuminati, p. 159. 49 Ambos, Kai, International Criminal Procedure: “Accusatorial”, “Inquisitorial” or Mixed?, International Criminal Law Review, 3 (2003), p. 2. 50 Anton, A.E., L’Instruction Criminelle, 9 AM. J. COMP. L., 441 (1960), p. 448. 48

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nental criminal procedure would not recognize his own legal system in this scenario. And something similar happens when the trial takes place. The inquisitorial system is perceived as a written process, which does not require cross-examination and where evidence obtained in the investigation (the dossier) is registered, which certainly occurs in most trials where together with the need for early and purposely prepared proof, a reading of what has been examined is then added and this is attached to the documents, although in Spain, for example the application of art. LEC 730 allows one to read the evidence taken in the investigation, which, for reasons that are independent of the will of this evidence, cannot be repeated in the trial, but this was recently banned by the Supreme Court.51 Admittedly, this continental or mixed system casts shadows on the use of the defendant as a source of information or casts doubts on the impartiality of official bodies, certainly on the judge and also on the prosecutor if he is not presented as a true party in the trial. However, from another perspective, the adversarial model contains features that are difficult to accept, such as a barely tolerable inequality, the administrative system in the investigation stage and the incontestable reality of a system “in the heaven of legal concepts” (Ihering), which is so completely far removed from anything its actual implementation involves and it has even been stated that this tends to guarantee the rights of the defendant to the extent that it proves to be ineffective, and only becomes effective when it moves away from the adversarial model that besmirches those guarantees.52 Between one critical aspect and the other and contesting the partly founded claim that resorting to the accusatorial-inquisitorial dichotomy is of some use, among other reasons due to its educational value and contrasting aspects, we must appeal to the need to at least agree on a commonly accepted meaning of the basic content of the features inherent to each of the systems, at least avoiding mistakes such as arguing that “plea bargaining” is a substantial, highly valued item in the adversarial system, and ignoring any criticism that has been aimed precisely at the heart of the American doctrine.53 Indeed, it is pointless to dwell on an interested use of the term “inquisitive” when, strictly speaking, all European and American models have yielded to phenomena such as terrorism and the advance of organized crime, thus exposing coercive interrogations, extensive investigations and hardening the control of crime.54 From this point of view, it is enlightening to briefly recall the reaction on both sides of the Atlantic after September 11, 2001, March 11, 2004 and June 7, 2005. While in the United States of America the opening of two fronts of struggle was established (external security, incorporating the concept of “preventive war”, and internal security, 51

Acuerdo no jurisdiccional, mayo 2015. Taruffo, Michele, Il processo civile “adversary” nell’esperienza Americana, Cedam, Padova, 1979, p. 245. 53 Thaman, Stephen, Is America a Systematic Violator of Human Rights in the Administration of Criminal Justice, 44 St. Louis U. L. J. (2000), pp.1013 – 1017. 54 Goldstein (1974), pp. 5 – 6. 52

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which was channelled through the Patriot Act, preventing among other things the application of internationally established rules of armed conflict).55 In 2002 the Framework Decision on Combatting Terrorism (2002/474/JHA) was published in Europe and specified four objectives: to define more clearly terrorist offences and impose appropriate penalties for such; establish rules regarding powers to ensure effective prosecution; adopt specific measures for the victims of terrorism; and safeguard fundamental rights when pursuing terrorist offences.56 In fact, after 9/11 none of the three United Nations Security Council resolutions has been declared more than “common positions” (CFSP) and focus actions on concrete measures against terrorism (Resolution 1456 (2003).57 Without going into Manichean assessments and therefore incorrect ones, suffice it to say, to conclude this brief reference, it is worth mentioning that the struggle against terrorism has been the best example of the terrible crossroads where international legal order may stand, beyond the name of systems when it comes to preventing and prosecuting crimes against a significant number of innocent people while preserving fundamental rights, which form the cornerstone of legal certainty. Ultimately the tension between “certainty”, “efficiency” and “guarantees” proves to be the real challenge of all criminal procedural rules, beyond any labels that may be used.

VI. Convergence of the Two Systems, Essential Aspects beyond Labels – There is no Pure System and Convergence is Inevitable So we must admit that there is neither a system in its purest form nor should achieving this be an ideal and which nowadays, in short, is unsustainable.58 History shows an inevitable trend towards incorporating features into both the systems that used to characterize the opposite,59 as stated even in American literature regard55 Salas, Luis P., El sistema de justicia en la lucha contra el terrorismo en los Estados Unidos: seguridad nacional y derechos fundamentales, in: Teoría y Derecho: revista de pensamiento jurídico, 2007, pp. 259 – 262, De la Corte Ibañez/Giménez-Salinas Framis, Yihadismo en la Europa comunitaria: evolución y perspectivas de futuro, Athena – Assesment, 2008, pp. 4 – 7. 56 Jiménez Fortea, Francisco Javier, La respuesta procesal penal al terrorismo en el marco de la Unión Europea: un ejemplo de cooperación judicial penal y policial, in: Calderón/ Iglesias (eds.), El espacio europeo de libertad, seguridad y justicia (Avances y Derechos fundamentales en materia procesal), Thomson Reuters & Aranzadi, 2009, pp. 63 – 97. 57 Vervaele, John A. E., Medidas procesales especiales y respeto de los derechos humanos, International Review of Penal Law, Vol. 80, 2009, p.12 et seq. 58 Damasˇka, Mirjan R., Aspectos globales de la reforma del proceso penal, in: Reformas de la Justicia Penal en las Américas, Fundación para el Debido Proceso Legal, 1999, same author, The Faces of Justice and State Authority: A Comparative Approach to the Legal Process. New Haven, Yale University Press, 1986, Bradley. Craig M., Criminal Procedure: a Worlwide Study, Carolina Academic Press, 1999. 59 Goldschmidt, James Paul, Principios de la política procesal, in: Problemas jurídicos y políticos del proceso penal, Bosch ed., Barcelona, 1935, Ferrajoli, Luigi, Derecho y razón,

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ing reforms in various countries in Europe during the twentieth century60 as well as in Latin America,61 leading these American authors to wonder about the appropriateness of the term “inquisitorial” rather than “mixed” to refer to trials in Europe.62 And signs of convergence do not end there. The existence of international courts, such as the ECHR, has led to a major effort to achieve not only legislative harmonization, but to interpret and resolve seemingly different systems such as those in Britain, Spain, Italy and Germany.63 This interaction repeated in the International Criminal Court has raised major distrust in the defenders of adversative orthodoxy64 who, unlike those who have a will to convert and who abound in countries of mixed tradition, raise voices which end up concluding that the transition towards “non-adversative” formulas would come up against almost insurmountable and in any event unjustified difficulties, due to essentially unbalancing a system that, while presenting undeniable defects, has found a sufficiently acceptable and at least consistent formula in itself.65 In sum, problems that could arise from uncritical imports and the need to reach meeting points between the aforementioned phenomena of growing internationalization have been detected, without defending at all costs the best feature of a system in absolute terms.66 In this idea there is a clear absence of such serious disparities. In fact, when the French investigating magistrate delegates work to the police, this is not so far rePerfecto Andrés Ibañez (Translator), ed. Trotta, Madrid, 1995, Schünemann, Bernard, ¿Crisis del procedimiento penal (Marcha triunfal del procedimiento penal americano en el mundo)?, in: Cuadernos de Doctrina y Jurisprudencia penal, n. 8, CGPJ, Madrid, Park, Roger C., Is Confrontation the Bottom Line?, Regent U. L. Rev., 19 (2007), Sklansky (2008), Pizzi William T., Sentencing in the USA: An Inquisitorial Soul in an Accusatorial Body, in Jackson/Langer/ Tillers (eds.), Crime, Procedure and Evidence in a Comparative and International Context, 2008, pp. 65 – 66, Jackson, John, Transnational Faces of Justice: Two Attempts to Build Common Standard Beyond National Boundaries. in: Crime, Procedure and Evidence in a Comparative and International Context, Essays in honour of Professor Mirjan Damaska, Hart Publishing, 2008, Armenta-Deu (2008). 60 Merrymann, John Henry, The Civil Law Tradition. An introduction to the Legal Systems of Western Europe and Latin America, 1969. 61 Langer, Máximo, Revolution in Latin American Criminal Procedure: Diffusion of Legal Ideas from the Periphery. 55 AM. J. COMP. L. 617 (2007). 62 Goldstein/Marcus, The Myth of Judicial Supervision in Three “Inquisitorial” Systems: France, Italy and Germany. 87 Yale L. J. (1997). Simultaneously, for a long time the US Supreme Court has allowed the presence of institutions similar to inquisitive stereotypes, such as the Grand Jury. McNeil v. Wisconsin, 501 U.S. 171, 181 n. 2 (1991); US v. John Doe, Inc. I, 481 U.S. 102, 118 – 19, 123 (1987), cited by Sklansky (2008), p. 1681. 63 Hellfer/Slaughter, Toward a Theory of Effective Supranational Adjudication, Yale L. J. 107 (1997). 64 Fielder Redman, Lauren, United States Implementation of the International Criminal Court: Toward the Federalism of Free Nations, 17 Journal of Transnational Law & Policy 35 (2007 – 2008). 65 Taruffo, p. 245, Sklansky (2008), p. 1683 et seq. 66 Damasˇka, Mirjan R., Evidence Law Adrift, Yale University Press, New Haven, 1996, pp. 134 – 138.

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moved from the American investigation process, while the American prosecutor’s files when the grand jury rejects an indictment are no different from the European “dossier”.67 Even when “bargaining or agreements” are involved, American judges have assumed oversight functions of these to guarantee the rights of the defendant, which separates them from their absolutely impartial passive position.68 And the same happens when judges should endorse measures that restrict fundamental rights, against which they cannot remain neutral. And there are many arguments in American studies, even from the point of view of an economic analysis of the law that do not tip the balance of the effectiveness of ascertaining the facts towards either system, but this depends -as one would reasonably expect- on the whole structure to obtain information, so that in a “private” structure an “inquisitorial” system is more efficient, while in the other the “correlated” feature of the adversarial system seems relatively more efficient.69 VII. Conclusion: The Balancing Game and the Need for Deliberation It is important to accept that different factors pull in different directions, not only between different systems but in terms of rights, and often in many different or even conflicting directions. Examples abound: the concern to strengthen the rights of the defendant requires us to follow ways that slow the momentum of criminal proceedings and that can complicate the search for truth; while pragmatic concerns require simplifying processes, demanding once again that the best possible balance with other objectives is sought to guarantee fundamental rights, without any disproportionate waiver that ultimately loses its basis and is likely to cause adverse or at least undesirable effects. Regarding the above, just consider a combination of speedy trials (which limit or exclude the investigation stage) with the implementation of bargained solutions and a flight towards non-judicial methods, which are phenomena that, although often associated with countries governed by the adversarial system, have today been extended so that any assessment requires detaching oneself from this model.70 Any of these three instruments treated separately or adopted in response to specific situations may be beneficial, but when reforms are aimed only at the largest extent of such mechanisms, waiving the others ends up affecting the whole trial, 67

Goldschmidt, p. 8. Goldschmidt, p. 9. 69 Block, Michael K., An Experimental Comparison of Accusatorial versus Inquisitorial Procedural Regimes, American Law and Economics Review 2.1. 2000, pp. 170 – 193. 70 Which does not avoid the irony of seeing trends towards “due process of law” and respect for Human Rights to solve over 90 % of cases through bargaining where there is no balanced position between parties, no information made public and this ultimately serves market interests more than justice. Alschuler, Albert W., Implementing the Criminal Defendant’s Right to Trial: Alternatives to the Plea Bargaining System, University of Chicago Law School 50 (1983), Darbyshire, and Kaplan, John, American Merchandising and the Guilty Plea: Replacing the Bazaar with the Department Store, 5 American Journal of Criminal Law (1977). 68

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affecting a guarantee which, which we should mention, has been painstakingly achieved over the centuries. The fact that books are published on the death of the trial or the phenomenon of the vanishing trial should be food for thought.71 It is essential that an agreement be reached on the essentials and to give up the interested use of terms, reaching a minimal agreement on the basis of a fair trial, with a common denominator of rights and guarantees. As a basic accusatorial note there should be an independent charge, that is, prosecuting crime should not be controlled by those judging, and, after that, discrepancy should be used as a power to intervene and be heard on an equal terms for all parties. And then, another question is the balancing act that arises when deciding whether to control the prosecution or not, something that has to do with the division of powers and its configuration and balance in its use and control of such. Among the almost infinite varieties of conducting criminal prosecutions, tensions arise regardless of the model used, as recently happened in Italy and Ecuador after they set limits on the prosecutor’s independence, without the monopoly regime (sole official prosecutor) lowering these “per se”, but the opposite. The tendency towards officialdom remaining entrusted to a single body that files the charge, undoubtedly seeking to satisfy the adversarial model, is not an option free of risks since leaving such an important issue as the action in the hands of one person, who may also depend on the government, tilts the balance towards an accumulation of both executive and indirectly judiciary powers, to the extent that no crime will be judged whose action is not exercised through a trial (nullum crimen sine iudicio). This issue has put class actions in Spain in the “spotlight”, not because of their possible misuse, as claimed, but because they constitute an obstacle to the clearly official and controlled setting where criminal proceedings are conducted, ignoring their proven effectiveness in countering the prosecutor’s inaction, whether interested or not, in prosecuting crimes which the public body would rather forget.72 Moreover, neither the transition from criminal investigations to prosecutions have had a substantial impact on the “questioning” structure in trials, nor is it correct to say that investigations in the hands of prosecutors show a greater concern for human rights73. This is a good example of deliberation and unprejudiced balance without overstating the “label”, based on what really matters, a trial where the outcome provides an acceptable balance in terms of “due process.” The search for balance is especially difficult if, as often occurs, the model allows a partial rejection of measures that are the logical corollary of others or which consti71 Burns, P., The Death of the American Trial, The University of Chicago Press, Chicago, 2009. 72 Any Spanish citizen may use public criminal action through “class action”, but has to comply with a series of demands, such as depositing an amount of money as a guarantee. Civil class action is not allowed for crimes according to article 125 of the Spanish Constitution and 101 of the Criminal Procedural Law. https://reggio.wordpress.com/2008/01/08/cerco-a-la-accion-popular-de-enrique-gimbernat-en-el-mundo/ (last checked, 20. 06. 2015). 73 Damasˇka, Mirjan R., The Faces of Justice and State Authority: A Comparative Approach to the Legal Process, Yale University Press, New Haven, 1986.

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tute an essential element thereof. The pursuit of the adversarial model is paradigmatic in this sense as it does not involve abandoning the official investigative monopoly and also allows defence lawyers to conduct their own investigations. Clearly this means relinquishing control over the investigation stage and to a large extent, and relinquishing control over conducting the prosecution, but clearly a real struggle between the parties would be achieved, which thus involves a fair system of mutual disclosure but this carries an increase in costs. Bearing in mind that if, in addition, as would be essential for an adversarial model, the judge is deprived of access to information from the official records, leaving the determination of facts in the hands of the parties, this would turn it into a true evaluation of the information provided by the prosecutor and defence lawyer and not into an independent seeker of truth.74 And the same will happen with the bargaining formulas, which is one of the real revolutions for due process. Is it justified to consider again whether the principle of opportunity (in a broad sense of the mechanisms of consensus, and others to a large extent, such as repairing some of its aspects) together with the difficulties introducing such would involve regarding the original problem it intended to solve, (the hypertrophy of the administration of justice and the consequent slowness) and could we not find a better solution (or at least not as costly in terms of guaranteeing fundamental rights) by way of its two natural alternatives: increasing material and human resources and/or simply decriminalizing certain conducts it intends to fight due to their low relevance, whose reduction seems justifiable enough? Bear in mind that if all the reasons that support adopting the principle of opportunity: reasons of social interest or public usefulness; slight harm or lack of interest in prosecuting; encouraging prompt compensation for victims; avoiding criminogenic effects of short custodial sentences or contributing to the achievement of material over formal justice, which is the only instrument that enables us to differentiate between prosecutable offences and others where punishment is meaningless, the use of any of the above mechanisms would not be more effective.75 In the absence of an indubitable, probably non-existent answer, the need again rises to balance the benefits of criminal law and criminal procedural law from a global perspective that endorse such a substantial change in the system, thus sacrificing some of the key achievements of the rule of law made in the nineteenth century. Moreover, one should not forget that the combination of certain measures could lead to unwanted results, or even worse, for them to go off in an undesirable direction. To cite one example, this would occur by giving certain margins of discretion or even all the discretion to the prosecutor, as occurs in France: an option that may be accepted but not unconditionally, not when the judge’s role is reduced to that of a mere spec74 This is what Damasˇka calls a “transitive adaptation” much more real that immediate action and the need for reproducing or producing the evidence in trials, as a way to minimize the risk that a judge overlooking the case might be familiar with the evidence collected by the investigator in the official report. 75 Armenta-Deu, Principio de legalidad frente a principio de oportunidad, pp. 95 – 114.

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tator and any control of prosecution disappears, because in this case, concentrating all the power to prosecute in one person, especially when the holder of this power depends on the executive body, is astonishing, particularly if we clearly acknowledge that prosecuting is the only way to conduct criminal law (“nulla poena iudicium”). The recurring role of the prosecutor in all European and Latin American reforms supports this impression.76 Issues must be taken into consideration such as a convergence between systems, which are inevitable due to their very influence on each other, but also because of the existence of supranational laws, such as the rules of the European Union in Europe and the incidence of a doctrine emanating from supranational courts, which compels judges from both systems to solve this together. This occurred with Directive 2012/ 29/ EU of the European Parliament and Council of October 25, 2012 which set minimum standards of rights, support and protection for victims of crime, and forced parties to seek a synthesis between two disparate trends as the mixed systems which treat victims as a party, and the Anglo-Saxons, whose binary logic excludes this, and this has a determining influence on the doctrine of the European Court of Human Rights following Perez v. France. In this line of action the various states should accept a list of commonly accepted rights that work like the “lowest common denominator” of any model, however -to be realistic- we must find a meeting point based on any easements arising from the peculiarities existing in different countries or those arising from increased protection in domestic laws, (establishing “safeguard clauses”, for example); not forgetting of course the limits of national public policies laid down by each country. One last thought; importing laws does not lead to thaumaturgical effects as might be inferred from reading many recent Preambles of criminal procedure codes. Incorporating certain institutions that represent, or are more appropriate to, an adversarial system, such as “plea bargaining” does not make systems using it more adversarial. And the explanation is quite simple; each system specifically includes a feature in its own right, leading on the whole not to “Americanization” or “adversarialization” but to fragmentation.77 Incorporating forms of bargaining into European legal systems has not turned trials into “trials of parties”, which is essential in the adversarial system, but has forced a review of the theories about the search for truth in evidentiary matters. Moving an institution is not done “in a vacuum“ but through a set of institutions and legal practices that often change the outcome, regardless of the transformative capacity that this movement involves over time. Not to mention another major aspect, which is that two sets of criminal proceedings are not only a way to resolve a conflict 76 Armenta-Deu, Teresa, La investigación penal ¿Jueces o Fiscales?, in: Estudios de justicia penal, Marcial Pons, 2014, La investigación penal, pp. 119 – 127. 77 Langer Máximo, From Legal Transplants to Legal Translations: The Globalization of Plea Bargaining and the Americanization Thesis in Criminal Procedure, 45 Harvard Int’l L. J. 1 (2004), pp. 62 – 65.

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or to distribute functions among a number of subjects, but are more fundamentally ways of conceiving something so ingrained in the culture of a country as justice, which in turn is rooted in the historical development and the shaping of society.78 There are many examples, but one stands out due to its relevance, namely a deeprooted confidence in democratic legitimacy in American society, which is only comparable with that relating to the principle of legality and equality before the law in European continental history and culture. The incidence of this diversity is a perfect mirror to warn how transferring certain systems carries a high risk in its effective assimilation into the receiving system, as revealed by the case of the reform of the Italian criminal proceedings, giving rise to comments on the deep commitment of European systems of justice with the idea of giving the same treatment to the defendant, a fact that makes something perfectly possible in USA “difficult to digest”: when two defendants could end up charged with different crimes in response to similar evidence, as happened in Bordenkircher v. Hayes, in which the defendant was accused of a crime punishable with up to 10 years, the prosecutor offered five years for a guilty plea, while warning him that if he insisted he could be charged as a habitual offender because of his police record and could even face life imprisonment. And this was graphically described by one writer as, “For a continental mind Hayes is a nightmare”.79 In the Anglo-American social and legal environment, lack of impartiality is an insurmountable obstacle, to the same extent that inequality in the legal tradition of continental European countries is- or has been until now-. Endorsing this and other differences is the real challenge for all models, whatever their names, without causing disturbances or even worse, major violations of the defendant’s basic rights. For this purpose, on the one hand, one must weigh up the virtues and effectiveness of incorporating anything new, while on the other, undertake the necessary transformations, or attempt to find a balance, otherwise be prepared for the suffering they will bring.80

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Damasˇka (1999): the music of law changes, so as to say, when the instruments and performers are no longer the same. 79 Pizzi/Montagna, The battle to establish an accusatorial trial system in Italy, Michigan Journal of International Law, vol. 25, 2004. 80 Damasˇka (1999).

Can the Jury Survive after the Judgment of the European Court of Human Rights in Taxquet v. Belgium? Károly Bárd* It was Professor Damasˇka who introduced me to the American jury system in Salzburg at the summer seminar on American Studies in Schloss Leopoldskron almost forty years ago. Perhaps I may say that after his lectures I understood something about the American criminal justice and the common law type jury system which before appeared to me a somewhat exotic institution. But Professor Damasˇka not only made me understand the operation of American criminal justice but taught me to be cautious when making assertions about the sharp differences between the adversarial and the non-adversarial systems and suggested to rather search for the common objectives which are accomplished by different means in the two systems.1 Professor Damasˇka also contributed to gaining a more realistic and objective view of the inquisitorial process of the Middle Ages which generally is associated with cruelty and a complete disregard of principles that we today would term “due process guarantees”. He convincingly showed us that there had in fact been defense safeguards in the criminal process of the ancient regime too.2 At the same time he suggested to review or at least to refine the popular opinion on the “superiority” regarding procedural safeguards of the law in England as practiced between the 13th and the 18th century. Among others he pointed to the testimonial and adjudicative functions, both performed by the same body, namely the self-informing jury3 or that until the middle of the 18th century defendants were not permitted to be defended by counsel.4 Coming back to developments over the last decades it has become obvious that the differences between the Continental type process and the Anglo-American procedure are by far not as striking as commonly believed. It is suggested to take a more differentiated refined look at the institutions we find in the two systems and by this some traditionally shared assumptions primarily the inquisitorial-accusatorial dichotomy * Professor, Central European University (Budapest). 1 See Damasˇka, Mirjan, Evidence Law Adrift, Yale University Press, 2013. 2 Damasˇka, Mirjan, The Quest for Due Process in the Age of Inquisition, LX The American Journal of Comparative Law 920 (Fall 2012). 3 Ibid, p. 937. 4 Ibid, p. 939.

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becomes weakened and prejudices may be eliminated. It is also attempted to identify those principles that are common in the inquisitorial and the accusatorial proceedings. Spencer for instance, writes that commonly the accusatorial process is associated with oral and public proceedings while it is believed that the inquisitorial process is basically a secret procedure conducted in writing. In fact hearings on releasing the defendant on bail are public, the media however may not provide information of these hearings.5 He also notes that the media in England is prevented from reporting incriminating evidence before the verdict is rendered. This follows from the presumption of innocence. However, following the first instance verdict the defendant becomes a convict even if the defense decides to appeal. On the Continent, on the contrary defendants lose their status as defendants only after the decision has become final. Therefore, the presumption of innocence seems to be better protected on the Continent in this respect.6 Summers, confining her review to Europe, identifies the values adopted in both systems on the basis of the procedural codes adopted in the 19th century, the jurisprudence of English Courts and the works of the most influential legal scholars of the century. The guiding principles recognized in both the accusatorial and the inquisitorial model are the separation of procedural functions, public and oral trial, the immediacy principle (Unmittelbarkeitsprinzip), judicial independence and impartiality.7 One may argue that in spite of these common general principles the two systems may operate in different ways. However, if we accept that there is agreement on the fundamental principles, then the approximation or rapprochement of the two systems is by far not hopeless. And in fact the legislative changes that have occurred over the last decades show that the two systems have become closer to each other. The demand for changes resulting in the rapprochement of the two models came from “inside”: It was the recognition of the deficiencies in one’s own system that induced the changes. But in reducing the differences also “external” factors played a considerable role not least the jurisprudence of the European Court of Human Rights (ECtHR or Strasbourg Court). I emphasize the judgments of the ECtHR because in some of them traditional, fundamental institutions have been questioned concerning their compliance with the requirements of a fair trial (article 6) enshrined in the European Convention on Human Rights (ECHR).8 5 Spencer, John R., Introduction, in Delmas-Marty, Mireille; Spencer, John R. (eds.), European Criminal Procedures, Cambridge University Press, 2002, p. 21. 6 Ibid, p. 23. 7 Summers, Sarah J., Fair Trials. The European Criminal Procedural Tradition and the European Court of Human Rights, Hart Publishing, 2007, see Part One of the book. 8 The European Convention on Human Rights entered into force on 3 September 1953. And article 6 includes the following: 1. In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law. Judgment shall be pronounced publicly but the press and public may be excluded from all or part of the trial in

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The decisions in which the Strasbourg Court using the objective test9 found it incompatible with the right to an impartial tribunal, as enshrined in Art. 6. of the ECHR, that the investigating judge or a member of the indictment chamber (chambre d’accusation) sits on the trial bench10 have accelerated the process in the course of which many countries have abandoned the institution of the investigating judge or reduced their competence (authority). These decisions have questioned the validity of the assumption which served as the basis of introducing the institution of the investigating magistrate. The assumption was that placing the pre-trial stage of the process under judicial supervision is the guarantee of establishing the truth and of arriving at a just judgment. The judgments of the ECtHR have also questioned the validity of the assumption according to which judges be they investigating magistrates or members of the chambre d’accusation due to their training, their independence guaranteed by legislation, their moral integrity and their attitude acquired in the course of their professional socialization could preserve their impartiality even if they perform investigative functions in the pre-trial stage of the process. Following the judgment in Borgers finding Belgium in violation of the equality of arms principle several states were forced to give up their traditional position on the status and procedural functions of the procureur général (avocat général) and make the necessary amendments.11 Under Belgian law in force at the time of the Strasbourg the interests of morals, public order or national security in a democratic society, where the interests of juveniles or the protection of the private life of the parties so require, or to the extent strictly necessary in the opinion of the court in special circumstances where publicity would prejudice the interests of justice. 2. Everyone charged with a criminal offence shall be presumed innocent until proved guilty according to law. 3. Everyone charged with a criminal offence has the following minimum rights: (a) to be informed promptly, in a language which he understands and in detail, of the nature and cause of the accusation against him; (b) to have adequate time and facilities for the preparation of his defence; (c) to defend himself in person or through legal assistance of his own choosing or, if he has not sufficient means to pay for legal assistance, to be given it free when the interests of justice so require; (d) to examine or have examined witnesses against him and to obtain the attendance and examination of witnesses on his behalf under the same conditions as witnesses against him; (e) to have the free assistance of an interpreter if he cannot understand or speak the language used in court. 9 See for instance Demicoli v. Malta [13057/87 (27/08/1991)] para. 93 – 99: “[…] according to an objective test, that is to say by ascertaining whether the tribunal itself and, among other aspects, its composition, offered sufficient guarantees to exclude any legitimate doubt in respect of its impartiality. […] it must be determined whether, quite apart from the judge’s conduct, there are ascertainable facts which may raise doubts as to his impartiality. This implies that, in deciding whether in a given case there is a legitimate reason to fear that a particular judge or a body sitting as a bench lacks impartiality, the standpoint of the person concerned is important but not decisive. What is decisive is whether this fear can be held to be objectively justified.” 10 De Cubber v. Belgium 9186/80 (26/11/1984); Ben Yaacoub v. Belgium 9976/82 (30/11/ 1987) (struck off the list judgment). The Commission in its Report delivered on 7 May 1985, concluded that the right to an impartial tribunal had been violated. 11 Borgers v Belgium 12005/86 (30/10/1991).

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judgment in the proceedings before the Cour de Cassation the procureur général following the parties made his arguments to which the parties had no opportunity to comment. The procureur général could also attend the deliberation of the Cour de Cassation without the right to vote. According to the Government, Belgian law was in line with the Convention since the procureur général unlike prosecutors acting before lower courts was not a party to the case. His role was to advise the court to provide help in drafting the judgment and contribute to the consistency of the court’s case law. The Government also claimed that the impartiality of the procureur général’s department was guaranteed due to the “independence it enjoyed vis-à-vis the Minister of Justice.”12 Also, the dissenters of the ECtHR invoked the quasi judicial function of the procureur général and noted that there is broad consensus as to the status and the position of the procureur général which is part of the legal tradition in Belgium. They claimed that the participation of the procureur général at the deliberation of the court does not jeopardize judicial independence and impartiality due to the traditions of the Belgian judiciary and that judges in the course of their studies and training acquire skills that make them unbiased decision makers.13 Judge Martens reminded his colleagues that not only Belgium but also other countries may be forced to amend the rules of procedure before the highest court should the Strasbourg court find a violation.14 However the majority opined that fairness is a higher value than the interest in preserving tradition. In 2009 the Strasbourg Court in the Taxquet judgment questioned one of the fundamental features of the jury system, notably the unreasoned verdict of the jury.15 According to earlier Strasbourg jurisprudence the unreasoned verdict is not necessarily contrary to Art. 6 of the Convention (see e. g., the decision of the European Commission of Human Rights in the Zarouali-case16). The Court did not indicate unequivocally in Taxquet that the right to a fair trial is guaranteed exclusively through the reasoned judgment. It found a violation because the judge addressed but a few broadly formulated questions to the jury. Therefore, the defendant was not in a position to assess which evidence the jurors found to be decisive when convicting him. However, the Court noted that “according to its settled case-law judgments of courts and tribunals should adequately state the reasons on which they are based” adding that the “extent to which this duty to give reasons applies may vary according to the nature

12

Ibid, para. 23. See Judge’s Cremona, Thór Viljhalmsson, Martens, Pinheiro Farinha, Morenilla and Storme dissenting opinion. 14 Judge Martens has mentioned France, Italy and the Netherlands in his dissenting opinion. 15 Taxquet v. Belgium 926/05 (13/01/2009), Chamber Decision (Hereinafter: Taxquet judgment (2009)). 16 Zarouali v. Belgium 20664/92 (29/07/1994). 13

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of the decision and must be determined in the light of the circumstances of the case.”17 The Strasbourg Court also noted that in the Zarouali and Papon cases18 it found no violation “although the jury could answer only “yes” or “no” to each of the questions put by the President.” However, the precision of the questions “sufficiently offsets the fact that no reasons were given to the jury’s answers.”19 The Strasbourg Court thus ruled that the transparency of judgments and the fairness of the process can also be guaranteed by other means than the reasons given for the decision. Reading the passages of the judgment cited above, those who are in favor of maintaining the English or the Irish jury system in its present form may have felt relieved. In Ireland the trial judge gives instructions to the jury on all the legal issues, the principles of criminal law and the elements of the criminal offense the defendant is charged with. Trial judges would also give a summary of the evidence. They would also provide “special directions (if necessary) concerning the inherent dangers attached to certain type of evidence.”20 Also in England and Wales the judges of the Crown Court give a detailed summary of the facts to the jurors and inform them of the law “applicable to those facts”.21 However par. 43 of the Chamber judgment in Taxquet seems to suggest, that the reasoned judgment has no alternative and that the provisions in Irish or English law do not sufficiently guarantee the fairness of the trial. The Strasbourg Court observes that since the Zaruali decision the case law has changed and in a number of Member States the relevant provisions have been amended. As to the changes in Strasbourg jurisprudence it is noted that “[…] the Court has frequently held that the reasoning provided in court decisions is closely linked to the concern to ensure a fair trial as it allows the rights of the defence to be preserved. Such reasoning is essential to the very quality of justice and provides a safeguard against arbitrariness.”22 From among the legislative changes in the Member States the Court made reference to France where jury verdicts can now be appealed and therefore the motives of the verdict have to be stated. The inconsistency of the Taxquet judgment is also evidenced by the fact that courts in Europe drew different conclusions from it. In Belgium the Court of Assizes in Arlon concluded from Taxquet that juries are required to give reasons for their verdict

17

Taxquet judgment (2009), para. 40. Papon v. France 54210/00 (25/07/2002). 19 Taxquet judgment (2009), para. 42. 20 The Irish government has referred to this when they have presented their views in the Taxquet case as third parties. Daly, Tom, An Endangered Species?: The Future of the Irish Criminal Jury System in Light of Taxquet v. Belgium, 1 New Journal of European Criminal Law (2) 164 (2010). 21 Roberts, Paul, Does Article 6 of the European Convention on Human Rights Require Reasoned Verdicts in Criminal Trials? 11 Human Rights Law Review (2), 225 (2011). 22 Taxquet judgment (2009), para. 43 18

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by providing explanations for each of their answers.23 This position was shared by the Central Criminal Court in Ireland in a widely publicized case.24 In Norway the Supreme Court drew a different conclusion from the Taxquet judgment. It held that the judgment does not indicate any departure from earlier case law, thus juries are not required to give reasons for their verdict. It pointed out that the cause for finding a violation in Taxquet was that the questions addressed to the jury by the president of the court were not sufficiently precise and detailed.25 Also, legal scholars commenting on the judgment came to different conclusions. In Decaigny’s interpretation the judgment clearly puts juries under the duty to state the reasons for their verdicts in order to avoid arbitrariness.26 Daly on the contrary concluded that such a duty does not necessarily follow from the judgment.27 Following the Taxquet judgment the Belgian law of criminal procedure was amended in order to ensure compliance with the ECHR, I will come back to this later.28 At the same time the Government decided to refer the case before the Grand Chamber and the Governments of the United Kingdom, Ireland and France intervened as third parties. Roberts was right in noting that the third party intervenors “had more practical interest in the Grand Chamber’s ruling than Belgium, the direct respondent to the application.”29 In Ireland the Constitution guarantees the defendant’s right to be tried by jury.30 The constitutional elements may not be amended by a “simple” law of Parliament and 23

Daly, p. 161. Director of Public Prosecutions v. Eamonn Lillis, Central Criminal Court Record, No. 32/09, (05. 02. 2010) 25 Daly, pp. 161 – 162; According to Decaigny, several Belgian courts concluded from the Taxquet judgment that the jury is under the obligation to give reasons for their verdicts and tried to comply with this requirement. Decaigny, Tom, Can Juries Convict in Accordance with the European Convention on Human Rights?, 1 New Journal of European Criminal Law (1) 12 (2010). 26 Decaigny, p. 10. 27 Daly, p. 163. 28 Already before the Taxquet judgment a Bill was prepared in 2008 which among others stated that the Assize Courts have to give reasons for their decisions. It also permitted the president of the Court to be present at the jurors’ deliberation and assist them. The Assize Court Reform Act of 2009 which provided that Assize Courts must state the main reasons for their decisions came into force on January 11, 2010. See. Taxquet v. Belgium 926/05 (16/11/ 2010), Grand Chamber Decision (Hereinafter: Taxquet-judgment (2010)), paras. 35 – 36. 29 Roberts, p. 217. 30 Exceptions are known: “(i) minor offences may be dealt with by a judge sitting without a jury, (ii) offences under military law may be tried by military tribunals sitting without a jury, (iii) special courts may be used to try offences without a jury where the ordinary courts are deemed inadequate secure to secure the effective administration of justice, and the preservation of public order.” (Daly, p. 154). The Belgian Constitution of 1831 provided serious crimes, political and press offences are tried by juries.We find a similar provison in the 1994 Constitution: “The jury shall be constituted for all serious crimes and for political and press 24

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the secrecy of the deliberations and the ban on giving information on the deliberation after the trial has been concluded, are among the constitutional elements of the jury system. Also in England the secrecy of the deliberations is sacrosanct and inviolable and a legal provision obliging jurors to give reasons for their verdicts would abandon the principle. The Grand Chamber agreed with the Chamber, in its unanimous judgment it found a violation of Article 6 of the ECHR.31 However those who were anxious about the future of the common law type jury might have felt relieved.32 Invoking its previous judgments it noted that jurors are not required to give reasons and that “article 6 does not preclude a defendant from being tried by a lay jury even where reasons are not given for the verdict.”33 The ECtHR noted that it has no power to review how member states shape their system of the administration of justice. It also observed that in numerous member states of the Council of Europe the jury system exists in different forms depending on the “history, tradition and legal culture” of the states.34 The Court’s position is that the institution of the jury may not be called into question. It is for the Contracting States to decide how to ensure the operation of their justice systems in compliance with Article 6 of the Convention.35 The Grand Chamber made it clear that it follows its previous jurisprudence and that Article 6 is not necessarily violated if jurors give no reasons for their verdict.36 In his concurring opinion judge Jebens noted that the solutions adopted in various jurisdictions with the aim to bring the jury system in line with the duty to give reasons for the verdict do only formally comply with this requirement but in fact do not guarantee defendants’ right to be informed of the real reasons for their conviction. He mentioned the legislative amendment in Belgium adopted in January 2010 after the Chamber judgment in Taxquet. According to the amendment the judge and the jurors formulate the judgment together. Decaigny rightly raises the question if the professional judge would be willing to write down the actual reasons “if those reasons

offences, except for press offences motivated by racism and xenophobia.” (Taxquet judgment (2010), par. 23). Also in Spain trial by jury was elevated to the rank of a constitutional right in 1978 (see Article 125 of the Constitution). 31 Taxquet judgment (2010). 32 However, according to some authors, certain passages of the Grand Chamber judgment seem to suggest that in the long run the jury system in its present form may not be maintained. The Taxquet judgment therefore “prompts broader critical reflections on the rationality and legitimacy of unreasoned jury verdicts in criminal adjudication”. See Roberts, p. 213. 33 Taxquet judgment (2010), para. 90. 34 Ibid, para. 83. 35 Ibid, para. 84. 36 Ibid, para. 90.

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would jeopardize the legality of the decision”, for instance if the real motive of conviction was the racial attitude of the jurors.37 In Norway the Supreme Court in exceptional cases may instruct the High Courts to indicate the evidence that was decisive for the defendant’s conviction. This is to be given by the judges without the participation of the jurors.38 Since the judges are not present at the deliberation of the jury it is highly questionable if the reasons given reflect the opinion of the jurors. I note that in 1996 legislators in Geneva adopted a similar solution: the law required jurors to give reasons for their responses to the questions addressed to them but allowed them to seek the assistance of the greffier in formulating their reasons. On the basis of the explanation of the jurors the professional bench drafted the reasons for the judgment.39 In sum we may have serious doubts if the jury system can be reformed to guarantee the defendant’s right to a reasoned judgment. This right is guaranteed only if the defendant is informed about the genuine motives of the verdict. On the basis of the legislative attempts he described, judge Jebens concludes that with a view to the particularities of the jury system the fairness of the trial can be guaranteed through other mechanisms that compensate for the absence of the reasons. The fact that the defendant and the community are not informed of the real motives of the decision is all the more disquieting since following the verdict it is prohibited to conduct any inquiry in order to reveal what actually happened in the course of the jurors’ deliberation. This rule of course has its justification. The prohibition may ensure the open discussion of the jurors, it may protect them from eventual criticism or retribution if they happened for instance to acquit a defendant charged with a serious crime that provoked a public outcry. But because of the secrecy of the deliberations it can never be disclosed if the decision was rendered via coin-toss or some sort of magic. It can never be revealed if jurors were motivated by racist attitudes. Therefore, it cannot be ascertained if the defendant’s right to an impartial tribunal as set forth in Article 6 of the ECHR was guaranteed.40 By briefly summarizing the Taxquet judgments my primary intention was to demonstrate that the judgments of the ECtHR may induce member states to review traditional institutions the justification of which has not been questioned beforehand by 37 Decaigny also notes that “this praetorian method” could not guarantee the rights of victims and the public, since in case of an acquittal the reasons are not registered. Decaigny, pp. 12 – 13. 38 See Judge Jebens parallel reasoning in the Taxquet judgment (2010). 39 Thaman, Stephen C., Should Criminal Juries Give Reasons for Their Verdicts: The Spanish Experience and the Implications of the European Court of Human Rights Decision in Taxquet v. Belgium, 86 Chicago-Kent Law Review 627 (Issue 2). 40 For deep analysis of the question see Quinn, Catherine, Jury Bias and the European Convention on Human Rights: A Well-kept Secret?, Criminal Law Review 998 – 1014 (December 2004).

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this contributing to the approximation of legal systems. However, I cannot resist the temptation to go on with the inquiry into the jury system. The reason is, that it calls for an explanation why member states took legislative measures to put the obligation on juries to give reasons for their verdicts, whereas as we saw it this is hardly compatible with the particularities of the jury system and is not required by the case law of the ECtHR either. Already in the 1990 s the ECtHR and the European Commission of Human Rights that existed prior to reform of the Convention system through Protocol 11, took the position that Article 6 of the ECHR does not require that jurors state the reasons for their verdicts and this was confirmed by the Taxquet judgment.41 In Taxquet the ECtHR even made proposals on how to guarantee the transparency of the decision making process in the jury system and how to avoid the risk of arbitrariness which in trials conducted by professional judges is served by the duty to give reasons. According to the ECtHR defendants’ right to be informed of the motives behind their conviction can be guaranteed if the professional judge gives clear guidance and puts precisely formulated questions to the jurors. By this the arbitrariness of the decision can be avoided.42 In spite of this, as we saw, legislators in some member states thought that compliance with the ECHR may be ensured only by putting the obligation on jurors to state the reasons for their decisions. Legislators perhaps saw a certain contradiction in that the ECtHR first formulated the right to a reasoned judgment as an implied component of the right to a fair trial43 and then proclaimed that this right does not have to be guaranteed in jury trials. Of course both the explicit (the right to counsel, the right to confront witnesses) and the implied components (equality of arms, the right to silence or the right to a reasoned judgment) of the right to a fair trial can be restricted in the name of another right or interest. The right to confront witnesses or the right to silence for instance may be restricted but this can occur only on the condition that other safeguards provide adequate guarantees for preserving the overall fairness of the proceedings. True, the ECtHR is more willing to accept the limitation of the implicit rights. This follows from the nature of implied rights since it is the Court that designates the scope of the given right and thereby also its inherent limits.44 However, both the explicit and implied components are unqualified rights such as the right to a fair trial itself. In contrast to the so called qualified rights (freedom of expression, freedom of association, freedom of assembly etc.) where the permissibility of restriction is explicitly mentioned, in the Convention a total deprivation cannot be compatible with the 41

For the presentation of the case law see the Taxquet judgment (2010), para. 85 – 91. Ibid, para. 92. 43 See for example Van de Hurk v. Netherlands 16034/90 (19/04/1994). 44 Bárd, Károly, Fairness in Criminal Proceedings: Article Six of the European Human Rights Convention in a Comparative Perspective, Budapest, Hungarian Official Journal Publisher, 2008, pp. 58 – 61. 42

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ECHR: it is unacceptable that anyone should be deprived of his/her right to a fair trial in the name of any other right or interest. This is not the case with the qualified rights. Persons, who for national security considerations, are interdicted from disseminating their writing or who are punished for inciting to violence through their speech can rightfully claim that in the given case they were deprived of their freedom of expression (they cannot claim, however, that they are the victims of a human rights violation). In contrast, there is no situation in which the right to a fair trial would have to back down before another right or interest, without this constituting a human rights violation. This can clearly be explained by the fact that the right to a fair trial is composed of numerous – explicit and implicit – elements, which themselves are not clearly defined, and that the Strasbourg Court always evaluates the entirety of the given proceeding. The limitation of individual components does not necessarily render the whole trial unfair as other elements may compensate for the deficiency. But as no such exception can exist that would make an unfair proceeding acceptable, no trial in which the accused was – in the name of another right or interest – totally deprived of a component of the right to a fair trial can be compatible with the Convention. Now it seems that the ECtHR stated the contrary when ruling that the right to a fair trial is not violated if the jury fails to give reasons for its verdict. However, the Court did not make reference to any other right or interest that would make the total deprivation of defendants of their right to a reasoned judgment acceptable in jury trials. Perhaps the explanation lies in that the right to a reasoned judgment is purely instrumental. As the Court observed by giving reasons the risk of arbitrariness can be avoided45 and this is the precondition for the community’s trust in the fair operation of the criminal justice system. Further, the reasoned judgment is the precondition of the effective exercise of the right to appeal.46 By stating the reasons for their decisions courts give an account of the intellectual process that made them arrive at the given conclusion. Being informed of the reasons the defense is given the opportunity to draw the appellate court’s attention to the deficiencies in this intellectual process. And the reasons may disclose before the appellate court the factual and legal mistakes made by the first instance court even without the initiative of the defense. And finally stating the reasons for the judgment is the precondition of judicial impartiality. As noted by Theodor Meron: “judicial impartiality cannot be ensured with-

45

Taxquet judgment (2010), para. 92. Harris, David/O’Boyle, Michael/Bates, Edward P./Buckley, Carla M., Law of the European Convention on Human Rights, 2nd ed., Oxford University Press, 2009, p. 268. In criminal matters the right to appeal is included in Protocol No. 7, article 2 of the ECHR. 46

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out a reasoned decision. Giving clear reasons for a judgment and bringing to light the judge’s reasoning process are essential safeguards against judicial wrongdoing.”47 If the right to a reasoned judgment is in fact instrumental then we may comprehend why the ECtHR is prepared to accept that defendants may completely be deprived of this right which is formulated as an implied component of the right to a fair trial. If namely we can demonstrate that in the case that there have been other instruments that serve the same purposes (excluding arbitrariness and by this ensuring the community’s confidence in the administration of justice, guaranteeing the effective exercise of the right to appeal and judicial impartiality) as the right to a reasoned judgment, then we may state that there is no need for that right. As to creating and maintaining trust in the administration of justice we may say that in trials conducted by professional judges stating the reasons for the decision has no alternative. However, the jury was born exactly out of distrust towards the professionals or to use a positive formulation out of the trust in the laymen, our peers, who are like us. The jury is legitimized not by its rational way of procedure but by its composition and that it applies the norms shared by the community. It is the jury itself that is the basis of the trust. The statement of reasons for the judgment, as we saw, serves also the effective exercise of the right to appeal. In the common law system, exactly because of the absence of the jury’s duty to state the reasons for the verdict, the appeal court is rather limited in reviewing the substantive correctness of the decision. However, the assumption is that compliance with the procedural rules may guarantee that the jury arrives at the correct decision. Adherence to the procedural rules can easily be ascertained since all that happens in the course of the trial is documented in details, witness statements are recorded verbatim. Stating the reasons for the decision is also the guarantee of judicial impartiality. The mere fact that judges know that they are under the obligation to give an account on how they arrived at a certain conclusion encourages judges to proceed without bias. In jury trials it is not the duty to state the reasons for the decision but the process by which jurors are selected that serves as the guarantee of judicial impartiality. Both the prosecution and the defense may challenge a certain number of potential jurors without even giving reasons (peremptory challenge). After using the peremptory challenges the parties have the opportunity to subject other potential jurors to intensive interrogation and if they find that some of them may not be expected to deal with the case without prejudice they may initiate their disqualification.48 Thus, it seems that in the jury system there are institutions, “instruments” in place that serve the

47 Meron, Theodor, Judicial Independence and Impartiality in International Criminal Tribunals, 99 American Journal of International Law 360 (2005). 48 Another method to ensure impartiality is the change of venue in especially sensitive cases. See Jackson, John D., Making Juries Accountable, 50 American Journal of Comparative Law 481 (2002).

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same purposes as the right to a reasoned judgment. However, a deeper analysis is needed in order to confirm the correctness of this assertion. First, we may question the validity of the starting thesis, i. e., that the right to a reasoned judgment is purely instrumental. According to Roberts “providing reasons for decision is a basic tenet of rationality in decision-making with both instrumental and intrinsic values.”49 The pressure to provide reasons is instrumental in that it is likely to lead to higher quality decisions. But it also has intrinsic value in that it guarantees respect for human dignity. If it is explained to an individual why she/he has been treated in a certain way and has the opportunity to contradict and present reasons for reconsideration they are treated as autonomous, “sovereign agents, and not merely as an object who can be manipulated at the will of the authorities.”50 True, an argument in support of the jury is that it has an autonomous value. The jury system is the reflection of democratic values in the administration of justice. According to Devlin “each jury is a little parliament,” and “is a symbol of participatory democracy.”51 However, most authors conclude from this declaration that the jury is rather instrumental: the participation of laymen makes the impression in people and especially in the jurors themselves that justice is administered fairly. Jurors usually believe that they have performed well and they are generally satisfied with their own performance and are sent back “to their ordinary lives with a sense of the fairness and propriety of the judicial process.”52 Thus the jury system is instrumental in the sense that it strengthens the confidence in the justice system. But even if we accept that the jury system has an autonomous value, the same is the case with the duty to give reasons for the decision. By putting the duty on the judges to give account of the reasons we recognize defendants as autonomous subjects. A further question is whether today, when besides the independence also the accountability of judges is stressed, the mere fact that defendants are tried by their “peers” serves as a sufficient basis for the trust in the justice system. We may argue that the era of “khadi justice” is over.53 We are not anymore willing to accept 49 Roberts, p. 215. At the same time the right to a reasoned judgment may also in this context be considered as instrumental that can be substituted by other institutions. The adversarial nature of the process which enables defendants to submit their arguments and to question the credibility of incriminating evidence or the judge’s summary and his/her instructions addressed to the jurors on how they should proceed guarantee that defendants are treated as subjects. 50 Ibid. 51 Devlin, Patrick, Trial by Jury, Stevens & Sons, London, 1956, p. 164, quoted in Darbyshire, Penny, The Lamp that Shows that Freedom Lives – Is it Worth the Candle? Criminal Law Review 745 (October 1991). 52 Darbyshire, pp. 745 – 746. Darbyshire at the same time notes that many people try to avoid jury service. And many of those who do not, report that the trial was boring and feel frustrated. Ibid, 746. 53 According to Weber, trial by jury is frequently khadi- justice. Weber, M., Economy and Society (ed. by Guenther Roth and Claus Wittich), University of California Press, 1978, p. 813.

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adjudication according to judges’ instincts: we demand that they give an explanation for their decision. We may of course argue that the khadi’s decision is legitimized by the charismatic character of the juridical prophet, whereas the verdict of the jury appears to be the outcome of collective deliberation in the course of which jurors try to convince each other through presenting rational arguments. If the size of the jury is sufficiently large and unanimity is required we rightly may assume that the verdict is based on rational considerations and this may induce confidence in the justice system. However, since the end of the 20th century the defendant can be convicted both in Ireland and in England if at least ten out of the twelve jurors find his/her guilt to be proven provided that the jury tried to reach a unanimous verdict deliberating at least for two hours.54 Research indicates that if the agreement of a majority is sufficient for the decision jurors attempt to arrive at a verdict within a short period of time and their goal “centers on arriving at a verdict category and fashioning a story to justify the decision afterwards.”55 In contrast, if unanimity is required jurors will thoroughly analyze and discuss the evidence and attempt to persuade those who have not yet formed a firm opinion in order to ensure unanimity.56 The confidence in the jury and the correctness of its verdict is weakened also by the fact that it is almost impossible to set up a jury representing all sections of the community. Random selection does not guarantee representativeness. As Darbyshire puts it “Random selection may throw up juries which are all male, all Conservative all white.”57 The jury was born out of the distrust towards the professionals and the general verdict that contained no reasons provided protection for the jurors against the pressure of the professional judge or public opinion. Therefore, the general verdict was a guarantee of the jurors’ independence. In addition, the jury by applying the norms shared by the community and not being under pressure to give reasons could correct unjust and draconian laws. Today professional judges are perhaps less abhorred than earlier and criminal laws are certainly swifter than two or three centuries before. Therefore, several authors 54

See O’Hanlon, R. J., The Sacred Cow of Trial by Jury, in: Brooks, Thom (Ed.), The Right to a Fair Trial, Farnham-Burlington, Ashgate, 2009, p. 7. 55 Brooks, Thom, The Right to Trial by Jury, in: Brooks, Thom (Ed.), The Right to a Fair Trial, Farnham-Burlington, Ashgate, 2009, p. 87. 56 Ibid. 57 Darbyshire, p. 745. This can be corrected by challenging some potential jurors. However, the parties’ aim is not to have a representative jury to be set up but rather a decision making body which is likely to rule in their favor. It should be noted that in earlier times the jury was even less representative. In 1956 Lord Devlin observed that the majority of the jurors were middle aged, middle class men and since they shared certain values it was relatively easy to reach unanimity. Cited by O’ Hanlon, p. 6.

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question the jury’s right recognized exclusively in the common law system to ignore the law and substitute it for their conscience (jury nullification). As Darbyshire points out it is for the elected Parliament and the Law Lords to re-write the laws.58 According to O’Hanlon putting laws aside may be justified in oppressive and autocratic regimes but is “indefensible in a modern democracy where fundamental rights and freedoms are protected by the country’s constitution.”59 The members of the jury, he writes, “take an oath that they will deliver true verdicts according to the evidence” will break their oath “by refusing to give effect to the law of the land”.60 Juries “have usurped the role of parliament which is entrusted by the people with the task of making laws which are in conformity with the will of the people.”61 The argument in support of jury nullification that the law may be put aside in order to enforce community norms is less convincing today since in less homogeneous societies we hardly can speak of commonly shared community values.62 It is worth noting that also Lord Justice Auld in his review of the criminal courts in England and Wales63 draws attention to the contradiction that on the one hand jurors take the oath to apply the law but on the other may acquit or convict “in defiance of the law and in disregard of their oath”.64 Lord Justice Auld makes the proposal to prohibit juries by statute to acquit defendants by disregarding the law or the evidence presented.65 Should his proposal appear too radical he suggests as an alternative to acknowledge openly the jurors’ right to put aside the law. The judge would instruct jurors that they may decide according to their conscience and are not obliged to render a verdict of guilt if they disagree with the law or find the prosecution unfair. This solution would be more honest and would solve the contradiction that jurors take the oath to apply the law but may ignore it. As examples Lord Auld refers to the Constitutions of Indiana and Maryland, which confer upon the jury the right to determine not only the facts but also what the law is.66 At the same time numerous lawyers in the United States question the right of the jury to disregard the law. Some judges disqualify those jurors who are in favor of

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Darbyshire, p. 750. O’Hanlon, p. 14. 60 Ibid. 61 Ibid. 62 Jackson, p. 479. 63 Review of the Criminal Courts of England and Wales 2001. The report was prepared upon the request of the Lord Chancellor, the Home Secretary and the Attorney General): http:// webarchive.nationalarchives.gov.uk/+/http://www.criminal-courts-review.org.uk/ccr-00.htm (Hereinafter, Auld, Review). 64 Auld, Review, Chapter 5: Juries, para. 105. 65 Ibid, para. 107. 66 Ibid, para. 108. 59

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“jury nullification” and conduct an inquiry if they receive information of the jury’s intent to decide against the law.67 Judicial independence and impartiality are frequently invoked to justify that juries are not under the obligation to give information of the motives of their decisions. It is in the name of independence and impartiality that no one may inquire after verdict of the reasons for the decision.68 However, we tend to reassess the relation between independence and accountability. We believe that accountability does not curtail independence but the two complement each other. Independence means that judges subject themselves exclusively to the law and by making them accountable we wish to ascertain that they in fact subjected themselves to the law and have not disregarded it. True, the common law jury is not obliged to subject itself to the law but as indicated earlier the justification of jury nullification has been questioned in recent times exactly in the name of accountability. Also, Lord Auld makes the proposal to empower the appellate court to conduct an investigation on what has happened during the jury deliberation if the suspicion of some impropriety arises.69 Regarding the requirement of impartiality there may be doubts if the process of the selection of jurors provides sufficient guarantee. In England since 1988, when the right of challenging jurors without assigning a reason for challenge (peremptory challenge) was abolished, the parties have less influence on the composition of the jury. Where the institution of peremptory challenge still exists,70 it is very likely that a non-representative jury will set up which may raise doubts on its impartiality or at least make it appear to be biased. In the United States prosecutors and defense councils employ refined methods of subjecting prospective jurors to examination interrogating. Their aim is not only to disqualify individuals who are likely to be hostile to the defendant or the victim but to ensure that a jury is set up which will probably decide in their favor.71 In addition, in the United States the institution of peremptory challenge still exists and with some exaggeration we may say that the outcome of the 67

Jackson, p. 481. In England, according to section 8 of the 1981 Contempt of Court Act it is contempt to obtain, disclose or solicit any particulars of statements made, opinions expressed, arguments advanced or votes cast by members of a jury in the course of their deliberations in any legal proceedings. The position of the House of Lords is that not even senior Court of Appeal judges, may inquire after verdict into allegations of jury bias even when there is a possible miscarriage of justice. R. v. Mirza (Shabbir Ali) [2004] UKHL 2, 1 A.C. 1118. Quoted by Thornton, Peter, 50th Anniversary Article. Trial by Jury: 50 Years of Change, Criminal Law Review 689 (September 2004). The secrecy of jury deliberation was seen also as a guarantee of ’frank discussion and expression of views’ (see Brooks, p. 91). 69 Auld, Review, para. 98. This of course would call for the amendment of Article 8 of the 1981 Contempt of Court Act. 70 Like in Ireland or in the United States of America. 71 This was observed already by Devlin in his work published in 1956 (Trial by Jury), cited by O’Hanlon, pp. 13 – 14. 68

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case is not determined by the cogency of the arguments put forward by the parties, but rather by their skills that enable them to have a jury set up which will rule in their favor, that is a biased and not impartial jury.72 Finally, we may doubt if in the absence of reasons the verdict of the jury may be challenged only the ground of procedural deficiencies the right to appeal as set forth in Protocol No.7 to the ECHR really guaranteed. According to Article 2 of the Protocol “everyone convicted of a criminal offence by a tribunal shall have the right to have his conviction or sentence reviewed by a higher tribunal.” It seems that the legislators in the United Kingdom also had doubts and that is why the UK not only failed to ratify but even refused to sign Protocol No. 7.73 It should be noted however, that in England and Wales the appellate judges may in principle in addition to procedural irregularities annul the jury’s verdict if for some other reason they think that the defendant’s conviction was wrongful. At the same time this rarely happens if the defense cannot refer to any procedural defect in the trial.74 Also in Ireland the defense may appeal against the guilty verdict on grounds other than procedural irregularities as well. However, Daly notes that “the scope of appeal is narrowed by the lack of a reasoned verdict and the reluctance of courts to pierce the veil of secrecy covering jury deliberations, even when significant juror misbehavior is alleged.”75 In spite of this the scope of appeal is still broader in England and in Ireland than in Belgium where ordinary appeal is not provided against the verdict of the jury76 and the Court of Cassation deals exclusively with points of law. According to Art. 352 of the Belgian Code of Criminal Procedure the professional judges shall stay proceedings and adjourn the trial if they are unanimously persuaded that jurors have made a substantive error without violating the rules of procedure. Should they decide so, the case will be considered by a new jury. However, as admitted by the Belgian government in Taxquet this option “has been used on only three occasions”.77 In my paper I attempted to asses if there are in fact inconsistencies in Strasbourg jurisprudence and in the Taxquet judgments regarding the right to a reasoned judgment. In its earlier decisions the Court ruled that the right to a reasoned judgment is an implied component of the right to a fair trial and then in the context of jury trials it held that no reasons have to be given. Also in Taxquet the Court at some points stated 72 For an insightful presentation of the jury selection process in the United States of America, see Fletcher, George P., A Crime of Self-Defense: Bernhard Goetz and the Law on Trial, The University of Chicago Press, 1990, pp. 84 – 99. 73 The Protocol has not been ratified by Germany, the Netherlands and Turkey either, but the UK is the only State Party which has not even signed it, indicating that she is not prepared to accept the binding effect of the Protocol. 74 Roberts, p. 224. 75 Daly, p. 164. 76 This was the rule also in France until 2000. See Roberts, p. 224. 77 Taxquet judgment (2010), paras. 31 and 99.

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that juries are not required to give reasons for their verdicts but indicated that reasoning is essential to the quality of justice and is a safeguard against arbitrariness. The right to a fair trial is an unqualified right as are the components, be they explicit or implied. This means that unlike in the case of qualified rights such as freedom of expression, association, or the right to private life, a total deprivation of the right is unacceptable. There can be restrictions on the components of the right to fair trial, but the total deprivation is contrary to the Convention. However, the Taxquet judgment suggests that the right to a reasoned judgment can be completely abandoned. In order to explain the position of the Court I set out from the assumption that contrary to other fairness rights, such as the right to counsel, the right to be informed of the charges, etc. the right to a reasoned judgment is instrumental. The reasons given for the judgment serve first as a guarantee against arbitrariness which is a precondition of creating and maintaining trust in the administration of justice. The reasons may reveal the deficiencies of the fact finding process or in the application of the law to the facts established which is, in turn, a precondition for the effective exercise of the right to appeal. I argued that in case there are other institutions in the jury system through which these aims can be accomplished then there is no need for juries to give reasons for their verdicts. The first round of the inquiry seemed to suggest that there are in fact “instruments” in the common law jury system through which the objectives to be served by the reasoned judgment can be accomplished. However, a more in depth analysis raised doubts regarding the alternatives to a reasoned judgment that could ensure the fairness of the trial. Thus, in the light of the Taxquet judgment the fate of the common law jury is still uncertain.

The Comparative Constitutional Law Scholarship of Professor Mirjan Damasˇka: A Tribute Steven G. Calabresi* Professor Mirjan Damasˇka’s class on Comparative Law was one of my very favorite classes when I attended Yale Law School from 1980 to 1983. Professor Damasˇka opened up a whole new and fascinating world for me with his lectures on the Civil Law tradition and how it differed from the Common Law tradition. I had known nothing about this subject prior to taking Professor Damasˇka’s class and was fascinated to learn about the rediscovery of Roman Law by civilians in the Eleventh and Twelfth centuries, its reception in Europe, and the traditional civilian idea of a strict separation of powers, which is so different from the American understanding of the separation of powers. I started law teaching in 1990 and asked to teach Comparative Law because I had so thoroughly enjoyed Professor Damasˇka’s course. My wish was granted, and I have ended up specializing in Comparative Constitutional Law because this dovetails so nicely with my deep interest in U.S. Constitutional Law. In this essay, I would like to focus on Professor Damasˇka’s work insofar as it has implications for Comparative Constitutional Law, which is now my main scholarly area of attention. Part I will reflect on the importance of a seminal article reflecting on American Constitutionalism, which Professor Damasˇka published in 1990 in The American Journal of Comparative Law. And, Part II will reflect on the importance of Professor Damasˇka’s work on the idea of due process of law in comparative perspective. I address both of these two topics in separate parts below.

I. Mirjan R. Damasˇka, Reflections on American Constitutionalism, 38 The American Journal of Comparative Law 421 (1990) In this scholarly and thought-provoking, law review article, Professor Damasˇka reflects on the uniqueness of American constitutionalism in the modern world and on some of its distinctive differentiating features. Professor Damasˇka organizes his discussion to focus on three matrices of American constitutionalism: (1) the root* Clayton J. and Henry R. Barber Professor of Law, Northwestern University; Visiting Professor of Political Science, 2010 – 2018, Brown University; Visiting Professor of Law, 2013 – 2016, Yale University.

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ing of its political institutions deeply “in pre-modern forms of authority”; (2) “The pivotal role of the Constitution in the life of the nation, the vital energies of judicial review …”; and (3) “the need to adopt late eighteenth century arrangements to altered social needs and understandings.” I will address each of these three topics separately explaining first what Professor Damasˇka says about them and then adding topic by topic my own observations after Professor Damasˇka’s. In my opinion, Professor Damasˇka’s article is a huge contribution to the field of comparative constitutional law, and it adds greatly to our understanding of the U.S. Constitution in a cross-comparative perspective. 1. The Authority Structure of the U.S. Constitution Professor Damasˇka begins with an important and often overlooked point, which is that for all the creativity of the Framers of the U.S. Constitution they did not write a document that broke sharply with English and colonial understandings of constitutionalism in Tudor England. At the state level, strong local self-governments and elites continued to play a role in the administration of justices, just as justices of the peace, now called magistrates courts, continue to play such a role in England and Wales down to the present day. At the federal level, the Framers constructed a constitution, which although it pays nominal lip service to the separation of powers idea, is, in practice, “an echo of Tudor England, characterized by a rough balance of power between three competing power centers, the monarchy, the nobility and the burghers.” The biggest point of contrast between the U.S. Constitution and the constitutional ideas of, for example, the French revolutionaries is that the later believed in an absolutely strict system of separation of powers, following Montesquieu under which courts, for example, could not hear administrative or constitutional cases because they would then be engaging in legislative policymaking. In contrast, as James Madison explains in the Federalist Papers Nos. 47 to 51, the U.S. Constitution perfects a pure separation of powers by superimposing a system of checks and balances on it such that each one of the three branches of the national government has power to check and balance the other branches. As Professor Damasˇka observes, this creates “a fragmentation of typically undifferentiated powers typical of Tudor government.” Id. at 422. I have recently written on this subject in The Rise and Fall of the Separation of Powers, 106 Northwestern University Law Review 527 (2012).1 In my opinion, the U.S. Constitution grows out not the fairly authoritarian monarchies of the Tudor Dynasty, but out of English admiration in the Seventeenth and Eighteenth Century for the Classical Greek and Roman Ideal of a Mixed Regime. A Mixed Regime was one that combined elements of monarchy, aristocracy, and democracy so as to obtain the best features of each regime type while avoiding the worst.

1

This article is co-authored with Mark E. Berghaussen and Skylar Albertson.

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Aristotle and Polybius in defending Mixed Regimes in antiquity observe that the advantage of government by one person was that it provided for energy in foreign policy, warmaking, and the combatting of powerful domestic special interests. Government by one person had the disadvantage that it usually degenerated into tyranny. Government by a few people – call them experts – had the advantage that the wise, the knowledgeable, and the virtuous might rule. But, it had the disadvantage that it could easily degenerate into a self-interested and corrupt oligarchy. Government by all the people had the advantage that it promoted liberty and brought common sense and knowledge into public policymaking. But it had the disadvantage that it too could degenerate into mob rule, which is a tyranny of the Many. Id., at 529 – 30. The great advantage of a Mixed Regime that combined the powers of the One, the Few, and the Many was that the three social classes represented as Professor Damasˇka says by the monarchy, the nobility, and the burghers could check and balance one another, thereby increasing the chance that each social class would govern justly. “Power was dispersed in a Mixed Regime rather than concentrated in the hands of one social class. For this reason, Aristotle, Polybius, Cicero, St. Thomas Aquinas, and Machiavelli all praised the idea of a Mixed Regime. Id., at 530 – 31. Mixed Regime constitutions, like separation of powers constitutions, are built on the idea that “[p]ower tends to corrupt and absolute power corrupts absolutely.”2 Aristotle, Polybius Cicero, and Machiavelli all praised ancient Sparta for being a Mixed Regime, and they attributed Sparta’s success as a polity in part to that fact. Polybius and Cicero also praised the Roman Republic for being a Mixed Regime, and it should be noted for the record that the Roman Republic lasted for more than four hundred years (509 B.C. to 44 B.C.). Machiavelli praised the Republic of Venice for being a Mixed Regime, and it should be noted for the record that the Republic of Venice lasted for more than 1,000 years (697 A.D. to 1797 A.D.). By the Seventeenth Century, the idea of the Mixed Regime appeared to be triumphant in political philosophy although it was also challenged the idea of the sovereign and divine right of kings to rule with absolute power as argued for by Jean Bodin and Thomas Hobbes and as practiced by the despot Louis XIV who expelled the French Huguenots. The thirteen original American colonies were settled, beginning with Jamestown Virginia, in 1607 and thereafter. By then the Tudors had passed from the scene in Seventeenth Century England to be replaced by the Stuart dynasty. The Stuarts lacked to skill to govern despotically as had Henry VIII or Elizabeth I, but they did follow Jean Bodin and they claimed that they were sovereign by the divine right of kings and could govern with absolute power. Such claims landed the first two Stuart kings, James I and Charles I, in all manner of troubles and were decisively repudiated when Charles I was executed for being a despot in 1649. The Stuart monarchy was restored in 1660 when Charles II agreed to govern it as a Mixed Regime. 2 Letter from Lord Acton to Mandell Creighton (Apr. 5, 1887) in Lord Acton, Essays on Freedom and Power 329, 335 (Gertrude Himmelfarb ed., 1972).

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James II tried to return to absolutel rule, but he was overthrown in the Glorious Revolution of 1688. From 1688 until 1776, sovereignty in England lay in the King-inParliament with his lords and with the commons, which is in essence the Mixed Regime idea. When the Founding Fathers looked at the British Constitution in 1787 for study they saw a “Balanced Constitution” Mixed Regime. While royal power faded under George I and George II, other post 1688 monarchs like William & Mary, Anne, and George III were not powerless ciphers, especially with respect to foreign affairs. More important to U.S. constitutionalism was the constitutional practice in each of the original thirteen colonies all of which had Mixed Regime constitutions. Each colony, typically had a governor appointed by and accountable to the King through his Privy Council; a lower house of the colonial legislature elected directly by people of each colony with the sole power of taxation; and a governor’s council of important elite figure which was picked by the governor and the Privy Council, except in Massachusetts, and which eventually evolved into the upper houses of the state legislatures. The colonial constitutions were Mixed Regime constitutions of the One, the Few, and the Many just as was the British Constitution in 1787. Wherever the Framers of the U.S. Constitution would have looked in practice in 1787 they would have seen in place Mixed Regime constitutional structures. The English Civil War of the 1640’s revealed that even that early in time people in the West were questioning the idea that they should be in part governed by hereditary kings and lords. By the time Montesquieu wrote in the mid Eighteenth Century Enlightenment thinkers had come to think everywhere that hereditary monarchs and nobility were an affront to the idea that all men are created equal and have equal rights. The Enlightenment thus killed off the Mixed Regime idea insofar as it consisted of monarchs and nobles. There remained, however, the troubling problem that Lord Acton referred to above the problem that power corrupts and absolute power corrupts absolutely. To solve this problem, Montesquieu invented the idea of a functional separation of governmental powers into legislative, executive, and judicial powers. The creation of the separation of powers was thus a temporary fix to the collapse of a 2,000 year-old constitutional ideal of mixed Regimes. The temporary fix of creating a functional separation of power LED to some big problems. The French revolutionaries understood the separation of powers as creating an all-powerful legislature and courts, which could not hear administrative law or constitutional law cases. Latin Americans understood the separation of powers as creating all powerful presidents who could rule by decree. In the United States, however, as Professor Damasˇka’s article points out, the separation of powers idea was blended with the idea of a democratized Mixed Regime. The U.S. Constitution with its President, Senate/Supreme Court, and House of Representatives was a democratized Mixed Regime. There was government by the One, the Few, and the Many, but the Many got to elect the One and the Few. For good measure, the One President was given only executive power, the Few on the Supreme Court only judicial power, and the House of Representatives only legislative power. Hence the birth of James Madison’s system of checks and bal-

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ances superimposed on top of a democratized version of the Mixed Regime. Most Americans today equate the ideas of checks and balances and separation of powers even though it is the former that predominates. Professor Damasˇka says that notions of sovereignty in England and the United States remained undeveloped in the Seventeenth Century and were seen as being vested in God in England or in the people in the United States. Damasˇka, supra at 422. I would elaborate and fill in that statement in light of James I’s and Charles I’s claim that they had absolute power and ruled by the divine right of kings. I think those two monarchs did think that sovereignty came from God and that they alone were God’s agents on earth. The idea that God was sovereign and that kings alone were God’s agents on earth was dealt a fatal blow by the English Civil War in the 1640’s and by the Glorious Revolution of 1688. Subsequent English monarchs like Charles II, William & Mary, Anne, George I, George II, and George III all believed that the King-in-Parliament with his Lords and with the Commons were sovereign. Blackstone’s Commentaries explicitly state as much. There was a very concrete idea as to where sovereignty lay in England at the time of the framing and it was not in God. The Mixed Regime of the King-in-Parliament was sovereign. This satisfied Englishmen that they had followed Hobbes’ Leviathan and had placed sovereignty in one entity while creating a Balanced Mixed Regime Constitution. Professor Damasˇka notes that Americans placed sovereignty in We the People instead of placing it in the President-in-Congress with his senators and representative, but Professor Damasˇka overlooks what a revolutionary change was thus accomplished. Damasˇka, supra at 422. By placing sovereignty in We the People, Americans made it possible for their courts to lay claim to the power of judicial review of congressional legislation, since the People’s constitution as construed by judges was formally speaking higher legislation than acts of the president-in-congress. Judicial review of congressional legislation arose in the United States because the U.S. had a different idea as to where sovereignty lay than the English had. No mere English judge after Lord Coke could strike down an act of the king-in-parliament since that entity was sovereign and spoke for all three of the great estates of the realm. Different ideas about where sovereignty lay explains why judicial review of national legislation emerged in the U.S. but not in Great Britain. Professor Damasˇka notes at page 22 that in “most European countries *** the rise of bureaucratic absolutism destroyed traces of the old constitutionalism.” This is completely correct as the example of France shows. In France, in the Seventeenth Century, King Louis XIV ruled as an absolute monarch by the divine right of kings. The feudal French parliament, the Estates General, did not meet at all between 1614 and 1789, and the King’s rule was so absolute that Louis XIV was able to say: “L’Etat c’est Moi” – I am the state.” Royal absolutism meant in practice the absolute power of the royal bureaucracy and the total withering away of feudal vestiges of power. In 1789, absolute power shifted abruptly from the Monarch to a majority of the National Assembly, and just as there had been no feudal checks and balances

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on French monarchs there were to be no checks and balances on a majority of the French National Assemble until the adoption of the Constitution of the Fifth Republic in 1958. Professor Damasˇka rightly notes on pages 423 and 424 that the U.S. Congress and the federal courts are separate Mixed Regime power centers but that each of them exercise a combination of legislative, executive, and judicial powers. Professor Damasˇka is completely right about this. As he says, Congress does a lot of non-legislative work through its committee system, which is true. The congressional committee conduct a lot of oversight over the activities of the executive branch and the independent agencies in executing the law even though there is no clause in the U.S. Constitution, which authorizes such oversight. From a separation of powers perspective, congressional involvement in law execution through oversight is deeply problematic because it blends legislative and executive power in violation of the teachings of Montesquieu. Once, we realize, however, that the two houses of Congress in conducting oversight are behaving like colonial legislatures or the British Parliament in a Mixed Regime, the problem disappears. We can now understand why in McGrain v. Dougherty, 273 U.S.135 (1927), the Supreme Court held that the U.S. Senate acting alone could imprison a contumacious witness indefinitely in a jail on capitol hill even though the executive branch had brought no prosecution against that witness and even though the federal courts had decided no case. It was enough for the U.S. Senate to say that if the House of Lords or the House of Commons could totally on their own arrest and imprison a witness so too could the Senate and the House of Representatives. The U.S. has a Mixed Regime Constitution not a separation of powers constitution. Similarly, the federal courts do not confine themselves to exercising only Montesquieu’s narrow conception of the judicial power. As Professor Damasˇka shows on page 423, the federal courts are in effect law and policymaking institutions albeit of a highly decentralized kind since lower federal courts make policy along with the Supreme Court. As Professor Damasˇka notes on page 425, the U.S. Supreme Court is a court of law and not only a constitutional court. It hears real nonconstitutional cases all the time. The Supreme Court is thus governed by a strict standing doctrine that precludes it from hearing abstract questions of constitutional law. It also has a discretionary docket so it can pick when to hear a case and when not to. Id., at 424 – 425. The decentralized nature of the federal judiciary in which the Supreme Court hears only 80 cases a year out of the more than 60,000 decided each year by the federal courts of appeals allows a lot of constitutional voices to be heard. Damasˇka, at 426. The decentralization of the U.S. Court system allows it to accommodate the very different conceptions of constitutional law, which are held in different parts of a vastly large country. The United States is the third most populous nation in the world after China and India and the fourth largest in territory after Russia, Canada, and China. Such a democratic empire must be ruled in a relatively decentralized way and the U.S. court system accommodates that need.

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2. The Common Law Legacy Between pages 426 and 432 of his Reflections on American Constitutional Law, Professor Damasˇka discusses the oddity of a very substantial body of judge-made caselaw construing and in many ways submerging the text of the written U.S. Constitution of 1789 as amended. From the perspective of lawyers trained in the Civil Law tradition, and in legal positivism, the behavior of U.S. judges and Supreme Court decisions seems surprising. The written U.S. Constitution of 1789 is a Triumph of the Age of Reason and, like the Prussian Legal Code of the Eighteenth Century, or the Code Napoleon of the early Nineteenth Century, most civil law lawyers would assume that the constitutional text would be supreme and that judge-made caselaw construing that text would be very subordinate and not protected by the doctrine of stare decisis if shown to be wrong in a subsequent case. This, however, is not the way U.S. constitutional law works at all. To begin with, the written Constitution of 1787 owes less to the Age of Reason and more to Anglo-American history than a civil law lawyer would suspect. The immediate precedent for the written constitution of 1789 was a set of written documents enacted after the Declaration of Independence in 1776 and derived from colonial charters of incorporal dating back to 1607. The Declaration of Independence was itself a written document. Nothing foreordained that this should be so. The Framers believed that a decent respect for the opinions of mankind compelled them to reduce to writing their reasons for seceding from the British Empire. In doing this, they famously invoke God and natural law in the following passage, which needs to be read in full: “When in the Course of human events, it becomes necessary for one people to dissolve the political bands which have connected them with another, and to assume among the powers of the earth, the separate and equal station to which the Laws of Nature and of Nature’s God entitle them, a decent respect to the opinions of mankind requires that they should declare the causes which impel them to the separation. We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness.–That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed, –That whenever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or to abolish it, and to institute new Government, laying its foundation on such principles and organizing its powers in such form, as to them shall seem most likely to effect their Safety and Happiness. Prudence, indeed, will dictate that Governments long established should not be changed for light and transient causes; and accordingly all experience hath shewn, that mankind are more disposed to suffer, while evils are sufferable, than to right themselves by abolishing the forms to which they are accustomed. But when a long train of abuses and usurpations, pursuing invariably the same Object evinces a design to reduce them under absolute Despotism, it is their right, it is their duty, to throw off such Government, and to provide new Guards for their future security.–Such has been the patient sufferance of these Colonies; and such is now the necessity which constrains them to alter their former Systems of Government. The history of the present King of Great Britain is a history of repeated injuries

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and usurpations, all having in direct object the establishment of an absolute Tyranny over these States. To prove this, let Facts be submitted to a candid world.”

Several things should be said about the Declaration of Independence. First, it is not a positivist document but rather it invokes “the Laws of Nature,” of “Nature’s God”, and of the “Creator.” Second, it evinces a belief not in Austinian legal positivism (Austin did not publish his seminal work until the 1830’s) but a belief in unalienable Natural Rights to Life, Liberty and the pursuit of Happiness. Third, it proclaims a natural right of the people to alter and abolish their forms of government whenever that is necessary to secure their happiness and safety. The Declaration of Independence is thus a very unusual legal text. After adopting the Declaration of Independence in 1776 the Founding generation adopted eleven state constitutions prior to 1787 and one national treaty-like-constitution, the Articles of Confederation. The original eleven state constitutions were all based on and grew out of the colonial charters, which had governed the thirteen colonies when they were part of the British Empire. The American colonies had originally been corporate undertaking and their charters of incorporation as granted by various kings of England specified what they could and could not do. American constitutional law thus grew out of English corporate law as is pointed out in Mary Sarah Bilder, The Corporate Origins of Judicial Review 116 Yale Law Journal 502 – 566 (2006). The U.S. Constitution of 1787 thus has its origins not in the rationalism of the Enlightenment, which produced the Prussian Legal Code or the Code Napoleon but in the history of the American colonies from the founding of Jamestown in 1607 until 1776 and in the eleven state constitutions enacted between 1776 and 1787 as well as in the Articles of Confederation. The U.S. Constitution of 1787 resembles in important ways the New York Constitution of 1777 and the Massachusetts Constitution of 1780. It was also written against a backdrop of widespread belief in Lockean natural law, which is made evident by the Declaration of Independence. Finally, the new Constitution is brief and general, because brevity and generality were essential to getting it adopted, and it is very hard to amend because it was written against the backdrop of the Articles of Confederation, which could only be amended by the unanimous consent of all thirteen of the states. This background sheds essential light on why the Constitution of 1787 is not and has never been construed mechanically like the French and German Civil Codes (which are also not always construed mechanically). The brevity of the Constitution, and the near impossibility of amending it, made it obvious early on that the Constitution would have to be enlarged out of itself by purposive construction. The Lockean natural law ethos in which the constitution was adopted contributed to making purposive interpretation possible. The Constitution and Bill of Rights were not the command of a sovereign pointing a gun but were in some important sense as to rights creating clauses declaratory of the content of natural law. This explains Marshall Court opinions such as Fletcher v. Peck, 10

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U.S.87 (1810) and Dartmouth College v. Woodward, 17 U.S.518 (1819), which were a leap as a matter of positive law but which arguably served natural law Lockean purposes. The brevity of the Constitution has also long led the Supreme Court to construe the powers the Constitution grants to the federal government expansively as was evident in such great Marshall Court opinions as McCulloch v. Maryland and Gibbons v. Ogden, The Constitution was written as Chief Justice Marshal said to endure for the ages and it lacked “the prolixity of a legal code”, which is why Marshall construed it broadly saying “we must never forget that it is a Constitution we are expounding”. These observations bear on Professor Damasˇka’s analysis of the common law legacy in U.S. constitutional law in the following ways. Professor Damasˇka is right that the Constitution is a legal text, like the French and German Civil Codes, and that is construed much more purposively than are those documents. He is also right that part of the reason for this is that the U.S. is a common law jurisdiction which historically gave greater leeway to judges than did historically such civil law jurisdictions as France and Germany. He is also right the important constitutional rules, like the rule that the citizens of each state vote to elect the presidential electors from each state, are not spelled out in the text of the Constitution. There are thus vitally important ways in which constitutional meaning in the U.S. is established by long accepted practice. I would add, however, that the brevity of the Constitution and the near-impossibility of amending it are as important to the emergence of a body of judge-made constitutional caselaw as is the fact that the United States is a common law jurisdiction. Moreover, the natural law Lockean ethos that prevailed when the Constitution was written led the Supreme Court to extraordinary decisions in Fletcher v. Peck and in Dartmouth College v. Woodward at a time when French courts were behaving very differently. French courts, after the Revolution of 1789, were despised by the revolutionaries. There was a widespread belief that they had aided and abetted the worst elements of the ancien regime and that in doing so they had violated Montesquieu’s teaching that courts ought only to exercise a mechanical judicial power and that they ought never to make policy much less declare principles of natural law. The French Revolutionaries so hated judicial lawmaking in the guise of interpretation that they set up a special committee of their legislature to “interpret” laws at the request of French judges that the judges had difficulty understanding. This Committee of the National Assemble was called the Tribunal de Cassation. Eventually it evolved into a Cour (or Court) of Cassation that interpreted laws very mechanically while not deciding cases. A separate executive branch administrative law system grew up in France under the leadership of the Napoleonic Conseil D’Etat (Council of State) because the French revolutionaries held that Montesquieu’s strict vision of the separation of powers would be violated if judges told executive branch officials what the law required them to do.

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From 1789 on, the French legal system was suffused with an extreme form of legal positivism and an unbelievably modest conception of the judicial role. The United States simply did not ever understand judicial common law-making as a violation of Montesquieu’s principle of the separation of powers. Nor was the framing generation in the U.S. allergic to natural law. To the contrary, it was an influence among many in early Marshall Court decisions. Extreme legal positivism did not hit American legal culture until the writings of Jeremy Benthan and of John Austin in the 1830’s. Even then, Supreme Court justices continued out of necessity to construe the U.S. Constitution purposively and evolutively. In sum, I agree with Professor Damasˇka about the importance of the common law legacy to judicial interpretation of the Constitution, but I also think other factors played a role. Specifically, I would mention: (1) the brevity of the constitution; (2) the difficulty in amending the constitution; (3) the Lockean natural law roots of the Framing; and (4) the fact that legal positivism affected the U.S. much later and much more mildly than it affected France. 3. The Rise of Activist Government Professor Damasˇka observes quite rightly that the American Constitution of 1787 emerged in a political climate in which an economic and social policy of classical liberalism, later called laissez-faire, was the prevailing political outlook. The Framers did not expect government activism, and they did not write their Constitution to facilitate it. To the contrary, the Constitution’s system of checks and balances makes it harder for government to act. In the 1790’s, Secretary of the Treasury Alexander Hamilton tried to implement a mercantilist national economic policy. He persuaded President George Washington to let him create a Bank of the United States, and he favored raising tariffs to foster America’s infant industries and a federal spending program to subsidize the building of national improvements like canals and roads. After Hamilton left office and his Federalist Party passed from the political scene, it was replaced by a Whig party that supported the Hamiltonian political program of a national bank, high tariffs, and national spending on internal improvements. The Federalist Party and the Whig Party lost nine presidential elections between 1800 and won only three (1824, 1840, & 1848). To make matters worse, the nascent Whigs won the 1824 election in highly dubious circumstances after losing the popular vote and both of the presidents they elected in 1840 and 1848 died in office. From 1800 to the Civil War the Jeffersonian and Jacksonian Democratic Party completely dominated U.S. national politics. The nation was committed as a policy matter to laissez faire so the question whether the Constitution would permit activist government simply never came up. During the Civil War Abraham Lincoln took extraordinary actions to preserve the Union. During the spring of 1861, Lincoln ordered a naval blockade of the South, he

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unilaterally suspended the writ of habeas corpus in Maryland even though only Congress has the power to do this, and he ordered the raising of an army for which Congress had not yet appropriated funds. Congress met on July 4, 1861 and retroactively blessed Lincoln’s activism and the Supreme Court upheld a key action in The Prize Cases, 67 U.S. 635 (1863). After Lincoln’s assassination, the Congress took the reins of power away from Lincoln’s incompetent and racist successor and, acting largely on its own with the support of General Ulysses S. Grant, Congress reconstructed the south using a clause in the 1787 Constitution, which guarantees to each state a republican form of government. The Supreme Court upheld what Congress had done in Texas v. White, 74 U.S.700 (1869). During the Civil War and Reconstruction, laissez-faire was shelved in favor of the first use of the military draft and the first instance of printing paper money. The eleven southern states, which had seceded were forced to ratify a constitutional amendment, the Fourteenth Amendment, as a condition of being let back into the union, and the Freedman’s Bureau to assist the slaves became the national government’s first social aid program. Reconstruction ended in 1877, and as Professor Damasˇka argues in this section of his paper constitutional laissez-faire became predominant in the Supreme Court in cases such as Lochner v. New York, 198 U.S.45 (1905). After the New Deal in 1937, control of the Supreme Court shifted to social-democrats and some efforts were made to use the federal courts to accomplish social-democratic ends or to force legislatures and executive to do that. I thus agree with Professor Damasˇka’s account from page 432 to 434. I would, however, add a point that I think is important to Professor Damasˇka’s argument, which is that the text of the U.S. Constitution was amended in 1868 in the Fourteenth Amendment in a way the greatly enhanced federal and judicial power. Section 1 of the Fourteenth Amendment provides that “No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.” Section 5 of the Amendment says that: “The Congress shall have power to enforce, by appropriate legislation, the provisions of this article.” These two clauses fundamentally alter the U.S. Constitution in ways that allow for active governance – more so than most people realize. To begin with, the Supreme Court has held that the Fourteenth Amendment protects unenumerated fundamental rights that are deeply rooted in American history and tradition from legislative abridgment. Thirty-one out of thirty-seven states in 1868 when the Fourteenth Amendment was ratified recognized a state duty to provide a free public school education to all of their children. I personally think the Fourteenth Amendment authorizes both Congress and the federal courts to take major and expensive actions to make more real the constitutional guarantee of positive right to a free public school education. Such a right is not a merely liberty against

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government but is an entitlement to demand something from the government. The U.S. Constitution, as amended, is thus no longer merely a charter of negative liberties. Moreover, I disagree with Professor Damasˇka when he argues that the U.S. Supreme Court could not under the amended U.S. constitution order the government to bring prosecutions as the German Constitutional Court has done in the abortion context. The Fourteenth Amendment says that: “No State shall … deny to any person … the equal protection of the laws.” This is a substantive guarantee of the protection of the criminal laws. The word “protection” is the noun and subject in this sentence and the word “equal” is only an adjective. The Clause guarantees that free African Americans and northerners in the South shall get the same protection from law enforcement as do white southerners. This again is an entitlement to government action on your behalf and not a mere negative liberty. Once the Fourteenth Amendment was adopted in 1868, the U.S. Constitution ceased to be a mere charter of negative liberties. Professor Damasˇka acknowledges at page 438 that the equal protection clause can be used to force government action once some disadvantage group is identified, which is not receiving equal treatment. He also notes at page 437 that the relaxation of traditional rules governing standing and the brining of class lawsuits has made easier the use of the federal courts as agents of social change. Finally, he quite correctly argues that the real source of the federal courts power comes from the fact that the separation of powers, bicameralism, and federalism have so hobbled the political branches of the American government that they can neither act themselves nor prevent the courts from acting. All of this I think is true. Professor Damasˇka concludes by asking wisely whether the American constitutional system of checks and balances can in fact well provide for all the new demands that we place on the government. I personally think the answer is yes and that a Mixed Regime in which the Many pick the One and the Few does a better job of providing energetic, wise, and liberal governance. The United States is the third most populous nation in the world and the fourth largest and it has, by far and away, the highest GDP per capita of any of the G-20 Nations. One cannot meaningfully compare the United States to a country like Denmark which has a lower population than the state of Wisconsin. One could meaningfully compare the United States to the government of the European Union, but doing so reveals U.S. strengths and EU weaknesses. There is much more energy and strength in the elected President of the United States than in the appointed President of the EU, and contrary to Professor Ackerman a coup d’etat is not on the horizon in the U.S. There is much more wisdom in the Senate and accountability in the Senate of the United States than there in the EU’s Council of Ministers. There is much more real democracy in the U.S. House of Representatives and in the state legislatures than there is in the EU Parliament whose election most Europeans opt not to even vote in. And, the U.S. Supreme Court can certainly hold its own with

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the admittedly admirable European Court of Justice. The One, the Few, and the Many who govern the United States have won two World Wars and a Cold War. The government of the European Union cannot handle foreign policy crises in its own backyard whether in Kosovo or Ukraine. The U.S. Constitution, designed with Sparta, Rome, and the Republic of Venice in mind, works a whole lot better than any of the alternatives as people in the United Kingdom of Great Britain and Northern Ireland may be ready to admit.

II. Mirjan R. Damasˇka, The Faces of Justice and State Authority: A Comparative Approach to the Legal Process (1986) In this magnificent book, Professor Damasˇka reflects on the many differences between adversarial and inquisitorial systems of civil and criminal procedure, and the advantages and disadvantages of each system as well as the quite varied form the systems can take. This scholarly and learned book is a key work in the field of comparative procedure. Professor Damasˇka compares hierarchical and coordinate systems of procedure in civil law and common law nations respectively. He compares the role of the criminal file in civil law proceeding with the “day in court” in common law systems reflecting on the orality of common law proceedings. And, he notes the greater affinity of the hierarchical civil law procedure to the needs and demands of an activist state. As a formal matter, there is a big difference between the hierarchical systems of procedure in civil law countries and the coordinate systems of procedure in common law countries. I would like in this section to reflect on Professor Damasˇka’s book by recounting what I think are the very sharp differences between formal constitutional procedural rules and actual practice in the United States, which have grown up in the thirty years since the publication of Professor Damasˇka’s book. My thesis is that formally the U.S. is committed to adversarial procedure but that in practice U.S. procedure has become quite inquisitorial as of 2015. The U.S. has travelled a long distance in the last thirty years and more from its common law adversarial procedural roots. I begin with a discussion of civil procedure and then proceed to a discussion of criminal procedure. Civil Procedure at the federal level is governed by the Seventh Amendment to the U.S. Constitution. The Seventh Amendment formally guarantees the right to civil jury trial in the following words: “In suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved, and no fact tried by a jury, shall be otherwise reexamined in any court of the United States, than according to the rules of the common law.” Note at the outset that civil suits in equity are exempt from the civil jury trial requirement for historic reasons. In England, courts of equity like the Court of Chancery and the admiralty courts did not use

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jury trial so the Framers exempted those cases from the civil jury trial requirement in the United States as well. The Supreme Court has read the Seventh Amendment right to jury trial very narrowly, in effect, consigning it to the dustbin of history. One major question after the New Deal was whether citizens sued in civil actions by government administrative agencies, like the Occupational Health and Safety Organization (OSHA), would be entitled to civil jury trials. In Atlas Roofing Co. v. OSHA, 430 U.S. 442 (1977), the Supreme Court heard a claim that civil law enforcement actions by OSHA against a private party ought to be governed by the Seventh Amendment guarantee on the part of the defendant to a civil jury trial. The Supreme Court disagreed and read the seventh amendment to apply only to “suits at common law” and not to civil administrative proceedings. This is a cramped although not wholly implausible reading of the Seventh Amendment. The amendment, according to the Supreme Court, applies to tort, contract, and property cases, which were suits at common law but not to civil law proceedings by federal regulatory agencies. I personally think the Atlas Roofing decision is mistaken because I believe the Framers in constitutionalizing the rights to criminal and civil jury trial meant to say that in any important legal proceedings a citizen had a right to jury trial unless the case was in Chancery or Admiralty. I do not think OSHA enforcement proceedings by the federal government would have been understood in 1791 as being actions in equity. The Supreme Court’s declaration in Atlas Roofing that administrative entity enforcement actions against a citizen are not “suits in common law” within the meaning of the Seventh Amendment guts the protection of that amendment. Citizens most need civil jury trials to protect their rights when they are in civil litigation with powerful and intimidating police officers and administrative agencies, which have great resources and deep pockets. The Atlas Roofing decision goes a long way toward killing civil jury trial in the United States. The procedures used by OSHA are more inquisitorial than they are adversarial as is the case with most administrative proceedings so this decision moves the U.S. several long steps down the road toward having an inquisitorial system of civil procedure rather than an adversarial one. The gutting of the Seventh Amendment is also evident in the Supreme Court’s refusal to reconsider its decision in Minneapolis & St. Louis R. Co. v. Bombolis, 241 U.S. 211 (1916), which held that the Seventh Amendment is not incorporated by the Fourteenth Amendment to apply against the states. At the time the Bombolis case was handed down, none of the Bill of Rights other than the Takings Clause applied to the states via the Fourteenth Amendment. Today, almost the entire Bill of Rights, including the Second Amendment right to keep and bear arms, applies against the states via the Fourteenth Amendment. The Supreme Court’s refusal to incorporate the Seventh Amendment when almost all of the rest of the Bill of Rights has been incorporated can only be seen as evidence of judicial skepticism as to the value of civil jury trial. In this area, too, the Supreme Court has departed from the common law adversarial tradition quite sharply.

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Third, civil jury trial is rapidly disappearing in practice in the United States. Today, most civil cases are settled out of court rather than being tried to a jury in an adversary judicial proceeding. There has been a 60 % decrease in the number of civil jury trials since the 1960’s. Marc Galanter, The Vanishing Jury Trial: An Examination of Trials and Related Matters in Federal and State Courts, 1 J. of Emp. Leg. Studies 459, 459 (2004). Civil jury trial is disappearing at both the federal and the state level. William G. Young, Vanishing Trials, Vanishing Juries, Vanishing Constitution, 40 Suffolk U. L. Rev. 67 (2006). This disappearance is occurring notwithstanding the text of the Constitution, which endorses civil jury trial in the Seventh Amendment. U.S. civil cases are settled before judges in an adversarial process but that process is more inquisitorial and less adversarial than was civil jury trial. Whatever the Constitution says, the law in practice is converging toward civil law norms. When we turn to the field of federal criminal procedure, we find a similar trend away from formal constitutional guarantees of adversarial procedure and toward a real world practice of inquisitorial criminal procedure. The Constitution guarantees the right to criminal jury trial in two places. Article III, Section 2, Clause 3 provides that: “The trial of all crimes, except in cases of impeachment, shall be by jury; and such trial shall be held in the state where the said crimes shall have been committed; but when not committed within any state, the trial shall be at such place or places as the Congress may by law have directed.” Relatedly the Sixth Amendment provides: “In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the state and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the assistance of counsel for his defense.” As a formal matter, the constitutional right to jury trial seems quite secure. In reality, however, our criminal procedure practice is quite different and is much more inquisitorial. As of 2001, it has been estimated that 94 % of all federal criminal cases are settled by plea bargaining and not by jury trial and judicial sentencing. Plea bargaining occurs because Congress has passed multiple loosely drafted criminal sanctions with substantial incarceration penalties. Federal prosecutors are thus able to charge even minor criminal offenders with technical violations of numerous statutes carrying penalties from anywhere to 30 years to life in prison. Faced with the prospect of such penalties, and knowing that criminal juries only rarely vote to acquit, 94 % of all U.S. criminal defendants enter into a plea bargain with federal prosecutors in which they trade away their right to a criminal jury trial. In reality, the procedure governing a plea bargain is essentially inquisitorial and not adversarial even though criminal defendants retain the right to counsel during this process. Prosecutors negotiating plea bargains have huge discretion to be lenient or harsh unguided by any truly constraining rules. The reality of federal criminal pro-

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cedure in the United States is thus essentially inquisitorial. Unlike the situation in many civil law jurisdictions, American plea bargains are not even scrutinized by a mixed bench of professional and lay judges to ensure that they are just. The situation is no better in state criminal trials. Indeed, in state criminal trials the U.S. Supreme Court has held in 1970 that criminal defendants can be given a jury of six persons rather than twelve even though such a jury is much more prone to convict and bears no relationship to common law criminal juries. Moreover, plea bargaining is as endemic at the state level as it is at the federal level. Criminal juries are also allowed to render non-unanimous, majority verdicts even though that, too, is a departure from the common law rule. In sum, American criminal procedure is formally adversarial, but it has become in practice, today, essentially inquisitorial. In 94 % of the cases, the prosecutor determines a criminal defendant’s punishment in a negotiated plea bargain, which is not reviewable in a meaningful way in court. U.S. criminal procedure today is in practice more inquisitorial than is criminal procedure in many civil law countries where courts must scrutinize and approve of plea bargains before they take effect. I personally think all plea bargains both federal and state should be made subject to review and approval by a twelve person panel of 9 lay people and three professional criminal lawyers to ensure that they are just. Such a panel should have to ratify a plea deal by an eight to four vote, at least, before it can go into effect. This would incorporate into U.S. criminal procedure some safeguards, which presently exist in civil law criminal procedure.

III. Conclusion In conclusion, Professor Damasˇka’s writing on U.S. constitutional law and on civil and criminal procedure is profound and insightful. I have learned from it a lot just as I learned an enormous amount from him when he was my Comparative Law teacher at Yale Law School. I salute him for his tremendous accomplishments. The world is a better place thanks to Professor Damasˇka’s scholarship.

“Supreme” Courts and the Imagination of the Real: An Essay in Honor of Mirjan Damasˇka Oscar G. Chase*

Preface It is with great pleasure that I dedicate this article to Professor Mirjan Damasˇka, whose path-breaking comparative law scholarship has informed and inspired all scholars who work in the field. From a personal point of view, I was just beginning my writing on comparative procedure when I was fortunate to discover his great book, The Faces of Justice and State Authority. Not only did I learn a great deal about the various procedural models in use throughout the world, but as important, found in it a model that situated procedural scholarship in the broad contexts of governance and national cultures. The article I contribute to this volume reflects the influence that continues today. I must also add my admiration for his powerful prose. In my view, Professor Damasˇka is the Vladimir Nabokov of comparative law. Like that great writer of fiction, Mirjan was educated in an Eastern European country and learned English as a second (or was it his third or fourth) language and yet developed a style of writing that is in itself masterful and creative, full of imaginative and powerful analogies, similes, and alliterations that clarify and strengthen his argument even as they delight the reader. Mirjan, please give us more of these delights.

* Russell D. Niles Professor of Law, NYU School of Law and Co-Faculty Director, Dwight D. Opperman Institute of Judicial Administration. I gratefully acknowledge the support of the Filomen D’Agostino and Max E. Greenberg Research Fund of the NYU School of Law. I am also deeply grateful to Paul Chaffin and Nicholas Nestelbaum for their excellent research assistance, to my colleagues Professors Paulette Caldwell and David Garland for their helpful comments, and especially to Professors Vittoria Barsotti and Vincenzo Varano for their gracious invitation to participate in the Conference on the New Role of Supreme Courts in Political and Institutional Context in Florence, Italy in 2011 at which a draft of this essay was presented and for their generous and helpful comments on the paper. Finally, I thank my colleagues at the NYU School of Law for their helpful comments and suggestions when this paper was presented at the law school workshop on March, 2012. Of course, I alone am responsible for any errors. © Copyright Oscar G. Chase. All rights reserved.

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I. Introduction “Law,” to quote Clifford Geertz’ intriguing aphorism, “is but part of a distinctive manner of imagining the real.”1 I have puzzled over this quote and the indeed much else in Geertz’ classic essay, Local Knowledge, Fact and Law in Comparative Perspective2 for a good number of years, much to my intellectual provocation and profit. Koan-like, Geertz’ assertion disturbs us with its pithy oxymoronic phrase: The “real,” is axiomatically not “imagined.” The “imaginary” is only “real” in the spheres of poetry, novels, and video games. And what has “law” got to do with it? But like a Zen master, Geertz uses the koan form “as an aid to meditation and a means of gaining intuitive knowledge.”3 In this spirit I will focus primarily on those most public of courts, the “supreme” courts4, and will explore their role in the collective project of imagining and maintaining a socially adopted reality. I argue that in common with all courts they help to shape and validate our notions of time, space, and human relations and, being “supreme,” have a distinctive capacity to do so. They of course do not do so alone. They are but “part” of the imagination of the real – one of the constructions through which we represent reality to ourselves and others; one strand in the self-spun web of meaning (to again borrow from Geertz) in which we are suspended.5 Nor is this the only thing they do. In setting my own tack I do not 1 Geertz, Clifford, Local Knowledge, Fact and Law in Comparative Perspective in Local Knowledge, Further Essays in Interpretive Anthropology, Basic Books, New York (2000), pp. 167 – 234., at 173, 184. 2 Shweder, Richard A., Something Else: The Resolute Irresolution of Clifford Geertz, Common Knowledge, Vol. 13, No. 2, (2007), p. 191. (Clifford Geertz was “arguably the bestknown and most influential American anthropologist of the past several decades…”). A common theme of Geertz’s critics is that his prose style was needlessly complex and that, by calling attention to itself obscured the failings of his theses, see, e. g., Foster, Stephen William, Local Knowledge: Further Essays in Interpretive Anthropology, American Anthropologist, Vol. 87 No. 1, (1985) (book review) pp. 164, 165 (“…his essays fall flat; what they say evaporates on close inspection.”). Other criticism raises questions about the interpretive method of understanding cultures, see Lieberson, Jonathan, Interpreting the Interpreter, The New York Review of Books, March 15, 1984 at 39, 46 (Geertz fails to resolve the confusion inherent in interpreting cultural “texts” because he does not provide a way “to distinguish what is “in” the “text” and what is supplied by the “reader.”). Geertz’ work is also explored in Chase, Oscar G., Law, Culture and Ritual, New York University Press, New York, 2005. 3 Houghton/Miflin, The American Heritage Dictionary of the English Language, 3d Ed., Boston, 1998, p. 998. 4 As discussed below, the term ”supreme court” is problematic, unless used as a proper noun in reference to a particular court. See n. 32, infra. 5 Geertz uses this metaphor in explaining his understanding of culture: The concept of culture I espouse … is essentially a semiotic one. Believing, with Max Weber, that man is an animal suspended in webs of significance he himself has spun, I take culture to be those webs, and the analysis of it to be therefore not an experimental science in search of law but an interpretive one in search of meaning. It is explication I am after, construing social expressions on their surface enigmatical. – Geertz, Clifford, The Interpretation of Cultures, Basic Books, New York, 1973, at 5. – He employs the metaphor again in Local Knowledge, this time with direct reference to the rule of law: “Man” as A. M. Hockocart remarked “was not created

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mean to deny the essential instrumental functions these courts provide in their respective jurisdictions.6 I do hope to shed some light from another angle. I will not bottom my argument on the social and cultural effects of the judicial holdings. I therefore eschew claims like “Roe v. Wade7 led to promiscuous sexuality,” for however true (or not) that statement might be,8 my different goal is to describe how the establishment and practices of an institution called the Supreme Court helps to create and maintain the “real” by which we all live. Before turning to the specifics of my inquiry, I discuss in Part I the interpretive background that informs this enterprise and its relation to supreme courts. In Part II I show how the Geertzean approach illuminates the usually unacknowledged role of supreme courts in constructing and maintaining social understandings of time and space. Part III argues that the institution of supreme courts is instrumental to the project of modern community’s successful imagination of itself as “just” and “civilized.”

II. Supreme Courts in Interpretive Context In brief, this essay reflects a long-term interest in the “cultural” study of law, a pursuit inspired in at least in the form here pursued by Clifford Geertz and especially by Local Knowledge.9 Geertz was the pioneer in this endeavor, not insomuch in that he applied ethnology to legal systems, – this had been earlier pursued by Malinowski, Evans-Pritchard, Gluckman, Nader, and others – but because he was the first to apply the hermeneutic, or “interpretive,” method to the ethnology of law.10 The sub-title of governed” and the realization that he has become so, severally and collectively, by enclosing himself in a set of meaningful forms, “webs of signification he himself has spun” to recycle a phrase of my own, leads us to an approach to adjudication that assimilates it not to a sort of social mechanics, a physics of judgment, but to a sort of cultural hermeneutics, a semantics of action. – Geertz, Local Knowledge, p. 182. 6 For recent descriptions and analysis of the role of new supreme and constitutional courts in the protection of democratic governance in states that have emerged in the post-fascist and post-Soviet period, see Taruffo, Michele, Le funzioni delle Corti supreme. Cenni generali, Annuario di Diritto Comporato e di Studi Legislestivi, (2011), 11; Stürner, Rolf, The New Role of Supreme Courts in a Political and Institutional Context from the German Point of View, Ibid., 335; Sadurski, Wojciech, La crescita delle Corti costituzionali nei paesi dell’Europa centrale e orientale dopo la caduta del comunismo: allari cerca del monopolio sulla giustizia Costituzionale, Ibid., 305. See also Issacharoff , Samuel, Constitutional Courts and Democratic Hedging, Georgetown Law Journal, Vol. 99, Issue 4, No. 961 (2011). 7 Roe v. Wade, 410 U.S. 113 (1973). 8 E. g., Klick, Jonathan and Stratmann, Thomas, The Effect of Abortion Legalization on Sexual Behavior: Evidence for Sexually Transmitted Diseases, J. Legal Stud., Vol. 32, No. 2 (2003), pp. 407 – 408. (arguing that “legalizing abortion laws lowered the cost of sexual activity, leading individuals to engage in more sex, causing an increase in STDs.”). 9 Geertz’ work is also explored in [omitted to protect anonymity]. 10 Geertz, Local Knowledge, pp. 3 – 5 (Geertz briefly discusses some of his intellectual forbears).

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the book in which the Local Knowledge essay appears makes the point. It is “Further Essays in Interpretive Anthropology” (my emphasis). Since I pursue the same path in the pages that follow, and since the interpretive method itself been subject to interpretation (not to mention obloquy and hagiography)11, we should note that Geertz describes this “turn of anthropology’ as toward a “heightened concern with structures of meaning in terms of which individuals and groups of individuals live out their lives, and more particularly with the symbols and systems of symbols through whose agency such structures are formed, communicated, imposed, shared, altered [and] reproduced…[which] leads us into an approach to adjudication that assimilates it not to a sort of social mechanics … but to a sort of cultural hermeneutics, a semantics of action.”12 He claims that “legal process” is really about “seeing to it that our visions and our verdicts ratify one another.”13 This says something about the law’s imagination of the real, for if vision and verdict are not in sync the anxiety costs will be high and one must yield to the other. Our “visions” of reality will shape our processes on the path to fact and, necessarily, the facts we find. Geertz’ prescience in this regard has been borne out by the work on cultural cognition pursued by Dan Kahan and others. “Cultural cognition refers to the tendency of individuals to conform their perceptions of risk and other policy-consequential facts to their cultural worldviews.”14 The tendencies referenced have been observed in a variety of settings15. The verdicts, to return to Geertz, ratify the visions. Paul Kahn adds his own gloss on the application of hermeneutics to law in his book (one might say “manifesto”), The Cultural Study of Law. Urging us to think about law from a “cultural” point of view he calls for a step back from the reformist agenda that informs much of contemporary legal scholarship. As he sees it, legal scholars are not studying law as a separate social construct but are embedded in law and are “doing law” even as they analyze and seek to reform it. He uses the telling analogy of the study of religion in divinity school as compared with its study in a department of religious studies; the former examines text to find correct interpretations of dogma, while the latter explores the origins and role of religion in society and in its variant forms. Kahn urges us to think about law from outside, with belief suspended. This requires us to set aside our reformist impulse, at least temporarily. But what would a cultural study of law look like? Having opened his book with a critique of contemporary legal scholarship Kahn’s second chapter offers a “sketch of the most basic areas of a new discipline.”16 He intriguingly calls the chapter “Imagining the Rule of Law.” Apart from acknowledging his debt to Geertz, this chapter title 11

See note 2, supra. Geertz, Local Knowledge, p. 182. 13 Geertz, Local Knowledge, p. 181. 14 Kahan, Dan, Foreword: Neutral Principles and Cultural Cognition, Harvard Law Review, Vol. 125, No. 1 (2011). 15 Ibid, at 21 – 22. 16 Paul W. Kahn, The Cultural Study of Law 31, University of Chicago Press, Chicago, 1999. 12

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makes us wonder, in what sense is the rule of law a product of imagination? And of whose? Kahn’s answer is that the rule of law is “a social practice.” To live under it “is to maintain a set of beliefs about the self and community, time and space, authority and representation.” Are these ”beliefs” merely imagined? Kahn wrestles with this problem in the light of his commitment to a “cultural study” through two related exercises. First, a Socratic inquiry into existing practices which does not assume any a priori correctness – a “bracketing of any truth claims for or about law.”17 Second, a coupling of that Socratic “philosophical critique” with that of “thick, anthropological description – i. e., investigating instances of practice in their layered character of multiple juxtaposed meanings.”18 It is this dual process that “is both the end and the technique of a cultural study of law’s rule.19 Cultural inquiry “is not a step in a progression towards truth. Rather, it is a product of the imagination that stands slightly apart from other products of the imagination.”20 The cultural student of law must bring to bear her properties of imagination by temporarily standing outside that collective product of imagination – the rule of law. Curiouser and curiouser. So far we have Geertz positing an “imagination of the real” with the law’s help and Kahn’s “imagined” conception of an” imagined” rule of law. Can an interpretive account of supreme courts add to either our appreciation of that method or to the place of those courts in our imagined world? My affirmative answer is bottomed on the view that supreme courts are part of a learned “system of symbols” that “provide human beings with a meaningful framework for orienting themselves to one another, to the world around them, and to themselves.”21 Through these symbols we create the world in which we live and sustain our creation, “suspended in our own web”. This is not to say that we are free to create any world we can imagine. We are constrained by the physical world in which we are born and by existing mentalities of culture and relations of power. Institutions, however, are not lying about in nature to be picked up or stepped on. The “rule of law” and its associated institutions cannot be constituted until they are imagined. Imagination is in this sense necessary to the creation of real institutions. Their continued existence depends on the collective mental commitment to their existence, a continued effort of imagining that they are what we believe them to be. A supreme court is – what? A building.A series of written decisions. A group of people designated as judges (or clerks or secretaries or janitors) who “are” the court which exercises power, but only so long as the polity remains committed to this ephemeral incorporeal concept. Pierre Bourdieu recognized the dependence of the reality of courts on a reflexive process, even as courts are constrained by the requirement that symbolic power be “re17

Kahn (1999), p. 34. Kahn (1999), p. 36. 19 Kahn (1999), p. 36. 20 Kahn (1999), p. 39. 21 Geertz, Local Knowledge, p. 250. 18

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alistically adapted to the objective structures of the social world.”22 Bourdieu understood, then, that “[t]he specific property of symbolic power is that it can be exercised only through the complicity of those who are dominated by it.”23 Accordingly, “the law can exercise its specific power only to the extent that it attains recognition, that is, to the extent that the element of arbitrariness at the heart of its function … remains unrecognized. The tacit grant of faith in the juridical order must be ceaselessly reproduced.”24 Bourdieu provides several brief explanations for why the law obtains “the complicity of those who are dominated by it.”25 First, there are people “who are already believers [in law] by virtue of the practical affinity uniting them with the interests and values fundamental to legal texts and to the ethical and political inclinations of those who have the responsibility of applying them.”26 For “the dominated,” complicity is “all the more certain because it is unconscious.”27 Complicity is “subtly extorted” by appeals to the objective, normalizing, and universalizing nature of law.28 And if it lacks those appealing qualities just yet, we can imagine them as achievable. Bourdieu’s subtle extortion of complicity through the “universalizing nature of law” is aided by the grandiose but inaccurate prefix “supreme” applied to certain courts. This itself requires an imaginative leap and a willful blinding to the reality that no court is truly “supreme.” For example, the power of the Supreme Court of the United States is limited to specific kinds of disputes by the Constitution29 and statute.30 It is, speaking legalistically, “supreme” only in that it is “the court of last resort for all questions of federal law …”31 The generic reference to tribunals as “supreme courts” also requires an imaginative leap. There is an informal convention in comparative law literature under which courts with ultimate decisional power over some issue or issues are colloquially called “supreme courts” even if their power is limited to the prescribed categories. This is so whether or not the word “supreme” even appears in their actual titles.32 22

Geertz, Local Knowledge, p. 839. Geertz, Local Knowledge, p. 844. 24 Ibid. 25 Ibid. 26 Ibid. 27 Ibid. 28 Ibid. 29 U.S. Const. Ar. III Sec. 2. 30 28 U.S.C. Sec. 1257., See Stern, Robert L. et al., Supreme Court Practice 65, 8th ed., Bureau of National Affairs Inc., Washington D.C., 2002 (“What emerges from this constitutional description of appellate jurisdiction is that it is Congress, not the Constitution or the Supreme Court, that defines the precise metes and bounds over the specified ‘cases and controversies.”). 31 Meador, Rosenberg, and Carrington, Appellate Courts: Structures, Functions, Processes, and Personnel, Lexis-Nexis, 1994, at 979. 32 Commentators and the public generally conceive of supreme courts as courts of last resort situated at the apex of the legal hierarchy or courts with final authority over the meaning of a 23

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(It does not in many of the courts to be discussed33 and none are in fact “supreme” in every sphere of the law even of the state that has constituted them.34) Indeed, Judge Guido Calabresi that the U.S. Court of Appeals for the Second Circuit, although it “may not be called a Supreme Court,” is nevertheless supreme “in most senses of the word.”35 Furthermore, many judicial bodies that possess the ultimate power to constitution. See Merryman, John Henry and Vigoriti, Vincenzo, When Courts Collide: Constitution and Cassation in Italy, Am. J. of Comp. L., Vol. 15 No. 4, 1966, pp. 665, 682. (characterizing Italy’s Supreme Court of Cassation as supreme because it sits “at the apex of the system of ordinary courts, [and] exercises the final power to review decisions of the lower courts in substantive areas within the ordinary jurisdiction”); but see Mazzone, Jason, When the Supreme Court is Not Supreme, Northwestern University Law Review, Vol. 104, 2010, pp. 979, 980. (characterizing the “supremacy” of the United States Supreme Court as “the authority to determine, for everyone else, and in particular for every other court, what the Constitution of the United States means and requires”); see also Geeroms, Sofie M.F., Comparative Law and Legal Translation: Why the Terms Cassation, Revision and Repeal Should Not be Translated …, AM. J. COMP. L., Vol. 50, No. 1, 2002, pp. 201, 202 – 03 (“From a civil law perspective, the term ’supreme court’ did not seem to be appropriate to describe the highest court. The highest courts in a civil law system imply courts concerned only with the final review functions while in the common law systems the supreme courts perform both the final review and appellate functions. On the other hand, from a common law point of view, the term ’supreme court’ might encourage an association with courts having jurisdiction on constitutional issues which is definitely not the case for the civil law courts involved. As a result, I have given preference to the term ’high courts’.”). The phrase “supreme court” is often applied broadly to final appellate courts, resulting in situations where in a single country multiple courts vie for “supreme” status. Compare Sweet, Alec Stone, The Politics of Constitutional Review in France and Europe, Int’l J. Const. L., Vol. 5, 2007, pp. 69, 71 (discussing the influence of France’s Constitutional Council on “the work of France’s other supreme courts, the Cour de Cassation and the Conseild’État”) (emphasis added); also Mazzotta, Francesco G., Precedents in Italian Law, MSU-DCL J. Int’l L. 121, Vol. 9, 2000, p. 146 (describing the Italian Supreme Court of Cassation as Italy’s “supreme tribunal” when the Italian Constitutional Court has the final authority to interpret the Constitution) with Geeroms (2002), p. 202 (“[T]he relationship between word and concept is often not identical in the different legal languages: for instance, the Cour de cassation can hardly be called a supreme court in the American sense.”). 33 For example, the French Cour de Cassation and other courts of cassation exercise final, general appellate jurisdiction, but are not termed “supreme” courts. 34 See Barsotti, Vittoria; Varano, Vincenzo, Il nuovo ruolo delle Corti supreme nell’ordine politico e istituzionale: una prospettiva comparatisticain, in: Barsotti, Vittoria; Varano, Vincenzo (eds.), Annuario di diritto comparato e di studi legislative, 2011, pp. 7 – 11. Taruffo, Michele provides an overview of the variety of institutions referred to as “supreme”, see Cenni generali, Le funzione delle corte supreme, Ibid., 11. Other contributors to the same volume described power struggles between supposedly “supreme” courts, see Cadiet, Loïc, Le role institutionnel et politique de la Cour de cassation en France: tradition, transition, mutation? Ibid.,183; Sadurski, Wojciech, La Crescita delle corte costituzionali nei paesi dell’Europa centrale e orientale dopo la ceduta del comunismo: allari cerca del monopolio sulla giutizia Costituzionale, ibid. 35 Calabresi, Guido, Courts and Judges and their Context, in: Barsotti, Vittoria, Varano, Vincenzo (eds.), Il nuovo ruolo delle Corti supreme nelll’ordine politico e istituizionale, Dialogo di diritto comporato, 81, 86, 2011 (“Our court may not be called a Supreme Court, we don’t call it that way, and yet in most senses of the word we are. We (my Court) decides three thousands cases a year, of which two or three will be taken up by the Supreme Court of the United States

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interpret the constitution are not only not labeled “supreme” but are not even termed “courts” – though we might otherwise recognize their power to interpret their national constitutions as the power of a “supreme court.”36 The broad use of this inaccurate label is perhaps merely a matter of convenience. And yet the phrase “supreme court” (in whatever language) is too loaded to be devoid of emotive power. In English the term usually refers to a specific court, and is associated with great status as well as authority.37 Thus, the U.S. Supreme Court has an almost sacred significance in the United States and even beyond, as I discuss below, but the generic term itself immediately conveys a certain status. “Supreme” is unavoidably supreme. Consider the quasi-comical situation in my own state of residence, New York. For historical reasons the trial court of general original jurisdiction bears the title of “The Supreme Court of the State of New York.” The “highest” court, in the sense of final appellate review power, however, is the New York Court of Appeals. One Chief Judge of the Court of Appeals has urged that the state constitution be amended to change the name of the trial court from the “Supreme Court” to the “Superior Court” or some other anything-but-Supreme appellation. The proponents of the change suggested that it would avoid confusion on the part of the general public as to which court was the “highest” in the state, but the sitting Supreme Court judges, citing history, custom, and their own status concerns, have resisted – thus far successfully – any such name change or other diminution of their status.38 They are obviously not arguing about a label that is without meaning to them and the world they inhabit. As Wojciech Sadurski wrote in the context of his discussion of constitutional courts, “Self-congratulatory rhetoric supports the position of both the constitutional judiciary and law pro-

and we know perfectly well which ones those are. Indeed, often we can create the fact that they’re taken up. I can say ‘Posner in Chicago decided this and he is wrong’ – and I like to do that – if I do that the Supreme Court probably will take the case to ensure uniformity. Or I can say ‘Posner in Chicago decided this, but situations there are different from the ones here and so we decide this”, which says to the Supreme Court ‘don’t be in a hurry, we can live with this, hear from some other circuits before you jump in.” So we know when we are final, and in a sense supreme, and when we are not, and we write differently. We always decide, but when we know it’s going up to go to the Supreme Court, we write a broader menu, so that they will know more about what is going on than when we write simply to conclude the case” (sic)). 36 See Merryman, John-Henry, How Others Do It: The French and German Judiciaries, S. CaL. L. Rev., Vol. 61, 1988, pp. 1865, 1870 (“Since World War II the Germans and Italians have established constitutional ‘courts,’ the Spanish a constitutional ‘tribunal,’ and the French a constitutional ‘council.’”). 37 American colonies designated courts as “Supreme” by title well prior to the 1789 Constitution, e. g., The “Supreme Court of Judicature” founded in the colony of New York, Hulsebosch, Daniel J., Constituting Empire, New York and the Transformation of Constitutionalism in the Atlantic World, North Carolina Press, 2005 (the provincial Supreme Court of Judicature was created in 1691). 38 Greenfield, Edward, Why Justices’ Group Opposes Single-Tier Trial Court, N.Y. L.J., Dec. 9, 1953, p. 1 (The proposal would also have integrated some “lower” trial courts into the new Superior Court. This, too, was resisted by the Supreme Court judges, in part because it would undermine the prestige of the Supreme Court.).

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fessors linked with each other in a symbiotic relationship.”39So, too, with our relationship to “supreme” courts. This “gilt” by association is supported by much of public opinion in many parts of the world. National “supreme” courts generally occupy a favorable position in public opinion.40 One study published in 1998 showed that although “[f]ew people are extremely pleased with their national high courts…few are displeased”41 and although there is “a great deal of variability across countries in diffuse support of the national high courts,”42 “trust in the national high court is quite widespread in most countries.”43 In summary, high courts “are in general relatively salient, and most mass publics are satisfied with the outputs of the institutions.”44 Accordingly, courts, and particularly supreme and constitutional courts, have assumed an increasing amount of power over the past few decades.45 39

Sadurski, Rights Before Courts, A Study of Constitutional Courts in Postcommunist States of Central and Eastern Europe, Springer, 2005, p. xiv. 40 See generally Gibson, James L. et al., On the Legitimacy of National High Courts, Am. Pol. Soc’y Rev., Vol. 92, 1998, pp. 343, 349 (“trust in the national high court is quite widespread in most countries”). 41 Gibson et al. (1998), p. 348. 42 Bulgaria boasted the lowest institutional commitment at 18.6 % and the United States boasted the highest institutional commitment at 76 %. Gibson et al. (1998), pp. 348 – 49. Public opinion of the U.S. Supreme Court fluctuates, however, and has dropped considerably in more recent years, and by one measure its approval rating was down to 43 % in 2013, Duggan, Andrew, American’s Approval of Supreme Court Near All-Time Low, www.gallup.com/poll// 163586/americans-approval-supreme-court-near-time-low, July 19, 2013, last visited March 20, 2014. See also, Blow, Charles M., Partisanship Breaks the Government, New York Times A 25, November 17, 2014 (“According to a June poll by Gallup, ‘Americans’ confidence in all three branches of the U.S. government has fallen, reaching record lows for the Supreme Court (30 percent) and Congress (7 percent), and a six year low for the presidency (29 percent)”). 43 Gibson et al. (1998), p. 351 (Bulgaria had the lowest public trust in the high court: 43.4 % of the public agreed that the high court “can usually be trusted to make decisions that are right for the country as a whole.” In the Netherlands, 89 % of the public trusted the high court. In the United States, 65.3 % of the public trusted the high court. The mean trust in high courts of the twenty countries studied was 65.05 %.). Compare Cassesse, Sabino, The Will of the People and the Command of the Law, in: Barsotti, Vittoria and Varano, Vincenzo (eds.), Annuario di diritto comparato e di studi legislative 137, 139 (2011) pp. 17, 20 – 21 (“According to [Barry] Friedman, the Supreme Court does not usurp the People’s power, but, rather, provides the People with something that the People itself desires. There is substantive consonance between the People’s will and the Court’s decisions. An ‘alignment of the justices with popular will’ takes place; the Court is in the ‘mainstream of public opinion.’ Friedman adds that ‘the Court has so much political capital that the public will accept a few decisions (apparently even the major ones) with which it disagrees.’ Thus, ‘judicial power exists at popular dispensation’” (citing Farrar, Strauss and Giroux (eds.), The Will of the People, 2007, pp. 324, 355, 374, 358, 370. 44 Gibson et al. (1998), p. 352. But see Dugan, American’s Approval of Supreme Court Near All-Time Low, supra, note 42. 45 Hirschl, Ran, The New Constitutionalism and the Judicialization of Pure Politics Worldwide, Fordham L. Rev., Vol. 75, No. 2, 2006, p. 721 (describes an “ever-accelerating

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Gibson and Caldeira hypothesize that legitimacy stems in part from the “dense syndrome of legitimizing symbols courts employ” to connect “with symbols of fairness and legality.46 Courts use symbolism in multiple ways. First, courts represent their work as the mechanical application of legal rules rather than value-laden judgment or policymaking.47 Second, “citizens may be influenced by symbols such as the attire of judges, the honorific forms of address, and the temple-like building in which courts are typically housed.”48 These symbols are effective because they are “processed with little or no conscious awareness of [their] influence …” and because they “activate pre-existing attitudes and beliefs, rendering observable events understandable.”49 As an example, Gibson, Lodge, Taber, and Woodson describe the symbolism of the U.S. Supreme Court in the wake of Bush v. Gore: “A deeply reverential tone characterized the coverage of the Court (in sharp contrast to the tone in the coverage of the Florida Supreme Court). When the Court announced its decision, it was almost as if white smoke were merging from a judicial Sistine Chapel, announcing the selection of a new pope.”50

These authors suggest that “[a] more far-reaching implication here is that to the extent the symbols promote their effect subconsciously, the cognitive aspects of the

reliance on courts and judicial means for addressing core moral predicaments, public policy questions, and political controversies.” 46 Ibid. at 202, 214. See also Resnik, Judith and Curtis, Dennis, Inventing Democratic Courts: A New and Iconic Supreme Court, 2013, pp. 207, 231 (“The Court’s architecture and imagery indeed looked back, to enlist the authority of lawmakers long gone through reliance on what historians call ‘invented traditions – new practices dressed up to seem longstanding.’ And it worked. The building has come to be ‘treated with almost excess affection … as officially old – even though it is not very old.’”, quoting Paul-Spencer Byard, Representing American Justice: The United States Supreme Court, in: Cass Gilbert, Life and Work, at 272, 283). 47 Ibid. (Gibson and Calderia point to a passage from Justice Scalia’s opinion in American Trucking Assns., Inc. v. Smith to exemplify this phenomenon: “To hold a government Act to unconstitutional is not to announce that we forbid it, but that the Constitution forbids it”, citing American Trucking Assns., Inc. v. Smith, 496 U.S. 167, 201, 1990, (Scalia, J. concurring) (emphasis in original)). 48 Gibson, James L. et al., Can Judicial Symbols Produce Persuasion and Acquiescence? Testing a Micro-Level Model of the Effects of Court Legitimacy, Presented at the 2010 Annual Meeting of the Midwest Political Science Association, Chicago, IL, at 1. On the building that houses the U.S. Supreme Court, see Judith Resnik and Dennis Curtis, Inventing Democratic Courts: A New and Iconic Supreme Court, 38 J. of Supreme Court History (2013), 207 (discusses the iconic aspects of the building, concluding that “Thus, the building has lived up to its pretensions. … Viewed from abroad as well as from within, the Court has come to stand for the propositions that adjudication is central to the relationships between government and those governed and that women as well as men of all colors can be in all of the roles that the justice system has to offer.” Ibid. at 233. 49 Ibid. at 6 – 7. 50 Ibid. at 7.

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specific cases would be secondary, perhaps only brought into consideration if explicitly highlighted.”51 Thus, for reasons sounding in some combination of convenience, the limits of language, and the projection of grandeur, we have imagined that there are “supreme” courts throughout the developed world. Perhaps our imagining has produced a kind of reality, as, to give one example, in the sometimes-heard usage, the Corte de Cassazione is the “supreme court” of Italy.52 But is it? Since 1957 when the Corte Constitutionale became operational53Cassazione has had to share its claim to be the final authority on Italian law with the newcomer when it comes to Constitutional matters. This pattern has been found in many of the nations that have created a constitutional court to supplement a court of cassation or other court of ultimate appeal. Very few have adopted an apparently readily available alternative, i. e., to expand the jurisdiction of the supreme appellate court to include powers over constitutional issues.54 Why not? One theory that goes back to Hans Kelsen is that constitutional adjudication required “much more creativity and political nuance … than could be expected from a continental-style professional judiciary used to narrow interpretations of a code.”55 Additionally, it has been said, the post-war governments that established constitutional courts intended that they would have greater legitimacy because they would be distinguished from the existing “supreme” courts that had cooperated with the defunct repressive regimes.56 The symbolic meanings powerfully conveyed by constitutional courts have sometimes overlapped but have also dif51 Ibid. at 24. See also Gibson/Caldeira, Has Legal Realism Damaged the Legitimacy of the U.S. Supreme Court?, Law & Soc’y Rev., Vol. 45, at 198 (“From existing research on public attitudes toward law and courts, legal researchers know that, generally, to know more about courts is to hold them in higher esteem.”). 52 Cappelletti, Mauro, Merryman, John-Henry and Perillo, Joseph M., The Italian Legal System 80, Stanford 1967. 53 The Corte costituzionale was introduced by the Italian Constitution which came into effect on January 1st, 1948. The Corte began to operate in 1956. 54 But c.f., Sadurski, Rights Before Courts, supra, p. 2, reporting that Romanian Constitutions adopted prior to WW II allowed the Court of Cassation and Justice to exercise judicial review. Some supreme courts have arrogated the power of judicial review to themselves without legislative authorization. Canada is a relatively recent example, see Harding, Sarah, The Supreme Court of Canada, Annuario, supra, note 6, p. 281. A well-known earlier example is the Supreme Court of the United States’ decision in Marbury v. Madison, 5 U.S. (1 Cranch) 137 (1803). 55 Roberston, David,The Judge as Political Theorist, Contemporary Constitutional Review 12, Princeton U. Press, 2010. See also Cappelletti, Mauro, The Judicial Process in Comparative Perspective 142 – 146, Clarendon Press, Oxford, 1989, (describing the imitations of the European judiciary and suggesting this as a prime reason new and special judicial bodies were constituted to undertake constitutional review). 56 E. g., Sadurski, Wojciech, La Crescita delle Corti Costitutionali Nei Paesi Dell’Europa Centrale e Orientale Dopo La Caduta del Comunismo: Alla Ricerca del Monopolio sulla Giustizia Costituzionale, in: Annuario, supra, at 307; Issacharoff, Samuel, Constitutional Courts and Democratic Hedging, 99 Geo. L.J., 2011, pp. 961, 970 (establishing a new court avoided the problem of lustrating the judges of the pre-existing courts).

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fered from those associated with “supreme courts.” Much depends on the context and locality of inquiry. In this essay I will differentiate these two kinds of courts as analysis requires and will use the term supreme court to refer generically to all courts with the power of ultimate review over general jurisdiction lower courts. My present purpose in insisting on the inadequacy of the appellation of “supreme” is to unmask the imaginative work that underlies the very title of such courts. We make this elusive institution real by acting on what was –and is – a product of our imagination. That imagination is a precondition in order for institutions to be “real” should not be controversial. But I take Geertz to make a more problematic claim – that this “distinctive manner of imagining the real” extends as well to the physical world, the world of fact so close to the heart of any legal system and to the everyday metaphysics by which we live our lives. To understand the role of law in the creation and maintenance of the “real” in that sense requires a suspension of our commitment to what Richard Shweder calls “naïve” realism, “…the experience of reality as an immediacy contained within appearances, as experienced, for example, in the extraordinary achievements of ‘ordinary’ visual perception. It is the experience of a relationship between inside and outside, so proportionate, coincidental, and graceful that no difference is noticed between the real and the apparent, and no disharmony felt between the nature of our response to it or representation of it.”57 By contrast, “[a]rtful realism is the theoretical account of how the experience of immediacy is achieved, when, if you think about it, reality must always be beyond experience, transcending appearance, distant, hidden, buried within, or at the very least separate and somewhere else.”58 After briefly discussing traditional attempts to deal with this problem, Shweder observes, “Postmodern realists see no way across the gap between appearance-sensation-experience and reality, except through an irrepressible act of imaginative projection. … Reality-testing is, unavoidably, a metaphysical act, implicating the knower as well as the known.”59 It is in this latter sense that Geertz refers to the “imagination of the real.” He posits that law and legal practices are among the systems of symbols that help the members of a particular society collectively mediate the disharmony between the real and the apparent, as described by Shweder: “The rendering of fact so that lawyers can plead it, judges can hear it, and juries can settle it is just that, a rendering … At base, it is not what happened but what happens that law sees.”60 Legal judgments are therefore a “representation” of the real.61 In Local Knowledge Geertz illustrates this insight 57 Shweder, Richard A., Thinking Through Cultures: Expeditions in ‘Cultural Psychology’, 1991, pp. 353. 58 Ibid., at 354. 59 Ibid., at 355 – 56. 60 Geertz, Local Knowledge, p. 173. 61 Ibid. Summarizing, according to Geertz, the Islamic tradition integrates the normative aspects of a dispute into the fact-finding through practices designed to reveal the “rightness” of the disputants. Normative witnessing, the primary example he uses, traditionally allowed the judge to rely on the moral standing of the witnesses for the parties, see ibid., 187 – 95. The

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by using three different legal systems, the Islamic, the Indic, and the Malaysian, asking in each case how the relationship between law and fact plays out. He shows that the determination of “what happened” (the “if” in the “if, then,” syllogism of judgment) reflects the underlying cultural assumptions of the people involved just as do normative priorities (the “then” in the syllogism), so that the “legal representation of fact becomes normative from the start.”62 The Western belief that, put crudely, there is a clear and universal distinction between “fact” and the normative prescriptions called “law” is itself an imagined way of seeing the world. I have argued elsewhere that law and legal process affect views of the real world insofar as they validate specific, culturally and politically held methodologies for understanding what the world is like.63 Legal process is not like religion; it is not a separate sphere that uses special rules to determine what the universe is like which are not applicable to quotidian life. In the modern world legal fact-finding purports to apply a methodology transferable to and from other investigative techniques.64 It is, however, no less culture-free. Geertz makes the point in the title of his essay: knowledge, it suggests, is as local as law.65 This theme, however, demands that I return for a moment to the constraints on our imaginative productions. I said earlier that we are constrained by the attributes of the physical world. I add here that those constraints are themselves constrained by the divergent ways in which and from Indic tradition he summarizes tied fact-finding to the dharma of the individual, that is, his place and its accompanying duties in the society, ibid. at 195 – 207. Judgments were expected to reflect the “’total value of the individual’s existence.’” Ibid., at 205. The Malaysian tradition, ibid,, 207 – 215, is described as more concerned with procedures leading to consensus and thus community harmony (adat) than with the truth, in the Western sense. “What matters finally is that unanimity of mind is demonstrated, not so much the verdict itself, which is mere denouement… but in the public processes by which it has been generated.” Ibid., at 211. 62 Ibid., at 174. 63 Chase, Oscar G., Law, Culture, and Ritual (2005), passim. 64 Geertz, Local Knowledge, p. 231 (Geertz refers to the importance of culturally held legal process and threats to it in Local Knowledge: “What is at risk, or felt to be, are the conceptions of fact and law themselves and of the relations they bear to one another – the sense, without which human beings can hardly live at all, much less adjudicate anything, that truth, vice, falsehood, and virtue are real, distinguishable and appropriately aligned.”). 65 Geertz, Local Knowledge, p. 215 (Geertz acknowledges Ludwig Wittgenstein as the “patron saint of what is going on here.”). See also Villalta, Eduardo, Local Knowledge, Local Lebsnform: The Wittgensteinian Project on Geertz’ Theory of Law, 2011 (on file with the author) (citing Wittgenstein, Ludwig, Philosophical Investigations, Book I, § 440, in: Ascombe, Hacker and Schulte Trans., Blackwell, 4th ed., 2009) (Although he does not elaborate the point it would appear that he refers to Wittgenstein’s distinction between things we claim to know and ways of knowing. Our local “language games” contain foundational beliefs that cannot be verified because they “are not premises or demonstrable theses, but ‘world-pictures,’ and they are not learned through instruction as to their individual, constituent components, but are ‘swallowed down’ alongside the things we do learn. It is in this way that our linguistic constructions ultimately come to connect with our conception of reality. The language games we use are set up around certain conceptions of reality, and certain doubts about reality cannot be expressed in certain games, while certain presumptions are inherent in others.”).

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which we apprehend them. When my granddaughter fell off her scooter, skinned her knee and got up crying I have no doubt that the fall, knee, and tears were real (goodness help me were I to tell her grandmother that the child was “imagining” that she fell). Matters get more difficult when we ask why she fell and what we should do about it. Was it ineptness on her part? Failure of adult supervision? Her big sister gave her a shove? A defect in the manufacture of the scooter or construction of the sidewalk? Witchcraft at the hands of a family enemy?Godly punishment for wrongs done in a former life? Or just, “stuff happens”? Any one of these would be deemed the most likely in one or another culture in which the issue was addressed. And each such culture would have its own way of determining the unknowable truth and how to deal with the consequences. The constraints on our imagination are as loose as our reasoning is variant.66 In this section I have explored some aspects of the ways in which law is “a part of a distinctive manner of imagining the real”67 and have argued that the institutions of “supreme” courts have a special place in the collective mentality of many societies. In the following sections I turn to the ways in which these courts help us to maintain our ideas of time and space. The argument depends in large part on the claim that the latter concepts – varying as they do among cultures – are to that extent imaginaries that become by collective agreement “real.”

III. Supreme Courts and the Construction of Space and Time In our daily lives we are not much troubled by conceptual problems raised by space and time. In our unhurried reflective moments things may be different. Did time “begin”? Will it end? Could it exist without movement within space? Does space have an outer boundary? Where am I, personally in space and time? How do I know that space and time existed before I was born? How do I (or we) measure time? To what extent does the perceived passage of time affect my actions and internal life? That these questions are pervasive in human experience is shown by the universal sense of wonder that has led to creation and end-of-the-world myths found in every society. 1. Time Whether as a meta or quotidian concept, time is neither demarcated nor experienced in the same way in every culture.68 Even among the less “exotic” societies 66

On this general issue see Geertz, Local Knowledge, pp. 73 – 93. Geertz, supra note 1. 68 See, e. g., Geertz, Person, Time, and Conduct in Bali in The Interpretation of Cultures, 360, 391 – 398 (describes the ways in which Balinese notions of time differ from those held elsewhere; Rosaldo, Renato, Culture and Truth; The Remaking of Social Analysis, Beacon 67

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of the modern world, time is perceived and experienced differently in one society than in another.69 A shared sense of time is essential to identification with a group. Standard time is thus among the essential coordinates of intersubjective reality, one of the major parameters of the social world.70 Indeed, a refusal to comply with a group’s concept of time and way of measuring it is a way of expressing and maintaining separate identity.71 The creation and maintenance of a common time is thus a necessary task of national government. But this “can be achieved only if the crucial differences among time’s form can be effectively suppressed.”72 Supreme courts help us manage the difficulties inherent in the conceptualization of time and are one of the agencies that implicitly suppress potentially competing alternatives. They support the imaginative process by which “our” understanding of time is a matter of common sense.To take the case I know best, the U.S. Supreme Court provides institutional and symbolic support for our sense of time in a manner that history books cannot. The Court reifies the past as an aspect of linear time by invoking it to effect. Every Opinion, whether that of the majority of justices who vote in support of it or of a sole dissenter, relies on and invokes prior events, typically a line of previously decided cases but often in combination with a statute or constitutional provision. Even if the Court departs from precedent it will almost never disregard it entirely. It will either deny the departure by distinguishing the instant case from the prior, or it will assert that the prior case is no longer binding either because it was based on some mistake of history or interpretation or (rarely) because it no longer meets the needs of the society. That such reasoning is inherent in the judicial process of a legal system dependent on stare decisis should not obscure its role in maintaining our commonsense view of the linear Press, Boston 1993, pp. 109 – 126) (describing the different understandings of time in societies in which clock time is not paramount); Evans-Pritchard, E.E, Nuer Time Reckoning, 12 Africa, 189, 208 (claims that “the Nuer have no concept of time and, consequently, no developed abstract system of time reckoning … [T]here is no equivalent expression in the Nuer language for our word ‘time’ …” 69 The role of law in the development and imposition of modern concepts and measurement of time in the United States and elsewhere is described in Zerubavel, Eviatar, The Standardization of Time: A Sociohistorical Perspective, Am. J. of Sociology, Vol. 88, No. 1, 1982. See discussion in Hall, E.T. & M.R., Understanding Cultural Differences, Intercultural Press, 1990, pp. 13 – 22 (describes “monochromic” and “polychromic” time systems and the cultures in which each predominates); see also Rosaldo, supra, p. 110 (describes the “protracted struggle that eventually resulted in the ‘time-discipline’ that appears so natural in AngloAmerican society.”); Hofstede, Geert, Culture’s Consequences, Sage Publications, 2nd ed., 2000, pp. 351 – 352, 359 (documents significant differences among counties and country groups with respect to “long term” and “short term” orientation where “Long Term Orientation stands for the fostering of virtues oriented towards future rewards, in particular perseverance and thrift. Its opposite pole, Short Term Orientation, stands for the fostering of virtues related to the past and present, in particular, respect for tradition, preservation of ‘face’ and fulfilling social obligations”). 70 Zerubavel, Eviatar (1982). 71 See examples at Zerubavel, supra, p. 18. 72 Greenhouse, Carol J., Just in Time: Temporality and the Cultural Legitimation of Law, Yale L. Journal, Vol. 98, No. 8, 1989, pp. 1631, 1637.

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nature of time held both by the court and the community it helps to govern. It makes the past and its heroes and villains real to us in a way that is not so different from the way the landscape of Australia makes the Dreaming real to the aboriginal peoples.73 The Court takes us outside of our own lifetimes, assuring us of the continuous flow of time that transcends us. This theme reaches the bizarre in the justices’ practice of introducing a quotation from an Opinion penned by a long-dead member of the Court with the phrase “As we said in [name of case] …” or “We held in [name of case] that …”74 An aboriginal anthropologist examining this way of using the past might conclude that there is a whiff of ancestor worship in the judicial air. She would have reasonable grounds for thinking so. A former judge of the New York Court of Appeals (the State’s “supreme” court) told me once that one of the pleasures of the job was to preface a quote from an opinion by the revered Judge (later Justice) Benjamin Cardozo with the words “As we said in …”75 Of course there was no “we” who said anything. Other members of the court may have agreed with the result and in general accepted the language of the writing judge, but the Opinion itself is the work of the judge who is credited by name as its author. The use of the indefinite and otherwise inappropriate plural “we said” in judicial writings is sometimes attributed to the goal of depersonalization: The decision is not to be seen as the work of a single person’s inclination or of the justices who agreed with it. Rather, the author and the Court’s majority are controlled by the prior decisions of the court. The “we” is the collectivity of the justices over extended time which is governed by and merely applying the law. It suggests a collectivity that began at least with the creation of the Court and continues into an endless future. Americans, including Supreme Court justices, do not, of course, believe that time began with the Revolution or that even legal time began with the ratification of the Constitution. In one chamber of the collective consciousness law originated when Moses was entrusted with the commandments, or perhaps earlier when the god of the Judeo-Christian bible set the rules for Eden and, as a “just God” punished their violation.76 This biblical past is reflected in the prayer with which the clerk 73 Myers, Fred R., Pintupi Country, Pintupi Self, Smithsonian Institution Press, Washington, DC, 1986, pp. 47 – 70. “Throughout Australia, the Aboriginal outlook on human life and the universe is shaped by a distinctive and subtle conception that they refer to in English as The Dreaming.” Ibid. p. 47. Geographical features have an “iconic relationship to The Dreaming” by providing clues to its history and meaning. Ibid. p. 67. See also illustrations ibid p. 65. 74 See, e. g., District of Columbia v. Heller, 554 U.S. 570 (2008) (“As we said in United States v. Cruikshank, “[t]his is not a right granted by the Constitution …’”) (quoting United States v. Cruikshank 92 U.S. 542 (1876)). 75 Judge Cardozo served on the New York Court of Appeals from 1917 until 1932 when he was appointed to the Supreme Court. He died in 1938. 76 For a recent citation to the “Old Testament” see Hamdi v. Rumsfeld 542 U.S. 507, 586 (2004) (Justice Thomas dissenting): “In Old Testament days, when judges ruled the people of Israel and led them into battle, a court professing the belief that it could order a halt to a military operation in foreign lands might not have been a startling phenomenon. But in modern

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opens each session “God save the United States and this honorable court.”77The “Greek temple” design of the Supreme Court building (inadvertently but necessarily referring to other gods) is also a transparent invocation of other mythic pasts – the Periclean democracy, the Roman republic, and (more darkly) the Roman empire. And while the Court has not explicitly embraced Blackstone’s assertion that the common law either always existed or began in mists of history beyond recalling,78 the prerevolutionary law of England still governs the reach of the Seventh Amendment’s guarantee that the right to a civil jury “shall be preserved” because it is that law which is preserved. The Opinions not only instantiate the past, they speak to our hopes for a future that will be in the large continuous with that past and this present. Stare decisis assures us that this year’s Opinions will be cited and relied on, or distinguished, or overruled but certainly invoked in days to come. Sometimes this is made explicit, as when a dissenting justice predicts either or both that the decision will be regretted and that it will be overruled in some distant future. Indeed, when the Lawrence v. Texas79decision struck down Bowers v. Hardwick80, it invoked and adopted the latter’s dissenting opinion by Justice Stevens in Lawrence.81Legislatures cannot similarly comfort us. They act in the here and now. They may but typically do not invoke the past. They look forward but with the realization that today’s enactment can be repealed tomorrow. No Supreme Court opinion can ever be repealed. It can be distinguished or overruled or even legislatively reversed, but it remains forever in the Reports and in whole or part can be re-discovered and relied upon when it has come back into political and intellectual fashion. “Judicial opinions … are designed to be read in an indefinite future with the expectation that they will invoke in the reader a continuing times, and in a country where such governmental functions have been committed to elected delegates of the people, such an assertion of jurisdiction is extraordinary. The [C]ourt’s decision today reflects a willingness to extend judicial power into areas where we do not know, and have no way of finding out, what serious harm we may be doing.” Ramirez de Arellano v. Weinberger 745 F.2d 1500, 1550 – 1551 (C.A.D.C.1984) (dissenting opinion) (footnote omitted). – See also ibid., at 1551, n. 1 (noting that “[e]ven the ancient Israelites eventually realized the shortcomings of judicial commanders-in-chief”). 77 Supreme Court of the United States, The Court and Its Procedures, www.supremecourt. gov/about/procedures.aspx (last visited on March 16, 2015). On the biblical origins of the American law, see Kahn, Paul, The Reign of Law: Marbury v. Madison and the Construction of America, Yale University Press, New Haven, 1997, pp. 70 – 73. 78 Hart v. Massanari, 266 F. 3d 1155, 1165 (9th Cir. 2001) (“Blackstone … noted that ‘the “law” and the “opinion of the judge” are not … one and the same thing; since it sometimes may happen that the judge may mistake the law’; in such cases the precedent simply ‘was not law.’ 1 William Blackstone, Commentaries, 70 – 71, 1765.”) See also Blackstone, Commentaries, 43 – 45, 68 – 74, 1765. 79 539 U.S. 558 (2003). 80 478 U.S. 186 (1978). Justice Blackmun, dissenting, expressed the “hope” that Bowers would “soon reconsider its analysis” and overrule Bowers, Bowers v. Hardwick 478 U.S. 199 at 214 (Blackmun, J., dissenting). 81 Lawrence v. Texas 539 U.S.558, 577 – 78.

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loyalty to the rule of law.”82 The justice who the uses “we held” or “we said” in referring to a court of the distant past know that the same trope will be used decades hence connects herself with a venerable institution and projects her life into a future that will last as long as the Republic if not beyond.83 It can be seen as a vainglorious act, like commissioning a bronze sculpture of oneself. It is certainly an important part of the psychic income of the job. But its effect is not limited to the members of the court. It serves the court’s audience as well by vicariously reassuring us that time extends both before and after us. Our deeds, too, will survive us.84 It connects us as well to the glorious past and grand future of the Republic. Americans have always projected their national project to a more perfect future. Posterity is a birthright of the nation. One of the goals of the people who wrote the U.S. Constitution and those who “ordain[ed] and establish[ed]” it, was “to insure the Blessings of Liberty to ourselves and our Posterity.”85 In addition to supporting a collective conception of time supreme courts reflect and reinforce the role of time in social interactions, thereby affecting the experience of time’s passage in daily life. Cultural comparatists have distinguished between “monochromic” and “polychromic” time. Some cultures place a higher value on punctuality and time limits than others. The difference can lead to misunderstanding and anger. 86 The U. S. Supreme Court, consistent with American culture generally, imposes time rules strictly and publicly, reinforcing the cultural norm.87 82

Kahn, supra, p. 125. Cf. Harding, Sarah, Courts in Context, in: Barsotti, Vittoria ,Varano,Vincenzo (eds.), Il Nuovo ruolo delle Corti supreme nell’ordine politicaoe istitutionale, Dialogo di diritto comparato, Quadernit 1, 137, 140, 2011 (“In the common law world we tend to think of court decisions as finite legal snapshots in time; ‘concrete’ cases that have come to their conclusion, never to be litigated again in the same manner or factual configuration’) (as Professor Harding focuses on the Court’s relationship with the other branches of government, rather than past versions of itself, her conclusion is not problematic for my argument). 84 See The Federalist No. 78 (Alexander Hamilton) (The Federalist No. 22, The Federalist, Jacob E. Cooke, Ed. (Wesleyan Press 1961), p. 135, 143 (capitals in original). 85 U.S. Const. Preamble. 86 Hall, E.T. & M.R., Understanding Cultural Differences, supra note 69, pp. 13 – 22. 87 Stevens, John-Paul, Five Chiefs, A Supreme Court Memoir, Littl, Brownand Company, New York, 2011, p. 172 (describes the rigidity with which Chief Justice Rehnquist imposed time rules governing oral argument: “His careful herding ensured that we entered the courtroom at precisely 10:00 every time.”) But see ibid., p. 210 noting that Chief Justice Roberts allowed “occasional and minor deviations from strict enforcement [of time limits on oral arguments].” Compare this approach, and its attitude about time, with that of the Court in earlier times: When John Marshall was Chief Justice, “[a] single oral argument could go on for more than four hours at a stretch, and could consume more than a week of the Court’s time.” Cushman, Clare, Court Watchers: Eyewitness Accounts in Supreme Court History, Rowman & Littlefield, 2011, p. 22. In 1871 the Court limited each lawyer’s argument to two hours and each side to two advocates. It was reduced again in 1871 to two hours per side, ibid., p. 124, and in the 1920 s to one hour and two counsel per side, ibid., p. 126. In 1970 the current limit of 30 minutes per side was adopted under Chief Justice Burger, ibid. – Here, too, the Court reflected and signaled the validity of changing ideas about time. The greater concern for 83

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The role of the supreme courts of other nations in connecting the polity to the past and an imagined future depends on other referents that have meaning within those societies and are quite different. In France, for example, the Cour de Cassation traces its origins to that country’s revolution and the enshrining of the legislature as the sole source of law. Stare decisis being an obvious violation of that principle, one can see the very brief opinions of that court, intentionally sounding as inexorably compelled by the general principles of the relevant code, as an incorporation of events that provide a vital referent of French political time. The chief legacy of the Revolution was not judicial submission to the discipline of the codes but a deep-seated, widely held conviction that judges lacked lawmaking power. The judges joined in this disclaimer and expressed it through a cryptic style of opinion writing whose main purpose was to prove their dutiful submission but which left them in fact more free. 88

Supreme courts are institutional and reified symbols of a society that has existed and will exist over time. Necessarily they reassure us that our understanding of time – time as we imagine it – is real. They privilege a certain view of time and help to suppress competing conceptions. 2. Space As I write this I am, according to Google, at 42.0206007 degrees north and 73.2011645 west. Put another way I would say I am in the Town of Norfolk in the State of Connecticut. Most importantly for some purposes, I am in the United States. But what does that mean? Every one of those descriptions is a referent to some line or set of lines or point on a map which is itself an imaginary picture of the world. Though the product of human creativity, these places are real in as much as we act upon them. Each of them is in large part given reality through law. Law is quintessentially constructive of our ideas of space, even including the latitude and longitude of every spot

timeliness and “saving” time was largely driven by the incorporation of technology into social and economic life. – Zerubavel, Eviatar, The Standardization of Time: A Sociohistorical Perspective, Am. J. of Sociology, Vol. 88, No. 1, 1982. According to Zerubavel, the first public service to run on a “strict schedule” was the British stagecoach mail service in the late 18th century,: “Given the inherent relation between temporal reality and punctuality … the mail service also came to symbolize the latter even before the rise of the factory.” By the mid-19th Century the development of railroads, together with the rise of the factory were ”spreading the significance of punctuality and precise timekeeping among the general population …” Ibid., pp. 6 – 7. Similar effects were felt in the United States, ibid., pp. 8 – 10. By the 20th century, business-like efficiencies were incorporated into public life. See: Chase, Oscar G., Law, Culture and Ritual: Disputing Systems in Cross-Cultural Contest, New York University Press, New York, 2005, pp. 83 – 4. 88 Merryman, Clark and Haley, The Civil Law Tradition: Europe, Latin America, and East Asia 988 (quoting Dawson, John P., The Oracles of the Law, The Michie Company, 1968), 1994.

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on earth.89 The Constitution of the United States invokes and thereby validates concepts of space at several key points. The “supremacy clause” in Article VI provides that the Constitution, Laws, and Treaties made under its authority shall be the “supreme Law of the Land.” It is unclear what “Land” is referred to in this clause because, for example, laws of the United States can regulate activities outside its geographic boundaries such as the conduct of American soldiers. As Allan Erbsen points out, the terms “law” and “land” are inter-referential: “Law is in part a function of place, yet places are creations of law.”90 Whatever “Land” means in this context it exists only because law has imagined it. Space is more specifically invoked in the Fourteenth Amendment which, critically, defines citizenship territorially by stipulating that “All persons born or naturalized in the United States and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside.” 91 It goes on to define the rights of “citizens.” Whether one is a citizen or not depends in part on one’s place of birth within a space that is created and defined by law and has no existence outside of law. When the limits of space are contested (where does the United States begin and end?) it falls to courts – ultimately the Supreme Court, to more precisely draw the imaginary line, if only for the government of which it is a part. Courts have a particular connection with space because doctrines governing their jurisdiction often refer to geographical indicators. This is true both for the “competence” (subject matter jurisdiction) and jurisdiction over persons and property.92 Because the concept of the nation is the most important instantiation of space in the regime of law, it is arguably the most important determinant of our notion of space and location. Supreme courts are symbolic representations of a nation’s existence and character and are essential to making this imagined entity real. It is hard to think of an entity we would recognize as a nation that did not have judiciary capped by a supreme court. This is because the mental construction of the idea of a nation must include institutions that have symbolic resonance – that symbolize “nation” through signs that citizens and foreigners, including foreign nations, can recognize as conveying nationhood. At one time the necessary symbols of nationhood included a monarch with attributes that inspired or coerced allegiance from a sufficient number of persons to endure. These would typically include claims of divine approval and ceremonial

89

For a discussion of the development of national and international adoption of a system of time based on coordinates of latitude, see Zerubavel, Eviatar, The Standardization of Time: A Sociohistorical Perspective, Am. J. of Sociology, Vol. 88, No. 1, 1982, pp. 8 – 17. 90 Erbsen, Allan, Constitutional Spaces, Minnesota L. Rev., Vol. 95, No. 4, 2011, pp. 1168, 1186. 91 U.S. Const. Art. XIV, Sec. 1. 92 See generally Buxbaum, Hannah L., Territory, Territoriality, and the Resolution of Jurisdictional Conflict, Am. J. Comp. L., Vol. 57, No. 2, 2009, p. 631 (exploring the role of territoriality comparatively).

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rites that projected and displayed their monarchic qualities.93Though in some places still apparently useful, monarchs are no longer necessary or indeed helpful in state formation. “Thrones may be out of fashion, and pageantry too; but political authority still requires a cultural frame in which to define itself and advance its claims …”94 The “cultural frame” of the state includes ceremonials designed as such (some redolent of monarchal times like honor guards, executive palaces, oaths of office) but also the institutions of statehood that function symbolically as well as pragmatically. None of the attributes of the state exist apart from symbols that provide meaning to the conception. A nation is recognizable only through the institutions created and operating in its name. One such is the exercise of power within its borders. But the power of some person or persons to control a certain geographic space by force does not constitute its limits as borders, or establish that space as a nation, or those persons as a government. Nor does the lack of control over the entire claimed space mean that the claiming entity is not a nation. Parts of Latin-America, Africa, and the Middle East provide examples of both points. To assist the mental recognition of “stateness” the area over which sovereignty is claimed must be given symbolic form. These are given physical representation, as “borders” or “frontiers”. Without frontiers there is no state. (The nations of the EU are currently enduring the stress of “free movement,” not only because they want to exclude undesirable immigrants but, I suggest, because they are recognizing that without frontiers their statehood is in question.) But frontiers, as I previously noted, are only imagined lines drawn on maps that are themselves imaginary pictures of the Earth. “Physical spaces are real – they have substance and dimension. But legal spaces are merely fictions that facilitate the public ordering of interactions in the physical world.”95 Fictional spaces like nations are made real by collective belief in them and thus the willingness to erect markers on them, to impose restrictions on how and by whom they can be traversed, and to die in defense of them. Supreme courts aid the collective belief in the reality of borders in part because they represent a commitment to a “rule of law” applicable to a discrete population, largely defined by the territory claimed as the state’s borders. The rule of a particular law, pronounced by a particular court is in the modern world an essential representation of a collectivity as a state. Nationhood involves at a minimum the power to exclusive control over the law applicable within it. Moreover the presumed commonality of the law applicable to persons within the nation requires the symbolic uniformity that only a supreme court can represent. The United States may be an extreme example. Paul Kahn observes “Without a common ethnic, racial, or religious heritage, American identity is peculiarly

93 See Geertz, Local Knowledge, pp. 121 – 146, supra, (describes the “royal progress” and its role in establishing and demonstrating the power of the monarch). See generally Kertzer, David I., Ritual, Politics and Power, Yale University Press, 1988. 94 Geertz, Local Knowledge, supra, p. 143. 95 Erbsen, Allan, Constitutional Spaces, Minnesota L. Rev., Vol. 95, No. 4, 2011, pp. 1168, 1266.

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dependent on the idea of law.”96 Whether the “rule” is one of “law” as understood by liberal legal scholars is beside the point. It is the representation that counts. The existence of a court with ultimate power to say the law within the borders, that is, to police the lower courts’ tendencies to regionalize the law, is critical.97 No wonder that so far as I can discover virtually every entity claiming nationhood has a court system that includes a supreme court with authority to review and correct erroneous lower court decisions.98 In this context we can see how a supreme court, understood here as a court that can review the decisions of courts inferior to it, is key to a rule of law imagined as unitary within the state, but not applicable beyond. This is especially important when the state is made up of formerly independent political bodies but gets tricky when ongoing federalism is contemplated. A post-unification supreme court represents to its public that there is but one nation, one “law.” Depending on the degree of power reserved to the federal components that representation can be controversial as has frequently been the case in the U.S. While the American Constitution reserves to state courts the power to adjudicate non-federal private law claims, for most Americans the Supreme Court is nonetheless thought of as the “Highest Court in the Land.”99 This idea is not close to the truth: Apart from the described supremacy of the state courts in the sphere reserved to them by Article III the reality is that the Supreme Court is able to review only a tiny fraction of the cases in which its review is sought, and willing to review even fewer. There is hardly “one law” in the United States, but that is not relevant, or is rather relevant only to make the point that it is the Supreme Court as we imagine it, not as it really is, that makes it a powerful symbol of nationhood. To the extent that the U.S. Supreme Court is limited to federal claims, that, too, is a representation of the divided government that is so important to American politics. It is the retention of final authority to say “their” law in their own space that makes that space real. The importance of the U.S. Supreme Court as a signal to its own people and to other nations was understood by the framers of the U.S. Constitution. Alexander Hamilton, writing in 1787 prior to the Constitution’s ratification urged as one of its merits the establishment of “one SUPREME TRIBUNAL.”100 Referring to the 96

Kahn, supra, p. 9. On the complexities of the geographic reach of law, particularly constitutional law, see Erbsen, Allan, Constitutional Spaces, Minnesota L. Rev., Vol. 95, No. 4, 2011, pp. 1168. 98 The Comparative Constitutions Project data shows that virtually all national constitutions (178 out of 184) provide for a supreme court that is supreme in the sense that it has final appellate review. Elkins, Zachary et. al., Characteristics of National Constitutions, Version 1.0, Comparative Constitutions Project (last modified May 14, 2010), available at http:// www.comparativeconstitutionsproject.org/index.htm. 99 Federal courts, including the Supreme Court exercise only that jurisdiction permitted by U.S. Const. Art. III. 100 Hamilton, Alexander, The Federalist, No. 22, The Federalist, in: Jacob E. Cooke (Ed.), Wesleyan Press, 1961, p. 135, 143, capitals in original. 97

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then-existing Articles of Confederation, which lacked a national supreme court, he wrote: “The faith, the reputation, the peace of the whole union, are thus continually at the mercy of the prejudices, the passions, and the interests of every member of which it is composed. Is it possible that foreign nations can either respect or confide in such a government? Is it possible that the People of America will longer consent to trust their honor, their happiness, their safety, on so precarious a foundation?”101 As adopted, the Constitution met Hamilton’s expectations by providing for “one supreme court”102 and specifying that the “judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution, the Laws of the United States and Treaties made, or which shall be made, under their Authority.”103 For Hamilton and other supporters of ratification a supreme court was necessary to express the nationhood of the thirteen “sovereign states.” David M. Golove and Daniel J. Hulsebosch make a convincing claim that the Framers’ purposes in adopting a constitution granting supreme power to its central government went beyond legalistic assurances to foreign powers that they could rely on its treaties and financial obligations.104 “The fundamental purpose of the Federal Constitution was to create a nationstate that the European powers would recognize, in the practical and legal sense, as a ‘civilized state’ worthy of equal respect in the international community.”105 To be “civilized” included a commitment to the Enlightenment project. “Membership in this larger civilization –linked across space by cultural ties of sympathy, benevolence and commerce – was desirable in its own right, and served the psychological needs of the many founders who viewed themselves … as ‘citizens of the world.’”106 To achieve these goals, “Statehood had to be performed [and] that performance would have to be convincing.”107 The “convincing performance” was the ratification of the Constitution critically including a “supreme” court with the power to enforce federal laws and obligations.

101 The Federalist, No. 22, supra, p. 144. See also The Federalist, No. 80, p. 534, 535 (“What for instance would avail restrictions on the authority of state legislatures, without some constitutional mode of enforcing the observance of them?”). 102 U.S. Const. Art. III Sec. 1. The Supreme Court was only one of a panoply of provisions that assured the supremacy of the national government. See generally Golove, David M. and Hulsebosch, Daniel J., A Civilized Nation: The Early American Constitution, the Law of Nations, and the Pursuit of International Recognition, N.Y.U. L. Rev., Vol. 85, 2011, pp. 932, 989 – 1015. 103 U.S. Const. Art. III Sec. 2. 104 Golove/Hulsebosch (2011), p. 93. 105 Golove/Hulsebosch (2011), p. 935. 106 Ibid., p. 938. See also ibid., pp. 973 – 975 (describing attributes of virtue in the civilized world envisioned by the Framers). 107 Ibid., p. 943.

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The acts of meaning108 expressed in the nascent United States Constitution were the adoption of a nationally binding constitution and creation of a supreme court with apparent power to enforce that constitution. These acts presaged similar developments in many post-colonial nations.109 The desire to assure national control over sub-sovereign entities at least partially explains the emergence of judicial review in several other countries. Australia’s 1901 constitution, which was influenced by the United States Constitution,110 established the High Court of Australia. Though the Australian constitution does not expressly authorize it, the High Court exercises judicial review based loosely on implications of the constitutional text but largely on original meaning.111 The framers of the Australian constitution intended that the High Court would exercise judicial review to resolve federalism issues.112 Indeed, in a 1956 opinion that High Court explains that judicial review is axiomatic to a federal system, stating that “[t]he conception of independent governments existing in the one area and exercising powers in different fields of action carefully defined by law could not be carried into practical effect unless the ultimate responsibility of deciding upon the limits of the respective powers of the government were placed in the federal judicature.”113 Similarly, Canadian judicial review arose out of a need to resolve federal conflicts. Although the British judiciary did not exercise judicial review in interpreting British laws, the Judicial Committee of the Privy Council frequently exercised judicial review over federalism questions in Canada in the eighty years prior to the 1949 constitutional amendment that abolished appeals to the Privy Council.114 Another example is the Indian Supreme Court, created in 1950 soon after India obtained independence, which was designed to deal with both federalism issues as well

108 See Bruner, Jerome, Acts of Meaning, Harvard University Press, 1993 (describes the process through which specific institutional behaviors give meaning in the instant society). 109 See text at notes 101 – 106. 110 Foley, Kathleen E., Australian Judicial Review, Wash. U. Global Stud. L. Rev., Vol. 6, No. 2, 2007, pp. 281, 289 (“Since Federation, Chief Justice Marshall’s famous decision [in Marbury] has often been invoked as a justification for judicial review in Australia.”). 111 Ibid., p. 287. 112 One indication that Australian judicial review was established to resolve federalism questions is that the Australian constitution does not contain a bill of rights. Foley, Kathleen E., Australian Judicial Review, Wash. U. Global Stud. L. Rev., Vol. 6, No. 2, 2007, p. 285 (explaining that the Australian Constitution “is principally concerned with the relationships between federal and state parliaments, executives, and courts”). But even more directly, the framers expressly discussed judicial review modeled after Marbury v. Madison. Ibid. 113 Foley, Kathleen E., Australian Judicial Review, Wash. U. Global Stud. L. Rev., Vol. 6, No. 2, 2007, p. 289 (citing Ex parte Boilermakers’ Soc’y of Austl. (Boilermakers) (1956) 94 C.L.R. 254, 267–68 (Dixon, C.J., McTiernan, Fullagar, and Kitto, JJ.)). 114 See Bednar, Jenna et al., A Political Theory of Federalism, pp. 223 – 70, in: John Ferejohn et al. (eds.), Constitutional Culture and Democratic Rules, 2001, p. 243.

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as to protect fundamental rights,115In all of these cases the national supreme court is one way of reifying the unity of the nation.

IV. The Representation to Self and Others of “Justness” Beyond symbolizing the nation as a unitary whole, supreme courts help a people create the kind of state they are in by providing a representation of their aspirational collective virtues. The state expresses not only that we are but also who we are, what kind of people we proclaim ourselves to be, morally and politically, as a collectivity. In this context I refer to constitutional courts as well as to supreme courts; in the postWorld War II, post-colonial, post-Soviet world, constitutional courts have been in many states the institution through which they proclaim their modernity and justness. While lacking the “supreme” emblem I discussed above, the “constitutional” appellation serves a similar emotive-bearing quality, especially given the history of the nations discussed below.116 The institution of a supreme or constitutional court is indispensable in this regard. The people of most modern states want to see themselves as just, and want others to regard them so as well. To be seen both at home and abroad as freedom loving and rights protecting – a “just” state – is to be worthy of respect and support. Like the newborn American nation, states wish to express “cultural ties of sympathy, benevolence and commerce” that qualify them as “citizens of the world:”117 [T]he people of new states are simultaneously animated by two powerful, thoroughly interdependent, yet distinct and often actually opposed motives – the desire to be recognized as responsible agents whose wishes, acts, hopes, and opinions ‘matter,’ and the desire to build an efficient, dynamic, modern state. The one aim is to be noticed: it is a search for an identity, and a demand that the identity be publicly acknowledged as having import, a social assertion of the self as ‘being somebody in the world.’ The other aim is practical: it is a demand for progress, for a rising standard of living, more effective political order, [and] greater social justice …118

In the modern world a supreme court with power to protect human rights is an essential symbolic representation of those qualities. A just state cannot be imagined without such a court.

115 However, the Indian constitution also “sows the seeds of erosion of fundamental rights” by expressly authorizing preventive detention and emergency executive powers. See Neuborne, Burt, The Supreme Court of India, Int’l J. Const. L., Vol. 1, No. 3, 2003, pp. 476, 478. 116 See supra note 56 and accompanying text. 117 Golove/Hulsebosch (2011), n. 93. 118 Geertz, Clifford,The Integrative Revolution: Primordial Sentiments and Civil Politics in the New States, in: The Interpretation of Cultures: Selected Essays, Basic Books, New York 1973, p. 258.

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Unlike the United States, however, most of the nations that have been born or “born again” in the sense that they emerged as democracies after a period of tyranny have separated the power of constitutional review from general appellate review by creating a separate constitutional court.119 Austria, Germany, Italy, Portugal, and Spain adopted constitutional courts based closely on Kelsen’s original Austrian model.120 John Ferejohn sees these Austrian-based constitutional courts as arriving in waves: first, the Austrian, German, and Italian courts, which immediately followed World War II, then the Spanish and Portuguese courts, which followed the fall of fascist regimes in the 1970 s121 and finally the post-Soviet courts, which also followed the Austrian model, as a third wave in this pattern.122 The symbolic meaning of these developments differs from the supreme court model in that the constitutional courts are more directly expressive of a concern for human rights. It is a signal to its own population and to the “civilized world” that the adopting nation is entitled to internal and international respect. According to Lach and Sadurski, post-fascist and post-Soviet countries adopted constitutional courts because the “institutional novelty” of special constitutional courts “created a symbolic break from past political arrangements.”123RutiTeitel recognizes that “access to constitutional courts through litigation enables a form of participation in the fledgling democracy,” serving as a “potent symbol of new government openness.”124 Furthermore, new constitutional courts with “explicit mandates to engage in judicial review” act as “guardians of a constitutional order,” regulating state power and upholding individual right, “thus creating a rights culture.”125 Germany is an excellent example of the signifying power of a Constitutional Court to its own people. According to Rolf Stürner the Constitutional Court is “the most popular institution of German state authority,” noting that “[i]ts function as a reliable custodian of the rule of law and constitutional rights is an essential element of modern German identity.”126 He adds: “The significance of the Federal Constitutional Court’s role in defining Germany’s post war identity cannot be overestimated. There is no meaningful political or social issue in Germany’s post war history…that was not 119 Ginsburg, Tom, The Global Spread of Constitutional Review, in: Keith E. Whittington et al. (eds.), The Oxford Handbook of Law and Politics 81, 2001. Exceptions include Japan, whose constitution was imposed by the U.S. following W.W. II, India, ibid., at 85, and Pakistan, ibid. at 86. 120 Ginsburg (2001), note 111. 121 Ferejohn, John, Constitutional Review in the Global Context, N.Y.U. J. Legis. & Pub. Pol’y, Vol. 6, No. 1, 2002, pp. 49, 50. 122 Ibid. On the post-Soviet nations see also Sadurski, Annuario, 305, 306. 123 Ibid. 124 Teitel, Ruti, Transitional Jurisprudence: The Role of Law in Political Transformation, Yale L.J., Vol. 106, No. 7, 1997, pp. 2009, 2032. 125 Ibid. 126 Stürner, Rolf, The New Role of Supreme Courts in a Political and Institutional Context from the German Point of View, Annuario, pp. 335, 342.

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the subject of a constitutional dispute and determined by the Federal Constitutional Court.”127 The Constitutional Court of South Africa reified the post-apartheid rebirth of that country so powerfully thatInvictus, the popular movie celebrating the end of apartheid, should perhaps have featured the establishment of that court rather than the dramatic success of the integrated but predominantly white national rugby team famously cheered on by President Mandela. The court did more to signify the reality of change: The Constitutional Principles laid out in the Interim Constitution and later incorporated into the final Constitution include commitments to “achieving equality between men and women and people of all races,” protecting “universally accepted fundamental rights, freedoms and civil liberties,” promoting “diversity of language and culture,” recognition of “indigenous law,” and a “right to self-determination by any community sharing a common cultural and language heritage.”128 Obviously these values reflected the aspirations of those who had struggled to bring democracy to South Africa. In some sense, however, the constituting of the Court was necessary to make the South African Constitution itself real, rather than the other way around. A product of a Multi-Party Negotiating Process, the Interim Constitution created the Constitutional Court and laid down thirty-four fundamental “Constitutional Principles” which would govern the drafting of the final Constitution.129 Another section of the Interim Constitution provided that “[t]he new constitutional text passed by the Constitutional Assembly, or any provision thereof, shall not be of any force and effect until the Constitutional Court has certified that all the provisions of such text comply with the Constitutional Principles” enumerated in Schedule 4.130 Thus, the final Constitution, which opens with the language of popular consent, i. e., “We the people of South Africa,” was tied to the approval of the eleven justices of the Constitutional Court.131 After hearings in the spring of 1996, the Constitutional Court rejected the Constitutional Assembly’s proposed Constitution on the grounds that several of its provisions conflicted with the Constitutional Principles enumerated in the Interim Constitution.132In effect, the Court “declar[ed] the constitution unconstitutional.”133 Well aware of the potential for backlash against the decision, the Court dedicated a portion of an extensive opinion to explaining the “Nature of the Court’s 127

Stürner, Rolf, The New Role of Supreme Courts in a Political and Institutional Context from the German Point of View, Annuario, pp. 335, 347. 128 S. Afr. Const. 1993, Schedule 4. 129 S. Afr. Const. 1993, Schedule 4. 130 S. Afr. Const. 1993, § 70(2). 131 Preamble, S. Afr. Const. 1996. 132 See generally Ex Parte Chairperson of the Constitutional Assembly: In Re Certification of the Constitution of the Republic of South Africa, 1996, (4) SA 744 (CC) [hereinafter First Certification Case]. 133 Gibson, James L. and Caldeira, Gregory A., Defenders of Democracy? Legitimacy, Popular Acceptance, and the South African Constitutional Court, J. of Politics, Vol. 65, No. 1, 2003.

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Certification Function.”134 The Court began this section by invoking the classical defense of judicial power as tied to and limited by the rule of law, stating that “[f]irst and foremost it must be emphasized that the Court has a judicial and not a political mandate.”135 As in many new democracies, establishing the disjuncture between law and politics was important for the Court because the prior oppressive regime relied on “its appeal to the definitions and enforcement mechanisms of law” to legitimate policies antithetical to the new democracy.136 Edwin Cameron, who was subsequently appointed to the Court, observed, “[f]rom apartheid, we carry a legacy of skepticism about law…. Under apartheid, the law was used to define and enforce a system of racial classification and racial subordination that was recognized, almost universally, as reprehensible.”137 After the Constitutional Assembly redrafted the Constitution to reflect the Court’s judgment, the Court certified the Constitution.138 Aware of the sensitive nature of certification, the Court’s Opinion in the First Certification Case emphasized that it had “no power, no mandate and no right to express any view on the political choices made by the [Constitutional Assembly] in drafting the [new Constitution], save to the extent that such choices may be relevant either to compliance or non-compliance with the [Constitutional Principles].”139 Thus, from the outset, the Constitutional Court was charged not just with reaching technical legal judgments based on rules, but with applying standards to enforce the fundamental principles that defined the new nation and took an expansive view of its role as the interpreter of the nation’s values. In the 1995 case State v. Makwanyane, the Court emphasized the uniqueness of the South African Constitution: In some countries, the Constitution only formalizes, in a legal instrument, a historical consensus of values and aspirations evolved incrementally from a stable and unbroken past to accommodate the needs of the future. The South African Constitution is different: it retains from the past only what is defensible and represents a decisive break from, and a ringing rejection of, that part of the past which is disgracefully racist, authoritarian, insular, and repressive and a vigorous identification of and commitment to a democratic, universalistic, caring and aspirationally egalitarian ethos, expressly articulated in the Constitution.140

In the Makwanyanecase the Court also signaled the new reality by invoking the African cultural value of “ubuntu” in analyzing the constitutionality of the death pen-

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See First Certification Caseat, pp. 26 – 30. Ibid. at p. 27. 136 Cameron, Edwin, Rights, Constitutionalism and the Rule of Law, S. African L.J., Vol. 114, 1997. 137 Ibid. 138 See Certification of the Amended Text of the Constitution of The Republic of South Africa, 1996, 1997 (2) SA 97 [hereinafter Second Certification Case]. 139 First Certification Case, p. 27. 140 State v. Makwanyane 6 BCLR 665 (1995), at 262. 135

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alty.141 One South African justice has observed that ubuntu is “an African notion” that is “not easily defined,”142 but in general stems from values of “[g]roup solidarity, conformity, compassion, respect, human dignity, humanistic orientation and collective unity.”143 The only textual basis for the legal status of ubuntu lies in the National Unity and Reconciliation Act of 1995, which observes that “the Constitution states that there is a need for understanding but not for vengeance, a need for reparation but not for retaliation, a need for ubuntu but not for victimization.”144 Despite this thin basis, ubuntu animated the justices’ opinions in the Makwanyane case. One justice has argued that ubuntu ought to be treated as a fundamental constitutional value, observing both that the “Constitution brings to an end the marginal development of customary law145 or indigenous principles” and that “Ubuntu/ism, which is central to age-old African custom and tradition, abounds with values and ideas that have the potential for shaping not only indigenous law institutions, but South African Jurisprudence as a whole.”146 Here the Court imagines a reality in which the heritage of black citizens is now to be not only appreciated but dominant. In both the German and South African cases, among many others, the Constitutional Courts so vital to the envisioned quality of the new state is literally given concrete form. Grand courthouses have long been symbols of the authority and legitimacy of the government. Resnik and Curtis argue that the architecture of courts at “the national, regional, and transnational levels is deeply self-conscious, engaged with history by seeking either to embrace and link to traditions or to create distance from them.”147 The German Federal Constitutional Courthouse, built in the 1960 s, symbolizes the break from the “oppressive pathos-filled historical forms in which the authoritarian state had found architectural expression.”148 It features a celebrated glass façade that communicates a new commitment to transparency, accessibility, and civic engagement.149 Within the same decade that the courthouse was built a constitutional amendment created a right for any individual to file a constitu141

State v. Makwanyane 6 BCLR 665 (1995), at 130. Mokgoro, Justice-Yvonne, Ubuntu and the Law in South Africa, Buff. Hum. Rts. L. Rev., Vol. 4., 1998. 143 Ibid. at 17. 144 Preamble, National Unity and Reconciliation Act of 1995, Act 95 – 34 (July 26, 1995). 145 The 1996 Constitution provides that: “The institution, status and role of traditional leadership, according to customary law, are recognised, subject to the Constitution.” S. Afr. Const. 1995, § 211(1). 146 Mokgoro, Justice Yvonne, Ubuntu and the Law in South Africa, Buff. Hum. Rts. L. Rev., Vol. 4., 1998, p. 20. 147 Resnik, Judith and Curtis, Dennis, Representing Justice: Invention, Controversy, and Rights in City-States and Democratic Courtrooms, Yale University Press, New Haven 2011, p. 349. 148 Resnik/Curtis (2011), p. 349 (quoting Hans-Jürgen Papier, Preface, Das Bundesverfassungsgericht in Karlsruhe: Architektur und Rechtsprechung (The Federal Constitutional Court in Germany: Architecture and Jurisdiction) (2004), at 7 – 8). 149 Resnik/Curtis (2011), p. 341. 142

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tional complaint with the Federal Constitutional Court, a legal expression of the architectural commitment to accessibility.150 The physical embodiment of the South African Constitutional Court presents a more complicated relationship with the nation’s past, simultaneously breaking with the institutionalized racism and oppression that characterized the apartheid regime and preserving the memory of that regime. Emblazoned with the colored lettering of the Court’s title in the eleven official languages of South Africa, the building rises from the remnants of the Old Fort prison, where Nelson Mandela was at one time detained. The prison had already been established as a national monument at the time the courthouse was commissioned. The once-segregated cell blocks had housed black prisoners beneath white prisoners, yet many South Africans viewed the prison as place for community solidarity to which supporters had once brought food and books.151 Constitutional Court Justice Albie Sachs described the goal of the courthouse project as the conversion of “intense negativity” into “optimism” about the new legal regime.152 In contrast to the barbed-wire encrusted walls beneath the courthouse, the building itself features modern architecture and expansive glass facades that symbolize the Court’s openness. This effort to communicate the new Court’s accessibility to the public extends to the functionality of the large foyer, which frequently hosts “exhibitions, discussions, dance, and other performances” in order to allow the public to use the building.153 Unlike many new court buildings, public spaces in the courthouse provide a view of the administrative apparatus, symbolizing the transparency of the Court.154 Much as the great architecture, mosaics, painting, and sculpture of the middle ages and the renaissance made scripture real to the illiterate masses, modern courthouses can project an imagined reality out to a public largely ignorant of legal doctrine. Constitutional courts are also a representation by the nation to others, a message of belonging to the “civilized world.” In some cases this may be a more important goal than communicating to the internal public. A very recent example of an explicitly outward-signaling new nation is Kosovo, which declared independence from Serbia in 2008 and soon thereafter adopted a constitution155 which explicitly refers ensures that “the state of Kosovo will be a dignified member of the family of peace-loving states in the world.”156 Kosovo’s constitution guarantees compliance with all the leading international human rights agreements which, “in the case of conflict, have prior150 See Miller, Russell A., Lords of Democracy: The Judicialization of “Pure Politics” in the United States and Germany, Wash. & Lee L. Rev., Vol. 61, No. 2, 2004. 151 Resnik/Curtis (2011), p. 352. 152 Ibid., at 353. 153 Ibid., at 351. 154 Ibid., at 355. 155 See Golove/Hulsebosch (2011), pp. 1063 – 1064. 156 Constitution of the Republic of Kosovo, available at http://www.kushtetutakosoves.info/ repository/docs/Constitution.of.the.Republic.of.Kosovo.pdf (last visited July 29, 2011), pmbl.

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ity over provisions of laws and other acts of public institutions.”157 In Article 19, dealing with the “Applicability of International Law,” Kosovo’s Constitution declares that “[r]atified international agreements and legally binding norms of international law have superiority over the laws of the Republic of Kosovo.”158 To enforce these provisions incorporating and according deference to international law, the Constitutional Court is established as the “final authority for the interpretation of the Constitution and the compliance of laws with the Constitution.”159 Furthermore, the Constitutional Court must review the “compatibility of a proposed constitutional amendment with binding international agreements ratified under this Constitution” and perform a “review of the constitutionality of the procedure followed.”160 Thus, the popular will of Kosovo is subordinate to international norms, and the Constitutional Court is charged not only with enforcing international human rights agreements over the laws of Kosovo, but with preventing an amendment to the Constitution that would conflict with a properly ratified treaty. The promise of a supreme court to review international agreements demonstrates a nation’s “respectability as defined by contemporary norms.”161 It is part of the process of identifying and seeking admission to an “imagined…‘civilized world.’”162 Representation need not necessarily reflect reality. We can easily identify states that have constitutional courts that are presented as protectors of human rights which are more sham than real. Ukraine, Georgia, and Russia come to mind. Perhaps they were “Potemkin courts” all along. Or perhaps the story is more complex. Law is “but part” of the imagination of the real. The adoption by newly constituted nations of “an institution, legal concept, or structure” from donor societies is dependent can be problematic.163 Although a legal transplant “preserves its role and qualities and is able to provide for the same effects as in the donor system,” it is also “intrinsically linked to the multi-natural factors of social value, and is authentic to as well as work-

157

Ibid., art. 22. Kosovo’s Constitution enumerates the Universal Declaration of Human Rights, the European Convention for the Protection of Human Rights and Fundamental Freedoms and its Protocols, the International Covenant on Civil and Political Rights and its Protocols, the Council of Europe Framework Convention for the Protection of National Minorities. the Convention on the Elimination of All Forms of Racial Discrimination, the Convention on the Elimination of All Forms of Discrimination Against Women, the Convention on the Rights of the Child, and the Convention against Torture and Other Cruel, Inhumane or Degrading Treatment or Punishment. See ibid., art. 22. 158 Ibid., art. 19. 159 Ibid., art. 112. 160 Ibid., art.113, § 2(4). 161 Golove/Hulsebosch, A Civilized Nation: The Early American Constitution, the Law of Nations, and the Pursuit of International Recognition, N.Y.U. L. Rev., Vol. 85, No. 4, 2010, p. 936. 162 Golove/Hulsebosch (2010), p. 1065. 163 Vasylyev, Yegor, Legal Transplants in the New Constitutions: Comparative Study of Ukraine and Poland, J.Eurasian L., Vol.4, No. 1, 2011.

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able in only certain ‘donor’ societ[ies].”164 “Supreme” courts provide one example of such a legal transplant. Focusing on the constitutional courts in Poland and Ukraine, YegorVasylyev observes that some post-Soviet constitutions deemed the prior constitution-making processes of other nations “a foreign experience worth following.”165 Influences included the German Basic Law, the French conception of a parliamentary republic, the common law system in place in the United States and the United Kingdom, and “the factor of joining (or intending to join) international organizations based on democratic principles.”166 Yet similar constitutional provisions often took radical divergences, suggesting that a new nation’s past history of governance played a more central role in the development of these new nations. Despite achieving independence from the Soviet Union roughly contemporaneously, drawing on similar influences, and establishing similar constitutions, Poland and Ukraine have had far different constitutional experiences. In Poland, “the Constitutional Tribunal … has become an effective and important – perhaps the most important – tool to overcome the past in the functioning and making of law.”167 On the other hand, in Ukraine the Constitutional Court “has never been seen as authoritative and impartial.”168Vasylyev attributes these different outcomes to the effects of national memory: Poland had developed several prior constitutional documents over the previous centuries,169 whereas Ukraine had almost always existed as a province rather than a nation-state prior to post-Soviet independence.170Vasylyev explains that “[i]n new democracies old rules of the game might to some extent be preserved in institutional memory as well as in everyday habits of individuals.”171 Despite the fact that the Polish and Ukrainian constitutional courts were doctrinally similar172 and emerged from similar constitution-making processes, these constitutional courts were the products of different collective imaginations of nationhood.173 Poland had a long history of struggle to maintain its nationhood and sought to “capitalize on Western liberal … patterns,” whereas Ukraine “basically had no experience in nation-state building at all.”174 With less institutional memory of nationhood to draw upon, the Ukrainian 164

Ibid. Ibid., at 5. 166 Ibid. 167 Ibid., at 7. 168 Ibid. 169 Ibid., at 10 – 11 (describing Poland’s “rich indigenous constitutional heritage”). 170 Ibid., at 12 (“the whole history of Ukraine is a history of a province, albeit, an important one, of other states”). 171 Ibid., at 9. 172 See ibid., at 6 (characterizing the Polish Constitutional Tribunal as similar to the Ukrainian Constitutional Court). 173 Ibid., at 13 (explaining that a review of the comparative historical backgrounds of Poland and Ukraine “reveals essentially different national constitutional memory directly linked to a memory (or lack thereof) of nation-building”). 174 Ibid. 165

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Constitutional Court had the difficult task of imagining Ukraine as a rights-observing nation before it could become so, thus illustrating Bourdieu’s point: “[T]he will to transform the world by transforming words for naming it, by producing new categories of perception and judgment, and by dictating a new vision of social divisions and distributions, can only succeed if the resulting prophecies or creative evocations, are also, at least in part, well-founded pre-visions, anticipatory descriptions.”175

Though both countries adopted similar institutional features, they took on divergent meanings as a result of differing national collective memories of what constitutionalism meant. Extrapolating from these theories and the historical record, we could surmise that to the Poles the Constitutional Tribunal symbolized the completion of a newly invigorated nation, whereas Ukraine’s Constitutional Court represented another iteration of past authoritarian regimes. The make-up and functionality of these two courts bears out this theory. The Polish Constitutional Tribunal was populated with law professors who had supported democratic opposition to the Soviet regime, whereas the Ukrainian Constitutional Court was populated with “old-communist school academics from [the] notorious Academy of Procuracy and apparatchiks who faced the independence with no particular ideas on how to build an independent state.”176Vasylyev concludes that: “Overall, the whole constitution-making process in Poland was a search (and sometimes a struggle) for a new constitutional pattern upon [a] new political landscape (however mixed), while in Ukraine it was dominated by a desire of [the] former communist elite to stay in power and maintain socialism, the nation-state itself still disputed.”177

No doubt the paths of these countries were informed by the ideologies, personal ambitions, and resources of local leaders and neighboring countries, but the particular historical relationship of each to nationhood and national identity importantly affected the results. Gaps between the society we imagine to be produced by a rights-protecting supreme court and lived experience is not limited to laggard democracies in “born again” legal systems. Brown v. Board of Education178 is a source of national pride in the U.S., seen as a meaningful product of the Supreme Court as a protector of minority rights. But educational institutions in the United States remain largely segregated. In a recent term, my required Procedure course at NYU School of Law (widely regarded as a liberal institution) only a few of the ninety students in class appear to be of African ethnicity.) Is that too anecdotal? According to Gary Orfield, [O]ur two largest minority [public school] populations, Latinos and African Americans are 175 Bourdieu, Pierre, Force of Law: Toward a Sociology of the Juridical Field, Hastings L.J., Vol. 38, No. 5, 1987 (translated by Richard Terdiman). 176 Ibid., at 15. 177 Ibid., at 16. 178 347 U.S. 483 (1954).

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more segregated than they have been since the death of Martin Luther King more than forty years ago. Schools remain highly unequal … in terms of … key aspects of schooling. Segregated nonwhite schools are segregated by poverty as well as race.” 179 Through Brown the Supreme Court allows us to imagine the world we live in. For most whites, it is the “real” world. But another lesson of Brown may be that whites had the power to segregate blacks (through private schooling, moves to suburbia, and housing segregation techniques) regardless of the Court. In his recent book, The Will of the People, Barry Friedman argues that “[o]ver time, through a dialogue with the justices, the Constitution comes to reflect the considered judgment of the American people regarding their most fundamental values.”180 If it is correct, Friedman’s thesis illuminates the role played by the U.S. Supreme Court as an institution that allows us to imagine that through law, their imagined world is made real. – that the world they live in is the world required and blessed by law. Perhaps it is the case that other supreme courts are similarly influenced and similarly give meaning to the pervasive values of their peoples.

V. Conclusion What do supreme courts have to tell us about the koan with which this essay begins? And what does the concept of law’s contribution to the imagination of the real tell us about supreme courts? These questions inform each other. Two hands clapping? When we appreciate the imagined but nonetheless influential reality of the very concept of supreme courts, and when we further appreciate how these courts are “but part” of our distinctive manner of imagining our sense of place, time, causation, and fact, we begin to unravel the double process of imagining a regime called law through which our collective imagination helps create a world in which we can live meaningful lives. To conclude with a thought experiment, let us ask ourselves how, apart from law, communities create and maintain a system of belief and way of living out those beliefs. Myth, spirituality, hierarchal authority, or parts of all of those become only another distinctive manner of imagining the real.

179 Orfield, Gary, Reviving the Goal of an Integrated Society: A 21st Century Challenge, The Civil Rights Project at UCLA, Los Angeles, 2009. 180 Friedman, Barry, The Will of the People: How Public Opinion Has Influenced the Supreme Court and Shaped the Meaning of the Constitution, Farrar, Straus and Giroux, New York, 2009, pp. 367 – 68.

The Serbian War Crimes Act and Quasi-universal Jurisdiction – Reflections on an Unprecedented Jurisdictional Experiment* Davor Derencˇ inovic´** and Steven W. Becker***

I. General Overview of the Contents of the Law (Act) Relevant to the Current Analysis The Law (Act, hereinafter WCA) that is the subject matter of the present analysis was promulgated by the Republic of Serbia in 2003.1 The WCA is divided into six chapters – introductory provisions, organization and jurisdiction of state authorities, rules of procedure, salaries and other labour-based rights, means of labour, and transitional and final provisions.2 With regard to article 1, it is clear that the WCA prescribes “education, organization, jurisdiction and powers of state authorities and their organizational units, for the detection, criminal prosecution, and judgement of crimes stated in the Law (Act).”3 As such, the WCA primarily addresses organizational matters relating to special tri* By this article the authors would like to pay tribute to Professor Mirjan Damasˇka for his invaluable contribution to the field of international criminal law and justice. Some parts of this paper were published in Croatian in Derencˇ inovic´, Davor, Nekoliko komentara uz Zakon o organizaciji i nadlezˇ nosti drzˇ avnih organa u postupku za ratne zlocˇ ine Republike Srbije, 62 Zbornik Pravnog fakulteta Sveucˇ ilisˇta u Zagrebu, 3(2012), pp. 785 – 808. Davor Derencˇ inovic´ is the author of Legal Analysis of the Law (Act) on Organization and Jurisdiction of State Authorities in War Crimes Proceedings (2003) of the Republic of Serbia, Croatian Academy of Legal Sciences (unpublished). Steven W. Becker was Rapporteur to the Drafting Committee for the Princeton Project on Universal Jurisdiction and author of the official Commentary on the Princeton Principles on Universal Jurisdiction. The authors are particularly grateful to Professors Zˇ eljko Horvatic´, Maja Sersˇic´, and Davorin Lapasˇ for their valuable suggestions that were taken into consideration in drafting this paper. ** Davor Derencˇ inovic´, Full Professor of Criminal Law, Zagreb University Faculty of Law. *** Steven W. Becker, Attorney at Law, Chicago, Illinois; Deputy Secretary General, International Association of Penal Law. 1 “Official Gazette of the Republic of Serbia,” Nos. 67/2003, 135/2004, 61/2005, 101/ 2007, 104/2009, 101/2011, and 6/2015. 2 Ellis, Mark S., Coming to Terms with its Past – Serbia’s New Court for the Prosecution of War Crimes, 22 Berkeley Journal of International Law, 2004, pp. 165 – 194. 3 Emphasis added.

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bunals for war crimes, and to criminal procedural legal matters, and not to matters of criminal (substantive) law. Nevertheless, it is to this law that the WCA refers, prescribing jurisdiction for determined crimes listed in the following article. Article 2 enumerates two groups of crimes to which the WCA applies. The first group refers to crimes from the positive Criminal Code of the Republic of Serbia, namely: in the first group under subparagraph 1, crimes from articles 370 to 384 and articles 385 and 386 of the Criminal Code. Although the titles and descriptions of these crimes are not stated in the WCA, for transparency reasons, we provide them here with the titles given to them in Chapter 34 of the Criminal Code of the Republic of Serbia, under the general title of “Crimes Against Humanity and Other Properties Protected by International Law”4: Article 370, Genocide; Article 371, Crimes against humanity; Article 372, War crime against civil population; Article 373, War crime against the wounded and the sick; Article 374, War crime against war prisoners; Article 375, Organizing and incenting to exercise genocide and war crimes; Article 376, The use of prohibited means of combat; Article 377, Prohibited production, traffic, and keeping of arms, the use of which is forbidden; Article 378, Unlawful killing and wounding of the enemy; Article 379, Unlawful pillaging of the dead; Article 380, Injury to parliamentarians; Article 381, Cruel treatment of the wounded, the sick, and war prisoners; Article 382, Unjustified deferral of repatriation of war prisoners; Article 383, Demolition of cultural property; Article 384, Failing to prevent crimes against humanity and other properties protected by international law; Article 385, Misuse of international signs; Article 386, Aggressive war. In the second group of crimes listed under subparagraph 2, the jurisdiction of state authorities of the Republic of Serbia is prescribed “with the purpose of detecting, criminal prosecution and judgement” over “grave violations of international humanitarian law committed on the territory of the former Yugoslavia from 1 January 1991, which are stated in the Statute of the International Criminal Tribunal for the former Yugoslavia.” In addition, under subparagraph 3 of article 2, the jurisdiction of the Republic of Serbia is prescribed over “the crime of aiding and abetting the perpetrator after the perpetration of the crime from article 333 of the Criminal Code, if it was committed in connection with the crimes referred to in subparagraphs (1) and (2) of this Article.”5 Finally, article 3 of the WCA provides that the listed state authorities of the Republic of Serbia are “competent for conducting legal proceedings for crimes from article 2 of this Law (Act), which were committed on the territory of the former Socialist Federative Republic of Yugoslavia, regardless of the citizenship of the perpetrator or the victim.”6 Because articles 2 and 3 of the WCA are the most controversial, the majority of the following analysis will be devoted to these provisions.

4 Official Gazette of the Republic of Serbia, Nos. 85/2005, 88/2005 – corr., 107/2005 – corr., 72/2009, 111/2009, 121/2012, 104/2013, and 108/2014. 5 Supra note 1. 6 Ibid.

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II. Legal Analysis of Articles 2 and 3 of the WCA The crimes described in article 2 of the WCA are stereotypical offenses that – with minor or major, but no essential, differences – are prescribed in the majority of modern European criminal law statutes. The legal and practical problem of the application of the WCA (“detection, criminal prosecution and judgement”) for these crimes – in case there is probable cause that these crimes were committed outside of the territory of the Republic of Serbia and that nationals of other States, including those from the Republic of Croatia and of the EU, were involved – will now be analyzed in connection with article 3 of the WCA. Article 3 of the WCA formulates a principle that, at first sight, suggests that it is the application of the theory of universal jurisdiction. Nevertheless, a detailed analysis leads to the conclusion that the aforementioned provision does not deal with the universality theory of criminal legislation, but rather represents the creation of quite a new principle, not known in contemporary comparative international law, which is a hybrid of its kind of three jurisdictional constructs recognized in international criminal law – the territorial principle, the theory of universal jurisdiction, and the reality (or protective) principle. 1. Elements of the Territorial Principle The fundamental feature of the territorial principle is that the punitive powers of the State apply to all crimes committed on its territory. This principle is the expression of sovereignty of a State, which applies its right to punish (ius puniendi) in cases of the breach of a prohibitive or imperative norm of its criminal law. The territorial principle has primacy over all other principles of jurisdiction (with the exception of the reality principle, of which more will be said below). As an expression of sovereignty, independence, and equality of States, the territorial principle is also accounted for by the necessity of general prevention, in which is contained the requirement that the negative effects of a crime (sanction) must be felt precisely where the legal order has been disrupted by the crime.7 Practical considerations, such as the availability of evidence and the conduct of criminal proceedings, which is most efficient in the area where the crime has been committed, also speak in favor of the territorial principle. Moreover, witnesses are available, costs of the proceedings are significantly lower than if they were conducted in another country, etc.8 Elements of the territorial principle incorporated into article 3 of the WCA can be seen in the extension of jurisdiction of Serbian judicial authorities over crimes from article 2 of the WCA onto the territory of “the former Socialist Federative Republic of Yugoslavia,” i. e., onto a limited territory. In other words, the principle prescribed by article 3 of the WCA does not apply to the territories of all States, or to those terri7

Concernig the territorial principle in common law jurisdictions, see Perkins, Rolin M., The Territorial Principle in Criminal Law, 22 Hastings Law Journal, 1971, pp. 1155 – 1172; in Croatian, see Zlataric´, Bogdan: Med¯unarodno krivicˇ no pravo, Zagreb, 1979, p. 114. 8 Ibid.

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tories that are not under the criminal jurisdiction of any State (for example, the high seas), which is a fundamental feature of the theory of universal jurisdiction, but to a selectively limited “territory” that comprises “the territory of the former Socialist Federative Republic of Yugoslavia.” The area in question is the territory which, after the disintegration of the republics of the former Socialist Federative Republic of Yugoslavia, encompasses state territories of a number of sovereign and independent States, viz., Slovenia, Croatia, Bosnia and Herzegovina, Serbia, Montenegro, Kosovo, and Macedonia. Two of these States are members of the European Union (the Republic of Slovenia and the Republic of Croatia), while several have a status of candidate members or are potential candidates for membership. 2. Elements of the Theory of Universality Along with the extension of the territorial principle onto the territories of other States, the Republic of Serbia has also “incorporated” certain elements of the theory of universal jurisdiction into article 3 of the WCA. This refers to the part of the provision that gives the right (jurisdiction) to judicial bodies of the Republic of Serbia to proceed in all cases of crimes breaching international humanitarian law “regardless of the nationality of the perpetrator or the victim.” This echoes academic definitions, such as that of Professor Randall from his seminal work on universal jurisdiction, where he opined that universality “provides every state with jurisdiction over a limited category of offenses generally recognized as of universal concern, regardless of the situs of the offense and the nationalities of the offender and the offended.”9 Many international conventional provisions, however, have been misconstrued as being based upon universality when, in fact, they are not.10 With the theory of universality, also called the principle of world law or order, or the cosmopolitan principle, the most-important values of the community of States are protected, and criminal prosecution of perpetrators of the most-heinous crimes that gravely offend the consciousness of humanity is ensured. By the application of this theory, in certain cases when generally accepted conditions are fulfilled and regardless of the location of the crime and the nationality of the perpetrator or the victim,11 the perpetrators of the gravest crimes are deprived of impunity. 9 Randall, Kenneth C., Universal Jurisdiction Under International Law, 66 Texas Law Review, 1988, p. 788. 10 Becker, Steven W., Global Report on Universal Jurisdiction, 79 Revue Internationale de Droit Pénal, 2008, pp. 161 – 167 (surveying conventional law). 11 For the irrelevance of the nationality of the perpetrator and the victim in the context of international crimes, see article 49 paragraph 2 of the First Geneva Convention; article 50 paragraph 2 of the Second Geneva Convention; article 129 paragraph 2 of the Third Geneva Convention; article 146 paragraph 2 of the Fourth Geneva Convention, as well as the British Manual of War (1958), which, contrary to article 3 of the WCA, do not contain a limitation with regard to loci delicti commissi but instead, much as the name of the theory itself suggests, have universal reach.

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This theory was introduced into criminal law with the aim of justifying the criminal prosecution of exterritorial crimes, in particular, crimes over which no one State had punitive authority or jurisdiction (for example, piracy committed on the high seas) and that were committed by those whom the international community considered “the enemies of the human race” (hostes humani generis): “[N]ations predicated their formulation of universal jurisdiction over piracy on the notion that the crime usually was committed in terra nullius, such as on the high seas where no nation exercised territorial control.”12 The majority of contemporary commentators agree that the universality theory can be applied to criminal prosecution of the gravest international crimes; nevertheless, only with certain limitations. So, for instance, the Princeton Principles on Universal Jurisdiction (2001) (Princeton Principles) contain a provision that a State shall exercise universal jurisdiction “in good faith and in accordance with its rights and obligations under international law.”13 The Princeton Principles also provide that universal jurisdiction may only be exercised by a competent and ordinary judicial body for trial “provided the person is present before such judicial body.”14 In addition, the Princeton Principles not only safeguard against double jeopardy15 but even grant the accused “legal standing to raise before any national or international judicial body the claim of non bis in idem in opposition to any further criminal proceedings.”16 Finally, the Princeton Principles include a comprehensive balancing test to resolve competing claims of jurisdiction where the State that has custody of the accused has no basis for jurisdiction other than the theory of universality.17 Although the International Court of Justice in the case of Congo v. Belgium (2000)18 did not take a final position on the boundaries of repressive authority of a State when universal jurisdiction is invoked (notwithstanding the fact that the President of the Court Guillaume determined that universal jurisdiction in absentia is unknown in international law), it has to be stated that this theory is significantly limited through conventional law (aut dedere aut judicare – there is a process limitation that de facto excludes the application of universal jurisdiction in absentia, since according to this clause the obligation to prosecute is imposed on the State on whose territory

12

Simmons, Anthony, The “Under-Theorization” of Universal Jurisdiction: Implications for Legitimacy on Trials for War Criminals by National Courts, 21 Berkeley Journal of International Law, 2003, p. 126. 13 Princeton Principles on Universal Jurisdiction, Principle 1(5), in: Macedo, Stephen (Ed.), Universal Jurisdiction: National Courts and the Prosecution of Serious Crimes Under International Law, 2004, p. 21. 14 Ibid., Principle 1(2), p. 21. 15 Ibid., Principle 9, pp. 23 – 24. 16 Ibid., Principle 9(3), pp. 23 – 24. 17 Ibid., Principle 8, at 23. 18 Case Concerning the Arrest Warrant of 11 April 2000 (Congo v. Belgium), 2002 I.C.J. 121 (14 Feb.).

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the perpetrator is found),19 through legislation of the States, and through case law (for instance, in the Jorgic´ case, the German court applied universal jurisdiction but only after having first determined that there was a legitimizing point of attachment, i. e., not only the presence, but also the residence, of the indictee on German territory;20 in the Javor case, French courts rejected the application of universal jurisdiction because the suspects were not present on French territory21, etc.). Belgium is usually mentioned as an example of a State that pursued penal prosecution (in absentia) against high state officials of other nations by the extension of universal jurisdiction without process limitations by its law promulgated in 1993 (regardless of immunity or the right of the defendant to initiate an investigation). Under strong international pressure, however, in 2003 Belgium amended the 1993 law and subjected the application of universal jurisdiction to numerous procedural limitations, in much the same way as Spain did in 2009 (due to strong diplomatic pressure by numerous influential States, such as China, Israel, and the United States).22 When the relationship between universal jurisdiction and other principles of the territorial validity of criminal legislation is considered, the primary function of the theory of universality is to fill in the gaps that these principles might have left. This is why the reach of universal jurisdiction, reserved to it by particular national criminal legislation that embraces it, is determined by subtraction or elimination of cases covered by other principles.23 It is in this way that the theory of universality is defined in the Criminal Code of the Republic of Serbia (Criminal Code or Code), as well. In accordance with article 9 paragraph 2 of the Code regulating universal jurisdiction: “Criminal legislation of Serbia is also valid for a foreigner who commits abroad, against a foreign country or a foreigner, a crime that in the country of perpetration is subject to five years’ incarceration or a graver sentence, if he finds himself on Serbian territory and has not been extradited to a foreign State. Unless prescribed differently by this Code, in such case the court shall not pronounce a verdict graver than the verdict prescribed in the country in which the crime was committed.”24 Although article 3 of the WCA does contain some elements of universality, it differs 19 Munivrana, Maja, Univerzalno nacˇ elo kao kriterij prostornog vazˇ enja kaznenog zakona, Zagreb, 2007, p. 86. 20 Ryngaert, Cedric, Universal Jurisdiction over Violations of International Humanitarian Law in Germany, 47 Military Law and Law of War Review, 2008, p. 384. 21 Cassel, Douglass, Empowering United States Courts to Hear Crimes Within the Jurisdiction of the International Criminal Court, 35 New England Law Review, 2001, p. 424, n. 15. 22 Halberstam, Malvina, Belgium’s Universal Jurisdiction Law: Vindication of International Justice or Pursuit of Politics, 25 Cardozo Law Review, 2003, pp. 247 – 266; Morrison, Diane and Weiner, Justus R., Curbing the Manipulation of Universal Jurisdiction, Jerusalem Center for Public Affaires, 2010, p. 9. 23 This is why universal jurisdiction is known only as a “theory”; as opposed to a “principle” of jurisdiction, in contrast to other more-traditional jurisdictional constructs, such as territoriality. 24 Supra note 4.

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from the aforementioned Code provision in that it is not universally applied and, regardless of the place of perpetration of the crime, it is applied only if the crime was committed on the territory of precisely defined sovereign States; in contrast, the application of the principle from article 9 paragraph 2 of Serbian Criminal Code (universal jurisdiction provision) is strictly limited with numerous conditions. The first limitation is the condition that the perpetrator “finds himself on Serbian territory and has not been extradited to a foreign state.” Other limitations on the Code’s universal jurisdiction provision are regulated by article 10 paragraph 1 (special conditions for criminal prosecution for a crime committed abroad), according to which criminal prosecution on the basis of universal jurisdiction will not be carried out if, among other things: “(1) the perpetrator has entirely served the sentence pronounced abroad; (2) the perpetrator has been finally acquitted, or his verdict is obsolete or he was pardoned; (3) an appropriate security measure has been taken abroad toward a mentally incompetent perpetrator; (4) for a crime under foreign law requiring compensation, and such demand has not been placed.”25

An additional limitation is the condition of so-called double criminality (identity of norm), which, however, pursuant to article 10 paragraph 3 of the Criminal Code of the Republic of Serbia, can be desisted from “if it refers to an act which, according to general legal principles accepted in international law, was considered a crime at the time of its commission.” In such cases, criminal proceedings are undertaken after the approval of a public prosecutor, “regardless of the law of the country in which the crime was committed.”26 Having said that, criminal proceedings instituted by the Republic of Serbia on the basis of the unique “territorial” application of criminal legislation prescribed by the WCA (and not by the Penal Code!) against persons who are not its nationals but are nationals of the Republic of Croatia or the Republic of Bosnia and Herzegovina27 point to the conclusion that pursuant to the provision from article 3 of the WCA, Serbia de facto interpreted article 3 as applying universal jurisdiction, but without the limitations prescribed in article 9 paragraph 2 and article 10 of the Serbian Criminal Code. Namely, criminal prosecution of these persons would not be possible solely pursuant to article 9 paragraph 2 and article 10 of the Serbian Criminal Code (and the relevant provisions of the Penal Code taken over from the Socialist Federative Republic of Yugoslavia) with respect to the limitations mentioned, most significantly, the condition of the suspect being found in the territory of the Republic of Serbia (with the exception of some suspects who were arrested in Serbia). For this reason, article 3 of the WCA has been applied as “some kind of universal jurisdiction

25

Ibid. Ibid. 27 See infra 3.3. 26

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territorially limited to the former Socialist Federative Republic of Yugoslavia”28 but without limitations otherwise applied where universal jurisdiction is concerned. This lack of traditional safeguards is particularly troubling because there is “great concern that particular states will abuse universal jurisdiction to pursue politically motivated prosecutions. Mercenary governments and rogue prosecutors could seek to indict the heads of state or other senior public officials in countries with which they have political disagreements.”29 On its face, article 3 seems to invite potential violations of the sovereignty of Serbia’s neighbors through political prosecutions commenced under the WCA, almost as if Serbia has declared itself parens patriae for all the former Yugoslavia. In short, at its core, article 3 represents a novel exercise in extraterritorial criminal jurisdiction that attempts to enhance its own moral superiority through engrafting language traditionally associated with universal jurisdiction. 3. Elements of the Reality (Protective) Principle From the fact that article 3 of the WCA contains no limitations ordinarily prescribed for the application of universal jurisdiction, there flows the conclusion that, sui generis, one of the principles possibly underlying article 3 of the WCA, by its legal effects, is the reality or protective principle, which is primarily obligatory since it excludes the principle of ne bis in idem and with which it is possible to conduct proceedings in absentia, etc.30 Yet, it does not mean that article 3 of the WCA is necessarily predicated upon the reality principle (but it should likewise be pointed out that article 3 is neither exclusively predicated upon the territorial principle nor the theory of universal jurisdiction). Namely, with the reality principle, an effort is undertaken to ensure sufficient legal criminal protection for some properties to which foreign systems of criminal prosecution do not ensure adequate protection due to insufficient legal interests or the non-existence of a legitimizing point of attachment (for example, legal protection of the national currency). Moreover, it is undisputed that even the countries that do not necessarily have a legitimizing point of attachment with the specific international crimes that fall under the scope of article 3 of the WCA (for example, the place of perpetration, nationality of the perpetrator and/or the victim), do have a legal interest in the criminal prosecution thereof. To the extent that article 3 may be based on the reality principle, however, such reliance is misplaced. In fact, article 3’s adherence to this principle seems to suffer from the identical fallacy enunciated by the respective courts in the highly publicized 28 Dimitrijevic´ et. al., Hasˇke nedoumice, poznato i nepoznato o Med¯unarodnom krivicˇ nom tribunalu za bivsˇu Jugoslaviju, Beograd, 2010, p. 138. 29 Becker, Steven W., Commentary on the Princeton Principles on Universal Jurisdiction, in: Macedo (Ed.), Universal Jurisdiction, p. 28. 30 Cameron, Iain, The Protective Principle of International Criminal Jurisdiction, Brookfield, 1994.

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case of Attorney General v. Eichmann from Israel.31 In particular, Eichmann was tried under the Nazis and Nazi Collaborators (Punishment) Law (Nazis’ Law) with “crimes against the Jewish people,” crimes against humanity, war crimes, and membership in enemy organizations.32 In an effort to demonstrate a “linking point” between the State of Israel and Eichmann, the District Court opined: “The ‘linking point’ between Israel and the accused (and for that matter any person accused of a crime against the Jewish people under this Law) is striking in the case of ‘crime against the Jewish people,’ a crime that postulates an intention to exterminate the Jewish people in whole or in part … If an effective link (not necessarily an identity) existed between the State of Israel and the Jewish people, then a crime intended to exterminate the Jewish people has an indubitable connection with the State of Israel.”33 Further, the District Court remarked that “[t]he connection between the State of Israel and the Jewish people needs no explanation.”34 After invoking both the universality theory and the passive personality principle, the court then concluded by explaining that, because the crime of genocide alleged against Eichmann concerned the “vital interests” of the State of Israel, the State was justified in punishing Nazis under the protective principle: “The punishment of Nazi criminals does not derive from the arbitrariness of a country ‘abusing’ its sovereignty but is a legitimate and reasonable exercise of a right of penal jurisdiction.”35 Following in lockstep with the lower court judgment, the Supreme Court held as follows with respect to the protective and passive personality principles: “In regard to the crimes directed against the Jews the District Court found additional support for its jurisdiction in the connecting link between the State of Israel and the Jewish people – including that between the State of Israel and the Jewish victims of the holocaust – and the National Home in Palestine, as is explained in its judgment. It therefore upheld its criminal and penal jurisdiction by virtue also of the ‘protective’ principle and the principle of ‘passive personality.’ It should be made clear that we fully agree with every word said by the Court on this subject …”36 What differentiates the reality or protective principle from other principles of jurisdiction is that it provides “jurisdiction over offenses committed wholly outside the forum state’s territory” based upon the protection of vital state interests and is “the only accepted theory that allows jurisdiction over conduct that poses a potential 31 For a detailed analysis challenging the propriety of the jurisdictional claims in the Eichmann case, see Becker, Steven W., Universal Jurisdiction: How Universal Is It? A Study of Competing Theories, 12 Palestine Yearbook of International Law, 2002/2003, pp. 61 – 67. 32 Fawcett, J.E.S., The Eichmann Case, 38 British Yearbook of International Law, 1962, p. 182. 33 Attorney General v. Eichmann, 36 I.L.R. 5, 52 (Isr. D.C., Jerusalem, 12 Dec. 1961), affirmed, 36 I.L.R. 277 (Isr. S. Ct. 29 May 1962). 34 Ibid. 35 Ibid., at 53. 36 Attorney General v. Eichmann, 36 I.L.R. 277, 304 (Isr. S. Ct. 29 May 1962).

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threat” to such interests.37 The fatal flaw in the Eichmann judgments vis-à-vis the protective principle is that the State of Israel did not exist at the time that Eichmann committed his alleged crimes and thus Israel’s vital security interests were never (and could never have been) implicated. As such, the Israeli courts’ invocation of the protective principle to justify Israel’s extraterritorial jurisdiction under the Nazis’ Law was erroneous. In like manner, if Serbia is attempting to validate article 3’s extraterritorial reach into the territory of its current neighbors on the basis of the reality principle in order to justify prosecutions for alleged crimes committed during the previous conflict in the former Yugoslavia, it will fail. By its very nature, the reality principle relates to current or future threats to a nation’s vital security interests. The protective principle cannot be invoked for the purpose of prosecuting past wrongs that are unrelated to a present or potential threat to a country’s vital interest, which is precisely what article 3 appears to have been created to accomplish.

III. Discussion 1. Promulgation of Article 3 (in Conjunction with Article 2) of the WCA Unnecessary to Prosecute War Crimes In justification of the promulgation of the WCA in the Republic of Serbia, necessity was cited as the reason underlying the creation of a legal framework for the efficient criminal prosecution of persons suspected of grave crimes against international humanitarian law. This attitude is agreeable within the context of the organizational norms prescribed by the Law (Act). Where the jurisdictional norms are in question, however, and this is certainly the case with article 3 of the WCA, it is indisputable that the Republic of Serbia did not need the provision formulated in this manner in order to criminally prosecute persons responsible for grave breaches of international humanitarian law perpetrated outside of the territory of that State. Namely, in a great majority of cases tried before the judicial bodies of the Republic of Serbia,38 the accused persons are nationals of the Republic of Serbia, which means that even without the adoption of a special law (act), the principle of active personality prescribed by article 8 of the Criminal Code, which provides, in pertinent part, that “[c]riminal legislation of Serbia shall also apply to a citizen of Serbia who commits a criminal offense abroad … if found on the territory of Serbia or if extradited to Serbia,” could have been and still can be applied.39 The ratio legis of active personality (nationality principle) consists in enabling the enforcement of the principle aut dedere aut judi37 Blakesley, Christopher, Extraterritorial Jurisdiction, in: Bassiouni, M. Cherif (Ed.), 2 International Criminal Law, 2d ed., New York, 1999, pp. 54 – 55. 38 For an overview, see Derencˇ inovic´ (2012), pp. 785 – 808. 39 Supra note 4.

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care with respect to the constitutional prohibition against extraditing one’s own nationals to other States. Apart from that, extending the repressive authority of a State by means of the principle of active personality, which by no means calls into question the sovereignty of other States, ensures the respect of the legal systems of other States by that State’s own nationals residing abroad (either legally or illegally). With the application of the active personality principle, criminal prosecution in absentia is not permitted. According to article 8 paragraph 1 of the Serbian Criminal Code, the condition is that the perpetrator be found on Serbian territory or extradited to Serbia.40 In the example of accused persons against whom criminal proceedings are conducted in the Republic of Serbia for war crimes, the first condition is almost regularly fulfilled, since large majorities of suspects have found themselves on Serbian territory. Even in the cases where this is not so, the Republic of Serbia has the right to request their extradition. Consequently, there is no doubt that criminal proceedings for war crimes committed outside of the Republic of Serbia could likewise be conducted against the nationals of the Republic of Serbia (even those who acquired their citizenship after the commission of the crime, pursuant to article 8 paragraph 2 of Criminal Code of Serbia) on the basis of the active personality principle. In addition to the active personality principle, it is also possible, for international war crimes committed outside of the territory of the Republic of Serbia, to apply the principle of passive personality if the victims are Serbian nationals. More specifically, article 9 paragraph 1 of Criminal Code of the Republic of Serbia provides that “Serbian penal legislation is valid over a foreigner who outside of Serbian territory commits against Serbia or against its national a crime, this being valid even for crimes which are not stated in article 7 of this Law (Act), if he finds himself on Serbian territory, or is extradited to Serbia.”41 Furthermore, prosecution is similarly possible under the theory of universality, as expressed in article 9 paragraph 2 of the Serbian Criminal Code, which was discussed earlier. In fact, provisions of almost identical tenor were prescribed in Chapter XII of the Penal Code of the Socialist Federative Republic of Yugoslavia (later taken over as the Penal Code of Socialist Republic of Yugoslavia), which means that the rule was in force tempore criminis. This reveals that, from a legal perspective, there was no necessity to prescribe principles of territorial (and extraterritorial) application of legislation in article 3 (in conjunction with article 2) of the WCA, especially because the Law (Act) that was promulgated was of such an organizational character.

40 41

Ibid. Ibid.

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2. Controversial Provisions of the WCA were Enacted for Political Reasons Considering the aforementioned, the only logical conclusion is that article 3 (in conjunction with article 2) of the WCA was formulated in such a fashion not for legal but exclusively for political reasons. It is the political striving and intention of the Republic of Serbia, by acting in the described manner and having proclaimed itself on the basis of a special law competent to try all war crimes committed since 1991 on the territory of the former Yugoslavia, and continuing Milosˇevic´’s aspirations, to pretend to have a role of a universal successor to the Socialist Federative Republic of Yugoslavia. Such a position, however, is not only legally unfounded, but is also contrary to the legal position of the Republic of Serbia in the litigation before the International Court of Justice regarding the Croatian claim for genocide wherein, pointing out that the new State asked for the accession into the United Nations in 2000, Serbia denied its continuity with the Socialist Federative Republic of Yugoslavia and with Milosˇevic´’s Socialist Republic of Yugoslavia.42 Finally, the credibility of the Republic of Serbia in the role of the protector of interests of international justice is seriously compromised due to numerous proofs of its direct involvement in aggression, genocide, and massive violations of international humanitarian law in Croatia, Bosnia and Herzegovina, and Kosovo. Therefore, any comparison of proceedings in compliance with the WCA by judicial bodies of the Republic of Serbia with the European States in which there was a public prosecution by application of universal jurisdiction is wholly unwarranted. Namely, it is quite difficult to characterize as manipulated political pressure the proceedings of the judiciary in Belgium and/or Spain due to their neutrality with respect to the factual conclusions in connection with war crimes prosecutions carried out in those States. Unlike such States, the Republic of Serbia, which selectively denies continuity with the Socialist Federative Republic of Yugoslavia and with Milosˇevic´’s Socialist Republic of Yugoslavia (before the International Court of Justice regarding the Croatian claim against Serbia for genocide), but then also claims it (in articles 2 and 3 of the WCA), was deeply involved in aggression, genocide, and grave violations of international humanitarian law in areas formed after the disintegration of the former Socialist Federative Republic of Yugoslavia, especially in Croatia, Bosnia and Herzegovina, and Kosovo. The United Nations General Assembly also clearly voiced its attitude on the active role of Serbia as the then-constitutive unit of the Socialist Republic of Yugoslavia in the occupation of parts of the state territory of the Republic of Croatia.43 This Resolution called on all sides “in particular Federal Republic of Yugoslavia (Serbia and 42 Case Concerning the Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Croatia v. Serbia), http:/www.icj-cij.org/ (last visited 21 August 2015). 43 U.N. General Assembly, Resolution A/RES/49/43, adopted at its 83rd plenary session held on 9 December 1994 (Situation on Croatian occupied territories).

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Montenegro), to comply fully with all Security Council resolutions regarding the situation in Croatia, and also to respect strictly its territorial integrity.” The Resolution stated explicitly that “in this regard the resolution concludes that their activities [i. e., those of Serbia and Montenegro – authors’ remark], aimed at achieving the integration of the occupied territories of Croatia into the administrative, military, educational, transportation and communication systems of the Federal Republic of Yugoslavia (Serbia and Montenegro) are illegal, null and void, and must cease immediately.” The Resolution also “[r]equests the Federal Republic of Yugoslavia (Serbia and Montenegro) to cease immediately any military and logistic support to the self-proclaimed authorities in the Serbian-controlled parts of Croatia.”44 The International Criminal Tribunal for the former Yugoslavia also pointed out the involvement of Serbia in armed conflicts on the territories of Croatia and Bosnia and Herzegovina (in the Tadic´, Martic´, so-called Vukovar hospital cases, etc.). Furthermore, it should not be forgotten that Serbia is the first State in history that was found by the International Court of Justice to be responsible for failing to prevent genocide and for failing to punish its perpetrators. After having determined that “there are many proofs of direct or indirect participation of the official army of the Socialist Republic of Yugoslavia, together with armed forces of Bosnian Serbs, in military operations in Bosnia and Herzegovina in years preceding the events in Srebrenica,” the International Court of Justice found Serbia responsible, inter alia, for breaching the obligation to prevent genocide in compliance with the Convention on the Prevention and Punishment of the Crime of Genocide.45 In the judgment of the International Court of Justice of 3 February 2015 in the case of the Application of the Convention on the Prevention and Punishment of the Crime of Genocide, which was initiated on the basis of the claim of the Republic of Croatia, the Court highlighted the aggressive role of the then-Serbian leadership, as well as the leadership of the Serbs in Croatia, towards the Republic of Croatia with the objective of ethnic cleansing and the creation of an ethnically homogeneous Serb State, and pointed to the ICTY case law: “The Court is fully convinced that, in various localities in Eastern Slavonia, Western Slavonia, Banovina/Banija, Kordun, Lika and Dalmatia, the JNA and Serb forces perpetrated against members of the protected group, acts falling within subparagraphs (a) and (b) of Article II of the Convention, and that the actus reus of genocide has been established. … According to the ICTY, the leadership of Serbia and that of the Serbs in Croatia, inter alia, shared the objective of creating an ethnically homogeneous Serb State. That was the context in which acts were committed that constitute the actus reus of genocide within the meaning of Article II (a) and (b) of the Convention. However, the conclusion of the ICTY indicates that those acts were not committed with intent to destroy the Croats, but rather with that of forcing

44 45

Ibid. See supra note 42 for other points determining the responsibility of Serbia.

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them to leave the regions concerned so that an ethnically homogeneous Serb State could be created. The Court agrees with this conclusion.”46 Due to indisputable, proven facts demonstrating that in various ways Serbia was actively involved in the perpetration of heinous and organized war crimes on the territory of the former Socialist Federative Republic of Yugoslavia, Serbia, both legally and factually, is a priori discredited from promoting itself – by broadening its repressive authority and remaining unrestricted by procedural provisions, as well as by assuming the image of a third-party “neutral” State – as a leader of transitional justice in the area of Southeast Europe. 3. Reaction to Arrests Resulting from Application of Articles 2 and 3 of the WCA As a result of charges being filed under the WCA, several Croatian and Bosnian citizens have been arrested for war crimes following the initiation of cases by Serbian prosecutors.47 The reaction to such arrests has been swift and severe. For example, on the occasion of the arrest of Jovan Divjak, a retired general of the army of Bosnia and Herzegovina, the International Institute for Middle East and Balkan Studies48 voiced the following condemnation: “The arrest in Vienna of the former deputy commander of the Army of the Republic of Bosnia and Herzegovina, general Jovan Divjak, on 3 March 2010 [corr. 2011 (authors’ note)] represents a new violation of the international legal order and of jurisdiction of the ICTY (International Criminal Tribunal for the former Yugoslavia) by the Republic of Serbia. The Serbian strategy regarding international judicial institutions is aimed at ignoring these institutions, by which the activities of Bosnia and Herzegovina towards proving Serbia’s responsibility for the committed crimes in Bosnia and Herzegovina would be aborted, and an attempt is being made to reshape the 1990 s’ history, the role and responsibility of Serbia in those events.”49 Along the same lines is a report from the Serbian Helsinki Committee, which is co-signed by the following associations: Women in Black, The Fund of Biljana Kovacˇ evic´-Vucˇ o, Civil Initiatives, Centre for Cultural Decontamination and Civil Rights Defenders, similarly commenting on the Divjak arrest: “After the arrest of Ejup Ganic´, Ilija Jurisˇic´, and recently of Tihomir Purda, and then their release due to the lack of proofs, the Divjak case only deepens the mistrust in the region towards the intentions of Belgrade. With such conduct Belgrade has taken up the role of a prosecutor and of the factor defining the character of the war, where it seems Serbia

46

Supra note 42, at § 401 and § 426. Supra note 38. 48 International Institute for Middle East and Balkan Studies, http://www.ifimes.org/ (last visited 13 March 2011). 49 Ibid. 47

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had the smallest role.”50 The report continues as follows: “With such conduct Belgrade is building for itself the leading position in the region on wrong foundations. The international community and the Hague Tribunal, who adapt themselves to Belgrade to attach it to the EU, share the responsibility for such behavior of Belgrade. However, such attitude undermines the purpose, since it leads to reversing the thesis and to distorted interpretations, which present the victim as a criminal.”51 The pattern of the application of the WCA in numerous cases in which Serbia’s criminal prosecution of foreign nationals was conducted in their absence, or on grounds that the evidence was either insufficient (for example, in the Ganic´ case: “The District Court in Serbia issued proceedings at the request of the War Crimes Prosecutor without any further evidence having been obtained … the evidence which has been subsequently obtained is not significant.”)52 or unlawfully obtained (for example, in the Purda case – admission of guilt extorted in a prisoner-of-war concentration camp in Serbia), points to the conclusion reached by the British Court when deciding on the extradition request in the Ganic´ case, viz., that the trials were politically motivated and the fundamental principles of a fair trial were not respected: “In the absence of any significant additional evidence there would appear to be only two possible explanations, that of incompetence by the Serbian Prosecutors or a motive for prosecuting that is based upon politics, race or religion. From the evidence I have received from Mr. Petrovic, I am satisfied that the War Crimes Prosecutor’s Office is far from incompetent. Mr. Philip Alcock concluded that he could see nothing to justify an indictment other than a politically motivated trial.”53 It should be added that, in the statement by the Serbian prosecutor for war crimes when waiving the indictments against Tihomir Purda, Danko Maslov, and Petar Janjic´, the prosecutor explained that “the proceedings conducted by military investigators in 1999 were not carried out under legal standards of processing war crimes.”54 The question immediately arises: Why did the Republic of Serbia insist on the extradition of Croatian national Tihomir Purda if the shortcomings of military investigators were known from the very beginning, as well as the circumstance that his admission of guilt was extorted during his stay in the camp to which he was led after the fall and occupation of Vukovar at the end of 1991? We address this issue in the closing chapter.

50

See http://www.helsinki.org.rs/serbian/index_s.html (last visited 13 March 2011). Ibid. 52 Republic of Serbia v. Ejup Ganic´, City of Westminster Magistrates’ Court, 27 July 2010, available at http://www.bosniafacts.info/modern-history/serbian-aggression/8-the-governmentof-the-republic-of-serbia-vs-ejup-ganic (last visited 21 August 2015). 53 Ibid. at § 40. 54 Statement for the public of 3 March 2011, Prosecutor’s Office for war crimes waives criminal prosecution of Tihomir Purda, http://www.tuzilastvorz.org.rs/html_trz/index_lat.htm (last visited 13 March 2011). 51

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IV. Conclusion It follows from the above discussion that the principle contained in articles 2 and 3 of the WCA, by its essence and tenor, is not one of the known principles of the territorial application of criminal legislation. Namely, the fundamental feature of universal jurisdiction, at least in its contemporary understanding, is that it can be applied worldwide and is not limited to the territory of selectively determined sovereign States. Moreover, because of its potential for abuse and disruption of the world legal order, the universality theory has been subjected to numerous procedural limitations, which is not the case with the principle enunciated in articles 2 and 3 of the WCA. Since this represents neither the territorial principle nor the protective principle, the only logical conclusion is that articles 2 and 3 of the WCA contain a hybrid jurisdictional construct in which the elements of the territorial principle, theory of universality, and reality principle are interwoven. Such a hybrid principle, which, in nature, is uniquely both territorial and extra-territorial (in that it reaches beyond Serbia’s current borders), is unknown in comparative international criminal law. Furthermore, in comparative criminal law there is no example of a State extending selectively the boundaries of its repressive powers and the jurisdiction of its judicial bodies over crimes committed outside of the territory of that State, applying them on the territory of another, selectively chosen sovereign State. In international law, the authority for such conduct belongs exclusively to certain international organizations, in the first place to the United Nations, which through the Security Council and its authority within the framework of Chapter VII of the Charter of the United Nations established ad hoc international criminal tribunals (for the former Yugoslavia and for Rwanda). The Security Council derives this authority, by which it establishes the jurisdiction of an international criminal court over the territory of a certain State (or States), from the Charter of the United Nations, and it does so with the objective of maintaining or restoring peace and the realization of sovereign equality of the States. Exceptionally, such authority can emanate from an international treaty (the International Criminal Court, Rome Statute), in which case it is valid only between the States Parties. Therefore, it can be concluded that by means of the controversial article 3 of the WCA (in conjunction with article 2), which took over the prerogatives and jurisdiction from the Hague Tribunal, not only has Serbia committed some sort of “legal aggression” on the States formed after the disintegration of the former Yugoslavia, but it has also, without valid legal grounds, established a jurisdiction rivaling that of the International Criminal Tribunal for the former Yugoslavia, which by its own implementing legislation the Republic of Serbia should have respected. Besides, the selective extension of jurisdiction to the territories of precisely determined sovereign States also arouses suspicion regarding the respect of the right to a fair trial (e. g., contained in article 6 of the Convention for the Protection of Human Rights and Fundamental Freedoms or article 14 of the International Covenant on Civil and Political Rights). Namely, it should not be forgotten that the ratio legis of the establishment of the International Criminal Tribunal for the former Yugoslavia

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was to shield the accused from the partial judiciary of a State that is either “too much” or “too little” interested in their criminal prosecution. So, for example, it should be recalled that despite Libya’s right (pursuant to article 5 paragraph 2 of the Montreal Convention for the Suppression of Unlawful Acts Against the Safety of Civil Aviation) to prosecute the Libyan bomber suspects on its own (aut dedere aut iudicare), the Security Council ordered their extradition55 due to suspicion about the investigative results. This suspicion has also been confirmed in the present case by miscarriages of justice in prosecutions of foreign nationals under the WCA. In conclusion, it must be emphasized that article 3 (in conjunction with article 2) of the WCA, not only at the legislative level, but also in the context of extensive application of the legal framework, does not have mere negative consequences on the process of reconciliation and bringing closer together the States of Southeast Europe to the European Union. Moreover, the current practice unilaterally conducted by the Republic of Serbia represents a potential threat to international relations and to peace and stability outside of the region of Southeast Europe. It constitutes a precedent that could very possibly extend criminal jurisdiction by one State to the territory of another sovereign State adjacent to the external borders of the European Union (e. g., in the context of the Russian occupation of parts of Ukrainian state territory). Additionally, the controversial WCA provisions open the door for criminal prosecution of nationals of EU Member States outside of the circle of States of the former Yugoslavia who were involved in armed conflicts in Croatia, Bosnia and Herzegovina, and Kosovo within peace missions or in any other capacity. That this threat is not just speculative can be seen from the statement issued by the Prosecutor’s Office for war crimes from Serbia, dated 19 March 2015 and published on the Office web pages: “Regarding accusations which were addressed today in the Serbian Assembly to the Prosecutor’s Office for war crimes, the Prosecutor’s Office recalls that the entire material taken over in 2009 from the Archive of the Committee for collecting data on crimes against humanity and international law, was passed to the Service for the detection of war crimes of Serbian MUP (Ministry of Internal Affairs), for proceeding with. After the Service for the detection of war crimes of the Serbian MUP had passed the information to the Prosecutor’s Office, it had acted accordingly and continued collecting evidence and information. Owing to this information and evidence, the Prosecutor’s Office for war crimes instituted proceedings against more than 220 potential perpetrators of crimes over the Serbs, who are not available at the moment to our prosecuting bodies. In the beginning of the year, the Prosecutor’s Office sent confidential information thereof to the relevant State bodies.”56 It is quite clear that the most-controversial jurisdictional provisions of the WCA have been used by Serbia to accomplish its political ambitions regarding its role after the disintegration of the Socialist Federative Republic of Yugoslavia and its mutilated remains in the immediate aftermath of the conflict and to keep neighboring countries 55 56

S/731/1992/ and S/748/1992/. Emphasis added.

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under constant pressure. Yet, because the WCA lacks any of the safeguards traditionally associated with universal jurisdiction, it is ripe for abuse by means of political prosecutions of its former enemies, violations of sovereignty, and harassment of peaceful, neighboring nations on the territory of the former Yugoslavia, which can only precipitate further instability in a region already scarred by devastating conflict. Therefore, the abolition of or, at bare minimum, a fundamental revision of article 3 of the WCA (and its relation with article 2) must be a condicio sine qua non for a State aspiring to membership in the European Union, which must respect and embrace the values articulated in article 3 of Lisbon Treaty: “In its relations with the wider world, [the Union] shall uphold and promote its values and interests and contribute to the protection of its citizens. It shall contribute to peace, security, the sustainable development of the Earth, solidarity and mutual respect among peoples, free and fair trade, eradication of poverty and the protection of human rights, in particular the rights of the child, as well as to the strict observance and the development of international law, including respect for the principles of the United Nations Charter.”57 Although the legal personality of the Union is separate from that of the Member States, it is indisputable that what is binding for the Union is also binding for the Member States. This follows from two fundamental principles of European law – the principle of direct effect (immediate applicability of European law in the Member States) and the principle of supremacy (precedence of European law over the national law). Therefore, a revision or reconsideration of article 3 of the WCA (in conjunction with article 2) is inseparable from the adaptation and conformance of national legislation to the acquis communautaire, which, among other things, comprises a body of rights and obligations that bind Member States together within the Union and are established by the founding treaties and legal acts. This clearly follows from the European Parliament resolution of 11 March 2015 on the 2014 Progress Report on Serbia that, inter alia, calls “on Serbia in the spirit of reconciliation and good-neighbourly relations to consider its Law on Organisation and Competence of State Authorities in War Crimes Proceedings in cooperation with its neighbours and with the Commission.” To conclude, the arbitrary construction that was introduced by articles 2 and 3 of the WCA, which is unknown in the theory and practice of comparative international criminal law, is a hybrid (bastard) principle of territorial, and, at the same time, extraterritorial, application of criminal legislation, which by its tenor and its essence does not correspond to the theory of universal jurisdiction or to any other known principle of territorial application of criminal legislation. Politically motivated creation and application of this legal construct is unacceptable not only to the States that previously comprised the former Yugoslavia and to their citizens, but also to the legal security, rights, and freedoms of any State in the European Union, let alone to the rule of law internationally.

57

Emphasis added.

Legal and Political Limitations of the ICC Enforcement System: Blurring the Distinctive Features of the Criminal Court1 Zlata Ðurd¯evic´2

I. Introduction At the end of 2015, 13 International Criminal Court’s (ICC) suspects remained at large despite outstanding ICC arrest warrants, some issued even 8 or 10 years ago.3 The president of Sudan, Omar al-Bashir, charged by the ICC in 2009 with crimes against humanity, war crimes and genocide committed in Darfur, is travelling freely and frequently to many countries, some of them non-party states, but also states parties, without being arrested and surrendered to the ICC.4 Due to a lack of any reaction from the UN Security Council to numerous ICC notifications on non-cooperation regarding the execution of arrest warrants against Omar al-Bashir, the ICC prosecutor decided in December 2014 to suspend its investigation into Darfur.5 That same year, the ICC prosecutor withdrew the charges against Uhuru Kenyatta, the president of

1 The research leading to these results has received funding from the European Union Seventh Framework Programme (FP7 2007 – 2013) under grant agreement n8 291823 Marie Curie FP7-PEOPLE-2011-COFUND (The new International Fellowship Mobility Programme for Experienced Researchers in Croatia – NEWFELPRO). This paper has been written as a part of a project “Towards an European Criminal Procedure: Integration at the Expense of Human Rights (Euro-CrimPro)” which has received funding through NEWFELPRO project under grant agreement n8 54. 2 Dr. Zlata Ðurd¯evic´, Professor, Faculty of Law, University of Zagreb, Croatia. Senior Research Scholar at the Yale Law School, USA, 2014 – 2016. 3 See e. g. Report on the activites of the International Criminal Court, ICC-ASP/14/29, 13 November 2015. 4 The states parties are Chad, Kenya, Djibouty, Malawi, Nigeria, South Africa; the nonparty states are Kuwait, Ethiopia, Qatar, Saudi Arabia, Egypt, Mauritania, China, Algeria, India, Indonesia. 5 Statement to the United Nations Security Council on the Situation in Darfur, pursuant to UNSCR 1593 (2005), Mrs. Fatou Bensouda, Prosecutor of the International Criminal Court, 12 December 2014, § 4.

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Kenya,6 on the basis of insufficient evidence due to the bribery and intimidation of key witnesses and the lack of cooperation from the Kenyan government,7 and the same prospects of failure exist for the proceedings against Kenyan vice-president William Ruto. In November 2015, Namibia, one of the ICC’s founding members, became the first African country to decide to withdraw from the ICC.8 In the 13 years of its existence, the ICC has rendered three final judgments, two convictions and one acquittal. Have we arrived at the point, prophetically admonished by Mirjan Damasˇka, where the gap between aspiration and achievement9 of the ICC has become so wide and so harmful to its legitimacy10 that its future is at stake? Judging by continuous harsh political and academic criticism of the ICC, ranging from selection of situations and cases, content of charges, the application of complementarity, judicial decision-making, cost-benefit analysis, case management etc., maybe we have. However, despite its internal weaknesses, flaws and missteps, the breakdown of the ICC will not be the failure of the Court, its prosecutorial decisions or case law. It will be the failure of its current 124 states parties and the international community represented by the UN Security Council which did not establish an effective enforcement mechanism of the Court’s procedural decisions. The brief history of the ICC shows that its weak enforcement powers and the lack of cooperation from the national governments and the UN Security Council are the decisive reasons for the defeat of ICC prosecutions of top governmental officials. The results of the research in this paper are found in Chapers II. and III. Chapter II. explores the institutional and legal framework of the ICC enforcement system, first, by exposing the ICC’s total operational dependence on cooperation, and its lack of basic criminal judicial powers; second, by outlining several models of international cooperation in criminal matters such as horizontal and vertical, or governmental and judicial; and third, by displaying the signs of the ICC’s regressive development of vertical international cooperation and reaction to states’ non-compliance. Chapter III. elaborates on the reality of the complex and difficult relationship between the African Union and the ICC. The support and cooperation of the African states is contrasted with the African Union’s implementation of an anti-ICC policy which it justifies by the ICC’s inherent double standards, inequality of political power, and international law on immunity. 6 Notice of withdrawal of the charges against Uhuru Muigai Kenyatta, ICC-01/09 – 02/11, 5 December 2014. On 13 March 2015, Trial Chamber V(B) terminated the proceedings in this case. 7 Statement of the ICC Prosecutor on the withdrawal of charges against Uhuru Muigai Kenyatta, https://www.youtube.com/watch?v=s3HORJn15Mg (visited December 15, 2015). 8 www.herald.co.zw/namibia-pulls-out-of-icc/ (visited December 15, 2015); www.nami bian.com.na/index.php?page=archive-read&id=144660 (visited December 15, 2015). 9 Damasˇka, Mirjan (2009), The International Criminal Court Between Aspiration and Achievement, 14 UCLA Journal of International Law and Foreign Affairs 19 – 35. 10 Damasˇka, Mirjan (2008), What is the Point of International Criminal Justice?, 83 Chicago-Kent Law Review 329 – 365, 365.

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II. International Cooperation as the Court’s Enforcement Mechanism 1. The Vital Importance of International Cooperation with the ICC In contrast to states’ criminal courts, which operate within their own jurisdictions and are armed with authoritative orders supporting a government’s executive branch, principally the police (general, judicial, prison), international criminal courts operate in other jurisdictions without any power to enforce their decisions outside their courtroom walls. International criminal courts do not have their own police and army,11 and their prosecutors have very limited or no investigative powers on states’ territories. They are displaced courts, established at the site, which satisfies the international community requirements, but far removed from places where crimes are committed, where defendants, witnesses, victims and material evidence are located and where investigation must be conducted. All persons, objects and information necessary for criminal proceedings are under state jurisdiction, and international criminal courts have no possibilities to reach them, investigate them, or to enforce any decisions concerning them without the state’s help, and particularly the state of delicti commissi. The image of international criminal courts as dismembered giants drawn by the first President of the ICTY, Antonio Cassese,12 is brutally true. The legal mechanism of international law that enables the enforcement of the international criminal courts’ decisions is cooperation. It creates the link that should unite ordering and enforcement of procedural acts pertaining to one criminal proceeding but split in different jurisdictions, with the ordering part taking place in an international jurisdiction, and the enforcement part in a national jurisdiction. Types and forms of state cooperation with the international criminal courts are defined in international treaties and can be pre-trial (investigative), trial (procedural) and post-trial, as well as mandatory or voluntary. The ICC’s cooperation with states is absolutely crucial13 for its functioning at all stages of the proceedings: before and during the investigation into a situation and into a case, for gathering and producing evidence at the trial, as well as for enforcing judgments. However, while ICC’s prosecutors, defense lawyers and judges have sufficient capabilities to conduct the trial stage of criminal proceedings, their investigative and coercive powers are weak or 11 Army in the case of war conflicts could be crucial for apprehending suspects and ensuring the collection of evidence. 12 “Notwithstanding this development, the ICTY remains very much like a giant without arms and legs — it needs artificial limbs to walk and work. And these artificial limbs are state authorities. If the cooperation of states is not forthcoming, the ICTY cannot fulfill its functions.“ Cassese, Antonio (1998), On the Current Trends towards Criminal Prosecution and Punishment of Breaches of International Humanitarian, European Journal of International law 9, 2 – 17, 13. 13 Kirsch, Philippe (2007), The Role of the International Criminal Court in Enforcing International Criminal Law, American University International Law Review, Volume 22, Issue 4, 539 – 547, 546.

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absent, so the investigative stage of criminal proceedings is entirely dependent on the cooperation of states and other actors. Therefore, the forms of cooperation listed in Part 9 of the Rome statute14 reflect primarily the ICC’s deficiencies in enforcing investigative and coercive criminal procedural measures, such as arrest and surrender, access to crime scenes and evidence, taking witness testimony, questioning suspects, search and seizures, tracing, freezing or seizing proceeds and instrumentalities of crimes, protecting witnesses and investigators, information-sharing from national intelligence agencies, sharing DNA data, providing forensic assistance, taking other evidence and any other type of assistance. Arrest and surrender to the ICC and protecting witnesses are the most important, and at the same time most resisted cooperative measures in the international justice system.15 This reality has already been proven in the ICC criminal proceedings which have collapsed against the president of Sudan, Omar al-Bashir and the president of Kenya, Uhuru Kenyatta due to the state’s non-enforcement of these measures. While procedural cooperation, which serves to support the ICC’s prosecutorial and judicial functions, is mandatory for the states, post-trial cooperation, although also indispensable for the Court’s proper functioning, is voluntary even for the states parties. It is regulated in Part 10 of the Rome Statute and relates to the enforcement of the sentence, receiving detainees, relocation of witnesses, victims and acquitted indictees. Until the end of 2015 there were 15 relocation agreements, eight agreements on the enforcement of sentences (none since 2012), one agreement on interim release, and the draft of an agreement on the release in a case of acquittal, which has not yet been concluded.16 2. States’ Cooperation with the ICC: Criminal Procedural Law Perspective a) External Criminal Procedural Powers of National and International Courts Ordering, coercive and enforcement powers are three pillars of external criminal procedure that enable criminal courts and prosecutors to execute criminal procedure activities outside the courtroom. Firstly, criminal courts and prosecutors have the ordering power to decide on various investigative measures towards individuals, legal persons, including state authorities. Secondly, criminal courts and prosecutors have 14

Article 89 and 93 of the Rome Statute. The ICTY, although considered as a very successful court as concerns the enforcement of its arrest warrants, as none of its fugitives remained at large, the non-execution of its arrest warrants postponed the respective criminal proceedings for years and resulted in prolonging the Court’s mandate from its initial goal of 2010 to 2017. E. g. the ICTY defendant Radovan Karadzˇ ic´ was indicted in 1995 and arrested in 2008 and Ratko Mladic´ was indicted also in 1995 and arrested in 2011. 16 Report of the Bureau on cooperation, ICC-ASP/14/26/Rev.1, 17 November 2015, 4. 15

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repressive powers: they can decide to apply coercive measures in case of non-compliance or for other procedural purposes. Thirdly, criminal courts and prosecutors have enforcement powers: their decisions are orders which must be abided by. The notions of external and internal procedure describe the distinction between criminal court activities outside and inside the courtroom or judicial power over persons, objects and information in the external world and in the physical possession of the court. However, these notions are rarely found in literature on national criminal procedural law and belong to the international criminal law terminology.17 The reason is that from a national point of view, this is a technical distinction without a difference because activities of external and internal domestic criminal procedure do not differ with regard to its existence, scope, content or enforceability. The ordering, coercive and enforcement powers of the court in the external world are an inherent and inalienable part of every domestic criminal procedure, and therefore, such distinction from a national perspective is unnecessary and seems like a hollow theoretical concept. The situation is reversed at the international level, where the difference between external and internal criminal procedure is acute and essential. The ordering, coercive and enforcement powers of external criminal procedure of the international criminal courts are highly limited or non-existent.18 As a rule, the ICC external procedural measures are undertaken by the national authorities and in accordance with national law. The exception that confirms the rule exists when the state has broken down and is clearly unable to cooperate,19 in which case the ICC Prosecutor alone can order and enforce directly specific investigative measures within the state’s territory. Aside from lacking enforcement powers, there are both cases when the ICC does not have ordering powers either. These cases are related to on-site investigations20 and to competing witnesses witnesses to give testimony. The ICC prosecutor is permitted to undertake an on-site investigation on the state’s territory, but this original supranational power is carefully delineated in the Rome Statute so as not to trample on state sovereignty. Contrary to ad hoc Tribunals, the ICC cannot order or perform, any compulsory measures on the territory of states parties,21 and its power to undertake on-site investigations can be limited in the mandatory process of consultation by 17 Claus Kreß/Kimberly Prost/Peter Wilkitzki (2008), Part 9. International Cooperation and Judicial Assistance, in: Triffterer, Otto (ed) Commentary on the Rome Statute of the International Criminal Court: observers’ notes, article by article, 2nd ed. München, Germany: Beck, Hart, Nomos, 1506. 18 The first international criminal tribunals, International Military Tribunals in Nuremberg and Tokyo, had enforcement powers that were executed by the military forces of the Allies of World War II. 19 Article 57(3)(d) of the Rome Statute. 20 See 3.2.2.2 On-site investigations, in: Kaul, Hans-Peter/Kreß, Claus (1999), Jurisdiction and Cooperation in the Statute of the International Criminal Court: Principles and Compromises, Yearbook of International Humanitarian Law, Volume 2, 143 – 175, 168. 21 See Crayer, Robert/Friman, Håkan/Robinson, Darryl/Wilmshurst, Elizabeth (2014), An Introduction to International Criminal Law and Procedure, Cambridge University Press, 531.

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a locus delicti state and by any reasonable conditions or concerns determined by other states parties (Article 99 (4)). As concerns compelling a witness to testify, it should be stressed that despite the increasing importance of electronic evidence, witness testimony remains the most significant evidence in the criminal proceedings. Therefore, citizens have a legal duty to testify truthfully and a national criminal court has the power, in cases of non-compliance with a court order to appear, to fine and imprison a witness; and in many national jurisdictions a disobedient witness is committing the offense of contempt of court. The ICC, on the one hand, has supranational power to directly summon the witness22 and the suspect, but on the other hand, while it is empowered to order an arrest warrant for a suspect, it cannot order any coercive measure to compel a witness to testify. The ICC can interview or take evidence from a person only on a voluntary basis23 and the state has the duty to facilitate the voluntary appearance24 but not to compel the witness to appear before the ICC. As maintained by the ICTY Trial Chamber in Blasˇkic´ case, the compulsory attendance of witnesses is a power “as necessary for the proper functioning of the International Tribunal as it is for domestic criminal courts”.25 By stripping the ICC of the power to order the compulsory appearance of a witness and the state of its duty to enforce the Court’s summon to witness, the ICC has become more like a fact-finding commission than a criminal court. These two deficiencies in conducting on-site investigations and compelling the appearance of witnesses are considered to be greatest weakness of the ICC system,26 not only from the point of effective but also fair criminal proceedings which requires the court’s and state’s help in gathering evidence for the defense. Therefore, the transfer of criminal proceedings from a national to an international level has resulted in a tectonic shift. The powers that belong to external criminal procedure, and are critical for conducting effective and fair criminal proceedings, were taken away from the (international) criminal court and prosecutor and given to states. The construction of the ICC legal edifice did not, as feared by the ICTY Appeal Chamber in the Blasˇkic´ case, “end up blurring the distinctive features of international court”,27 but it did result in blurring the distinctive features of criminal courts.

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Article 64(6)(b) of the Rome Statute. Article 99(4) of the Rome Statute. 24 Article 93(1)(e) of the Rome Statute. 25 ICTY, Prosecutor v. Tihomir Blasˇkic´ (IT-95 – 14), Trial Chamber Decision on the Objection of the Republic of Croatia to the Issuance of Subpoena Duces Tecum, 18 July 1997, § 59. (further: Blasˇkic´, ICTY, Trial Chamber, 18 July 1997). 26 Kreß/Prost/Wilkitzki, 2008, 1509. 27 ICTY, Prosecutor v. Tihomir Blasˇkic´, Appellate Chamber Judgment on the Request of the Republic of Croatia for Review of the Decision of Trial Chamber II of 18 July 1997, 29 October 1997, § 40. (further: Blasˇkic´, ICTY, Appellate Chamber, 29 October 1997). 23

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b) Enforceability of Criminal Court and Prosecutor Decisions in National and International Environments The actors relevant for enforcing a judicial decision are a criminal court or prosecutor, addressees of decisions, and the law enforcement authority. When they are located within the state, and pertain to the same jurisdiction, the enforcement procedure is, from a legal point of view, smooth and simple. In national criminal justice systems the enforceability of prosecutorial and court decisions is implicit and self-explanatory, as they ought to be obeyed by legal and physical persons under the threat of penalty or force and are per se enforceable by law enforcement. The courts and prosecutors are hierarchically above law enforcement who are not allowed to postpone, modify or refuse the enforcement of judicial decisions, unless they are ordered to commit an offense. This is the basic principle of the rule of law embedded in the functioning of every national criminal proceeding. However, if the court, addressees of decisions, or law enforcement belong to different jurisdictions, national or international, the enforceability of criminal courts’ decisions fundamentally changes. In such a case, it is no longer implicit, but depends on the other state’s international law obligations to cooperate in enforcing foreign or international court decisions. The legal nature of national enforceability, in the world of independent sovereign states, is essentially different from transnational or international enforceability of court decisions. The criminal procedural law obligation to enforce is replaced by the international law obligation to cooperate. The legal difference between two obligations is that the obligation to enforce a criminal court decision is strict and final, while the obligation to cooperate is subject to state power to postpone, modify or refuse the execution of the criminal court decision. The situation is the same in the case when a decision is rendered by an international criminal court. International law, founded on national sovereignty and state jurisdiction as its basic principle, does not establish the national authorities as law enforcement bodies of the international criminal courts, but also provides for the state obligation to cooperate with them. As was established by the ICTY in the Blasˇkic´ subpoena appeal judgment, the obligation to cooperate with the international criminal courts is an international obligation only incumbent upon states.28 Therefore, the state obligation to enforce the ICC decisions is not primarily an obligation to enforce but an obligation to cooperate. The international criminal courts’ enforcement is construed as a relationship between the two international sovereign subjects and not, as in criminal procedure, the hierarchical relationship between a court and its law enforcement bodies. International law inserts between a criminal court and a law enforcement authority, a state and its international obligation to cooperate which is susceptible to exceptions, discretion and interpretation, thus tearing apart the tissue of criminal procedural powers and endangering the very function to conduct criminal proceedings. 28

Blasˇkic´, ICTY, Appellate Chamber, 29 October 1997, § 42.

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c) Horizontal and Vertical International Cooperation in Criminal Matters International cooperation in criminal matters has two models – horizontal and vertical, depending on the national or international ranking of the subjects of cooperation.29 The horizontal model describes transnational cooperation between states, while the vertical model is used for international cooperation between states and international courts. Since the ICTY in the Blasˇkic´ appeal judgment twenty years ago identified the horizontal and vertical models of cooperation in criminal matters,30 new forms have been developed. Within a horizontal model, aside from longstanding inter-governmental cooperation, the European Union member states created more stringent judicial cooperation. Within the vertical model, in addition to mandatory cooperation with the UN Tribunals, the ICC states moved backwards, developing more loose vertical cooperation. aa) Horizontal Intergovernmental Cooperation The traditional horizontal cooperation between states whose purpose is transnational enforcement of judicial decisions is preformed through extradition and mutual legal assistance treaties. Inter-state cooperation is an intergovernmental, consensual and reciprocal relationship between equals (par in parem non habet imperium).31 As a rule, the individuals, state officials or authorities, including competent judicial authorities, cannot be directly addressed by a state’s request for assistance, since they are not addressees or actors of cooperation. Also, the foreign judicial decision cannot be directly enforced in another state, but has to be transposed in the legal system of a requested state and replaced by the corresponding domestic judicial decision in the so-called exequator procedure. The procedure in a requested state consists of two stages: judicial and governmental. In the former stage, the court in the review procedure has to establish the existence of substantive and procedural legal requirements, including a check on evidentiary requirements, and to exclude the many grounds of refusal (nationals, double criminality requirement, political offenses, lis pendens for the same or other offense, a lack or reciprocity, etc.). In the latter stage, after the court has approved a request, the government has discretion in executing the request for assistance depending on the state’s interests.32 The affording of mutual legal assistance between states in criminal matters in ultima linea depends on the discretionary power and the political will of the requested state. Therefore, the 29

Detail analysis of horizontal and vertical legal assistance models see Sluiter, Göran (2002), International Criminal Adjudication and the Collection of Evidence: Obligations of States, Intersentia, 81 – 89. 30 Blasˇkic´, ICTY, Appellate Chamber, 29 October 1997, § 47. 31 Blasˇkic´, ICTY, Appellate Chamber, 29 October 1997, § 42. 32 E. g. European Convention of 20 April 1959 on mutual assistance in criminal matters, Article 2. Assistance may be refused: b) if the requested Party considers that execution of the request is likely to prejudice the sovereignty, security, ordre public or other essential interests of its country.

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enforcement powers of a criminal court in the requesting state are significantly limited by the sovereign powers of the requested state. bb) Horizontal Judicial Cooperation In criminal matters, the European Union has fundamentally reformed from states the system of cooperation between its member states. The partial deferral of sovereignty to the European Union in the field of judicial cooperation in criminal matters has enabled the establishment of a regional cooperation regime that strengthens the state obligation to enforce foreign judicial decisions and diminishes the possibility of refusal. In the area of extradition and mutual legal assistance in criminal matters, the European Union, based on the principle of mutual recognition of judicial decisions, established in 2002, direct enforcement of decisions between national judicial authorities.33 The states involved are no longer the requesting and the requested state, but the issuing and the executing state. Two accomplishments are crucial for the direct enforcement of foreign judicial decisions: the depoliticization of cooperation by the elimination of executive involvement and the reduction of grounds for refusal. The European Union member states’ cooperation in criminal matters is judicial cooperation performed directly between member states’ courts and prosecutors. Unlike intergovernmental cooperation, judicial cooperation allows for direct enforcement of foreign judicial decisions by national judicial authorities without the approval or control of a government. Supranational bodies, such as the European Commission and the European Court, having powers to monitor and sanction an uncooperative state, oversee whether the enforcement of foreign judicial decisions is in nine with European Union law. So, contrary to the Blasˇkic´ subpoena appeal judgment, if a judge or a chamber of one European Union member state “order(s) the production of documents, the seizure of evidence, the arrest of the suspect (…) they must” not “turn to the relevant State”34 but to the competent judicial authority of the relevant state.

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The principle of mutual recognition in the area of criminal law was for the first time envisaged at the Tampere European Council in 1999 whose Presidency Conclusions claimed that it “should become the cornerstone of judicial co-operation in both civil and criminal matters within the Union” (§ 33). The first instrument implementing the principle of mutual recognition was the Council Framework Decision on the European arrest warrant and the surrender procedures between Member States in 2002, which was followed with dozens of other instruments related to decisions on criminal sanctions, coercive measures, gathering of evidence and other criminal procedural measures. The Treaty on the Functioning of the European Union prescribes that “Judicial cooperation in criminal matters in the Union shall be based on the principle of mutual recognition of judgments” (Article 82). 34 Blasˇkic´, ICTY, Appellate Chamber, 29 October 1997, § 43.

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cc) Vertical Mandatory Cooperation The vertical model of cooperation establishes mandatory, hierarchical and a oneway relationship between states and international criminal courts. The major improvement from horizontal inter-governmental cooperation on the normative level is the exclusion of governmental discretion, making cooperation mandatory. A state has the legal obligation to cooperate and enforce the international criminal court’s decisions, and it cannot adopt implementing legislation which can serve as a basis on which to avoid this obligation.35 The model of hierarchical vertical cooperation was developed in the case of the UN ad hoc Tribunals (ICTY and ICTR). Since they were United Nation Charter’s Chapter VII entities, their relationship with states was not one between equals.36 These Tribunals had the power to issue binding orders to the states for cooperation.37 No grounds for refusal of cooperation were permitted, which highly strengthened the states’ legal obligation to enforce Tribunals’ decisions. The only ground which could have led to the non-enforcement of the Tribunal’s request, was the protection of national security interests; but the final decision on that issue was also made by the Tribunal and not by a state.38 Such a strict enforcement regime was possible due to the principle of primacy of the Tribunal’s jurisdiction over national courts,39 which implies the strong hierarchical relationship between national and international criminal jurisdiction. Concerning primary jurisdiction, it is irrelevant whether or not the national judiciary is capable or willing to conduct criminal proceedings or whether an accused is already sub judice. Despite the elimination of governmental discretion and the introduction of mandatory enforcement, the channels of vertical cooperation have remained the same as in the horizontal cooperation model. Namely, although the ICTY Statute granted the ICTY prosecutor express authority to interact directly with state authorities,40 the Appeals 35 See art. 27 of the Vienna Convention of 1969 on the Law of Treaties: “A party may not invoke the provisions of its internal law as justification for its failure to perform a treaty. States are thus required to create internal legislation that would enable them to fulfill their duty to comply with orders of the International Tribunal.” Blasˇkic´, ICTY, Trial Chamber, 18 July 1997, § 48. 36 Blasˇkic´, ICTY, Trial Chamber, 18 July 1997, § 77. 37 § 26 “The exceptional legal basis of Article 29 accounts for the novel and indeed unique power granted to the International Tribunal to issue orders to sovereign States (under customary international law, States, as a matter of principle, cannot be ‘ordered’ either by other States or by international bodies).” III. Disposition: (…)“the International Tribunal is empowered to issue binding orders and requests to States, which are obliged to comply with them pursuant to Article 29 of the Statute.“ Blasˇkic´, ICTY, Appellate Chamber, 29 October 1997. 38 Blasˇkic´, ICTY, Trial Chamber, 18 July 1997, §§ 67 – 69. 39 Article 9(2) of the ICTY Statute: The International Tribunal shall have primacy over national courts. At any stage of the procedure, the International Tribunal may formally request national courts to defer to the competence of the International Tribunal in accordance with the present Statute and the Rules of Procedure and Evidence of the International Tribunal. 40 Article 18(2) of the ICTY Statute: The Prosecutor shall have the power to question suspects, victims and witnesses, to collect evidence and to conduct on-site investigations. In

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Chamber in the Blasˇkic´ judgment, ensured that the government strongly hold the position of the state representative and that it is the only addressee of the Tribunal’s requests or orders.41 d) Vertical Cooperation with the ICC: Regression in International Law Enforcement One of the major concessions to state sovereignty at the (1998) Rome conference was made in the field of cooperation. The battle was between the horizontal approach aimed at transposing the intergovernmental law of extradition and mutual assistance,42 and the vertical approach aimed at transposing the hierarchical cooperation with UN ad hoc Tribunals. The regime of horizontal cooperation between national judicial authorities, at that time conceptualized, but not yet enforced in the European Union, was not an object of negotiations. Challenging the existing strict vertical cooperation with International Criminal Tribunals was possible since the ICC is not a UN Court but an independent treaty-based international organization. The adopted ICC cooperation regime, compared to the cooperation regime of the ad hoc Tribunals, is described in the literature as not being strong enough and suffering from a considerable number of imperfections;43 less vertical or weak vertical cooperation;44 a middle ground between a vertical and a horizontal model;45 or a regime closer to inter-State cooperation.46 Statutorily, the ICC possesses all three standard features detected by Sluiter,47 which categorize the vertical cooperation regime: a) Contracting parties are under a general and binding legal obligation prescribed by the Rome Statute to cooperate with the ICC,48 b) It has the power to settle authoritatively the disputes on cooperation with the states;49 and c) The absence of strict reciprocity50 carrying out these tasks, the Prosecutor may, as appropriate, seek the assistance of the State authorities concerned. 41 “The State cannot prevent the Prosecutor from seeking the assistance of a particular State official. This, however, does not mean that the particular State official has an international obligation to provide assistance. This obligation is only incumbent upon the State.“ Blasˇkic´, ICTY, Appellate Chamber, 29 October 1997, § 42. 42 On horizontal and vertical approach see Kaul, Hans-Peter/Kreß, Claus (1999) Jurisdiction and Cooperation in the Statute of the International Criminal Court: Principles and Compromises, Yearbook of International Humanitarian Law, Volume 2, 143 – 175, 158. 43 Kaul/Kreß, 1999, 175, 171. 44 Sluiter, 2002, 84, 88, 344 – 345; Kreß/Prost/Wilkitzki, 2008, 1507. 45 Crayer/Friman/Robinson/Wilmshurst, 2014, 518. 46 Ibid. 47 Sluiter, 2002, 82 – 83. 48 The 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 86 of the Rome Statute). 49 Articles 87(7) and 119(1) of the Rome Statute. 50 Kreß/Prost/Wilkitzki, 2008, 1508.

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results from the ICC’s lack of statutory obligation to provide assistance to states parties.51 However, all three elements are subject to modifications and exceptions which defer to state sovereignty, and a horizontal intergovernmental cooperation approach is apparent both from d) procedural perspective, and e) ineffectiveness of measures for non-cooperation. aa) The many National Legal Exceptions to Mandatory Cooperation Substantively, the main reasons for a weakening of the state legal obligation to cooperate with the ICC were the introduction of complementarity jurisdiction and reintroduction of grounds for refusal. The limitation of the ICC’s jurisdiction by the principle of complementarity52 opened the path to different admissibility challenges related to the exercise of jurisdiction by the state, such as the national prosecution, or decision not to prosecute.53 The logic of the principle of complementarity has also influenced the transplantation of the principle of specialty from horizontal cooperation, forbidding the ICC to prosecute a person for crimes committed prior to surrender, and before getting a waiver from the state which surrendered him or her (Article 101). The states participating in the Rome Conference were aware of the dangers of the primary jurisdiction concept to the Court’s effectiveness, but the protection of national sovereignty prevailed. Thus, Cassese in 1998 claimed that “excessive restrictions on the jurisdiction of international criminal courts can only result in the creation of ineffective institutions,”54 and Kaul and Kreß in 1999 anticipated that in the future it will be revealed that “the complementarity regime of the Statute puts too much emphasis on the priority of national criminal justice systems” and “per se prohibits its further strengthening”.55 In contrast to the ICTY and ICTR, the ICC’s abandonment of the principle of primacy allows for the conclusion that such dominance of international over national jurisdiction was possible only when applied to politically weaker states such as the ex-Yugoslav states and Rwanda. Aside from the protection of national security interests, which is expressly mentioned as a ground of refusal,56 the Rome Statute, like the ICTY and ICTR Statutes, does not contain other traditional grounds for refusal of horizontal cooperation.57 However, authors agree that the Rome Statute has reintroduced the new grounds

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Sluiter, 2002, 85. Preamble (10), Article 1, 53 Article 17(1) of the Rome Statute. 54 Cassese, 1998, 16. 55 Kaul/Kreß, 1999, 175. 56 See Articles 72(7)(a) and 72(7)(a)(ii) and 93(4) of the Rome Statute. 57 See Kreß/Prost/Wilkitzki, 2008, 1508.

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for refusal in vertical international cooperation.58 The state can refuse the ICC’s request for all forms of cooperation, except surrender, on the basis of an existing fundamental legal principle of general application (Article 93 (3)), interpreted as a constitutional impediment of a general nature.59 Then, a state can postpone the execution of a request due to interference with a national investigation or prosecution of another offense (Article 94). The evidentiary review of the grounds of suspicion in executing the ICC’s arrest warrant can also be reintroduced, since it depends on the national law of extradition,60 which usually involves such a review. In addition to the conflict with national norms, the state’s obligation to cooperate with the ICC may conflict with other international norms, such as respecting state or diplomatic immunity (Article 98); competing requests for surrender (Article 90); or another international obligation, whereby the ICC’s request does not have priority, but the conflict has to be resolved by consultation (Article 93(9)). bb) The ICC’s Power to Settle Disputes: Enforcement through Consultation The ICC is endowed with vertical authority to settle disputes on cooperation with states. This power ensues from the statutory provision that any dispute concerning the judicial function of the Court shall be settled by the decision of the Court (Article 119 (1)). The mechanism for dispute resolution is consultations between a state and the Court (Article 97). After consultations have been exhausted, the state may apply for a ruling regarding the legality of a request for cooperation from a competent ICC Chamber.61 Consultation is possible in the following cases: an admissibility challenge (Article 89(2) and 95), if the person sought by the Court is sub judice or serving a sentence for a different crime (Article 89(4)); if the requirements under national law are not fulfilled (Articles 91(2)(c) and (4) and 96(3)); of a conflict with an existing fundamental legal principle of general application (Article 93(3)); of the protection of national security interests (Articles 72 and 93(4)); of the request for a type of assistance which is prohibited by national law (Article 93(1)(l) and (5)); of the competing request from another State (Article 93(9)); of insufficient or erroneous information in a request, inability to execute a request for surrender, the breach of a pre58 “With respect to forms of cooperation other than surrender, however, some of these clauses come close to a ground for refusal.” Kaul/Kreß, 1999, 170; “Part 9, on a closer look, does not categorically reject all grounds for refusal of cooperation that one may find in a horizontal setting.” Kreß/Prost/Wilkitzki, 2008, 1508; “…certain grounds for postponement or refusal exist,” Crayer/Friman/Robinson/Wilmshurst, 2014, 518. 59 See Crayer/Friman/Robinson/Wilmshurst, 2014, 530. 60 Article 91(2)(c) of the Rome Statut prescribes that a ICC’s request for arrest and surrender shall contain (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 request for extradition treaties. 61 Regulation 108 of the Regulations of the Court, ICC-BD/01 – 01 – 04.

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existing treaty obligation, or any problem identified by a state which may impede or prevent the execution of the request for cooperation (Article 97). Apart from the legal inability of the Court to protect the integrity of its decision within a nationally conditioned framework of consultation, the Court’s authority to settle disputes is completely compromised in the event of a conflict with a fundamental legal principle. According to Article 93 (3) of the Rome Statute, if such a dispute cannot be resolved by consultation, “the Court has to modify the request as necessary”, meaning that it is expressly recognized that the state has the last word. Consultations involve the participation of a government which has broad and multiple grounds for denying or postponing the enforcement,62 and possibly modifying and not executing the criminal court’s decisions. From a criminal procedural law perspective, the process of consultation between a state party and the Court is incompatible and irreconcilable with the enforcement of criminal court decisions and the rule of law. Once a criminal court has rendered its decision, it is final and enforceable, and can be reversed only in the appellate or review judicial proceedings by another court. Consultations with a government’s executive branch on the content and enforceability of the Court’s decision mean the politicization of criminal proceedings, and undermines its lawfulness and legitimacy. There is also a legal reason against the consultation procedure with governments. If governmental discretion in executing the request for cooperation has no place in the ICC’s cooperation regime, as opposed to in the case of horizontal intergovernmental cooperation, then the government should not have any role in executing the request. Both the determination of the legal requirements for legality of the ICC’s request for cooperation and the application of national law on cooperation are the responsibility of the courts. Therefore, the consultation process can not only disrupt and delay63 the criminal proceedings, but as we have seen in case of the ICC’s request to South Africa for the arrest of al-Bashir, can also be misused by an uncooperative government.64 62 In the case of an admissibility challenge (Article 89(2) and 95) or an ongoing investigation or prosecution (Article 94) it is expressly prescribed that the state may postpone the execution of the request for cooperation until a determination by the Court. 63 Crayer/Friman/Robinson/Wilmshurst, 2014, 530. 64 Knowing that president al-Bashir might notified attend the 25th Summit of the African Union in Johannesburg from 7 to 15 June 2015, the ICC Registry on 28 May 2015 notifed the South Africa of its obligation to arrest and surrender him to the ICC and to commence consultations with the ICC only if any difficulties were expected. However, South Africa initiated consultations with the ICC on 12 June 2015, more than two weeks after the ICC’s reminder, and one day before President al-Bashir arrived in South Africa. After the ICC ended consultation declaring that “there exist no issue which remained unclear or had not already been explicitly discussed and settled”, South Africa on 12 and 13 June required another consultation; and on 15 June 2015 claimed that consultation had not taken place. See Manuel J. Ventura (2015), Escape from Johannesburg?: Sudanese President Al-Bashir Visits South Africa, and the Implicit Removal of Head of State Immunity by the UN Security Council in light of Al-Jedda , Journal of International Criminal Justice 13 (5): 995 – 1025, 997 – 1000; Erika de Wet (2015), The Implications of President Al-Bashir’s Visit to South Africa for International and Domestic Law, Journal of International Criminal Justice 13 (5): 1049 – 1071,

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cc) The ICC’s Obligation to Afford Assistance to National Primary Jurisdiction The principle of complementarity was also key to transforming the vertical oneway cooperation into a reciprocal one between the states and the ICC. The Court is not strictly obligated to cooperate with the states parties, but has discretionary powers65 to grant a request for assistance. However the respect for the principle of complementarity creates a legal duty for the court to transfer evidence in its possession for the purpose of national prosecution and investigation. The Rome Statute contains several provisions for affording the ICC’s assistance to states, including: the limitation of the Court’s assistance only for crimes within its jurisdiction, the forms of assistance, and the assurance of confidentiality and personal protection of witnesses and experts (Article 93(10)). dd) Procedural perspective From a procedural perspective, the Rome Statute has adopted solutions from the Blasˇkic´ subpoena appeal judgment66 that are rooted in the horizontal approach to international cooperation. Unlike the ICTY, the ICC does not have the power to give orders to states but can only make a request for cooperation (Article 87(1)). However, the Blasˇkic´ appeal decision, although not denying the ICTY’s statutory power to issue mandatory or binding orders on a state, deriving from its position as a Chapter VII enforcement mechanism, has nullified their mandatory nature and reduced their effect to a request for cooperation.67 The ICC’s requests for cooperation are transmitted, as a rule, through diplomatic channels (Art. 87(1)(a)), and not directly to the competent national judicial authorities. Unlike the ICTY Statute, there is no rule in the Rome Statute that state officials or any state authority can be addressees of the ICC’s request for cooperation. However, as was mentioned, according to the Blasˇkic´ appeal decision, even in the case of the ICTY, a direct channel of communication with judicial authorities was merely a technical possibility and did not legally obligate the national authority or official to 1069; Johan D van der Vyver (2015), The Al Bashir debacle, African Human Rights Law Journal vol.15 n.2, 561 – 579, 562. 65 Claus Kreß/Kimberly Prost (2008), Commentary in: Triffterer, Otto (ed) Commentary on the Rome Statute of the International Criminal Court: observers’ notes, article by article, 2nd ed. München, Germany: Beck, Hart, Nomos, 1586. 66 Jacob Katz Cogan (2000), The Problem of Obtaining Evidence for International Criminal Courts, Human Rights Quarterly, 52 22(2): 404 – 427, 424. 67 Blasˇkic´, ICTY, Appellate Chamber, 29 October 1997: “The exceptional legal basis of Article 29 accounts for the novel and indeed unique power granted to the International Tribunal to issue orders to sovereign States (under customary international law, States, as a matter of principle, cannot be ”ordered” either by other States or by international bodies)” (§ 26). “In the final analysis, the International Tribunal may discharge its functions only if it can count on the bona fide assistance and cooperation of sovereign States” (§ 31).

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enforce the Court’s decision.68 Similarly, the obligation to cooperate with the ICC is only on the State,69 meaning that in most of states, their government or governmental office for communicating with the Court. The enforcement procedures of the Court’s decisions depends on national law. According to the Rome Statute, surrender (Article 89(1)), as well as other forms of assistance (Article 93(1)) that shall be performed “in accordance with the relevant procedure under the law of the requested State and, unless prohibited by such law” (Article 99(1)). ee) Non-compliance with the ICC’s Requests The failure of a state party to comply with the Court’s request for cooperation contrary to the provisions of the Rome Statute constitutes a breach of an international obligation, or under customary international law, an internationally wrongful act.70 In such a case, after completion of the consultations or resolution of a dispute regarding the legality of a request for cooperation, the competent ICC Chamber may make a judicial finding.71 Such as a decision on non-cooperation and referral to the Assembly of States Parties (ASP), or where the Security Council referred the matter to the Court, to the Security Council (Article 87(5)(b) and (7)). Like the ad hoc Tribunals, the ICC is not vested with any sanctionary powers vis-à-vis states,72 and in order not to encroach upon their sanctionary powers, the ICC’s finding must not include any recommendations or suggestions as to the course of action the ASP or the Security Council may wish to take as a consequence of that finding.73 (1) The Powers of the Assembly of States Parties Aside from asking or demanding that a state respect its international obligation to cooperate with the ICC, the ASP may engage in diplomatic activities and apply measures of political, economic and financial pressure. These have already been applied by the regional organizations and other states, and have proven to be effective instruments in enforcement of international criminal courts’ decisions. A paradigmatic example of regional enforcement was the successful policy of pressure exercised by the

68

See supra II.2.c)cc) Vertical mandatory cooperation. Blasˇkic´, ICTY, Appellate Chamber, 29 October 1997, § 42. 70 Kreß/Prost, 2008, 1528; Blasˇkic´, ICTY, Appellate Chamber, 29 October 1997, §§ 35 and

69

39.

71

Regulation 109 of the Regulations of the Court, ICC-BD/01 – 01 – 04 Blasˇkic´, ICTY, Appellate Chamber, 29 October 1997, § 33. 73 Blasˇkic´, ICTY, Appellate Chamber, 29 October 1997, § 36 as regards the Security Council. Kreß and Prost are of the opinion that the Blasˇkic´ appeal decision should apply mutatis mutandis with respect to the ICC finding from Article 87(7) of the Rome Statute. Kreß/Prost, 2008, 1530. 72

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European Union on the ex-Yugoslav states.74 The European Union‘s leverage was based on the political will of the respective state to accede to its membership. The absolute precondition for even becoming a candidate country was full cooperation with the ICTY.75 The European Union has continued this policy with regard to the ICC’s adopting in 2011 the Action Plan which envisages the mainstreaming the ICC in EU external relation and addressing the ICC’s membership and cooperation with the ICC in negotiations with third countries.76 In order to address the increasing number of cases of non-cooperation with regard to numerous states’ refusal to enforce the ICC arrest warrants,77 the ASP has established the Bureau on non-cooperation as its subsidiary organ, the procedures relating to non-cooperation, and five focal points on non-cooperation. The Bureau on noncooperation has made annual reports to the ASP since 2012,78 carries out the non-cooperation procedures in concrete cases, and has become the driving force in designing solutions and strategies related to non-cooperation. The ASP procedures relating to non-cooperation from December 201179 differ between formal and informal response procedures. The formal response procedure, initiated when the Court has decided to refer the matter of non-cooperation to the ASP, includes measures such as: an emergency Bureau meeting, an open letter from the President of the ASP, open dialogue with the State concerned, a Bureau report on the outcome and recommendations which could be included in the ASP resolution.80 Informal response procedures include deploying political and diplomatic efforts in the case when the matter has not yet been referred to the ASP, but there is reason to believe that urgent action by the ASP may prevent the occurrence of a serious incident of non-cooperation.81 In recent years the Bureau on non-cooperation has undertaken actions towards the states that did not cooperate with the Court in relation to the arrest of al-Bashir, and while in some cases the non-cooperative states have engaged in dialog, although they did 74 See e. g. Paukovic´, Davor/Raos, Visˇeslav (2015) Democratic Deficits, Delayed Democratization and Prolonged EU Accession, in: Pero Maldini and Davor Paukovic´ (ur) Croatia and the European Union: Changes and Development, Ashgate Publishing, Ltd., 42 – 46; Report of the Bureau on cooperation, Addendum, ICC-ASP/13/29/Add.1, 21 November 2014, §§ 34 – 44. 75 E. g. The anticipated start date of accession negotiations between Croatia and the European Union on 16 March 2005 was postponed due to the lack of cooperation with the ICTY. Accession negotiation started on 3 October 2005, the same day that the chief prosecutor Carla del Ponte confirmed that Croatia is now fully cooperating with the ICTY. 76 Action Plan to follow on the Decision on the International Criminal Court, Council of the European Union, Brussels, 12 July 2011, 12080/11, 77 The ICC decisions on the non-compliance and decisions informing the United Nations Security Council and the Assembly of the States Parties see https://asp.icc-cpi.int/en_menus/ asp/non-cooperation/Pages/default.aspx (visited 5. 6. 2015.) 78 https://asp.icc-cpi.int/en_menus/asp/non-cooperation/Pages/default.aspx, 3. 26. 2015. 79 Resolution ICC-ASP/10/Res.5, Annex 80 Ibid., Assembly procedures relating to non-cooperation, § 7(a) and § 12(1). 81 Ibid., § 7(b).

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not arrest al-Bashir, in other cases there have been no indications that the application of the Assembly procedures on non-cooperation has had any effect.82 An important policy in achieving implementation of the ICC’s decisions is the application of the principle of non-essential contacts with an indicted person. The avoidance of non-essential contact, which has to be balanced mostly with the interest of peace and security,83 was accepted and implemented by the United Nations,84 the European Union85 and particular states. The recommendation of the Bureau on noncooperation from 2014 to the ASP to implement the policies of marginalization of fugitives includes the caution to preserve the interests of not disclosing the existence of the arrest warrant.86 Since the ASP non-cooperation procedures have proven to be mostly ineffective and the problem of non-cooperation with the ICC has been amplified, the next phase of the ASP action from 2014 has been marked by the development of an action plan on arrest strategies. In November 2015 the Rapporteur of the Bureau on non-cooperation has submitted to the ASP draft Action Plan on arrest strategies87 elaborated extensively in the annexed Report. It provides for a diverse and complex set of political and operational measures such as conditionality policies, positive and negative incentives, sanctions, marginalization and political isolation of fugitives, establishment of a professional Tracking Unit, etc. Despite its comprehensiveness and analytical strength,88 the reaction of the ASP to non-cooperation with the ICC stayed a nonjudicial response, limited to political and diplomatic activities. (2) The UN Security Council’s Powers Another option for strengthening the enforcement of international criminal courts decisions is to use the UN Security Council system. As the ICTY and ICTR were established by the mandatory Security Council resolutions as its subsidiary organs, all UN member states have a duty to cooperate with them, and the UN enforcement mechanisms are applicable to their decisions. The UN Security Council can use its powers under Chapter VII of the UN Charter against an uncooperative state, ap82

Report of the Bureau on non-cooperation, ICC-ASP/11/29, 1 November 2012, § 17. Report of the Bureau on cooperation, Addendum, Annex VII, Report on arrest strategies by the Rapporteur, ICC-ASP/13/29/Add.1, 21 November 2014, § 61. 84 UNSG, A/67/828–S/2013/210, Annex, Guidance on contacts with persons who are the subject of arrest warrants or summonses issued by the International Criminal Court and UNSG, Guidance for Effective Mediation, September 2012. 85 EU Action plan to follow-up on the Decision on the International Criminal Court, 12 July 2011, § D.2.c). 86 Report of the Bureau on cooperation, Addendum, Annex VII, Report on arrest strategies by the Rapporteur, ICC-ASP/13/29/Add.1, 21 November 2014, Recommendation 3, page 2. 87 [Draft] Action Plan on arrest strategies submitted by the Rapporteur, Report of the Bureau on cooperation, ICC-ASP/14/26/Add.1, 16 November 2015, Annex IV, 10 – 20. 88 See Report of the Bureau on cooperation, Addendum, ICC-ASP/13/29/Add.1, 21 November 2014. 83

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plying measures such as isolation, economic sanctions,89 freezing of assets, travel ban, etc., including military intervention. The UN enforcement powers have been until now to very limited extent applied to the ICC.90 The Security Council is not considering the ICC as its subsidiary organ even when it uses its power of referral to the Court under Chapter VII of the UN Charter. This conclusion follows from the provision of the Security Council referral resolutions that expressly stipulate that other non-states parties have no obligation to cooperate.91 Furthermore, until now in cases of the Security Council referrals there was a complete absence of any follow-up by that body. The ICC prosecutor in 2013 said that each of seventeenth briefing of her Office that was presented to the Security Council on the situation in Darfur, Sudan, has been followed by inaction and paralysis within the Council.92 In 2014, the ICC prosecutor, explaining her decision to put the investigation in Darfur on hold, said that in the almost 10 years that her Office has been reporting to the Council, no strategic recommendation has ever been provided to her Office, and neither have there been any discussions resulting in concrete solutions to the problems they face in the Darfur situation.93 3. Other ICC enforcement actors a) Non-party states The actors who have legal obligations or are willing to enforce the ICC decisions are not only states parties, but also non-party states, international organizations and civil society. The non-party states, which did not ratify the Rome Statute may also, voluntarily or mandatorily, cooperate with the ICC. Any non-party state can, on a voluntary basis, cooperate with the ICC; and the Court is entitled to invite any state to provide assistance based on an agreement, an ad hoc arrangement, or on any other appropriate basis.94 However, there are three cases where the non-party state will be obliged to cooperate. Firstly, the state, which has accepted the jurisdic89 See UNSC resolution 757 (1992) on economic sanctions and political, diplomatic, scientific, cultural, sport isolation against the Federal Republic of Yugoslavia (Serbia and Montenegro). The UN resolution is applied by all UN states but the UN called upon nonmember States of the UN, and all international organization, to act strictly in accordance with its provisions (§ 11). 90 „UNSC sanctions regimes currently include ICC fugitives in the situations of the Democratic Republic of the Congo, Côte d’Ivoire, and the Central African Republic, but not in others and, notably, not for Darfur/Sudan.“ Report of the Bureau on cooperation, Addendum, Annex VII, Report on arrest strategies by the Rapporteur, ICC-ASP/13/29/Add.1, 21 November 2014, § 47. 91 See UN Security Council Resolution 1593 (2005), § 2; UN Security Council Resolution 1970 (2011), § 5. 92 UN Security Council, 6974th meeting, 5 June 2013, S/PV.6974, page 2. 93 UN Security Council, 7337th meeting, 12 December 2014, S/PV.7337, page 2. 94 Article 87 § 5(a) of the Rome Statute.

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tion of the ICC by declaration, like Côte d’Ivoire, has also assumed the obligation to cooperate with the Court without any delay or exception.95 The second case, according to the ICC case law, arises when the Security Council has referred the situation to the ICC Prosecutor under Chapter VII of the UN Charter.96 Thirdly, the customary international law obligation of states to respect and ensure respect of international humanitarian law which was established by Article 1 of the four Geneva Conventions on international humanitarian law of 12 August 1949 requires the cooperation with the ICC in prosecution of related crimes.97 Since the Geneva Conventions have been ratified by 196 states and all UN member states,98 this should have been a strong mechanism for the ICC to ensure cooperation. b) Intergovernmental Organizations The Rome Statute authorizes the Court and the Prosecutor to seek the cooperation and assistance from intergovernmental organizations (Article 87(6) and 54(3)(c)(d)). The ICC established institutional relationships with some intergovernmental organizations by concluding international agreements. Other international organizations adopted the declaration of support to encourage their members to ratify and implement the Rome Statute and to cooperate with the Court.99 Essential for the Court is its cooperation with the UN, based on the Relationship Agreement between the ICC and the United Nations from 2004,100 which is applicable to all UN agencies and programs. The UN is providing administrative, logistical, personal and investigative help to the ICC, but only on a reimbursable basis,101 since the General Assembly decided that the UN Organization will not bear any expenses resulting from the Relationship Agreement with the ICC.102 This condition has not been overcome even con-

95

Article 12 § 3 of the Rome Statute. Article 13(b) of the Rome Statute. See infra III.3.e) Diplomatic immunity: international law limit to cooperation with the ICC. 97 Kreß/Prost, 2008, 1523; Wenqi, Zhu (2006), On cooperation by states not party to the International Criminal Court, International Review of the Red Cross, No. 861, 87 – 110, 92 – 94. 98 See Treaties, States Parties and Commentaries on www.icrc.org 99 In the second group includes e. g. The Organization of American States (“OAS”) and The full list of Regional and International Organizations that promote and support the ICC see on the Coalition for the International Criminal Court web page www.iccnow.org/?mod=rio (visited December 19, 2015). 100 Relationship Agreement between the United Nations and the International Criminal Court. New York, 4 October 2004, No. 1272. 101 See § 65 Report of the International Criminal Court A/70/350, 28 August 2015. 102 General Assembly decided that all expenses resulting from the provision of services, facilities, cooperation and any other support rendered to the ICC or the Assembly of States Parties or the implementation of the Relationship Agreement shall be paid in full to the UN. Resolution A/Res/58/318, 20 September 2004. 96

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cerning expenses incurred due to referrals by the Security Council,103 despite the provision of the Rome Statute that envisaged the UN funding particularly in such cases (Article 115). This pro future unsustainable financial arrangement reveals the lack of UN support for the ICC and creates a large financial burden which has to be borne entirely and unjustly by the states parties to the Rome Statute. The ICC has interacted with numerous UN entities,104 but the one most useful for executing its field activities has proven to be the UN peacekeeping missions affording security, logistical, operational and intelligence assistance to the ICC. The successful cooperation between the UN Peace keeping mission in Congo and the ICC105 resulted in the UN forces’ involvement in the arrest of Thomas Lubanga Dyilo106 and Germain Katanga;107 their providing the crucial information for the prosecution; and their testimony before the ICC.108 Conversely, as was mentioned, the cooperation has not been established between the ICC and the Security Council aimed at fulfilling the Court’s mandate concerning referred situations in Darfur, Sudan and in Libya. The ICC has also concluded agreements on cooperation with regional organizations such as the International Criminal Police Organization (Interpol),109 the International Committee of the Red Cross,110 the European Union,111 the Asian-African Legal Consultative Organization,112 the Commonwealth,113 and recently the Inter103 Security Council Resolution 1593 (2005), 31 March 2005 in § 8 and Resolution 1970 (2011), 26 February 2011 in § 7 lay expressly down ”that none of the expenses incurred in connection with the referral, including expenses related to investigations or prosecutions in connection with that referral, shall be borne by the United Nations and that such costs shall be borne by the parties to the Rome Statute and those States that wish to contribute voluntarily”. 104 See § 68 Report of the International Criminal Court A/70/350, 28 August 2015. 105 The Memorandum of understanding (MOU) between the ICC and the UN Organization Mission in the Democratic Republic of the Congo (MONUSCO). 106 Case ICC-01/04 – 01/06. 107 Case ICC-01/04 – 01/07. 108 Melillo, Margherita (2013) Cooperation between the UN Peacekeeping Operation and the ICC in the Democratic Republic of the Congo, Journal of International Criminal Justice 11 (4), 763 – 782, 772, 774, 776. 109 Cooperation Agreement between the Office of the Prosecutor of the International Criminal Court and the International Criminal Police Organization-Interpol, Entry into force 22 March 2005. 110 Agreement between the International Criminal Court and the International Committee of the Red Cross on Visits to Persons deprived of Liberty Pursuant to the Jurisdiction of the International Criminal Court, Entry into Force: 13. 04. 2006. 111 Agreement between the International Criminal Court and the European Union on Cooperation and Assistance, ICC-PRES/01 – 01 – 06, Entry into Force: 01. 05. 2006. 112 Memorandum of Understanding between the International Criminal Court and the Asian-African Legal Consultative Organization, ICC-PRES/05 – 01 – 08, Entry into Force: 05. 02. 2008. 113 Memorandum of Understanding between the International Criminal Court and the Commonwealth on Cooperation, ICC-PRES/10 – 04 – 11, Entry into Force: 13. 07. 2011.

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American Court of Human Rights.114 Cooperation has also been established with the other international criminal courts, such as the ICTR), and the Special Court for Sierra Leone (SCSL).115 However, the Relationship agreement between the African Union and the ICC drafted in 2005 was never signed.116 c) Non-governmental Organizations Because of the political environment in which the Court operates, the support of human rights non-governmental organizations (NGO) and civil society is as important, if not more, than support from states or international organizations. The NGOs, as devoted human rights advocates and watchdogs tirelessly exposing systemic violations of individual rights and seeking peace, justice and support for victims, perceive the ICC as their judicial partner on the international scene. Indeed, the ICC, as an international human rights agency without enforcement power is the counterpart of the NGOs, the non-state human rights agencies without any executive power. The Coalition for the International Criminal Court (CICC)117 founded in 1995, which today gathers 2500 civil society organizations from 150 countries, is continuously fighting for the integrity, credibility and effectiveness of the ICC. It played a key role in establishing and organizing the ICC; in widening its jurisdiction by launching the national pro-ICC campaigns; in supervising the implementation of the Rome Statute, influencing the ASP to set up the Advisory Committee on nominations of the ICC judges;118 and by educating and disseminating information through outreach activities that raise awareness about the work and significance of the ICC, etc. The NGOs are involved both indirectly, but also directly in the enforcement of the ICC’s decisions. Indirectly, the international (INGO) and national NGO are scrupulously promoting and monitoring state cooperation at the national level, publicly and globally condemning the cases of non-cooperation, and exerting lobbying activities in order to diplomatically and politically force states to cooperate. The local human rights NGOs are also cooperating directly with ICC prosecutors. As in the case of the Iraq pre-investigation,119 they are initiating the ICC proceedings, and have proven to 114 Memorandum of Understanding between the International Criminal Court and the InterAmerican Court of Human Rights, Entry into Force: 15. 02. 2016. 115 So-called Inter-Tribunal Cooperation Projects. 116 See infra chapter III.2. The African Union: Implementing the policy of non-cooperation with the ICC. 117 www.iccnow.org. 118 Article 36(4)(c) of the Rome Statute that envisage the establishment of an Advisory Committee on nominations by the ASP was not implemented until 2012. However, the CICC established in 2010 an independent expert panel in order to strengthen the competency verification of the state’s candidates for the ICC judges and recommended the ASP to proceed in the same way. www.iccnow.org/documents/Judicial_Criteria_-_December_2011_Election _(10th_ASP).pdf. 119 See infra chapter III.3.a) Double standards of the ICC prosecution.

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be indispensable in collecting evidence, particularly as concerns finding victims and witnesses.

III. Uncooperative Relationship between the African Union and the ICC 1. African States and the ICC: Africa the most Cooperative Continent Although insufficiently acknowledged, the African states are the greatest proponents and supporters of the ICC. They made major contributions to the ICC’s conception, establishment and particularly cooperation, enabling it to function as a criminal court. The 34 African States are parties to the Rome Statute, thereby making Africa the largest regional group. Senegal was the first state to ratify the ICC Statute and 18 African states were among the first 60 to ratify, bringing the Rome Statute into force. As was acknowledged in 1999 by William Pace, the Convenor of the CICC, throughout the four years preceding the Rome Conference, “the courageous and principled support of African nations was exemplary.”120 During negotiations, the African diplomats were already aware that “there was a good chance that major powers would restrict the ICC to small and failed States;”121 but “even if it would be unfairly applied only to them, many Africans affirmed, still the ICC is needed.”122 They pushed for its creation and were opposed to “tremendous United States pressure.”123 The Rome Statute “would not have come into being without the solid overwhelming support of sub-Saharan Africa.”124 That African states parties are sharing and promoting the values and principles of international law, such as respect for human rights and the fight against impunity and are resolute to close the impunity gap in Africa, was proven after the ICC was established. From 2004 until 2014 the African states continuously referred situations to the Court, or demanded its intervention, and have arrested and surrendered several suspects to the Court. Even today, all ICC cases125 are related to crimes committed in Africa against Africans, and the cooperation with the African countries is critical for the completion of the ongoing proceedings and for the success of the Court’s mandate. Without the African referrals and cooperation, the Court would have had no 120 William R. Pace (1999), The Relationship Between the International Criminal Court and Non-Governmental Organizations, in: Herman A.M. von Hebel, Johan G. Lammers & Jolien Schukking (eds.) Reflections on the International Criminal Court, 189 – 211, 199. 121 Ibid. 122 Ibid. 123 Ibid. 124 Ibid. 125 On 27 January 2016, an investigation proprio moto was opened for the crimes committed in and around South Ossetia, Georgia in 2008, but still there is no case.

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work and become insignificant. One should recognize that on the one hand there is state support of international criminal justice in general, or in relation to prosecutions in other states; and on the other hand is support of international criminal justice by giving up sovereignty and lifting “the veil of impunity”126 in one’s own state, which until now has been accomplished only in Africa. The discussion in the literature whether or not so-called self-referral is appropriate127 proves that seeking the jurisdiction of the ICC is an extraordinary state decision. This discussion reveals the underlying presumption that the ICC acts against the delicti commissi state. The African states exert a strong influence in the ASP, due to the large number of African states parties and the ICC’s functional dependency on them. This is reflected also in the large number of Africans among ICC officials and staff. These officials include the ICC Prosecutor since 2012, President of the ASP since 2014, and four ICC’s judges who are all African. A considerable number of ICC staff is also African. Despite all these facts, the focus recently has not been on African countries’ cooperation and support of the ICC, but rather their non-cooperation and opposition under the African Union umbrella.

2. The African Union: Implementing the Policy of Non-cooperation with the ICC The African Union, the strongest regional organization in Africa, encompassing all African states except two,128 has been used successfully by some African states as an anti-ICC platform recently, promoting non-cooperation with the ICC among African states. The turning point from an affirmative to antagonistic stance toward the ICC was the indictment of Sudanese president Omar al-Bashir in 2008.129 Since then, the African Union has adopted a range of uncooperative measures towards the ICC, and has been exerting political influence on its stakeholders in order to undermine the ICC. It has been putting pressure on the African states parties to limit or suspend cooperation with the ICC, on the Security Council to defer the ICC proceedings, on the

126 Dapo Akande/Max du Plessis/Charles Chernor Jalloh (2010), Position Paper: An African expert study on the African Union concerns about article 16 of the Rome Statute of the ICC, Institute for Security Studies, South Africa, 7. 127 E. g. Müller, Andreas Th./Stegmiller, Ignaz (2010), Self-Referrals on Trial, Journal of International Criminal Justice 8, 1267 – 1294; Robinson, Darryl (2011), The Controversy over Territorial State Referrals and Reflections on ICL Discourse, Journal of International Criminal Justice 9, 355 – 384. 128 Marocco (left the AU’s predecessor (OAU) in 1984) and the Central African Republic (suspended in 2013 until constitutional order is re-established). www.au.int/en/AU_Member_ States#sthash.QtU0jNVb.dpuf. 129 On 14 July 2008, the ICC prosecutor, presented to ICC judges an application for a warrant of arrest against al-Bashir, and on 4 March 2009, the ICC issued an arrest warrant for al-Bashir.

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ASP to change legislation in order to affect ongoing proceedings, and on the ICC judges’ decision-making in the ongoing proceedings. Open hostilities included the rejection of the ICC request to set up a Liaison officer to the African Union,130 and decisions that its member states shall not cooperate with the ICC in the arrest and surrender of the ICC indictees al-Bashir131 and Libyan Colonel Qadhafi.132 From an international law perspective, decisions of the African Union related to members’ cooperation are potentially very harmful for the ICC. Since both the African Union and the ICC are international organizations, the African Union can establish conflicting international obligations of the African ICC parties and make them choose between the African Union and the ICC.133,134 Therefore, the African Union claimed that states that did not arrest and surrender al-Bashir are not violating their international obligation but only discharging their obligations under Article 23 of the Constitutive Act of the African Union.135 Since 2008, the African Union has been clearly implementing the policy of noncooperation with the ICC with the final aim of removing Africa from the Court’s jurisdiction. The African Union repeatedly requested the UN Security Council to defer the proceedings initiated by the ICC against the President of Sudan al-Bashir136 and later, the President and Deputy President of Kenya Kenyatta and Ruto,137 in accordance with Article 16 of the Rome Statute. Both requests were unsuccessful, since the Security Council never formally decided on deferring proceedings against al-Bashir; and in 2013 the UN resolution on deferral of cases against Kenyan leaders was not adopted by failing to obtain the required number of nine votes in the Security Council.138 The decision that any African Union member state which wants to refer a case

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25 – 27 July 2010 Decision no. Assembly/AU/Dec.296(XV) § 8. 1 – 3 July 2009 Decision no. Assembly/AU/Dec.245(XIII) Rev.1, § 10; 25 – 27 July 2010 Decision no. Assembly/AU/Dec.296(XV), § 5. 132 30 June – 1 July 2011 Decision no. Assembly/AU/Dec.366(XVII) § 6. 133 “The Assembly, 6. Requests Member States to balance, where applicable, their obligations to the AU with their obligations to the ICC“ 25 – 27 July 2010 Decision no. Assembly/AU/Dec.296(XV), § 6. 134 Schabas, William A., paper on the ICC forum, Invited experts on Darfur question, http://iccforum.com/darfur (visited 5. 4. 2015). 135 30 – 31 January 2011, Decision no. Assembly/AU/ Dec.334(XVI) § 5; 30 June – 1 July 2011 Decision no. Assembly/AU/Dec.366(XVII), § 5; 29 – 30 January 2012 Decision no. Assembly/AU/Dec.397(XVIII) § 3. 136 Communique of the Peace and Security Council of the African Union at its 142nd meeting, 21 July 2008, PSC/MIN/Comm(CXLII), § 11.i. Request was repeated in the decisions of the assemblies of the African Union from 2009 onwards. See: The African Union, Decisions & Declarations of the Assembly, www.au.int/en/decisions/assembly. 137 30 – 31 January 2011 Decision no. Assembly/AU/ Dec.334(XVI) § 6; 26 – 27 May 2013 Assembly/AU/Dec.482(XXI) § 3; 12 October 2013, Ext/Assembly/AU/Dec.1, § 10(iii); United Nations Security Council S/2013/624. 138 http://www.un.org/press/en/2013/sc11176.doc.htm. 131

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to the ICC should inform and seek the advice of the African Union139 was aimed at preventing further referrals to the ICC. The principle of complementarity was used in order to suspend the ongoing proceedings in the Libyan and Kenyan situations.140 The African Union attempted to intervene in the ongoing proceedings in order to defer or terminate criminal proceedings against African high officials by adopting a range of quasi-procedural decisions that only judges and judicial bodies are competent to make. These were calls for postponement or suspension of the trial until the accused completes his/her term of office and the decision on non-appearance of the accused who was summoned by the ICC.141 In 2015, the ICC permitted the African Union to take part as amicus curiae, filing submission in case against Deputy President of Kenya Ruto and Mr. Sang pledging against the admission of the recanted prosecution witness testimonies that were previously recorded.142 The most critical decisions were demands of the African Union for absolute immunity for the head of state or government during his/her term of office.143 In 2014 and 2015 a group of African states used the African Union forum to persuade the 34 African states parties to withdraw en masse from the Rome Statute.144 In 2015 the African Union established an Open-Ended Committee of African Ministers to follow up on the African Union’s requests related to the ICC, including a road map on possible withdrawal. In June 2014, the African Union adopted a protocol extending the jurisdiction of the African Court of Justice and Human Rights to try crimes committed in violation of international law, including the subject-matter jurisdiction of the ICC. The entire process of establishing the African criminal court was fast-tracked, competing with the ongoing ICC criminal proceedings. Although the obvious aim was to exclude the ICC’s jurisdiction over African countries, it is certainly a praiseworthy attempt of the African states to fight impunity on the continent where serious violations are widespread, continuous and without any justice or redress for victims. However, this hon139

Assembly/AU/Dec.547(XXIV), 30 – 31 January 2015, § 10(viii). The African Union endorses Libya’s request to put on trial in Libya its own citizens charged with committing international crimes, 15 – 16 July 2012 Decision no. Assembly/AU/ Dec.419(XIX) § 6; It deeply regrets the Decisions of the Pre-trial Chamber II and the appeals Chamber of the ICC on the admissibility of the cases dated 30 May and 30 August 2011 respectively, which denied the right of Kenya to prosecute and try alleged perpetrators of crimes committed on its territory in relation to the 2007 post-election violence 26 – 27 May 2013 Assembly/AU/Dec.482(XXI) § 6. 141 Decision on Africa’s Relationship with the International Criminal Court (ICC), 12 October 2013, Ext/Assembly/AU/Dec.1, § 10(ii,x,xi) relating to proceedings against Kenyatta and Ruto. In 2015 relating to proceedings against Ruto and al-Bashir. Assembly/AU/Dec.547 (XXIV), 30 – 31 January 2015, § 17 d) and e). 142 ICC-01/09 – 01/11 – 1988 from 19 October 2015. 143 Decision on Africa’s Relationship with the International Criminal Court (ICC), 12 October 2013, Ext/Assembly/AU/Dec.1, § 10(i); “Reaffirms the principles deriving from national and International Customary Law by which sitting Heads of State and other senior officials are granted immunities during their tenure in office” Assembly/AU/Dec.547(XXIV), 30 – 31 January 2015, § 7. 144 See Tommy, Ibrahim, 2014, 3. 140

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orable aim is tarnished by the Protocol’s provision to give absolute immunity to sitting high level officials,145 which is contrary to the satutes of all international criminal tribunals created after World War II, none of which prescribes the immunity of high state officials as a bar to international criminal prosecution.146 3. The African Union: Delegitimizing the ICC by International Double Standards, Political Power Inequality and International Law on Immunity The paradox of the African relationship with the ICC is that most African states support the ICC, while their association is treading the path to their withdrawal from the ICC and the exclusion of the ICC’s jurisdiction over them. The reasons for such a cleavage are many. The straightforward reason is that the African Union, embodied by African leaders, is protecting one of its own,147 and that indicted African heads of state are using this organization to shield themselves from international criminal justice. Further, aside from the general proclamations that the African Union is dedicated to the fight against impunity, none of its decisions is supporting the African victims from ICC-related cases or ICC proceedings dealing with the mass atrocity in Africa. The other reason for anti-ICC sentiment among African states can be that the African Union has exposed and used the ICC’s inherent flaws created by political compromises. Therefore, states’ global inequality and the double standards embedded in the ICC system have succeeded in reducing its credibility and moral authority among African states.

a) Double Standards of the Security Council’s Referrals NGOs, academia and other authors share the African Union’s political arguments related to the Security Council’s deferral mechanism and its practice.148 Namely, one of the most peculiar features of the ICC, taking into account that it is a consent-based court and not an UN organ, is the Security Council ability to refer to the ICC situations outside its territorial or personal jurisdiction (Article 13.b) and thereby to establish the ICC jurisdiction over non-party states. As three out of five permanent 145

Article 46 A bis Immunities “No charges shall be commenced or continued before the Court against any serving AU Head of State or Government, or anybody acting or entitled to act in such capacity, or other senior state officials based on their functions, during their tenure of office.” Draft Protocol on Amendments to the Protocol on the Statute of the African Court of Justice and Human Rights, 15 May 2014. 146 See Plessis, Max du (2014), Shambolic, shameful and symbolic: Implication of the African Union’s immunity for African leaders, ISS paper 278, November. 147 Mutua, Makau W, paper on the ICC forum, Invited experts on Darfur question, http:// iccforum.com/darfur (visited 5. 4. 2015) 148 See Meeting Summary: The UN Security Council and the International Criminal Court, Chatham house, 16 March 2012, 3.

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members of the Security Council (USA, China and Russia) have not become ICC states parties, the Rome Statute envisages that the states which have refused to accept the ICC’s jurisdiction have power to force other non-party state to accept it. This compromise, adopted in the diplomatic conference in Rome in 1998, resulted, on the one hand, from the inequality of the UN system based on the Security Council having five permanent members with veto powers, and on the other hand, from the need to establish the ICC as a court of global jurisdiction, even dependent on the Security Council’s political referral, which can realize its ultimate goal “to put an end to impunity for the perpetrators” of the most serious international crimes.149 However, it has been perceived inter alias by the African Union150 that the Security Council has exacerbated double standards beyond inequalities already incorporated in the Rome Statute in two ways. Firstly, among many places where international crimes have been occurring, only African situations (Darfur, Sudan and Libya) were referred. The cases of gross violation of human rights outside Africa have either not succeeded to be proposed for referrals by the Security Council (Sri Lanka,151 Zimbabwe,152 North Korea153), or the referral was vetoed by one of the five permanent members. Thus, the referral of Syria situation to the ICC was vetoed by China and Russia in 2014. Secondly, the Security Council has in both cases of referral introduced personal limitations on the exercise of ICC jurisdiction by expressly excluding nationals or officials from the non-party state from ICC jurisdiction for crimes committed in the referred situations.154 Shielding perpetrators of atrocities on the basis of citizenship in territories under ICC jurisdiction runs counter to “the spirit of the Rome Statute”.155 Such a provision is particularly unacceptable and demeaning for the ICC system, considering that the ICC is complementary to national criminal jurisdictions, and that credible domestic prosecutions prevent its proceedings. These hypocritical arrangements are evident in Damasˇka’s statement that pow149

Preamble of the Rome Statute. PRESS RELEASE N8037/2012. www.au.int/en/newsevents/13140/meeting-govern ment-experts-and-ministers-justiceattorneys-general#sthash.yXoEMcmn.dpuf (visited February 2, 2016). 151 www.ohchr.org/EN/HRBodies/HRC/Pages/OISL.aspx. 152 www.genocidewatch.org/images/Zimbabwe_2013_08_13_UN_Urged_to_refer_Muga be_to_ ICC.pdf. 153 The UN Commission on Inquiry on Human Rights in the Democratic People’s Republic of Korea and the UN General Assembly in 2014 urged the UN Security Council to refer the situation in North Korea to the ICC. The China is opposing to referral and is believed that it would veto it. 154 UNSC Resolutions 1593 (2005) and 1970 (2011) prescribe in paragraphs 6 that „nationals, current or former officials or personnel from a State outside Sudan (the Libyan Arab Jamahiriya) which is not a party to the Rome Statute of the International Criminal Court shall be subject to the exclusive jurisdiction of that State for all alleged acts or omissions arising out of or related to operations in Sudan (the Libyan Arab Jamahiriya) established or authorized by the Council, unless such exclusive jurisdiction has been expressly waived by the State.” 155 International Criminal Court (ICC), Global Governance Institute, University College London, 30 April 2015, 4. 150

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erful actors in the international arena are in the position to ignore international justice, and that the sword of justice is used against individuals from states that occupy a lowly place in the de facto existing hierarchy of states.156 b) Double Standards of the ICC Prosecution Furthermore, there are claims that in 2006 even the ICC prosecutor, Luis Moreno Ocampo, deferred to world powers and applied double prosecutorial standards when he decided in 2006 not to investigate war crimes committed by British soldiers in Iraq although the ICC had jurisdiction and there was enough evidence to start an investigation. He established that the gravity threshold required by the Article 17(1)(d) of the Rome Statute was not met as the number of 20 Iraqi victims of willful killing and inhumane treatment was not as grave compared to situations in Africa which the ICC was then investigating.157 This decision sent a message that the criminal responsibility for commission of war crimes by the international, U.S. or other intervention forces is not within the mandate of the ICC, despite the existence of territorial or personal jurisdiction.158 This assertion was strengthened by the prosecutorial application of an admissibility requirement of gravity which refers expressly to ICC cases,159 incorrectly to ICC situations, and by comparing the gravity of the specific offenses that should have been the object of investigation of situations in Africa.160 The reopening of the case in 2014,161 after the ICC prosecutor Fatou Bensouda received additional materials from the British law firm Public Interest Lawyers and the European Centre for Constitutional and Human Rights documenting 1268 cases of ill-treatment and unlawful killings, gives a basis to conclude that the 2006 prosecutorial decision to terminate further proceedings was wrong and that the investigative job done by the British law firm and European NGO, could have been done by the ICC.

156

Damasˇka, 2008, 330. OTP response to communications received concerning Iraq, 09/02/2006, www.icc-cpi.int/ NR/rdonlyres/04D143C8 - 19FB-466C-AB77 - 4CDB2FDEBEF7/143682/OTP_letter_to_sen ders_re_Iraq_9_February_2006.pdf. 158 Kheiltash, Golzar (2006), Ocampo Turns Down Iraq Case: Implications for the US Citizens for Global Solutions, www.globalpolicy.org/component/content/article/164/28546.html (visited December 20, 2015). 159 Article 17(1)(d) of the Rome Statute: The case is not of sufficient gravity to justify further action by the Court. 160 The relevance of “a situation” to the admissibility and selection of cases before the International Criminal Court (2009) War Crimes Research Office American University Washington College of Law, United States of America, 4; William A. Schabas (2010), Victor’s Justice: Selecting “Situations” at the International Criminal Court, 43 J. Marshall L. Rev. 535 – 552, 546. 161 Prosecutor of the International Criminal Court, Fatou Bensouda, re-opens the preliminary examination of the situation in Iraq, Statement: 13/05/2014. OTP Report on Preliminary Examination Activities, 12 November 2015, § 23 and 33. 157

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c) Peace v. Justice Conflict The African Union took the correct stance that in situations of conflicts between peace and justice, which are not always possible to avoid, priority should be given to peace and prevention of further destruction of human lives.162 The right to justice should not endanger the prospect of achieving peace; and it is rare that justice can be achieved during ongoing conflict. In 2008, the African Union warned that the ICC proceedings would seriously undermine the peace process and conflict resolution in Darfur and Sudan.163 The facts are that after the ICC issued an arrest warrant in 2009, al-Bashir expelled humanitarian aid agencies from Dafur which has worsen the humanitarian situation;164 fighting and violence are still raging in Darfur in 2016; that al-Bashir is President of Sudan with the ICC arrest warrant as motive to stay in power, and that victims and civilians have been continuously suffering from violence, displacement and humanitarian crisis for over fifteen years.165 However, it should be kept in mind that the ICC arrest warrant resulted from a Security Council referral in 2005 which found that judicial intervention is an appropriate response to the threat to peace and security in Sudan. d) Neocolonialism or reach for justice for African victims Using their platform, African Union leaders accused the ICC of politicizing and misusing indictments against African leaders,166 of selective justice and targeting African countries, and even of neocolonialism. The latter labeling, which came primarily from the accused persons167 and their defense counsels,168 aimed at collective African memory concerning the psychological and emotional consequences of Western European colonialism in Africa in the 19th and 20th centuries marked by slavery, racism and exploitation. However, analysis of triggering mechanisms for each ICC sit162

See Dapo Akande, Max du Plessis and Charles Chernor Jalloh, 2010, 15. E. g. 1 – 2 February 2009 Decision no. Assembly/AU/Dec.221(XII), § 2. 164 From March 4, 2009 to June 11, 2009, Khartoum expels aid agencies after the ICC issues Bashir’s arrest warrant. These agencies provide approximately 50 percent of total aid capacity in Darfur. See time line on http://bashirwatch.org. 165 E. g. Darfur: top UN and African Union officials call for free movement of peacekeepers and aid workers, 3 March 2016 www.un.org/apps/news/story.asp?NewsID=53364&&Cr= Darfur&&Cr1=#.Vts-ubHi7Q (visited March 3, 2016). 166 Decision on Africa’s Relationship with the International Criminal Court (ICC), 12 October 2013, Ext/Assembly/AU/Dec.1, § 4; Tladi, Dire (2009) The African Union and the International Criminal Court: The battle for the soul of international law, 34 SAYIL, 57 – 69, 58, 61, 64 – 65. 167 Uhuru Kenyatta accusations see: Tommy, Ibrahim (2014), Africa’s unfinished business: ensuring justice for victims of serious international crimes, in: Reflections on the African Union ICC Reationship, ICJ Kenyan Section, 3 168 Courtney Griffiths, the lead defense attorney for former Liberian President Charles Taylor, argued that Taylor’s prosecution and the ICC prosecution was a 21st century form of neocolonialism. 163

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uation in Africa reveals that African countries themselves have in most cases asked to use the “judicial services” of the ICC. As is repeatedly stressed by the African and international NGO, six of nine situations in Africa were brought before the ICC as requests from the respective countries’ government. Aside from five self-referrals (Uganda, 2004; Congo, 2004; CAR I, 2005; Mali, 2012; CAR II, 2014), Côte d’Ivoire, which was not a state party, and therefore could not make a self-referral, accepted the ICC’s jurisdiction by declaration (Article 12(3)) in 2003; and in 2010 reconfirmed its recognition and cooperation with the ICC. So, although the ICC prosecutor initiated a proprio motu investigation in Côte d’Ivoire, it was done at the request of the Côte d’Ivoire government. Then, the Security Council referred two situations in the Darfur region in Sudan and Libya. The proprio motu investigations are Kenyan cases, and these were initiated upon the recommendation of the Waki Commission set up by the Kenyan parties in conflict and the African Union after failed domestic attempts to establish a special domestic court to prosecute perpetrators.169 This analysis shows that the African countries have reached for the ICC’s help, hoping to bring justice for African victims, break the cycle of impunity, and help restore their society and judiciary. e) Diplomatic Immunity: International Law Limit to Cooperation with the ICC In its battle with the ICC, the African Union was using many well-grounded and serious legal and political arguments. One of the most frequently used and supported by academic literature is a head of state immunity. The African Union’s decisions concerning non-cooperation on the arrest and surrender of al-Bashir and Qadhafi 169 After elections in 2007 in Kenya broke up electoral violence where more than thousand of people were killed, thousands women were raped and 600.000 people displaced. The African Union started a mediation process between the political parties in conflict and accepted the former UN Secretary-General Kofi Annan as the African Union Chief Mediator. Mediation efforts resulted with a power-sharing agreement and the creation of the Waki Commission (the Commission of Inquiry on Post-Election Violence) presided by justice Philip Waki of the Kenyan judiciary. In its Final Report on the post-election violence from 15 October 2008. it was stated that the cycle of government impunity was at the heart of the postelection violence and recommended the creation of a Special Tribunal, in the failure of which, the results of the inquiry should be handed over to the ICC. The African Union, Kenya’s president and prime minister that presented the parties in conflict, accepted the report’s findings and recommendations. After two failed government attempts to establish a tribunal, in July 2009, the Waki Commission sent “envelope” with the list of six names of most responsible for the post-election violence to the prosecutor of the ICC. He has met with the Kenyan president and prime minister and has received the commitments of cooperation from all relevant Kenyan institutions. (Attorney General, Minister for Justice, National Cohesion and Constitutional Affairs, president and prime minister). In November 2009 the ICC prosecutor has opened a first investigation on his own initiative. See Muthoni Wanyeki (2012), The International Criminal Court’s cases in Kenya: origin and impact, Institute for Security Studies (ISS), Paper 237; http://www.responsibilitytoprotect.org/index.php/crises/crisis-inkenya

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were based on the provisions of Article 98 of the Rome Statute of the ICC relating to immunities170 whose scope and content does not enjoy unanimous interpretation. Furthermore, the immunities have proven to be the greatest obstacle for the ICC criminal proceedings and case law. The Rome Statute contains two provisions related to immunities. Article 27(2) prescribes that immunities, whether under national or international law, shall not bar the Court from exercising its jurisdiction over person. Article 98(2) prohibits the Court from making a request for cooperation from states if such a request would require the requested state to act inconsistently with its obligations under international law with respect to the State or diplomatic immunities, unless the Court can first obtain the cooperation of that third State for the waiver of the immunity. The wording of these provisions makes clear that Article 27(2) deals with eliminating immunity as a bar to Court jurisdiction, while Article 98(2) tries to resolve the conflict between the state’s obligations to cooperate and to respect diplomatic immunities of officials of third state, making cooperation dependable on the waiver of the immunity by the requested state. However, the Court in its so-called Malawi decision from 2011 has ignored Article 98(2) and based its decision entirely on Article 27(2) misinterpreting it as eliminating immunity for international crimes, not only as a bar to jurisdiction, but also as a bar to cooperation. The Court claimed the existence of a general exception to head of state immunity in prosecutions before international courts under customary international law meaning that it applies to states parties but also non-party states.171 By majority the literature rejected such interpretation,172 and after three years the Court changed its case law and found another interpretation with the same result. In 2014, the Court recognized the existence of personal immunities from criminal jurisdiction for crimes under its jurisdiction under international law, meaning that the Rome Statute cannot impose obligations 170 1 – 3 July 2009 Decision no. Assembly/AU/Dec.245(XIII) Rev.1, § 10. In 2012 the African Union reaffirmed “its understanding that Article 98(1) was included in the Rome Statute establishing the ICC out of recognition that the Statute is not capable of removing an immunity which international law grants to the officials of States that are not parties to the Rome Statute, and by referring the situation in Darfur to the ICC, the UN Security Council intended that the Rome Statute would be applicable, including Article 98.“ 29 – 30 January 2012 Decision no. Assembly/AU/Dec.397(XVIII) § 2. 171 § 43 “(…) the Chamber finds that customary international law creates an exception to Head of State immunity when international courts seek a head of State’s arrest for the commission of international crimes. There is no conflict between Malawi’s obligations towards the Court and its obligations under customary international law; therefore, article 98(1) of the Statute does not apply.”; § 44 “(…) the Chamber is of the view that the unavailability of immunities with respect to prosecutions by international courts applies to any act of cooperation by States which forms an integral part of those prosecutions.” ICC-02/05 – 01/09, 13 December 2011. 172 See e. g. Dapo Akande, ICC Issues Detailed Decision on Bashir’s Immunity (… At long Last …) But Gets the Law Wrong, December 15, 2011, http://www.ejiltalk.org/icc-issues-de tailed-decision-on-bashir%E2 %80 %99 s-immunity-at-long-last-but-gets-the-law-wrong/ (visited 3. 10. 2015.); Tladi, Dire (2013) The ICC decisions on Chad and Malawi, Journal of International Criminal Justice 11, 199 – 221; Schabas, William A., Paper on the ICC forum, Invited experts on Darfur question, http://iccforum.com/darfur (visited 5. 4. 2015).

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on third States without their consent. However, the Court claimed that in case against al-Bashir, although the Sudan is non-party state, the Security Council’s resolution on referral has lifted the immunities and thus implicitly waived the immunity granted to Bashir under international law by requiring from the Sudan to cooperate fully and provide any necessary assistance to the Court.173 The literature again mostly disagree with this interpretation,174 although there are supportive authors.175

IV. Conclusion: The ICC’s Supranational Judicial Enforcement Regime The ICC is a court with a dual mandate. As a criminal court its main functions are to determine individual criminal responsibility or innocence, and to conduct effective and fair criminal proceedings in accordance with the rule of law. As an international court it is an enforcement mechanism of international law created by political negotiations. International law and politics have modeled an institutional and procedural framework for the ICC in line with the principles of international law, not criminal procedural law. In conflicts between the ICC’s criminal and international functions, compromises are made at the expense of criminal procedural law, and the ICC’s criminal mandate is subjugated to its international one. With such restrictions on its criminal procedural powers, it remains to be seen whether the ICC is a functional or dysfunctional criminal court. Since the ICC is the treaty court, the states parties have had opportunity to strengthen the existing structures of vertical cooperation between the states and the ad hoc Tribunals. Instead, in order to protect their sovereignty, they have enhanced the horizontal approach to cooperation, putting the effectiveness of the ICC in the hands of state governments. The principles and procedures of horizontal 173 See §§ 25 – 27; § 29 “(…) by issuing Resolution 1593(2005) the SC decided that the “Government of Sudan (…) shall cooperate fully with and provide any necessary assistance to the Court and the Prosecutor pursuant to this resolution.” Since immunities attached to Omar Al Bashir are a procedural bar from prosecution before the Court, the cooperation envisaged in Resolution was meant to eliminate any impediment to the proceedings before the Court, including the lifting of immunities. Any other interpretation would render the SC decision requiring that Sudan “cooperate fully” and “provide any necessary assistance to the Court” senseless. Accordingly, the “cooperation of that third State (Sudan) for the waiver of the immunity”, as required under the last sentence of 98/1, was already ensured by para 2 of SC Resolution 1593(2005). The SC implicitly waived the immunities granted to Bashir under international law. Consequently, there also exists no impediment at the horizontal level (29). ICC-02/05 – 01/09, 9 April 2014. 174 See e. g. Paola Gaeta, The ICC changes its mind on the Immunity from arrest of President Al Bashir, but it is wrong Again, April 23rd, 2014, http://opiniojuris.org/2014/04/23/ guest-post-icc-changes-mind-immunity-arrest-president-al-bashir-wrong/ (visited 3. 10. 2015). 175 See Boschiero, Nerina (2015), The ICC Judicial Finding on Non-cooperation Against the DRC and No Immunity for Al-Bashir Based on UNSC Resolution 1593, Journal of International Criminal Justice 13, 625 – 653.

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mutual legal assistance are inappropriate for the enforcement of the ICC’s decisions, since its basic feature is governmental discretion. Furthermore, the establishment of the ICC as a workable institution cannot be resolved by the mechanism for the enforcement of one specific judicial decision, which is the purpose of horizontal governmental cooperation, but rather by empowering the ICC with investigative, coercive and enforcement functions critical to conduct effective and fair criminal proceedings. Because the ICC is a court without any external enforcement powers, its model of vertical cooperation needs to replace a full-fledged criminal enforcement system. The solution is to set up a supranational enforcement regime, and to accomplish this, two ways forward must be considered. One, which has no prospect in a near future, is the establishment of a supranational police or army. The other is the establishment of a supranational judicial enforcement regime by empowering the national courts as ICC enforcement bodies. One of the chief obstacles for supranationalization of international obligations is the international principle of non-interference in states’ internal affairs. The cornerstone of the Blasˇkic´ subpoena appeal judgment that “customary international law protects the internal organization of each sovereign State: it leaves it to each sovereign State to determine its internal structure and in particular to designate the individuals acting as State agents or organs”176 should be abandoned as the ICC enforcement principle. The ICC’s vertical model of cooperation needs to make inroads in the states’ obligation to cooperate. It should develop, mutatis mutandis, analogous to the EU regime of judicial cooperation in criminal matters. That regime demonstrates that courts are appropriate representatives of the state when it comes to enforcement of criminal courts decisions from other jurisdictions. The supranational enforcement mechanisms should enable direct communication and enforcement of the ICC decisions by national judicial authorities without government involvement. There is a legal and a political argument for such a solution. Generally, the decisions of foreign or international criminals courts are in all systems of cooperation enforced by domestic criminal courts, due to their functional and operational equivalency. However, in transnational and international cooperation, the courts are not actors of cooperation and there are no direct judicial channels of communication excluded from governmental screening. One can deny the substantive relevance of the channels of communication as long as there is a legal obligation to cooperate, and the government does not have any discretionary power to decide on the ICC’s request. However, this argument can be reversed. If the ICC’s requests for cooperation are decided only on the basis of the legal arguments, and the state has a legal duty to cooperate without any discretionary powers, the institutions designed to decide in such cases are courts, not executive authorities. Apart from legal arguments, political reasons also exist to explain the incompatibility of governmental cooperation with the ICC. Throughout the history of the international criminal justice, it has been proven that it is inappropriate to entrust the 176

Blasˇkic´, ICTY, Appellate Chamber, 29 October 1997, § 41.

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enforcement of international court decisions to governments of states where offenses have been committed. By their nature, the crimes in the ICC’s jurisdiction often involve high governmental officials. Thus, the suspects can be either incumbents responsible for cooperation with the ICC, or former officials whose surrender to the ICC can affect election results. So the same government officials indicted by the ICC, or whose cooperation with the ICC can put their reelection at stake, are the ones responsible for collecting evidence for the ICC or surrendering themselves or others to the Court. The international legal obligation without the reinforcement of further pressure, incentives or sanctions is not enough to eliminate the obstruction of cooperation. The ICC’s experience of cooperation with governments of accused incumbent high state officials similarly has resulted in failed proceedings. The conflicts between governmental and judicial positions on the enforcement of ICC decisions was demonstrated in 2015 in South Africa where that country’s courts issued a prohibition to President al-Bashir that he leave South Africa, followed by the order to national authorities to arrest him, while at the same time the government, in defiance of the court orders, escorted him to the airport and secured his safe departure from the country.177 The feasibility of enforcement of the ICC’s decisions by the national courts has been proven in the implementing legislation of the Rome Statue. France, Georgia, Spain and Switzerland have taken the unprecedented step in enforcement of international criminal law, by eliminating the two-stage – governmental and judicial – procedure, and introducing the purely judicial enforcement of the ICC’s decisions.178 Thus, supranational direct enforcement of the ICC decisions by national courts has been introduced at the national level and should, as a general principle, be transferred by the ASP at the international level. There is no doubt that key for the success of the ICC’s supranational judicial enforcement mechanism is the democratic political order of the states parties. Hathaway’s finding that a state’s commitment to international human rights treaties depends on external and internal enforcement mechanisms has been proven in the case of the Rome Statute.179 Since the Rome Statue is a human rights treaty with an enforcement mechanism, democratic states, and ones with effective human rights practices are more likely to join the ICC, whereas states with poor human rights practices, and non-democratic states are less likely to commit to the Court.180 The major-

177

See Vyver, 2015, 563 and other literature in supra footnote 64. Crayer/Friman/Robinson/Wilmshurst, 2014, 523. 179 Hathaway, Oona A., “The Cost of Commitment” (2003). John M. Olin Center for Studies in Law, Economics, and Public Policy Working Papers. Paper 273. 1 – 38. http://digi talcommons.law.yale.edu/lepp_papers/273, 1 – 38, 16 – 17, 24 – 25. 180 Yvonne M. Dutton, Explaining State Commitment to the International Criminal Court: Strong Enforcement Mechanisms As a Credible reat, 10 Wash. U. Global Stud. L. Rev. 477 (2011), http://openscholarship.wustl.edu/law_globalstudies/vol10/iss3/3, 477 – 533, 517, 518, 522. 178

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ity of the ICC’s states parties are democracies;181 have separation of powers between government and judiciary; and their judiciary apply rule of law and limit state power by holding the state accountable for its international obligation. However, the fact that some non-democracies are also ICC states parties should not be an obstacle for the introduction of supranational vertical judicial cooperation. The non-democracies also have courts, and their legal or factual political dependence is an internal matter on which the ICC does not have influence. The ICC states parties should overturn the Blasˇkic´ subpoena appeal judgment and turn the power directly over to the ICC to give orders or requests to national judicial authorities, and not to the states. At the next review conference of the Rome Statute, the new institutional design and procedural structures need to be introduced to transform the ICC’s vertical governmental cooperation regime into a vertical judicial cooperation regime between the ICC and domestic courts. The model of international cooperation should be replaced with one of supranational cooperation. Thus, domestic courts need to become bodies that represent a state in cooperation with the ICC, and at the same time a direct channel between the ICC and domestic courts must be established. The concept of ICC jurisdiction as extension of national jurisdiction will be realized only when domestic courts become the ICC enforcement mechanisms. As the current constellation of political factore will undoubtedly lead to inability to reach such a radical political solution at the international level, the ASP and its subsidiary bodies responsible for cooperation need to begin threading the path towards the establishment of the supranational judicial enforcement regime for the ICC.

181

Ibid.

The Faces of Justice and State Authority: A Review of the Reviews Izhak Englard* Nearly three decades have passed since the seminal and path breaking comparative work of my dear friend and colleague Mirjan Damasˇka has been published.1 The ideas and insights of the book have nothing lost of their freshness and originality. The immense erudition of the author, his broad knowledge of languages2 and his stunning associative power remain as impressive and breathtaking as before. I equally loved and admired his outstanding capacity for happy metaphors that enrich his book: “Firmly tied to the mast of civil service, lower judges could hear the seductive music of freedom as Ulysses heard the singing of the sirens”3; “By following their preferences, indirectly, individuals may perhaps contribute to the well-being of all: when the rose embellishes itself, it also decorates the garden”4 ; “As in jujitsu, it is best for the citizen to use the weight of an ‘objective’ regulation in order to realize his personal interest”5; “…some ‘struggles’ among people may be regarded with favour: like sand in a shell, such struggles can be viewed as irritants capable of producing social pearls”6 ; “Where such conceptual entailment can be shown, procedural forms are unpacked from the underlying purpose like a set of Russian dolls”7; “If ideologically objectionable, the verbal formulae of pleadings cannot be retained in a pure model – even for more decorative purposes, like gargoyles on old churches8”; * Professor of Law (emeritus), Hebrew University, Jerusalem; Justice (ret.), Supreme Court of Israel. 1 Damasˇka, Mirjan R.: The Faces of Justice and State Authority: A Comparative Approach to the Legal Process, Yale University Press, New Haven 1986. 2 See e. g. the author’s etymological explanation of the adjectives “absolute”, “subjective” and “objective”, ibid., p. 77, note 11. 3 Ibid., p. 37. 4 Ibid., p. 75. 5 Ibid., p. 83. 6 Ibid., p. 85. 7 Ibid., p. 95. 8 Ibid., p. 95, note 44. I, therefore, disagree with the criticism of Reimann, Mathias: Book Review: The Faces of Justice and State Authority: A Comparative Approach to the Legal Process, 82 A.J.I.L., 1988, pp. 203, 205: “Beyond that, two stylistic idiosyncrasies create more hardship for the reader. First, the text is ripe with words and maxims in foreign languages (predominantly Latin), mostly without translation. Most are superfluous for those familiar with their meaning (and with the languages used) and confusing for others. Second, the author

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“As in Proust’s image of the Japanese paper flower immersed in water, the presently somewhat shapeless construct will then gradually unfold, to reveal its capacity for definite form and clear contour”9. The author’s basic idea is to map the great variety of legal process in the different systems by means of two binary axes: one relating to the organization of state authority that moves from the pole of the hierarchical ideal to the pole of the coordinate ideal; the second axis relates to the disposition of government to manage social life, moving from the pole of the state that pursues and imposes particular views of the good society – in order to lead society in desirable directions – to the pole of the state who considers its task to merely support existing social practice without attempting to lead citizens towards assumed ideals. The author calls the first type of state: active state; the second: reactive state. The original insight of the author consists in demonstrating the influence exercised by four different ideals – relating to the state authority organization and to the fundamental state mission – upon the forms and objectives of the legal process. His analysis is most sophisticated, refined and complex. It transcends structural phenomena in order to reveal the underlying ideas that are of a more fundamental, political character. As the author affirms in his Introduction: “In this volume, proposals about linkages between politics and justice will be taken seriously: hence factors from the political sphere will be recruited in the search for a scheme capable of making the striking variations in modern forms of justice more intelligible.”10 The author freely admits the contribution of scholarly predecessors who studied on a great variety of topics the affinities between the legal process and dominant currents of political ideology as well as relationships of political power.11 The author uses in his analysis the Weberian “ideal types” in relation to his twofold bipolar scheme.12 It enables him to grasp, for comparative purposes, the complex hybrid forms characterizing the actual procedural arrangements in the various systems of law. The work received accolades by reviewers from a variety of disciplines.13 Thus, political scientists praised the author’s demonstration of the impact of political ideas indulges in metaphors drawn from all sorts of nonlegal context. While many are of delightful felicity, their sheer mass is distracting”. Contrary to this view, I found the Latin expressions most instructive and helpful, and the metaphors delightful: De gustibus non est disputandum. 9 Damasˇka, The Faces of Justice and State Authority, p. 148. 10 Ibid., p. 9. 11 Ibid. 12 Contrary to Reimann (1988), ibid., I don’t think that the author gave insufficient credit to Max Weber. In addition to Damasˇka, The Faces of Justice and State Authority, cit., p. 9, see also p. 22, note 6. 13 Baker, Brenda M., in: 98 Ethics, 1988, p.426; for an interesting comparison of Damasˇka’s method to structural analysis, see Benge Sánchez, Mary, Book Review, 23 Tulsa Law Journal, 1987, pp. 309 – 314: “In its striking similarities to linguistic interpretation of literature, and its derivative, structural anthropology, Damasˇka’s methodology for the study of legal processes should be of interest not only to those interested in the study of comparative law, but

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and institutions on legal structures and practices.14 Moreover, the book encountered great interest in Continental Europe, where scholars relied upon it in connection with actual procedural reforms, especially in Italy.15 Translations into Italian,16 Spanish17

also to scholars in other disciplines in which structural interpretation may be given relevance” (at p. 314); McConville, Sean, in: 497 Annals of the American Academy of Political and Social Sciences, 1988, pp. 172 – 173: “In its range and use of historical, political, philosophical, and legal materials, this study is impressive and is a valuable addition to comparative scholarship”; Mooney, Linda A., in: 39 British Journal of Sociology, 1988, p. 635: “Damaska’s book is an illuminating treatise on the evolution of styles of justice as related to varied ideas of officialdom”; Lacey, Nicola/Zedner, Lucia: Discourses of Community in Criminal Justice, 22 Journal of Law and Society, 1995, pp.301, 311: “…one of the most important works on comparative criminal justice…”; Lempert, Richard O.: Damaska: Evidence Law Adrift – A Book Review, 49 Hastings L.J., 1998, p. 397: “I am a great fan of Professor Damasˇka and have been ever since I read his first book, The Faces of Justice and State Authority”; Wright, Nigel G.: Comments on ‘The Active Administrative Law Judge: Is There Harm in an ALJ Asking’, 20 NAALJ, 2000, pp. 337, 341 – 342: “I would especially recommend to people interested in civil law proceedings to read the works of Mirjan Damaska, specifically, The Faces of Justice and State Authority….Another reason for reading Damaska is that his language is fresh, often based on historical or literal meanings, which can be, in itself, arresting and illuminating. It is an interesting read”. 14 Fitzpatrick, Gerard J.: Book Review, 81 American Political Science Review, 1987, pp. 1385 – 1386: “Although the book makes surprisingly little use of political-science research, given its recognition of the importance of politics in understanding law, it is nonetheless a novel exploration of the connection between justice and state authority. It places much of what we already know about the administration of justice in a fresher perspective while identifying patterns and suggesting meanings not appreciated before. Damasˇka’s elegantly written and flawlessly organized work is therefore a valuable contribution to comparative analysis of the legal process, showing that study of the relationship between law and politics is far from exhausted”. In this spirit see also: Shapiro, Martin: Book Review, 35 The American Journal of Comparative Law, 1987, pp. 835 – 838. 15 For the book’s impact on Continental European comparative law scholars see e. g. Nijboer, Johannes F.: The American Adversarial System in Criminal Cases: Between Ideology and Reality, 5 Cardozo Journal of International and Comparative Law, 1997, p. 79; Caianiello, Michele: Law of Evidence at the International Criminal Court: Blending Accusatorial and Inquisitorial Models, 36 N. C. J. Int’l L. & Com. Reg., 2011, pp. 287, 291 – 292. But see equally the broad reliance on Damasˇka’s book in relation to a reform of U.S. discovery proceedings: Marcus, Richard L.: Retooling American Discovery for the Twenty-First Century: Toward a New World Order?, 7 Tulane J. of Int’l & Comp. Law, 1999, pp. 153 – 199; but cf. this author’s reservation about the use of Damasˇka’s models in relation to the reality of the enforcement feature of American private litigation : idem., Bomb Throwing, Democratic Theory, and Basic Values – A New Path to Procedural Harmonization, 107 Nw. U. L. Rev., 2013, pp. 475, 504 – 506. 16 Damasˇka, Mirjan R.: I volti della giustizia e del potere – Analisi comparatistica del processo, Trad. Giussani & Rota, Il Mulino, Bologna 1991. 17 Damasˇka, Mirjan R.: Las Caras de la Justicia y el Poder del Estado – Análisis comparado del proceso legal, Editorial Juridica de Chile, Santiago de Chile, 2000. For a positive review of this edition: Palomo Vélez, Diego I.: Ius Et Praxis, 8(1), 2002, pp. 637 – 642: “En síntesis, una obra brillante, de una profundidad, inflatable en la biblioteca de aquellos que pretendan y persigan un real entendimiento de las instituciones procesales”.

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and Chinese18 bear vivid witness to its worldwide importance.19 In the United States, where comparative legal research is a rather restricted domain, and hardly a very popular field in legal education,20 Damasˇka’s work nevertheless made an important impact on scholarly writings about procedure and judicial process.21 As a matter of fact, the work gained much praise from legal scholars,22 but there are some important critiques to which I intend to refer more specifically in my present 18 Damasˇka, Mirjan R.: Si fa he quo jia quan li de duo zhong mian kon: bi jiao shi ve zhong de fa lu cheng xu, Beijing Shi: Shong guo zheng fa chu ban she, 2004. 19 See e. g. the use of Damasˇka’s model of hierarchical and coordinate ideals in relation to the Japanese criminal justice system: Weber, Ingram: The New Japanese Jury System: Empowering the Public, Preserving Continental Justice, 4 E. Asia L.Rev., 2013, pp. 125, 135 – 138; see in relation to criminal procedure in Latin America: Pulecio-Boek, Daniel: The Genealogy of Prosecutorial Discretion in Latin America: A Comparative and Historical Analysis of the Adversial Reforms in the Region, 13 Rich. J. Global L. & Bus., 2014, pp. 67, 132 – 135, 138 – 139; in relation to the judicial process in Brazil: Rubin, Fernando: “A utilização prática da preclusão diante dos modelos de processo jurisdicional – Reflexões a partir da obra ‘The Faces of Justice and State Authority’ de Mirjan R. Damaska”, Jus Navigandi, Teresina, ano 19, n. 4083, 5 set 2014 (http://jus.com.br/31539). 20 Cf. Luna, Erik: A Place for Comparative Criminal Procedure, 42 Brandeis L.J., 2004, p. 277. 21 See e. g. Tidmarsh, Jay: Unattainable Justice: The Form of Complex Litigation and the Limits of Judicial Power, 60 Geo. Wash. L. Rev., 1991 – 1992, pp. 1683, 1722 – 1726; Kagan, Robert A.: Adversarial Legalism and American Government, 10 Journal of Policy Analysis and Management, 1991, pp. 369, 392 – 399; Doran, Sean/Jackson, John D./Seigel, Michael L.: Rethinking Adversariness, in: Nonjury Trials, 23 Am. J. Crim. L., 1995, pp. 1, 7, 13, 18, 23; cf. Green, Michael S.: The Privilege’s Last Stand: The Privilege Against Self-Incrimination and the Right to Rebel Against the State, 65 Brooklyn L. Rev., 1999, pp. 627, 671 – 675; Brown, Darryl K.: The Decline of Defense Counsel and the Rise of Accuracy in Criminal Adjudication, 93 Cal. L. Rev., 2005, pp. 1585, 1609, 1644; Brudzinski, Walter J.: Coast Guard Administrative Proceedings in Drug Cases Resemble the Civil Law Tradition, 42 J. Mar. L. & Com., 2011, pp. 159, 164, 176 – 179; Ewing, Benjamin/Kysar, Douglas A.: Prods and Pleas: Limited Government in an Era of Unlimited Harm, 121 Yale L. J., 2011, pp. 350, 422. But in recent years there seems to be a growing interest in comparative law. For an application of Damasˇka’s models in comparative law study, see Bejesky, Robert: The Evolution in and International Convergence of the Doctrine of Specific Performance, 13 Ind. Int’l & Comp. L. Rev., 2003, pp. 353, 356; Stigall, Dan E.: Comparative Law and State-Building, 29 Loy. L. A. Int’l & Comp. L. Rev., 2007, p. 1, at notes 114 – 151. 22 Shapiro, David L.: Courts, Legislatures, and Paternalism, 74 Va. L. Rev., 1988, pp. 519, 574, note 239: “… fascinating book …”; Clark, David S.: The Selection and Accountability of Judges in West Germany: Implementation of a Rechtsstaat, 61 S. Cal. L. Rev., 1988, pp. 1795, 1800: “… brilliant book …”; Merryman, John Henry: Comment: How Others Do It: The French and German Judiciaries, 61 Cal. L. Rev., 1988, pp. 1865, 1867: “… thoughtful and erudite book …”; Christie, George C.: The Influence of Form on the Nature of Authority, 18 Contemporary Sociology, 1989, pp. 93 – 94: “This is an excellent book … useful and insightful”; Chase, Oscar G:, Legal Processes and National Culture, 5 Cardozo Journal of International and Comparative Law, 1997, pp. 1, 14: “… brilliant and important book”; Twining, William: Civilians Don’t Try: A Comment on Mirjan Damasˇka’s ‘Rational and Irrational Proof Revisited, 5 Cardozo Journal of International and Comparative Law, 1997, pp. 69, 71: “[Damasˇka’s] superb The Faces of Justice and State Authority again exhibited a sensitivity to

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paper.23 But before I relate to the critical comments, mention must be made of an impressive book published in “Honour of Professor Damasˇka”, where a great number of leading scholars pay tribute to his outstanding scholarly achievements and to the substantial impact of his ideas upon comparative scholarship.24 The here dicussed work “Faces of Justice and State Authority” occupies a central place in this book published in 2008.25 Among many other eulogistic terms, it is called “masterpiece” that has given “the single finest answer we possess” to “the differences in culture, history and social traditions that account for the contrast between America and the Continent”; moreover, “the impact of his work in comparative criminal procedure is ‘difficult to overstate’”.26 But let me now go over to the more critical scholarly views: I will start with Mathias Reimann.27 On the one hand, this author states that the author’s models present a fresh set of tools for the comparative analysis of legal processes. They lead the reader beyond the conventional perspectives. The work presents a much richer view on the dichotomy between continental and Anglo-American procedure: the classical features of the continental style are regarded as a quite harmonious coalescence of hierarchical and activist notions, while their Anglo-American counterparts are characterized as an interaction of coordinate and reactive elements. As a result, the traditional adversarial/inquisitorial dichotomy is abandoned in favor of much more differlocal knowledge when applying highly abstract ideas (ideal types) to particular legal phenomena”; Sanders, Joseph: Scientifically Complex Cases, Trial by Jury, and the Erosion of Adversarial Processes, 48 DePaul L. Rev., 1998, p. 355, note 1: “… the best single discussion of the topic since Max Weber”; Bohlander, Michael: Radbruch Redux: The Need for Revisiting the Conversation between Common and Civil Law at Root Level at the Example of International Criminal Justice, 24 Leiden Journal of International Law, 2011, p. 393, at note 33: “… seminal work”; Pargendler, Mariana: The Rise and Decline of Legal Families, 60 Am. J. Comp. L., 2012, pp. 1043, 1056: “… classic work”; see especially Ackerman, Bruce A.: My Debt to Mirjan Damaska, 118 Yale L. J. Pocket Part, 2009, p. 171. 23 Some critical reviews are not very serious, like that written probably by a student: Sklar, Stacey M.: Book Annotations, 24 Journal of International Law and Politics, 1992, pp. 1023 – 1025. The author blames Damasˇka for using two models of a too general nature. 24 J. Jackson/M. Langer/P. Tillers (Eds.): Crime, Procedure and Evidence in a Comparative and International Context – Essays in Honour of Professor Mirjan Damasˇka, Hart Publ., Oxford and Portland, Oregon 2008. For an excellent overview of the contributions in the book, see Jackson/Langer, Introduction: Damasˇka and Comparative Law, ibid., pp. 1 – 27. 25 See especially the following contributions in the book: Koh, Harold Hongju: Mirjan Damasˇka: A Bridge Between Legal Cultures, ibid., pp. 29 – 35; Pizzi, William T.: Sentencing in the U.S.: An Inquisitorial Soul in an Adversarial Body?, ibid., pp. 65 – 79; Roberts, Paul: Faces of Justice Adrift?, ibid., pp. 295 – 328; Allen, Ronald J./Alexakis, Georgia N.: Utility and Truth in the Scholarship of Mirjan Damasˇka, ibid., pp.329 – 350; Whitman, James Q.: No Right Answer?, ibid., pp. 371 – 392; Lempert, Richard: Anglo-American and Continental Systems, ibid., pp. 395 – 413. 26 Jackson/Langer, Introduction: Damasˇka and Comparative Law, supra note 24, at p. 2, referring to the contributions of Whitman, No Right Answer?, supra note 25, at p. 189; and Pizzi, Sentencing in the U.S.: An Inquisitorial Soul in an Adversarial Body?, at p. 65. 27 Reimann, Book Review, supra note 8.

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entiated categories, which often cut across the borders between the civil and common law cultures.28 But, on the other hand, Reimann criticizes the author for mixing the explanatory dimension of his approach with the analytical one. In Reimann’s view, the explanatory power of the author’s thesis is limited because the empirical evidence is weak, and, therefore, it does not reach much beyond the intuitive level.29 In my opinion, Damasˇka’s main purpose is to provide adequate tools for the understanding of the different forms of legal process. The tools are the concepts of state authority and state purpose. Evidently, the specific, actual forms and practices of these concepts in a given system have to be explained by additional causes that are rooted in a variety of disciplines, such as history, sociology, psychology, religion and economics.30 In this sense, I understand also Arthur von Mehren’s pertinent critical observation that “in large measure, the coordinate nature of contemporary American procedural officialdom can be understood as entailed by the use of juries; however, neither the jury’s emergence nor its continued existence seems to be rooted in society’s adherence to the coordinate ideal. Theories and values, on the one hand, and social and institutional arrangements and practices, on the other, always interact. But the influence that one side of the equation has over the other varies in the course of history considerably. In the case of first-instance proceedings in the United States, arguably the institutional fact of the jury – rather than the attractiveness of coordinate values – has been, and remains, decisive”.31 The possible divergence between the sociopolitical, ideological background and the actual (structural) characteristics of legal process institutions and practices lies at the center of Inga Markovits’ very critical review of Damasˇka’s book.32 The authoress argues that – contrary to Damasˇka’s assumption – changes in the structure of legal process, such as from inquest to contest, do not necessarily signify a corresponding change in the general view of government’s role in society.33 Here again, I would distinguish between causes and effects: the immediate reason for the change may lie in a variety of ideas and causes, but one of the effects is inevitably a change in the active or reactive role of the state. Since this effect is quite 28

Ibid., at p. 207. Ibid., at pp. 206 – 208. 30 In relation to economics, see Damasˇka’s critical remarks on the legal process and the socioeconomic organization of the state, supra note 1, at pp. 6 – 8. 31 Von Mehren, Arthur-Taylor: Book Review: The Importance of Structure and Ideologies for the Administration of Justice, The Faces of Justice and State Authority: By Mirjan Damasˇka, 97 Yale L.J., 1987, pp. 341, 350. 32 Markovits, Inga: Review Essay: Playing the Opposites Game: On Mirjan Damasˇka’s The Faces of Justice and State Authority, 41 Stan. L. Rev., 1989, p. 1313. 33 Ibid. at pp. 1322 – 1323. The authoress relies on In re Gault, 387 U.S. 1 (1967). 29

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obvious, its acceptance means a more or less conscious acquiescence to the change in the role of the state. Another related argument touches upon the profound differences in cultural attitudes towards law and justice that may divide countries of largely similar styles of procedure. The question asked is: How is this possible? Thus, ordinary English and American citizens have totally different attitudes towards procedural justice. Americans view the state with suspicion and the law as their shield against official transgressions. The English, on the other hand, assume on an institutional level the essential legitimacy of government intervention, and on a personal level need prodding to pursue rights that Americans take for granted.34 Moreover, “one has only to look at the litigiousness of West Germany or American citizens on the one hand and at the reluctance with which socialist citizens make use of their courts on the other to feel uneasy about a classification that places West Germany and the U.S., both equally ‘lawyer-ridden’, at opposite ends of conceptual spectrum, while uniting West Germany and the Soviet Union under the same conceptual heading”.35 As a result, so the criticism goes, “the procedural differences Damasˇka focuses upon in his analysis and the conceptual alignment of legal procedures at which he arrives bear no necessary relation to the real impact of law in the different countries he deals with”.36 I don’t think that this argument is detracting from the validity of Damasˇka’s analysis. He does not pretend that the structural similarities imply corresponding similarities in the substance of law and in the implementation of justice. He is well aware that the substance of state policy and the cultural legal climate may diametrically differ between states, notwithstanding the structural affinities of their legal process. Correspondingly, structural differences do not exclude similarities in state policy and substantive justice. The active states resemble in their basic political aspiration to implement public interests, but they may profoundly differ as to the substance of these interests. Damasˇka’s intention was to elicit the features of legal process for comparative, classificatory purposes. The (ethical) evaluation of the political system in terms of democracy and substantive justice is a completely different issue. Markovits raises an even more fundamental criticism against Damasˇka’s second dichotomy: policy implementation versus conflict resolution, inquest versus contest. The critical argument claims that Damasˇka’s neat procedural equation is too clear-cut and categorical to capture the complex functions of procedural systems. Forensic contests may do more than just resolve individual conflicts; they can also serve larger

34

Ibid., at pp. 1324 – 1325. Ibid., at p. 1326. 36 Ibid., at p. 1327. Cf. Toran, Janice: ’Tis a Gift to Be Simple’: Aesthetics and Procedural Reform, 89 Mich. L. Rev., 1990, pp. 352, 393, note 263. The authoress considers Damasˇka’s book as a striking example of an aesthetic attitude towards procedure. However, according to her, this attitude may be responsible for the failure – mentioned by Markovits – to capture some of the complex functions of procedural systems. 35

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societal goals. Conversely, inquests, besides promoting the public welfare, can also resolve conflicts.37 I don’t think that Damasˇka would object, in principle, to these arguments. He is well aware of the hybrid nature of the actual systems of legal process. He actually dedicates a special paragraph to the “Mixtures of Activist and Reactive Justice”. Here, he observes that the offshoot of state policy changes from reactive to active may be that “legal process begins to serve policy-implementing objectives while outwardly retaining features of the contest style”.38 Mixed forms can also develop as a result of drift in the opposite direction.39 Moreover, he observes in his Afterword that as his scheme was applied to existing systems most of them were found to be pastiches of the pure styles identified by him.40 But Markovits’ criticism goes deeper: Unlike his first dichotomy (coordinate versus hierarchical authority structures), Damasˇka’s second dichotomy (policy implementation versus conflict resolution) does not outline two clear distinguishable opposites. His policy implementation is imbued with conflict resolution, since all examples involve disputes to be resolved with the help of the law.41 I confess that this critique is not quite clear to me. Damasˇka specifically assumes a legal process for the implementation of policy, which means an act of adjudication and therefore the existence of a conflict and its resolution. But the resolution of the conflict is not the main objective of the process; it is the implementation of the policy. In relation to the appropriate rules of procedure aimed at achieving a substantively accurate result, Damasˇka insists that “this should not be taken to mean, however, that accuracy of outcome justifies any procedure employed in attaining that result. Even in fully activist states, some procedural rules are of a dual nature – dual in the sense that their breach not only disrupts an internal procedural order but also suggests that a substantive policy has been violated”.42 Finally, Markovits argues that some characteristics of legal process that Damasˇka relates to the second dichotomy, are better explained under the heading of the first dichotomy. A major example is, in her opinion, the different weights of confessions under common law and civilist criminal procedure. Damasˇka’s theory is that while common law is content to protect the autonomy of the individual disputants (conflict resolution), civil law searches for right answers to societal problems (policy implementation). Markovits argues that civilist thinking reject confessions for the very opposite reason: because it respects the defendant as an end in himself and therefore wants to preserve his autonomy. Given the imbalance of power between the almighty 37 Ibid., at p. 1330. In this sense; also Twining, William: Have concepts, will travel: analytical jurisprudence in a global context, 1 International Journal of Law in Context, 2005, p. 1, note 33. 38 Damasˇka, The Faces of Justice and State Authority, supra note 1, at p. 92. 39 Ibid., at p. 93. 40 Ibid., at p. 241. 41 Markovits, Review Essay, supra note 32, at p. 1334. 42 Damasˇka, The Faces of Justice and State Authority, supra note 1, at p. 148.

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state and the person before the court, there is reason to fear that a confession may be the result of panic or illegitimate pressures rather than of the defendant’s deliberate assessment of his own best interests. Accordingly, civilist criminal procedure refuses to attribute special legal significance to as seemingly self-destructive a move as the defendant’s admission of guilt. As a result, civil law and common law differ only in the means they choose to protect the defendant’s autonomy. Common law simply grants procedural rights to self-protection, while civil law makes sure that these rights, in fact, are used.43 I find this explanation highly artificial and rather unconvincing. The paternalistic “making sure that rights are used” is not the ideal of personal autonomy. Moreover, its actual effect is to limit the autonomy of the defendant, since the legal process continues in order to determine the true state of affairs. In her summing up, Markovits defines in a succinct way her fundamental objections to Damasˇka’s analysis: “But the moment the law, any law, is involved, the element of conflict, which gives rise to the need of law in the first place, is so omnipresent that it no longer can serve as a device for distinguishing some legal processes that resolve conflicts from others that supposedly do not. All law is adversarial. Nor can the term ‘policy implementation’ be helpful in classifying different procedural styles, since policies may aim for a multitude of different goals, some more, some less willing to accommodate individual autonomy, and none – at least not in the way Damasˇka uses the term – entirely devoid of the goal of resolving conflicts.”44 I think that this criticism is based upon a misunderstanding of the term “conflict resolution”. The legal process in adjudication implies generally a conflict between parties and, therefore requires, in principle, its resolution by the court. However, the center of Damasˇka’s intention lies elsewhere: it is directed towards the ultimate objective of the conflict resolution, as emerging from the two ideal types of state, the active and reactive. The latter views the final objective of the legal process to reside in the very solving of the conflict, disregarding the substance of the resolution. Conversely, the active state aims at implementing a certain social policy through the adjudication, and is, therefore, directly and exclusively concerned with the substance of the conflictresolving decision. Damasˇka’s thesis is that the difference between these two polar ultimate objectives of the legal process influences the structure of the legal process. A different, fundamental criticism is voiced by Alex Stein in his Review Article45. After describing in rather great detail Damasˇka’s analysis, the author postulates a different comparative approach. His assumption is that the rectitude of judicial decisions is a most important common goal of all rationalist systems of adjudication. The main end of adjective law is to maximize the rectitude of judicial decisions 43

Markovits, Review Essay, supra note 32, at p. 1335 – 1336. Ibid., at p. 1337. 45 Stein, Alex: Review Article: A Political Analysis of Procedural Law, 51 Modern Law Review, 1988, pp. 659 – 675. 44

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and to minimize the evils of misdecision and inefficiency.46 Hence, the quality of a rational procedural framework is not dependent on possible political or socio-economical value judgments regarding the substantive justice served by this framework.47 In the author’s view, the analysis of possible deviations from the rationalist model of adjudication is capable of capturing a wider range of factors influencing the existing procedural designs. The procedural model of aspiration to the best achievable fact-finding and law-applying efficiency is proposed as an ideal model for comparison. Any kind of substantial diversities in procedural arrangements can exist only as a matter of deviation from the ideal model.48 I must admit that I have considerable difficulty in grasping the essence of this author’s critique. He might be right in his assumption that rational, decisional rectitude means accurately determining relevant facts in accordance with fair and predictable decisional standards.49 But the difference between the policy-implementing type of procedure and the conflict-solving one may lie in the very understanding of the determination of the relevant facts: in the one system the determination relates to the “objective” facts of the case; in the other one, the parties may agree among themselves on the facts to be submitted to the court’s decision. Since in the latter case, the legal process is directed at the objective of solving the conflict, the rational nature of fact determination by the parties cannot be denied. Given this objective, the result is outcome-efficient. Hence, contrary to the author’s assumption, a rationalist model of procedure is politically bound. Moreover, Damasˇka explicitly refers in his book to the adjective nature of procedural law, stating: “In the legal process of the reactive state, decisions are justified more in terms of the fairness of procedures employed than the accuracy of results obtained. In contrast, procedural rules and regulations in an activist state occupy a much less important and independent position: procedure is basically a handmaiden of substantive law. If the purpose of the legal process is to realize state policy in contingent cases, decisions are legitimated primarily in terms of the correct outcomes they embody. A proper procedure is one that increases the probability – or maximizes the likelihood – of achieving a substantively accurate result rather than one that successfully effects notions of fairness or protects some collateral substantive value. In this sense, then, the procedural law of the activist state follows substantive law as faithfully as its shadow. And as inasmuch as substantive law itself faithfully follows state policy, procedural law is doubly instrumental, or doubly derivative: like art in Plotinus’ vision, it can be likened to a shadow of a shadow. This should not be taken to mean, however, that accuracy of outcome justifies any procedure employed in attaining that result. Even in fully activist states, some procedural rules are of a dual nature – dual in the sense that their breach not only disrupts an internal procedural order but 46

Ibid., at pp. 659, 668. Ibid., at p. 662. 48 Ibid., at p. 669. 49 Ibid.

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also suggests that a substantive policy has been violated. For example, the coercion of a witness to testify in breach of a procedural provision may be classified as a criminal offense: criminal law may have been violated by forcing the witness to speak, and that violation is not automatically justified, even if the coerced testimony leads to decisive evidence and eventually to the accurate disposition of the case in hand. But it would be wrong to assume that an activist state recognizes as many rules of a dual nature as a reactive government does. An activist government is less ready to acknowledge that individual lives have their own loyalties, or that individuals can assert their self-interest against the state, as well as many other considerations that underlie the procedural rules which make more difficult the attainment of accurate results on the merits (e. g., testimonial privileges and restrictions on searches and seizures)”.50 Here, Damasˇka establishes the connection between the two types of state – the active and the reactive – and the structure of the legal process. This does not mean that other factors may not be also influential, as Alex Stein claims in his review-article. However, from a comparative point of view, a predominant causal connection exists between the ideal models, as established by Damasˇka, and the structural characteristics of the legal process. The same comment is appropriate for another critical observation made by Philip Lewis in his otherwise positive review of Damasˇka’s book.51 In the reviewer’s view the discussion of the policy-implementing proceeding is a disappointment.52 He states that an ambiguity affects the discussion of fact-ascertainment in the policy implementation context, adding: “[Damasˇka] insists that it will be particularly concerned with achieving a substantively accurate result. But just as the extreme reactive state may regard truth-finding in the light of a peace treaty, the extreme activist state may regard it in terms of paternalistic education; if a dramatic show-trial would demonstrate the power of the state, convert more people to its ideology, and widen the penumbra of conduct to be avoided because of possible state displeasure, it is not clear why substantive accuracy would be necessary in relation to the facts allegedly in issue …These examples suggest that some theory as to how citizens can expect legal decisions to be given and will react to them may be an important element in both reactive and activist states, and that the author’s concentration on the decision-making apparatus omits a necessary element”.53 Again, the possibility of additional factors is readily admitted by Damasˇka. Another critique is raised by Mitchel de Lasser referring to Damasˇka’s notion of comparative perspective.54 His argument goes as follows: “From what angle should 50

Damasˇka, The Faces of Justice and State Authority, supra note 1, at pp. 148 – 149. Lewis, Philip: Review, 14 Journal of Law and Society, 1987, pp. 502 – 504. 52 Ibid., at pp. 503 – 504. 53 Ibid., at p. 504. 54 de S. – O. – l’E. Lasser, Mitchel: Comparative Law and Comparative Literature: A Project in Progress, Utah L. Rev., 1997, pp. 471, 474 – 475 (footnotes omitted). 51

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one seek to depict the operation of a foreign legal system? Two answers have traditionally been suggested. The first, which is most convincingly put forward and practiced by Mirjan Damaska in his seminal The Faces of Justice and State Authority, consists of describing legal systems as they ‘appear from the outside’. Several objections to this approach come immediately to mind. To begin with, if one were to analyze a foreign system from the angle of a veritable outsider, how would one determine where to look and what to examine in the foreign system? Furthermore, how could one hope to understand how the foreign object of examination functions in relation to other objects in the system, and what the relative importance of one such object might be as opposed to another? In the context of an American comparatist viewing the French legal system entirely from the outside, how would one determine that the official French judicial decision is worthy of analysis or of particular emphasis? How could one claim to be able to deduce the dominance on daily judicial practice of that decision’s implicit portrait of the judicial role? As traditional American analyses of the French judicial system demonstrate, these outsider problems have led to caricatural results. The second answer to the perspective question is to attempt to view the foreign system ‘from the inside’. This approach is at least as, and likely more, promising than the former.” In the author’s view, the outsider’s view is bound to distort the reality of the foreign legal system because of that person’s necessarily limited perspective. But Damasˇka’s notion of “outside appearance” is completely different. It is not a restricted view from the outside; to the contrary: it is the broader one transcending the inherent limits of a merely domestic perspective. In Damasˇka’s own words:55 “Adjusted to the broad comparative scale, my scheme must always suggest how things appear from the outside – to a peregrine from another world [Footnote 21: The allusion is to all denizens of civitas peregrina, who are no more than transient aliens in existing states. See P. Brown, Augustine of Hippo, ch. 27, 322 – 25 (1967).], rather than to one whose roots are firmly planted in a particular country. Discrepant viewpoints can lead to serious misunderstandings: what appears from within as pronounced bureaucratization of authority may seem on a larger scale as a merely insignificant departure from prebureaucratic arrangements; a government that is experienced domestically as managerial (activist) may seem from a broader perspective laissez-faire. Such varying assessments can be reflected, of course, in variant characterizations of forms of justice as they relate to the structure and function of a particular government. Inevitably, then, the perspective that my scheme opens upon some systems will appear iconoclastic and bizarre, even offensive to a parochial sensibility. Also inevitable, from this perspective, is a detachment from domestic commitments, depreciation of internal disagreements, and – more generally – a dispassionate attitude of neutrality, violently suspect in some quarters. As a result, the illumination provided here will be at best like the winter sun: emitting light but little warmth. Before embarking on the intellectual adventure I propose the reader should be aware of the unavoidable 55

Damasˇka, The Faces of Justice and State Authority, supra note 1, at pp. 14 – 15.

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costs of looking at things from the outside: it is hard to be at once comfortable everywhere and at home anywhere. Quisquis ubique habitat nusquam habitat. [Footnote 22: ‘One who lives everywhere lives nowhere’ (Martial, VII, 73).” I would like to finish my paper with referring to two insights of Mirjan Damasˇka, that struck me as being most important in understanding the complexity of legal arrangements and in evaluating and judging the specific characteristics of another, foreign legal system. I quote: “Even within a single country, attitudes towards state authority can be deeply ambivalent. To paraphrase a poet,56 two roads to justice often diverge in our own midst: we wish to travel both and to be one traveler. While we like to lament the bureaucratization of justice, we also hold values dear that are inseparable from it; while we want our judges to display impartiality, we also want them to exhibit ‘activist’ involvement.”57

The metaphor for this typical attitude may be found in the idea of two opposite faces of justice, correspondingly to what the author himself affirms in another context: “Justice must become Janus-faced”.58 The other important insight of Damasˇka: “It may well be that a society conditioned to hierarchically constituted authority might find the resulting levels of dissonance, uncertainty, and instability intolerable. Americans can live with it, however. Ideas on the desirable degree of order and unity should not be projected from an environment that produced formal geometric gardening styles into a milieu whose topiary art consists of loose groupings of plants, rocks, and water left to their own devices.”59

Since my dear friend and colleague Mirjan Damasˇka apparently likes poetry and alluded to Robert Frost’s “The Road not Taken”, I will end my paper with the last stanza of that poem, in order to metaphorically describe the essence of my friend’s original contribution to comparative scholarship, assumedly in his own words (however without the poet’s known irony and mischief): I shall be telling this with a sigh Somewhere ages and ages hence: Two roads diverged in a wood, and I – I took the one less traveled by, And that made all the difference. 56

The poet alluded to is Robert Frost: “The Road not Taken”: Two roads diverged in a yellow wood And sorry I could not travel both And be one traveler, long I stood And looked down one as far as I could To where it bent in the undergrowth. 57 Ibid., at p. 240. 58 Ibid., at p. 90. 59 Ibid., at p. 239.

Changing Structures: From the ICTY to the ICC Albin Eser*

I. Introduction If one asked how the general procedural structure of the Ad hoc International Criminal Tribunals for former Yugoslavia (ICTY) and the permanent International Criminal Court (ICC) could be characterized and to what degree it may have changed, the common answer one might expect, is that the ICTY was primarily dominated by common law-adversarial features while the ICC was more influenced by civil law-inquisitorial elements.1 One must question, however, on what norms and facts this widespread opinion is based. Is it more or less the practical appearance in which the investigations and trials are performed? Or can this practice already be found in the underlying statutes and/or rules of procedure and evidence? And if so, to what degree are certain elements binding and programmatic for the whole procedural structure of these judicial institutions? This question is all the more topical since in a recent publication, contrary to mainstream assumptions, an attempt was made to depict the procedure of the ICC as basically inquisitorial (with impacts on the pre-trial role and duties of the prosecutor, in particular with regards to disclosure)2 and, still more, to interpret, if not even overstretch, this scheme towards a policy-implementing type of proceeding in terms of * Professor Dr. Dr. h. c. mult., Director Emeritus at the Max Planck Institute of Foreign and International Criminal Law Freiburg/Germany, former Judge at the International Criminal Tribunal for Former Yugoslavia The Hague/The Netherlands. 1 Cf. e. g., Ambos, Kai: International Criminal Procedure: “Adversarial”, “Inquisitorial” or Mixed?, in: Bohlander, Michael, (Ed.), International Criminal Justice: A Critical Analysis of Institutions and Procedures, Cameron May, London 2007, pp. 429 – 503; Mundis, Daryl A.: From ‘Common Law’ towards ‘Civil Law’: The Evolution of the ICTY Rules of Procedure and Evidence, Leiden Journal of International Law 14, 2001, pp. 367 – 382 (367 s.); Orie, Alphons: Accusatorial v. Inquisitorial Approach in International Criminal Proceedings Prior to the Establishment of the ICC and in the Proceedings before the ICC, in: Cassese, Antonio/ Gaeta, Paola/Jones, John (Eds.), The Rome Statute of the International Criminal Tribunal: A Commentary, Vol II, OUP, Oxford 2002, pp. 1439, 1463 ss.; Schiff, Benjamin N.: Building the International Criminal Court, CUP, Cambridge 2008, pp. 2, 53, 128 ss. 250 s., 260. 2 Heinze, Alexander: International Criminal Procedure and Disclosure. An Attempt to Better Understand and Regulate Disclosure and Communication on the Basis of a Comprehensive and Comparative Theory of Criminal Procedure, Duncker & Humblot, Berlin 2014.

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the “hierarchical ideal”, as one of two faces of justice that were designed by Mirjan Damasˇka3 to whom this publication is dedicated.4 Considering these contrary views, one in assuming adversariality as the original and still dominant structure of the international criminal justice system and the other in finding strong inquisitorial features, it appears appropriate to consider what provisions in the relevant statutes and rules may indeed be understood as indicators of one or the other procedural model – or perhaps even of a third one. For a closer look could reveal that provisions which would clearly and exclusively speak for one or the other model, though certainly existent could be much less frequent than superficial assumptions might expect. Such an outcome may be particularly disillusioning for those who are inclined to find the domestic procedure they have grown up with replicated in the international system they now have to work with; and since convinced of its superiority over other models, they would like to see it preserved, perhaps even by denoting it as not basically changeable. In challenging assumptions – not to say prejudices – of this kind with regards to the ICTY and the ICC as exemplary institutions of international criminal justice, it seems necessary that, rather than merely be blinded by the surface of the practice in which these courts appear to operate, to instead scrutinize the norms the procedural system is – correctly or supposedly – based on. This examination which in this context cannot be more than a selective one shall be approached in two ways: one, by identifying elements in statutes and accompanying procedural rules which appear as typically adversarial, inquisitorial or of some other hybrid nature, and the other one, by focusing on truth, fairness and expediency as three structural features that are of particular significance for the character of a justice system. This scrutiny shall be performed both regarding the ICTY (II.) and the ICC (III.). Before doing so, however, it must be clarified what is meant when speaking of “adversarial” and “inquisitorial”. Similar to Damasˇka’s aforementioned procedural models which he does not pretend to exist as such in a specific country but to serve merely as “ideals” that may more or less be realized in different national systems5, there is neither one unique adversarial procedure nor an inquisitorial one in reality. For it is not only that the adversarial common law family has quite different members

3

Damasˇka, Mirjan: The Faces of Justice and State Authority. A Comparative Approach to the Legal Process, Yale University Press, New Haven/London 1986. 4 As to this and the other “coordinate ideal” of justice in terms of a conflict solving type of proceeding cf. the partly agreeing, partly critical review of Swart, Bert: Damasˇka and the Faces of International Criminal Justice, Journal of International Criminal Justice 6, 2008, pp. 87 – 114, and as to Heinze’s adaption (supra note 2) the critical book review of Swoboda, Sabine: Zeitschrift für Internationale Strafrechtsdogmatik, ZIS 5/2015, pp. 305 – 311, www.zis-online.com (29. 09. 2015). 5 Cf. Damasˇka, Mirjan: Structures of Authority and Comparative Criminal Procedure, Yale Law Journal 84, 1975, pp. 480 – 544 (482).

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with divergent procedures,6, the inquisitorial civil law tradition, too, has evolved to various national diversities.7 So in order not to talk at cross purposes when using these ambivalent terms, it seems advisable to explain what is meant by each term in this context – without wanting to exclude, of course, that other descriptions8 may be equally appropriate, if not even better. In my understanding it is characteristic of the “adversarial” model that the main responsibility for collecting evidence lies with the parties: the prosecutor on the one hand and the defence counsel (presenting the defendant) on the other hand, whereas the judges consider themselves primarily as arbiters or “referees”. As, thus, it is considered the “parties’ case” – rather than that of the judges – to establish the relevant facts, it is, at least in principle, left to the parties what evidence to present, what witnesses and exhibits to introduce, and in what manner and sequence to perform the examination. In contrast, in the “inquisitorial” model the judge has to play a much more active role. Even where, as it is nowadays the rule, the preliminary investigation is performed by the prosecutor, a judge may already be involved in controlling the pretrial phase. And as soon as it comes to the trial, it is the judge who has the ex officio responsibility to establish the truth: though not at any price but at least as far as not hindered by legal bars and performed in a fair manner. Accordingly, the examination of witnesses in the trial is primarily led by the judge who, beyond evidence produced by the parties, may proprio motu call further witnesses or ask the parties for presenting additional exhibits.9 Due to the different weight given to the actors of the parties and the bench, the more “party driven” adversarial model is considered primarily to secure the fairness of the proceedings whereas the “judge led” inquisitorial model seems more engaged in the search for truth. However, although this juxtaposition may be correct in so far as it is mirroring contrary procedural propositions, it is wrong in confusing the aims and manners of a procedure. So instead of opposing fairness and truth as antagonism, both must be combined: in aiming at truth as basis of justice to be performed in fair manner.10 6 As in particular described by John H. Langbein: The Origins of Adversary Criminal Trial, OUP, Oxford 2003. 7 Cf. Richard Vogler: A World View of Criminal Justice, Ashgate, Aldershot 2005, p. 17 ss. 8 As those may in particular be found in various articles cited supra note 1; as informative cf. also the survey by Keen, Peter Carmichael: Tempered Adversariality: The Judicial Role and Trial Theory in International Criminal Tribunals, in: Leiden Journal of International Law 17, 2004, pp. 767 – 814 (769 ss.). 9 For further details both of distinctive features and convergent developments of these basic procedural models cf. Eser, Albin: Adversatorische und inquisitorische Verfahrensmodelle. Ein kritischer Vergleich mit Strukturalternativen, in: Schroeder, Friedrich-Christian/Kudratov, Manucher (Eds.), Die strafprozessuale Hauptverhandlung zwischen inquisitorischem und adversatorischem Modell. Lang, Frankfurt/Main 2014, pp .11 – 29 (12 ss.), www.freidok.unifreiburg.de/volltexte/9734 (29. 09. 2015). 10 For more details to the all too much neglected distinction between, and the coordination of, aims, means and manners of international criminal justice cf. Eser, Albin: Procedural Structure and Features of International Criminal Justice: Lessons from the ICTY, in: Swart, Bert/Zahar, Alexander/Sluiter, Göran (Eds.), The Legacy of the International Criminal Tri-

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With these juxtapositions in mind, it has to be asked which provisions in the statutes and procedural rules of the ICTYand the ICC could be identified as indicating an adversarial, an inquisitorial or a somehow mixed structure. As far as feasible, this search will start with the investigation phase, progressing to the indictment and trial, ending with the judgment and any appeals and finally in particular summarizing aspects of truth, fairness and expediency.

II. Origins and Amendments at the ICTY 1. Basic Neutrality of the ICTY Statute Starting with the Statute of the ICTY, there are only a few provisions which could serve as evidence of preference for one or the other procedural model. This is not surprising though since the ICTY statute is an unusually short court code, with altogether merely 34 articles of which – aside from organizational matters – not more than 10 are of a procedural nature anyhow. (a) The two provisions that like to be named as main indicators of adversariality11 are dealing with rights and duties of the actors in the proceedings: Article 16 (1) according to which “the Prosecutor shall be responsible for the investigation and prosecution of persons responsible for [relevant] crimes”, and Article 21 (4) (e) according to which the accused is – as one of his minimum guarantees – entitled “to examine, or have examined, the witnesses. against him”. As to both instances, however, it may be questioned whether they are indeed as peculiarly adversarial as commonly assumed. Regarding the prosecutor’s – and not the judges’ – responsibility for the investigation and prosecution of suspects, to consider this as a uniquely adversarial seems to be based on the outdated assumption that in the inquisitorial model the judge does not only function as judicator but also as accusator and investigator. Whereas this may have been the inquisitorial practice for many centuries, at least since the fundamental procedural reforms of the 19th century when the prosecutor was introduced as a new procedural organ beside the judge, it is the prosecutor’s function to initiate a prosecution and to collect evidence. Since thus in the same way as the prosecutor is the accuser in the adversarial system he also is it nowadays in inquisitorial jurisdictions, it is at least misleading to identify accusatorial with adversarial and to juxtapose with inquisitorial.12 bunal for the former Yugoslavia, OUP, Oxford 2011, pp. 108 – 148 (117 ss., 121 ss., 131 ss.), www.freidok.uni-freiburg.de/volltexte/9713 (29. 09. 2015). 11 Cf. Mundis, From ‘Common Law’ towards ‘Civil Law’, supra note 1, p. 368, fn. 4. 12 As, for instance, done by Orie (supra note 1) or Zappala, Salvatore: General Framework of International Criminal Procedure – Comparative models and the enduring relevance of the accusatorial – inquisitorial dichotomy, in: Sluiter, Goran/Friman, Håkan/Linton, Suzanna/ Vasiliev, Sergey/Zappala, Salvatore (Eds.), International Criminal Procedure. Principles and Rules e, OUP, Oxford 2013, pp. 44 – 53. (48). Cf. Eser, Albin: The ’Adversarial” Procedure: A Model Superior to Other Trial Systems in International Criminal Justice?, in: Kruessmann,

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But even where by doing so the prosecutor may be supported or controlled by an investigating judge (as in the case of the French juge d’instruction), it is primarily the prosecutor’s task to present evidence beyond a reasonable doubt. Thus, the only difference that in this respect may remain, is the ex officio duty of the inquisitorial judge to establish the truth13 while in the adversarial model the judge may leave this job to the parties. Yet, even if the judge’s duty to establish the truth is not explicitly addressed in the ICTY Statute can this silence so easily be interpreted in adversarial terms? Or wouldn’t it be feasible to suggest that the prosecutor’s primary responsibility for the investigation in Article 16 (1) does not relieve the judge from basing his judgment on the establishment of truth he is also obliged to search for?14 Regarding the defendant’s (or his counsel’s) right of cross-examination in Article. 21 (4) (e) this is no more a matchless feature of the adversary procedure either. Though cross-examining witnesses is certainly more visible when the presentation of evidence is principally performed by the parties, it is not unknown in primarily judgeled trials either (as for instance in Germany) to let the prosecutor and the defence question witnesses or even to leave the examination completely to them if so desired.15 (b) Provisions in the ICTY Statute which, on the other hand, could serve as inquisitorial indicators are equally few and scarcely stronger. The one element cited as typically inquisitorial is that the trial and judgment are entrusted to a bench of professional judges (Article 12), without requiring a jury.16 Yet, neither are lay judges foreign to inquisitorial procedures (as they do indeed exist as assizes or even as true juries in many continental-European countries), nor require adversarial procedures necessarily a jury of common law style (as it is still lacking in Japan), thus disproving the absence of a jury as inquisitorial indicator. The other provision highlighted as “the most striking civil-law element” in the ICTY Statute considered as typically inquisitorial in the ICTY Statute is the right

Thomas (Ed.), ICTY: Towards a fair trial?, NWV, Wien 2008, pp. 206 – 227 (208, 212, 218), www.freidok.uni-freiburg.de/volltexte/6317 (29. 09. 2015), Eser (supra 10), p. 118. For similar reasons wanting to avoid “inquisitorial”, Keen (supra note 8, at p. 769, fn 4) prefers to speak of “civil law systems” – what is not quite accurate though, since some civil law countries (like Italy) meanwhile adopted certain adversarial elements. 13 Therefore it would be less misleading, instead of using the historically predisposed term of “inquisitorial” (cf. Keen, ibid.), rather to speak of “instructorial” in terms of the judges’ duty to instruct themselves of the truth to the extent factually possible and legally permissible: cf. Eser, Albin: Reflexionen zum Prozesssystem und Verfahrensrecht internationaler Strafgerichtsbarkeit, in: Sieber, Ulrich et al. (Eds.), Strafrecht und Wirtschaftsstrafrecht. Festschtift für Klaus Tiedemann, Carl Heymanns Verlag, Köln 2008, pp. 1453 – 1472 (1467 ss.), www.freidok.uni-freiburg.de/volltexte/6275 (29. 09. 2015); Eser (supra 12), p. 226. 14 Cf. Eser (supra note 10), p. 117 ss. with further references. 15 Cf. §§ 239, 240 (2) (German) Strafprozeßordnung (Criminal Procedure Code). 16 As in particular emphasized by Meron, Theodor: Procedural Evolution in the ICTY, Journal of International Criminal Justice 2 , 2004, pp. 520 – 525 (522, fn. 3).

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of the prosecution for appeals even against a discharging judgment.17 However, although the prosecution’s right to appeal is certainly more common in civil-law jurisdictions, the question is whether its denial has essentially adversarial reasons. Or couldn’t it be that barring the prosecution from appealing an acquittal is rather rooted in the prohibition of double jeopardy and, thus, is neither included nor precluded by one or the other of the procedural models? At any rate, more inquisitorial influx may be found in the requirement that the judgement delivered in public shall be accompanied by a reasoned opinion in writing (Article 23 (1)), while the additional possibility of appending a separate or dissenting opinion is probably more common in adversarial appeal procedures. (c) Since the rest of the provisions of the ICTY Statute does not indicate a preference for the one or the other procedural model, it appears basically neutral. As therefore a sort of open book it offers itself to be filled by judge made law and practice. This is even expressly made possible by the ICTY Statute mandating the judges of the International Tribunal to “adopt rules of procedure and evidence” for the conduct of the proceedings (Article 15). 2. Adversarial Complements and Inquisitorial Supplements in the ICTY Rules of Procedure and Evidence (RPE) The refraining of the ICTY Statute from explicitly favoring a certain procedural model was, on the one hand, readily used by common law proponents to install rules of procedure and evidence in primarily adversarial terms (a).18 On the other hand, however, the openness of the ICTY Statute also left room for inquisitorial features and amendments (b). Furthermore taking into account that not few rules as over time developed appear somewhat ambivalent, at least on paper the ICTY procedure shows a mixed picture (c). (a) The key provision that gave the ICTY proceeding its adversarial appearance from the very beginning concerns the Presentation of Evidence (Rule 85). By entitling the parties to present the evidence and by ordering the sequence in the typical adversarial manner with the prosecutor to begin, the defence to follow and eventually to be continued with a rebuttal and rejoinder (A) and accordingly allowing examination-in17

Meron, ibid. Beside the detailed and comprehensive proposal of the US Department of Justice concerning rules of procedure and evidence that had been made early on in the process of establishing the ICTY’s structure (Meron, supra 16, at p. 522), particular influence was exerted by the American Bar Association and not the least due to the fact that the founding years of the ICTY were under considerable control of judges and lawyers from a common-law background; cf. Eser (supra note 10), p. 119 s. with further references. In more details with regards to the practical implementation and amendments of ICTY Rules referred to infra see. Boas, Gideon: A Code of Evidence and Procedure for International Criminal Law? The Rules of the ICTY, in: Boas, Gideon/Schabas, William A. (Eds.), International criminal law developments in the case law of the ICTY, Martinus Nijhoff Leiden/Boston 2003, pp. 1 – 35. 18

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chief, cross-examination and re-examination (B), it is the parties the main responsibility for establishing the relevant facts is assigned to. Although “the judge may at any stage put any question to the witness”, at first place “it shall be for the party calling the witness to examine such witness in chief” (B, sentence 2). In thereby giving weight to which party had called the witness, the adversarial distinguishing between a “witness of the prosecution” and “witness of the defence” seems to underlie. In a similar way, though not yet expressly speaking of “prosecution case” and “defence case”, the aforementioned sequence in Rule 85 (A) as well as the order of opening statements (Rule 84) are obviously based on this separation of the trial into two phases (i)–(iv), eventually continued (v) with evidence ordered by the chamber pursuant to Rule 98.19 Later on, in making use of the Tribunal’s power to amend the RPE (Rule 6), this dichotomy was formally introduced (Rules 65ter (G) and 73bis (E)20 and termed in the adversarial manner.21 As a consequence thereof, at the close of the prosecutor’s case the Trial Chamber is enabled to enter a judgment of acquittal if there is no evidence supporting a conviction (Rule 98bis).22 Further adversarial elements can be seen in the accused’s right to appear as a witness in his own defence (Rule 85 (C)) and in the – over time introduced – guilty pleas and plea agreement procedures (Rules 62bis, 62ter and 100).23 (b) Regarding provisions that point in the inquisitorial direction, the first ones to be mentioned as already concerning the investigation stage are the disclosure obligations of the prosecutor Rule 66), in particular of exculpatory material (Rule 68). Although these duties had already been provided for in the original version of the RPE, it seems to have been difficult for parties with an adversarial background to comply with them. In reaction thereto it became later on necessary to introduce sanctions for not complying with disclosure obligations (Rule 68bis).24 19

Cf. infra to note 39. Both Rules adopted 10 July 1998. 21 Although the „defence case“ is certainly a specialty of the adversarial procedure not existent in most civil law jurisdictions, as stressed by Mundis (supra note 1), p. 377, fn. 75, this difference can hardly be explained with his argument that in inquisitorial trials the defence would not have sufficient possibility to raise exculpatory issues. Although in that system the judge’s duty to establish the truth, of course, also extends to discharging evidence and mitigating circumstances, this does not discharge the defence counsel from his own responsibility and possibility to put forward exonerating material. 22 Adopted 10 July 1998. Cf. Calvo-Goller, Karin N.: The Trial Proceedings of the International. Criminal Court. ICTY and ICTR Precedents, Martinus Nijhoff, Leiden/Boston 2006, p. 98 ss. As to the different position at the ICC see infra III. 2 to note 52. 23 As to describing the defendant having to enter a plea as “the most evident indication of the Anglo-American adversarial influence” see Zappala (supra note 12), p. 48; cf. also Tochilovsky, Vladimir: Legal Systems and Cultures in the International Criminal Court: The Experience from the International Criminal Tribunal for the Former Yugoslavia, in: Fischer, Horst/Kreß, Claus/Lüder, Sacha Rolf (Eds.), International and National Prosecution of Crimes under International Law, Berlin Verlag, Berlin 2001, pp. 627 – 644 (638 s.). 24 Adopted 13 December 2001. 20

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A certainly still more fundamental move into the inquisitorial direction was the introduction of the pre-trial judge (Rule 65ter) in 199825 which, as particularly supported by France, was even considered as “the embryo of a true Investigative Chamber”26. In combination with Rule 107 also applicable in pre-appeal procedures27, both as pre-trial or as pre-appeal judge he or she can exert considerable influence on the parties: by performing status conferences (Rules 65ter (C) and 73bis)28, by establishing a work plan for the parties (Rule 65ter (D), by determining the number of witnesses the parties may call and the time available for presenting evidence (Rules 73bis (B), (C), 73ter (B)-(E)), or by inviting the prosecutor to reduce the number of counts charged in the indictment (73bis (D)).29 Further steps with inquisitorial indications can be seen in the admission of written statements and transcripts in lieu of oral testimony (Rules 89 (F), 92bis)30 and in the Trial Chamber’s discretion to take judicial notice of adjudicated facts or documentary evidence from other proceedings of the Tribunal relating to matters at issue in the current proceedings (Rule 94 (B))31. Besides those rather few rules regarding the admissibility of evidence, worthy of note is the absence of any specific rules by which the admission and weighing of evidence would be restrained.32 Consequently, by neither be bound by national rules of evidence (Rule 89 (A)), the chamber may admit all relevant proof unless its probative value is substantially outweighed by the need to ensure a fair trial (Rules 89 (C) and (D)). This high degree of free evaluation of evidence, however, is on the other hand counterbalanced by the duty of the Trial Chamber, different from a common-law

25

Adopted 10 July 1998. So in retrospect the former President of the ICTY Claude Jorda: The Major Hurdles and Accomplishments of the ICTY: What the ICC Can Learn from Them, Journal of International Criminal Justice 2, 2004, pp. 572 – 584 (578). 27 Meron (supra note 16), p. 522. 28 Both Rules – as also the following ones adopted – in the comprehensive reform package of 10 July 1998, partly with later amendments, as in particular of 17 November 1999. 29 Regarding the reasons that led to the rather substantial impact granted the judges on the indictment procedure cf. de Guzman, Margaret M./Schabas, William S.: Initiation of Investigations and Selection of Cases, in: Sluiter et al. (supra note 12), pp. 132 – 169 (138 s.); Tochilovsky (supra note 23), pp. 631 s., 635. 30 Both Rules adopted 1 December 2001; cf. Ambos (supra note 1), p. 485 ss. 31 Adopted 10 July 1998. – As to both innovations of inquisitorial character mentioned before cf. O-Gon Kwon: The Challenge of an International Criminal Trial as Seen from the Bench, Journal of International Criminal Justice 5, 2007, 360 – 376 (363 ss. and 368 ss, respectively). 32 Described as one of the important deviations from some adversarial systems by Antonio Cassese in his First Annual Report of the ICTY to the UN General Assembly 29 August 1994; cf. Boas (supra note 18), p. 19. 26

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jury trial, to give a reasoned judgment, both first pronounced orally in public and as soon as possible in writing (Rule 98ter).33 As to sentencing, the ICTY RPE are moving even further in an inquisitorial direction by expecting from the parties relevant information for determining an appropriate sentence already during the presentation of evidence (Rule 85 (A) (vi)34 and by requesting the parties to address matters of sentencing already in the closing arguments (Rule 86 (C))35, thus even prior to a guilty verdict. Another sentencing feature considered as inquisitorial, or at least different from adversarial jurisdictions, is the fact that, beside rather general references to the gravity of the offense and the individual circumstances of the convicted person in Article 24 (2) ICTY Statute, the Trial Chamber is not given any special sentencing rules.36 By having to render a reasoned opinion, however,37, there is at least an indirect way of controlling sentencing criteria and of securing equal treatment. (c) Beside those Rules that can be interpreted as representing more adversarial or more inquisitorial features, there are quite a few provisions in the ICTY RPE which somehow stand on the borderline between both models as they may not be foreign to each of them. This already concerns the preparation of the indictment by the prosecutor and its review and confirmation by a judge as the relevant Articles 18 (4) and 19 ICTY Statute are given concrete form in the RPE Rules 47 and 50. Although in an adversarial proceeding the judge may have less influence on the indictment and requests for additional material than he is in inquisitorial manner granted in Rule 47 (F), both systems require some involvement of a judge in the admission of an indictment. In a similar vein, the power of the trial chamber to exercise control over the mode and order of interrogating witnesses and presenting evidence (Rule 90 (F)) and the right of a judge at any stage to put any questions to the witness (Rule 85 (B)), are, at least in principle, not unique for the one or the other procedural model. But there are certainly differences in degree: whereas in an inquisitorial trial the presiding judge will be the dominant figure, in an adversarial trial he will restrict his role to merely controlling the parties as the main actors in the presentation of evidence. And whereas the inquisitorial judge, if not requested otherwise38, will be the principal examiner, questions of the adversarial judge will be exceptions, if in practice asked at all.

33 Adopted 10 July 1998. As to the strong incentive for a more active role of the judges in searching the truth by having to render a reasoned opinion see Kreß, Claus: The Procedural Law of the International Criminal Court in Outline: Anatomy of a Compromise, Journal of International Criminal Justice 1, 2003, pp. 603 – 617 (612). 34 Introduced 10 July 1998. 35 Also introduced 10 July 1998. 36 Meron (supra note 16), p. 523 s. 37 Cf. supra II. 1 to Article 23 (1) ICTY Statute. 38 Cf. supra to note 15.

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The same applies to the right of the trial chamber to order either party to produce additional evidence and to summon witnesses (Rule 98). And as if to make clear that the judges, especially when practiced in adversarial reluctance in this respect, should not hesitate to make use of this right, its independence from the parties was stressed by changing the original version of Rule 98: instead of merely conceding the chamber “itself” to summon witnesses, it may more strongly do so “proprio motu”.39 Before summing up what conclusions could be drawn form the Statute and the RPE of the ICTY to the character of its procedure, it appears appropriate to find out to what degree the various provisions may have an effect on three crucial elements of the procedure: ascertaining the truth (3.), guaranteeing fairness (4.) and pursuing expediency (5.). 3. Ascertaining the Truth Different from fairness, as will be seen, ascertaining the truth as a precondition of a truly truthful judgment seems not to have been in mind when the Statute of the ICTY was drafted; for if not overlooked, neither the term of truth nor any indication thereto is identifiable in this basic document. Fortunately, this lack is made up by the ICTY RPE in two respects: by obliging every witness solemnly to declare that he “will speak the truth, the whole truth and nothing but the truth” (Rule 90 (A)) and that the trial chamber shall exercise control over the mode and order of interrogating witnesses and presenting evidence so as “to make the interrogation and presentation effective for the ascertainment of the truth” (Rule 90 (F) (i)). Interestingly though, whereas witnesses are duty bound to tell the truth, the trial chamber is merely requested to organize the presentation of evidence in a truth supporting manner – without itself being obliged to search for the truth. Neither is the prosecutor under such a duty, particularly not with regard to exonerating facts; for even as far as the prosecutor has a duty of disclosure to the defence of any material which may suggest the innocence or mitigate the guilt of the accused (Rule 68 (i)40, he is not obliged to present it in the trial. Thus not really obligated to ascertain the truth, his task does not go further than to prove guilt to the satisfaction of the trial chamber “beyond a reasonable doubt” (Rule 87 (A), irrespective of what the truth may really be.41 4. Guaranteeing Fairness Unlike truth, fairness is already taken notice of in the ICTY Statute. This is done in two respects: firstly, by requesting the trial chamber to ensure a fair and expeditious 39

Adopted 25 July 1997. As originally there was a disclosure duty only when the existence of evidence known to the prosecutor “tends to suggest” exculpatory material, since the amendment of 28 July 2004 / the duty to disclose already starts when “ any material [ …] may suggest” the innocence etc. 41 But cf. also supra note 33. As to farther going commitments to establish the truth at the ICC cf. infra III.3. 40

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trial (Article 20 (1)) and secondly, by entitling the accused to a fair and public hearing (Article 21 (2)). Whereas in the second respect the beneficiary of fairness obviously shall be the accused, in the first respect fairness can be understood in broader terms: so by covering, if not even the prosecution42, at least the victims and witnesses, particularly so as due regard shall also be given their protection (Article 20 (1), last sentence). These guarantees are substantiated in the ICTY RPE in various stages: In the pre-trial stage, “in the interest of a fair and expeditious trial”, the chamber may invite the prosecutor to reduce the number of counts charged in the indictment and may fix the number of sites or incidents comprised in one or more of the charges (Rule 73bis (D)) and may direct the prosecutor to select the counts in the indictment on which to proceed (Rule 73bis (E). In the trial stage, fairness is guaranteed in three respects: by generally requiring the chamber to apply rules of evidence which will “best favour a fair determination of the matter” (Rule 89 (B)), by allowing the chamber to exclude evidence “if its probative value is substantially outweighed by the need to ensure a fair trial” (Rules 70 (G) and 89 (D)), and by empowering the chamber, in order to guarantee the accused a “fair trial”, to exclude a person from the courtroom (Rule 80 (A)). Concerning both the pretrial and trial stage, the trial chamber may permit interlocutory appeals if the decision involves an issue that would significantly affect “the fair and expeditious conduct of the proceedings or the outcome of the trial” (Rule 73 (B)). What – as already in the ICTY Statute – is left open, however, is the question what fairness means in concrete terms. When determining this is entrusted to the judiciary, the Tribunal may perhaps draw some guidance from the minimum guarantees of Article 21 (4). Another question is: whom the fairness rules are designed to serve: only the accused or also other participants in a criminal case, in particular victims and witnesses? While Article 20 (1) ICTY Statute, as suggested before, offers a broad coverage, the RPE seems to distinguish between the accused and other persons, this at least in so far as the exclusion of a person from the courtroom is permitted only for guaranteeing the accused the right to a fair trial (Rule 80 (A)). But shouldn’t victims and witnesses enjoy such fairness as well?

42

As this was recognized by the ICTR in Prosecutor v. Karemera et al., Decision on Severance of André Rwamakuba and Amendments of the Indictment, ICTR-98 – 44 PTC, 7 December 2004, para. 26; cf. Tochilovsky, Vladimir: The Law and Jurisprudence of the International Criminal Tribunals and Courts. Procedure and Human Right Aspects, 2nd ed., Intersentia, Cambridge 2014, p. 448. Cf. also infra IV. to Damasˇka.

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5. Pursuing Expediency As can already be seen from the rules on fairness, these are very often combined with provisions concerning the expediency of the proceedings. This already applies to (Article 20 (1)) ICTY Statute according to which the judges must ensure that the trial not only be fair but also expeditious. Although one might think that expediency is an element of fairness anyhow, by separately mentioning these two requirements it appears possible to conclude that a lengthy proceeding is not necessarily unfair. By both distinguishing and coupling these maxims, however, the message seems to be that each of them has its own value and that they should ideally be pursued together. In these terms identically requiring fairness and expediency are the ICTY Rules 73bis (D) and (E) concerning the reduction of counts by the prosecutor, with the additional right of the chamber to determine the number of witnesses the prosecutor may call and the time available to him for presenting evidence (Rule 73bis(C)). In the same vein the prosecutor may be called upon by the chamber to shorten the estimated length of the examination-in-chief for some witnesses (Rule 73bis(B)). Likewise referring both to fairness and expediency are possible restrictions on interlocutory appeals (Rule 73 (B)). This remedy, by the way, is also a remarkable example of RPE changes which had to be made in reaction to forensic experiences. In expecting that it would be both fair and less time consuming not to wait with motions until the conclusion of the trial, in the original Rule 73 (B) of 1997 interlocutory appeals had been admitted in a rather generous manner. Since this led to a flood of appeals, however, in respecting fairness and expediency certain restrictions had to be made.43 Different from these combinations with fairness, in one instance expediency also appears with truth, possibly even contravening it, though. For by empowering the trial chamber to exercise control over the mode and order of presenting evidence so as to “avoid needless consumption of time” (Rule 90 (F) (ii)), truth can run the risk of being sacrificed for expediency. 6. Preliminary Result Perhaps it seems to be piecemeal to determine the character of the ICTY proceeding by trying to identify single provisions of its statute and procedural rules as more adversarial, inquisitorial or otherwise. But, if the basic instruments do not present the procedure explicitly as of this or that character, there is no other way. Having in these terms explored the ICTY Statute and its RPE, the following can be summarized:

43 After Rule 73 (B) had been adopted 12 November 1997, sections (B)-(D) were basically remodeled in amendments of 12 April 2001 and 8 Decmber 2004. Cf. Meron (supra note 16), p. 521 s., Tochilovski (supra note 42), p. 1118 s.

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Contrary to common assumption, the ICTY Statute did not design the tribunal’s procedure as adversarial but remained basically neutral. Thus being an open book that finally had to be filled by judge made law and practice, very much depended on how the RPE would be framed. Not in the least under substantial common law influence, the original version was certainly given a primarily adversarial face. The more the RPE developed further by supplements and innovations, however, the more the structure of the ICTY moved into an inquisitorial direction. This picture is also reflected in three major elements: Whereas the search for truth finds itself hardly expressed in the ICTY documents, guaranteeing fairness is of their concern right from the beginning. Although expediency of the proceedings was similarly aimed for, adversarial hurdles in this regard44 required corrections. Thus it is not only that the ICTY Statute had refrained from onesided favoring of an adversarial scheme, even the RPE, though starting into this direction, later on became intermingled with inquisitorial features. If despite this at least mixed legal structure on paper the ICTY’s image is still that of an adversarial procedure, it is the forensic practice that marks the picture. Although the ICTY RPE would allow the chambers a more proactive role in controlling the proceedings, it seems to be difficult to relinquish perceptions and attitudes learned in domestic experience. Though no relevant empirical data can be offered, this prevalence of habits over norms may explain that, while some ICTY chambers would indeed make use of their right to ask questions, to request the parties to produce additional evidence or even to summon witnesses proprio motu, others will scarcely do so. It is no secret either that the one will have a more inquisitorial background whereas the others will rather come from common law jurisdictions.45

III. Developments at the ICC In comparison with the ICTY, regarding the sources of information on the structure of the procedure the provisions for the ICC defer in two respects: While the ICTY documents had been rather scarce with procedural indications, the ICC documents offer more information. And whereas the ICTY Statute left it to the RPE to give the procedure more concrete form, most of the ICC structure is already designed in the Statute, thus leaving the RPE not much to add. A further feature to mention is the learning factor of the ICC from the experiences of the ICTY.46

44

As described in more detail in Eser (supra note 10), p. 138 ss.; cf. also Mundis (supra note 1), p. 370 s. 45 Cf. Combs, Nancy: Trial Process – Judicial Powers During Trial Proceedings, in: Sluiter et al. (supra note 12), pp. 689 – 818 (698 s.) (700 s.). 46 Cf. Jorda (supra note 26), p. 578 ss., Schiff (supra note 1), p. 42 ss.

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1. Further Shifts to a Mixed Structure in the ICC Statute As already mentioned, different from the ICTY Statute’s silence with regard to the character of its procedure, the ICC Statute is both the main source of information and in leading its procedure to a hybrid position. The one provision among almost no other that may be claimed as a clear indication of adversariality is the parties’ right to submit evidence (Article 64 (8) (b)). But if this seemed to mean that the judges should – in adversarial manner – lean back and leave the presentation of the evidence entirely to the parties, one has to take notice of the context of this presentation and examination right of the parties. For not only that it is in the same article embedded in the power of the presiding judge to give directions for the conduct of proceedings and that the submission of evidence by the parties is subject to the directions of the presiding judge, the trial chamber has much more power than usual in the controlling of already the preparation and then of the performance of the trial: in particular to order the production of evidence in addition to that already collected prior to the trial or presented during the trial by the parties (Article 64 (6) (d)), to request the prosecutor to present additional evidence in the case of a guilty plea of the accused (Article 65 (4)), and to take all necessary steps to maintain order in the course of a hearing (Article 64 (9) (b)). A particularly important step in inquisitorial direction is the duty of the prosecutor, by extending the investigation on all facts relevant to an assessment of criminal responsibility, to investigate incriminating and exonerating circumstances equally (Article 54 (1) (a)).47 In the same vein levelling the adversarial antagonism of the parties, the prosecutor shall disclose to the defence evidence which he or she believes shows or tends to show the innocence of the accused, or to mitigate his guilt, or which may affect the credibility of prosecution evidence (Article 67 (2) sentence 1). And as if seeming afraid that the prosecutor might too readily assume exculpatory irrelevance, the decision is entrusted to the court (sentence 2). Without wanting to repeat in detail what other inquisitorial elements that already had been installed in the ICTY procedure were preserved in the ICC Statute, indicative examples in particular be to mentioned are @ the further strengthening of the pre-trial chamber (Articles 57 – 61),48

47 Cf. Bergsmo, Morten/Bekou, Olympia: Article 54: Duties and Powers of the Prosecutor, in: Triffterer, Otto/Ambos, Kai (Eds.), Commentary on the Rome Statute of the International Criminal Court, 3rd ed., C. H. Beck, München 2016, Article 54, margin no. 3, p. 11. 48 Cf. De Smit, Simon: A Structural Analysis of the Role of the Pre-Trial Chamber in the fact-finding process of the ICC, in: Stahn, Carsten/Sluiter, Göran (Eds.), The Emerging Practice of the International Criminal Court, Martinus Nijhoff, Leiden/Boston 2009, pp. 405 – 440.

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@ the presentation of evidence relevant to the sentence during and prior to the close of the trial (Article 76),49 @ regarding the judgment and other judicial decisions the requirement of a written opinion in form of a full and reasoned statement of the trial chamber’s findings on the evidence and conclusions (Article 74 (5)), and @ the prosecutor’s right of appeal against an acquittal (Article 81).

2. Implementing Provisions in the ICC RPE Thus, since the basic procedural lines had already been drawn by the ICC Statute, the RPE was not left more than to implement them in more concrete form – whereby the length and detail of some of these rules is not necessarily a sign of additional significance. As far as the RPE provisions, dealing with the various stages of the proceedings (Chapter 4 Rules 63 – 103), the investigation and prosecution (Chapter 5, Rules 104 – 130) and the trial procedure (Chapter 6, Rules 131 – 144), render indications for the character of the procedure, these point in an inquisitorial direction. This in particular applies to @ the duty of the prosecutor to provide the defence with the names of witnesses who are intended to be called to testify sufficiently in advance so as to enable an adequate preparation of the defence (Rule 76), @ the duty of the prosecutor to permit the defence to inspect any books, documents etc. which are material for its preparation (Rules 77 and 78), @ the equivalent disclosure duties by the defence (Rule 79), @ the duty of the defence to give notice to the prosecutor sufficiently in advance when intending to raise grounds for excluding criminal responsibility (Rule 80), @ the trial chamber’s power to make any necessary orders for the disclosure of documents or information not previously disclosed and for the production of additional evidence (Rule 84), @ the possibility of agreements between the prosecutor and the defence not to contest certain alleged facts etc, provided that the chamber is not of the opinion that a more complete presentation is required in the interest of justice, in particular the interests of the victims (Rule 69), thus both subjecting the parties’ discretion in the presentation of evidence to the chamber’s control and putting the victim as a sort of third party at their side,

49 As to different approaches to the separation of the verdict and sentencing cf. Safferling, Christoph: International Criminal Procedure, OUP, Oxford 2012, p. 436 ss.

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@ the trial chamber’s discretion to assess freely all evidence with regard to its relevance or admissibility (Rules 63 (2)), and @ the chamber’s duty to give reasons for any rulings on evidentiary matters (Rule 64 (2)). Perhaps even more indicative for the ICC’s procedural character is not what the RPE had to supplement but what they do not address. This concerns the separation of the trial into “prosecution case” and “defence case”. Whereas the ICTY trial was right from the beginning designed in this manner and later on formerly separated in these two phases and explicitly termed in this manner50, neither the ICC Statute nor its RPE are providing such an adversarial structure of the trial.51 Consequently there is no room for an intermediate judgment of acquittal as it is available at the ICTY.52 Furthermore, not only that Rule 140 relevant for the conduct of the proceedings does not provide a scheme as it exists for the sequence of the presentation of evidence in the ICTY trial (Rule 85 (A)), in the ICC procedure it is the trial chamber that enjoys primary discretion to give directions for the conduct of proceedings, thus making the parties second in coming to an agreement on the order and manner in which the evidence should be submitted (ICC Statute Article 64 (8) (b), RPE 140 (1)).53 No less departing from adversarial customs, the trial chamber is even given the right to question a witness before he is questioned by the party that is to submit evidence by this witness (Rule 140 (2) (c)). Interestingly though, despite the normative disregard in the ICC provisions, speaking in terms of ”prosecution case” and “defence case” still seems favoured in practice.54 This again may be explained by the difficulty to leave adversarial perceptions behind.55 50

Cg. supra II. 2 (a) to note 20. Cf. Bitti, Gilbert: Article 64: Functions and Powers of the Trial Chamber, in: Triffterer/ Ambos (supra note 47), Art. 64, margin no. 44; Kreß (supra note 23), p. 613. 52 According to ICTY RPE Rule 98bis ; but cf. Calvo-Goller (supra note 22), p. 287 s. 53 Cf. Bitti (supra note 51), Article 64, margin no. 45. 54 Vasiliev, Sergey: Trial Process: Structure of Contested Trial, in: Sluiter et al. (supra note 12), pp. 543 – 682 (600, 610 ss). 55 Cf. supra II. 6 to note 45. As far as this dichotomy of the trial is considered to be required by the presumption of innocence, however, this assumption seems to be based on a widespread misunderstanding of this guarantee. For when literally understood as if a not finally convicted, though suspect, person would have to be treated as innocent, how could it then be possible to perform an investigation, not to speak of a trial, against such an “innocent” person at all? Therefore, while a non-convicted person may not be dealt with as guilty, that does not preclude, under relevant suspicions given, to treat this person as an accused who may be confronted with incriminating evidence he may defend himself against in a trial (as to such an inherently consistent understanding of the presumption of innocence cf. Eser, Albin: Justizielle Rechte, in: Meyer, Jürgen (Ed.), Charta der Grundrechte der Europäischen Union, 4th ed., Baden-Baden 2014, pp. 651 – 717 (674 ss), www.freidok.uni-freiburg.de/volltexte/9723 (29. 09. 2015). Thus another explanation for separating the trial might only be the prosecutor’s burden of proof, if interpreted in the extreme adversarial way that the defence is not supposed to do anything as long as the incriminating evidence does not appear sufficient. Even if this position may be feasible in cases with few charges to be tried within an accepted period of 51

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Yet, even if the ICC procedure may still appear more adversarial in practice, on the paper of its Statute and RPE, its mixed structure is still more moving in an inquisitorial direction than that of the ICTY.56 This ambivalent impression is also recognisable by the way in which the major elements of truth (3), fairness (4) and expediency (5) are dealt with. 3. Ascertaining the Truth Different from the ICTY in whose Statute truth was not mentioned at all, 57 the ICC Statute takes notice of it in various respects: @ By obliging the prosecutor to investigate incriminating and exonerating circumstances equally “in order to establish the truth” (Article 54 (1) (a)), truth is – at least implicitly – proclaimed as a goal of the ICC. @ In thereby being lifted to a more neutral position, the prosecutor is turned from an one-sided adversary of the defendant to a non-partisan searcher of the truth, thus the adversarial parties antagonism is at least partially suspended.58 @ By giving the court the authority to request the submission of all evidence that it considers necessary for the “determination of the truth” (Article 69 (3)), truth must also be of concern for the court. Yet, since merely phrased as “authority” and not as a duty of the court to request the submission of evidence relevant for the truth, this provision – by not adopting a stronger proposal of the Preparatory Commission59 – still falls behind the ex officio duty of an inquisitorial judge to establish the truth,60 @ By requiring the witnesses before testifying “to give an undertaking as to the truthfulness of the evidence” to be given (Article 69) (1)), the witness’ duty to tell the truth is already pronounced in the ICC Statute rather than, as it is the case at the ICTY, to be left to the RPE.

time from both sides, in more complex and lengthy proceedings it is difficult to see how long distances between dealing with the same counts from two sides connected with numerous repetitions could be reconciled with other maxims of international criminal justice, as in particular with the principle of expediency (cf. Eser, supra note 10, p. 138 ss). 56 Though the kind and degree of mixture may be evaluated differently: whereas, for instance, Kreß (supra note 33, at p. 603 ss) speaks of a “unique compromise structure” whose appropriate balance between the adversarial and inquisitorial elements has been left to the judges to decide, in Zappala’s more critical view (supra note 12, at p. 50) “the end results can again be roughly summarized as a mixed (perhaps chaotic?) procedural system with some adversarial and some inquisitorial traits”. 57 Cf. supra II. 3. 58 Cf. Kirsch, Stefan: The Trial Proceedings before the ICC, International Criminal Law Review 6, 2006, pp. 275 – 292 (285 s.). 59 Cf. Kirsch (supra note 58), p. 276 s. 60 Cf. Eser (supra note 10), p. 125 s, Safferling (supra note 49), p. 435 s.

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Regarding the RPE, however, different from those of the ICTY in which the relevant truth provisions are to be found,61 the ICC RPE do not prescribe more than the “solemn undertaking” by the witness “to speak the truth, the whole truth and nothing but the truth” (Rule 66 (1)). Thus other truth relevant matters seem to have been considered sufficiently dealt with in the ICC Statute. 4. Guaranteeing Fairness Different from rather few fairness pronouncements in the Statute of the ICTY and instead more in its RPE, with the ICC it is just the other way around: whereas there most fairness provisions can already be found in the Statute, there are only few in the RPE. Regarding the content the provisions of the ICC Statute are similar to that of the ICTY: @ in obliging the trial chamber to ensure a fair and expeditious trial (Article 64 (2)), @ in requesting the trial chamber to facilitate the fair and expeditious conduct of the proceedings by conferring with the parties (Article 64 (3) (a)), @ by authorizing the trial chamber, if necessary for its effective and fair functioning, to refer preliminary issues to the pre-trial chamber (Article 64 (4)), @ by empowering the presiding judge to give directions for the conduct of the proceedings, including to ensure that they are conducted in a fair and impartial manner (Article 64 (8) (b)), @ by entitling the accused to a fair hearing conducted impartially, substantiated by various minimum guarantees (Article 67 (1)), @ by requesting that measures taken for the protection of victims and witnesses shall not be prejudicial or insistent with the rights of the accused and the fair and impartial trial (Article 68 (1)), and @ by allowing an appeal to be based, beside errors of law or fact, on any other ground that affects the fairness or reliability of the proceedings or decision (Articles 81 (1) (b) (iv), 83 (2)). This list of explicit references to fairness is supplemented by the ICC RPE, if not overlooked, merely with two provisions: @ by requesting the trial chamber, in order to enable the parties to prepare for trial and to facilitate the fair and expeditious conduct of the proceedings, to make any necessary orders for the disclosure of documents or information not previously disclosed (Rule 84), and

61

Cf. supra II. 3.

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@ by authorizing the court to set time limits regarding the conduct of any proceedings in order to facilitate fair and expeditious proceedings, bearing in mind in particular the rights of the defence and the victims (Rule 101 (1)). A novel feature in these ICC provisions, worthy of mention, as not yet known in the ICTY documents, is the unusual combination of fairness with impartiality instead of expediency (Articles 64 (8) (b), 67 (1), 68 (1)). Whether this is a reaction to the lack of impartiality already observed or simply accidental, is open for speculation. At any rate it is hardly of structural significance. 5. Pursuing Expediency As noticed before, requests of expediency like to be combined with fairness. This applies to @ the general obligation of the trial chamber to ensure a fair and expeditious trial (ICC Statute Article 64 (2)), @ the general authorization of the presiding judge to give directions for the conduct of the proceedings (Article 64 (8) (b)), @ the more particular duty of the trial chamber to confer with the parties regarding the conduct of the proceedings (Article 64 (3) (a)), @ the referral of preliminary issues to the pre-trial chamber (Article 64 (4)), @ the orders for the disclosure of documents and information (ICC RPE Rule 84), and @ the right of the court to set time limits regarding the conduct of any proceedings (Rule 101 (1)). Interestingly though, in comparison with the expediency provisions of the ICTY62 there are some differences to be noted: a more formal one in that at the ICTY the relevant provisions are mainly regulated in the RPE whereas at the ICC they are mainly placed in the Statute, and more substantial ones in that the items that are dealt with are partly common to both courts whereas others differ. Both jurisdictions have in common the general principle of expediency (ICTY Statute Article 20 (1) and ICC Statute Article 64 (2) respectively), and the power of the court to set time limits regarding the conduct of the proceedings (ICC Rule 101 (1)) or in particular for presenting evidence (ICTY Rules 73bis(B), (C), 90 (F) (ii)). Where they differ, it seems to be due to a different focus: While the ICTY wants to further expediency by requesting the prosecutor to reduce the counts of the indictment (RPE Rules 73bis (D) and (E)) and to keep interlocutory appeals under control 62

Supra II. 5.

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(Rule 73 (B)), the ICC expects more expediency especially by referral of preliminary issues to the pre-trial chamber (Statute Article 64 (4)) and by disclosure orders (RPE Rule 84). In practice, however, attempts to streamline the procedure so far have not been significantly successful.63

IV. Conclusions If this survey on the development of the ICTY and ICC procedures has given the impression that it was prejudicial in favoring one over an other procedural model, then the purpose of this presentation would be misunderstood. Rather, by exploring flux and variety of different influences it mainly was to show two features: the openness of the written provisions for different developments and the need, by leaving domestic archetypes behind, to find appropriate international criminal procedures of its own. As to the first concerning the past, when trying to identify adversarial, inquisitorial or other procedural elements in the statutes and rules of the ICTY and the ICC, this was not done for demonstrating superiority of one over the other but to refute the widespread belief that these international criminal procedures have, right from the being and even across various changes, been and remained basically adversarial. That may look so in the way they are practiced. If reading though what is in the written documents, the picture is a quite different one. This is especially true of the ICTY Statute which hardly gave any structural guidance for the procedure of this tribunal. Thus left to be complemented by judge made rules of procedure and evidence prominently influenced from common law traditions, the procedure received its adversarial appearance. But when more and more troubled by practical problems, in particular with the excessive length of trials not the least due to the predominant role of the parties,64 amendments in terms of a more proactive role of the judges by introducing pre-trial chambers and by strengthening their power of control already led the ICTY proceedings in inquisitorial direction. And as if to prevent that newly to be established international courts fall back behind already reached positions, the founders of the ICC, rather than leaving it to the RPE, already designed major features of its proceedings in its Statute, as in particular with comparatively strong powers of the judges both in the pre-trial and in the trial, in promoting the prosecutor to a more neutral role by obliging him to investigate incriminating and exonerating circumstances equally, and thus in furthering the ascertainment of truth. Of the lessons that can be drawn from this development and experience, only these may be mentioned: On the one hand it is welcome if the statute of an international criminal tribunal, rather than prescribing its procedural structure in a rigid form, leaves room for adapting it to its special needs by way of non-statutory rules that 63 64

Cf. Zappala (supra note 12), p. 50 s. Cf. Kwon (supra note 31), p. 361 s.; Mundis (supra note 1), p. 368.

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can more easily be amended. In these terms, to the same degree and in the same way as such rules can be established they may also be changed. Thus they are less “eternal” and more easily correctible when turning out as not functioning well enough, as well as more quickly adaptable to new needs. On the other hand, however, if the statute leaves too much room to be filled by judge made law and practice as it was the case with the ICTY, very much depends on the ability and willingness of the rule makers, instead of simply implementing the own domestic model, to be oriented entirely towards the special conditions and needs of international criminal justice, regardless which national models or procedural traditions they may come from – an expectation of disregarding own domestic practices that was hardly present when the ICTY RPE were originally generated. Against this background it is understandable that major elements of the ICC procedure were already laid down in this Statute instead of being left to its RPE. As secondly with regard to the future, though lessons of the past were mostly to be learned from adversarial deficiencies, this is not to be understood as a call for simply replacing the procedure with some kind of an inquisitorial one. On the contrary, one of the messages hopefully emanating from these procedural observations is the proposition that international criminal justice can neither be organized by plainly adopting and then adjusting a domestic model, be it adversarial or otherwise, nor by simply blending different models. What rather is necessary, first, is to identify the special aims international criminal justice is being established for, and, secondly, to develop procedural means and modes best suited to achieve those goals. Thus, instead of choosing a model of domestic criminal justice of this or that provenience and trying here and there to make it fit to the special needs of international criminal justice, one should – without feeling bound to a certain traditional system – be keen enough to construct a procedure top-down: from the aims international criminal justice has to pursue towards the best appropriate means to reach them.65 It is also in these terms, I think, when Mirjan Damasˇka with regard to fairness in international criminal justice states that it “need not be identical with that of national criminal law and enforcement”. And in referring to a concept according to which fairness should be expanded beyond its traditional domestic confines and “not be focused on the position of defendants, but extend to other procedural participants as well”, he continues that according to this view “fairness to defendants should be balanced with fairness to victims and other procedural protagonists – including prosecutors – taking into account the peculiar problems they encounter in the administration of interna-

65 As to the various goals to strive for and the means and manners therefore to be employed cf. Eser (supra note 10), p. 117 ss., idem: Transnationale Strafgerichtsbarkeit: Erkenntnisse zu ihrer Notwendigkeit und Verfahrensstruktur, in: Hefendehl, Roland/Hörnle, Tatjana/Greco, Luis (Hrsg.), Streitbare Strafrechtswissenschaft. Festschrift für Bernd Schünemann zum 70. Geburtstag. De Gruyter, Berlin 2014, pp. 1045 – 1058 (1053 ss.), www.freidok.uni-frei burg.de/volltexte/9699 (29. 09. 2015); cf. also Zappala (supra note 23): p. 53 s.

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tional criminal justice”.66 In the same vein and an even more general form he suggests “that international criminal justice should be evaluated by sui generis standards, and that these standards need not be identical with the most demanding ones found in national justice systems”.67 As it was found in this survey on procedural developments at the ICTY and ICC, the present state of international criminal justice is not more than a mixture of competing models: certainly not entirely bad but still not good enough since in particular suffering from structural inconsistences not the least due to divergent legal-political objectives. In order to gain international criminal justice its own character and standing, its substantive aims and procedural requirements must be perceived and constructed from a truly transnational angle.

66

Damasˇka, Mirjan: Reflections on Fairness in International Criminal Justice, Journal of International Criminal Justice 10, 2012, pp. 611 – 620 (514 s.) 67 Damasˇka, Mirjan: Should national and international justice be subjected to the same evaluative framework?, in: Sluiter et al. (supra note 12), pp. 1418 – 1422 (1422).

Re-visiting ‘Evidentiary Barriers to Conviction and Models of Criminal Procedure’ after Forty Years John D. Jackson*

I. Introduction Although Mirjan Damasˇka’s deepest influence on modern comparative law as a whole is said to have come from his pathbreaking book, The Faces of Justice and State Authority: A Comparative Approach to the LegalProcess,1 the work that criminal justice scholars continue to cite most widely and is considered to be his seminal contribution to comparative criminal procedure is an article that was published more than a decade before this, ‘Evidentiary Barriers to Conviction and Two Models of Criminal Procedure’ (hereafter referred to as ‘Evidentiary Barriers’).2 In this paper I want to revisit this article and consider why when the criminal justice landscape has changed so much in the intervening years, it continues to be such an inspiration for criminal proceduralists. I will first argue that the article was pathbreaking in its own time because instead of dwelling on selected features of particular systems in order to conduct comparative analysis of common law and civil law systems, it set about identifying traits or ‘styles’ and drew in particular upon two simple ‘idealtypes’ to draw upon the contrast between these systems – that of a contest and an inquest. Second, I will argue that these tools of analysis can still be employed today to try to capture changes that have taken place within these systems in the intervening over 40 years. It will be argued that the high evidentiary barriers to conviction that Damasˇka detected in common law systems back in 1973 have in the intervening years been lowered to the point where it may be asked whether the lodestar guiding the orbit of some of these systems is any longer one of contest at all. Although this raises questions about the continuing utility of the contest inquest dichotomy as models for charting changes within common law and civil law systems, the ideological preferences underpinning the models that Damasˇka points to in his article remain highly relevant in determining how procedural choices are made. * Professor of Comparative Criminal Law and Procedure, University of Nottingham, UK. 1 Damasˇka, Mirjan: The Faces of Justice and State Authority, Yale University Press, New Haven 1986. 2 Damasˇka, Mirjan: Evidentiary Barriers to Conviction and Two Models of Criminal Procedure, 121 University of Pensylvenia Law Review, 1973, pp. 506 – 589.

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II. Evidentiary Styles and Evidentiary Barriers From the beginning of ‘Evidentiary Barriers’ one detects a different approach towards comparative research of criminal justice systems which was then still in its infancy. Damasˇka starts by raising two commonly voiced beliefs: that the rules of evidence under the common law adversary system of criminal procedure present much more formidable obstacles to conviction than do corresponding rules in the non-adversary civil law systems and that these ‘higher evidentiary barricades’ somehow emanate from the very nature of adversary proceedings.3 But he quickly identifies a particular problem to be surmounted before these beliefs can be tested which is how to go about uncovering what is distinctive about ‘adversary’ and ‘non-adversary’ procedures. Within each of the two general legal systems, common law and civil law, there are so many differences as we move from jurisdiction to another, both in the law and in practice, that it is difficult to determine what is at the core of the contrast between the different systems. Although this question is not directly confronted until the second part of the article when he considers the link between evidentiary barriers and adversarial and non-adversarial proceedings, Damasˇka gives the reader a clue to the different manner in which he is going to approach the much used adversarial and non-adversarial dichotomy by introducing the notion of ‘evidentiary style’ into his analysis of whether there are greater evidentiary barriers in adversary proceedings.4 Whereas traditional comparative scholarship dwelt more on the different features of particular legal systems, Damasˇka concentrates on the more abstract idea of ‘style’ thereby indicating an intent to keep the discussion focused on a certain manner of doing justice rather than on what he later describes as the ‘tyranny of details’.5 He is nevertheless quick to assure the reader that distinct common law and civil law evidentiary styles do in fact exist and are not the mere invention of scholars by claiming that they are the product of three confluencing factors: the way evidence is presented (by the parties or by the judge); the demands made according to the nature of the adjudicating body (whether it is a completely lay tribunal sitting on its own or a mixed tribunal of lay and professional judges sitting together); and whether the trial is preceded by an official investigation or not.6 These factors were later claimed to provide the underpinning for the common law rules of evidence in Damasˇka’s later work, Evidence Law Adrift.7 Here they provide the backdrop for testing the first belief raised at the outset that the common law evidentiary style poses greater evidentiary barriers to conviction than the civil law style. Although he admits that the emphasis on evidentiary style risks

3

Ibid, p. 507. Ibid, p. 510. 5 Ibid, p. 577, n. 190. 6 Ibid, pp. 510 – 513. 7 Damasˇka, Mirjan: Evidence Law Adrift, Yale University Press, New Haven 1997. 4

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compromising representational accuracy, the advantage is that it enables meaningful contrasts to be drawn while avoiding the ‘fruitless analysis of minutiae’.8 With the important reservation that the point of contrast being made is between the common law jury trial and the continental trial involving serious crime and not more generally between the totality of cases tried in common law and continental systems, Damasˇka then proceeds to consider the evidentiary barriers that arise in the course of three adjudicative fact-finding phases: activities preparatory to proof-taking, the actual proof-taking phase and the weighing or evaluating evidence. At each of these phases he provides a convincing case for his conclusion that the common law jury trial does indeed present the prosecutor with more evidentiary barriers than does the continental criminal trial, although at each stage he suggests that there are counter-tendencies which makes it difficult to make conclusory pronouncements with great assurance. Beginning with the stage prior to proof-taking, Damasˇka differentiates, as other evidence scholars have done,9 between two kinds of exclusionary rules: those which exclude evidence because of the belief that it may impede the search for truth and those that do so for reasons extraneous to truth finding.He illustrates that while common law systems exclude certain classes of evidence which pass the test of logical relevancy (for example, bad character evidence and hearsay), largely on the theory that their impact on the trier of fact may be stronger than its actual probative weight, continental law does not contain any rules for excluding relevant evidence on the ground that it might be erroneously assessed by factfinders. This does not mean that there are not other evidentiary devices in continental law which serve to exclude relevant evidence – for example, the useof judicial discretion to exclude evidence, the exclusionary effect that is caused by the principle of immediacy which requires that the original declarant of a statement is examined and the refusal to give any weight to evidence of a prior criminal record. Yet Damasˇka insists ‘there is no gainsaying that a great deal of information, inadmissible under commonlaw evidentiary rules, reaches the continental adjudicators’.10 The second type of exclusionary rules governed by considerations extraneous to truth finding is, by contrast, not entirely foreign to continental systems but again it is claimed that exclusionary rules of this kind are more numerous and more elaborate in the United States than in these systems. Examples include the confession rules concerning defective interrogation and the ‘fruit of the poisonous tree’ doctrine whereby evidence derived from illegally obtained evidence is also inadmissible. The latter doctrine is unknown to civil lawyers but it also the case

8

Damasˇka (1973), p. 511. See e. g., Wigmore, John H.: A Treatise on the Anglo-American System of Evidence in Trials at Common Law, Little, Brown, Boston, rev. Peter Tillers 1983, vol. 1 A., § 11, p. 689. 10 Damasˇka (1973), p. 519. 9

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that it is also unknown to other common law systems and there is a heavy reliance upon US law at this point of the analysis.11 Moving on to the actual proof taking stage, Damasˇka highlights a striking contrast between the way in which evidence is examined in common law and civil law systems which has significant repercussions for prosecutors. In the common law system the prosecutor has to present a case and call witnesses and examine them whereas in the civil law system the trial is in the nature of an official inquiry which means that it is the presiding judge and not the prosecutor who drives the evidence. One of the consequences of this is that while in the common law trial the prosecutor has to establish a prima facie case before the defendant takes the stand, in the civil law trial there is no obstacle to beginning the proof taking stage by the interrogation of the defendant and this is in fact the rule. A further consequence is that the defence may decide to run its case by not calling the defendant to take the stand at all even when a prima facie case is made out by the prosecutor while in the continental trial the defendant must always submit to questions. Although she has the right to refuse to answer such questions, the concern that the trier of fact may draw adverse inferences from silence means that almost all continental defendants choose to testify. There is equally, of course, the concern in the common law trial that the trier of fact may draw adverse inferences against a defendant who refuses to testify but Damasˇka argues that the pressure to speak is somewhat stronger in the continental trial because more immediate inferences may be drawn from a refusal to answer specific questions than from a general refusal to submit to the questioning process at all. Another hurdle for the prosecutor in the common law trial, apart from the stronger procedural position of the defendant, is that in making its case the prosecutor may have to overcome various corroboration rules that require certain evidence to be corroborated before it can be considered by the trier of fact. Continental trials are by contrast, for the most part, free from corroboration requirements. Although Damasˇka again points to certain counter balancing factors that ease the plight of the prosecutor required to prove her case in the common law trial, notably the existence of certain prima face presumptions of guilt, he contends that these at best merely decrease the burden on the prosecutor to a level comparable to the evidentiary burdens on the continental prosecutor. Another counterbalancing factor is that the prosecutor does not have to disclose the substance of what its witnesses have to say whereas the dossier containing summaries of all the testimony at the proof taking stage is disclosed to the defence before the beginning of the continental trial. But, as Damasˇka points out, the price that the continental defendant pays for full familiarity with the dossier is that the dossier will also disclose all the incriminating evidence as well as the exculpatory

11 Thus the ‘fruits of the poisoned tree’ are not inadmissible in English criminal trials; see Roberts, Paul/Zuckerman, Adrian: Criminal Evidence, 2nd ed., Oxford University Press, Oxford 2010., p. 524.

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evidence, making continental disclosure much more of a ‘two-way street’ than it is in common law systems.12 Moving, finally, to the stage at which evidence is weighed by triers of fact at the end of the trial, Damasˇka again amasses a number of factors that point in the direction of it being easier to persuade a continental mixed tribunal of the guilt of an accused than a common law jury. First of all, mixed tribunals determine guilt on the basis of a bare majority vote whereas many common law jurisdictions require jury verdicts to be unanimous or at least weighted majorities in favour of guilt or acquittal. Second, Damasˇka claims that it has almost become a truism to say that lay adjudicators who are much more powerful in the common law setting are more lenient than professional judges. Juries sit alone with only judicial instructions to guide them. By contrast, the lay element in the continental setting is much more restrictive. Lay assessors may technically be able to outvote their professional counterparts but the latter sit with assessors and exercise much greater influence. Third, prosecutors are able to appeal acquittals in the civil law system thus giving them a ‘second bite of the cherry’ whereas jury acquittals are final. Fourth, Damasˇka argues that judicial instructions on how to resolve doubts about the evidence are likely to have much more force in the common law setting where they are issued formally to juries before they retire than in the civil law setting where they are issued informally by professionals in the course of deliberating with lay assessors. Fifth, juries are likely to be more open-minded about the cases they have to decide as they approach the case as a tabula rasa whereas in the continental trial the professional judge will have already been exposed to the contents of the dossier. Sixth, juries are passive observers of the examination of the evidence with the result that more uncertainties and doubts are likely to arise for them than for continental decision makers who take an active part during the presentation of evidence. Finally, it is suggested that the adversary method of presenting evidence is more conducive to uncertainties and doubts than the more organised and detached continental method. Against all these factors which lean in favour of making juries more reluctant to convict than the continental mixed panel, Damasˇka considers that a counter-tendency is to be found in the fact that the defence are more encumbered by presumptions of guilt and having to prove affirmative defences in the common law trial than in the continental trial.But he concludes that neither of these encumbrances are strong enough to offset the much greater difficulties that the common law prosecutor has in persuading juries of the defendant’s guilt than his continental counterpart does in persuading the mixed panel.

III. The Dichotomy between Adversary and Non-Adversary Proceedings Having established that the common law jury trial presents the prosecutor with more evidentiary barriers than does the continental criminal trial, Damasˇka then 12

Damasˇka (1973), p. 535.

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goes on in the second part of ‘Evidentiary Barriers’ to explore the ‘common feeling’ that there is a link between unequal obstacles to conviction and the dichotomy between adversary and non-adversary proceedings.13 In some respects it may seem to the reader at this stage that these links have already been established by the earlier reference to the different common law and civil law evidentiary styles. Damasˇka does not expressly join up the dots that link the particular structural factors which he starts out by claiming drive the different common law and civil law evidentiary styles in serious criminal cases and the factors that lean towards greater evidentiary barriers in common law trials than in continental trials. But it is interesting to observe that at each fact-finding phase these structural factors play a significant role in making these barriers more effective. Later in Evidence Law Adrift, he was to make the argument that admissibility rules are likely to be much more effective in the environment of a divided court where the judge can keep inadmissible information from the jury by making evidentiary rulings in their absence.14And in his discussion of the stages of proof taking and assessment of evidence in the first part of ‘Evidentiary Barriers’, he had already emphasised how adversary presentation provides the structural backdrop to the burdens imposed on prosecutors in proving ‘their’ cases and how the absence of any non-partisan investigation before the trial makes fact finders wholly dependent on evidence that is presented at the trial for making any determination of guilt. Towards the end of the first part of ‘Evidentiary Barriers’ Damaska returned to the important qualification that he made at the beginning that he was confining his analysis to the most elaborate factfinding processes in the two systems. He makes the observation that while the range of differences among available factfinding styles is very narrow in the continental system of criminal justice, there are considerable differences of evidentiary style within the common law system ranging from the most elaborate system of jury trial – the focus of his article – to the much less elaborate mode of ‘administrative’factfinding which precedes the entry of a guilty plea.15 This serves as a warning against drawing any sweeping conclusion that in the totality of cases as a whole common law evidentiary standards are more demanding than civil law standards and indeed Damasˇka speculates that the converse may be nearer to the truth. His focus on the negotiated guilty plea also serves to emphasise a point that is central to the difference between common law and continental evidentiary styles as a whole and becomes critical to the distinction that he makes later between adversarial and non-adversarial proceedings, namely that at common law it is the defendant who chooses which evidentiary mode will be used whereas the continental defendant is given no such choice. Before developing this crucial point of contrast between the two types of proceeding, however, Damasˇka considered it necessary to clarify what exactly is meant by ‘adversarial’ and ‘non-adversarial’ proceedings and his 13

Ibid, p. 514. Damasˇka (1997), p. 47. 15 Damasˇka (1973), p. 551.

14

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analysis of this issue, I would argue, holds the key to understanding why ‘Evidentiary Barriers’ continues to be so widely cited. Damasˇka begins his lengthy digression by observing that in both continental and American scholarship the expressions ‘adversary’ (or ‘accusatorial’) and ‘non-adversary’ (or ‘inquisitorial’) are used in a variety of senses and the meaning of the opposition between procedural systems changes accordingly.16Within the continental tradition they were a useful means of summarising the historical development of continental criminal procedure. Thus ‘accusatorial’ procedure was used to describe procedures prevailing from the fall of the Roman Empire throughout the Dark Ages until the beginning of the 13th century, although it was often also used to characterise the English criminal trial. Essential elements included popular accusation, trial by jury and the absence of appellate review. Inquisitorial procedures were then used to describe criminal proceedings from the 13th century until the first half of the nineteenth century. Essential characteristics of this model were a court preliminary investigation, compulsory questioning and the lack of any party participation in terms of prosecution and defence. A mixed type of procedure was then used to describe reformed continental procedure in the 19th century when public prosecutors were assigned the task of accusation and the parties were present and represented at the proceedings. While the terms ‘accusatorial’ and ‘inquisitorial’ were mainly used within the continental tradition to depict continental criminal proceedings, Damasˇka argues that the same terms were used within Anglo-American opinion writing and scholarship for the different purpose of drawing a ‘Manichaean’ contrast between certain idealised features of common law proceedings, including the presumption of innocence, the privilege against self-incrimination and the use of oral testimony, and some of the worst features of continental procedure including a presumption of guilt and coercive measures to extract testimony.17 When used for clearly ideological purposes, these become mere caricatures of the differences between Anglo-American and continental proceedings. But the terms have tended to be used for more descriptive purposes with inevitable confusion resulting between the two traditions as to the meaning of the terms. When the term ‘inquisitorial’ is used, as it frequently is by Anglo-American commentators, to characterise continental procedures as a whole, continental commentators have considered this to be a quite inappropriate

16

Ibid, p. 554. Ibid., 569. This ‘Manichaean’ tendency has continued since ‘Evidentiary Barriers’ was written. See Sklansky, David: Anti-Inquisitorialism, 122 Harvard Law Review, 2009, pp. 1635 – 1704; An example is to be seen in Crawford v. Washington (2004) 124 S Ct 1354, where the US Supreme Court stated that ‘[t]he common law tradition is one of oral testimony in court subject to adversarial testing, while the civil law condones examination in private by judicial officers.’ (IIA). For commentary, see Summers, Sarah J.: The Right to Confrontation after Crawford v. Washington: A “Continental European” Perspective, 2 International Commentary on Evidence, 2004, Issue 1 Art. 3. 17

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term to describe the different modern European continental legal jurisdictions.18 The latter have tended to see modern continental procedures instead as ‘mixed’ systems which ought to be placed midway between the accusatorial and inquisitorial models. This difference in usage between the traditions has continued since 1973. As Damasˇka later observed, the procedural reforms in Italy caused some continental commentators to claim that some continental jurisdictions have ‘crossed the Rubicon’ into the zone of accusatorial systems.19 Conversely, certain American commentators have taken such a pure view of adversarial procedures that they have been unwilling to consider that even common law countries such as England truly belong within the adversarial camp.20 In later work on comparative criminal procedure, Damasˇka illustrated how problematic it can be to use historically-based taxonomies in order to determine whether a system is ‘adversarial’ or ‘inquisitorial’.21 In his view, the concepts of continental and Anglo-American legal traditions are too vague and open-ended to determine what is fundamental to the accusatorial and inquisitorial type.22 Some scholars have tried to adopt a common denominator approach to find those features which are universal within each tradition. But this proposed test of pedigree appears circular: we call a common denominator ‘adversarial’ or ‘inquisitorial’ simply because we find it across a number of systems and we then label the system adversarial or inquisitorial.23 Another problem is that it is difficult to explain what should happen when one of the common denominators no longer inhabits a particular jurisdiction. Systems of procedure change so that characteristics at one time strongly associated with one type of procedure fall into disuse. Do we say that that system no longer belongs within the adversarial or inquisitorial camp or do we hold that this denominator is no longer common? As Damasˇka has said, the meaning of adversarial or inquisitorial remains ‘hostage’ to procedural change in a single country assigned to the tradition.24 Of course, it would be possible simply to use the terms as loosely synonymous with Anglo-American and continental procedure and this is how they are often 18

Damasˇka (1973), p. 559. For a more recent continental view see Nijboer, Johannes F.: Common Law Tradition in Evidence Scholarship Observed from a Continental Perspective, 41 American Journal of Comparative Law, 1993, pp. 299 – 338. 19 Damasˇka, Mirjan: Models of Criminal Procedure, 51 Zbornik (Collected Papers of Zagreb Law School), 2001, p. 485. 20 See e. g., Posner, Richard A.: An Economic Approach to the Law of Evidence, 51 Stanford Law Review, 1999, p. 1500, n. 49. 21 See e. g. Damasˇka, Mirjan: Adversary System, in: T. Nessler (Ed.), 1 The Encyclopedia of Crime and Justice, MacMillan, New York 1983, p. 25; Damasˇka (1986), pp. 4 – 6; Damasˇka (2001), pp. 478 – 482. 22 Damasˇka (2001), p. 481. 23 Ibid. 24 Ibid. For other difficulties with this approach, see Langer, Máximo: From Legal Transplants to Legal Translations: The Globalization of Plea Bargaining and the Americanization Thesis in Criminal Procedure, 45 Harvard International Law Journal, 2004, pp. 1 – 64.

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used in common parlance. But they would then cease to have any independent meaning. As the search for any settled meaning proved elusive, it might be thought that the terms would have fallen into disuse in modern comparative scholarship. However, as Damasˇka explains in ‘Evidentiary Barriers’, in the second part of the twentieth century the terms were given a new lease of life as continental scholars in particular attempted to cut loose from the traditional, historically grounded ‘triadism’which categorised procedural systems as ‘accusatorial’, ‘inquisitorial’ or ‘mixed’.25 The historical approach was instead superseded by an approach which tried to find a series of ideal-type contrasts or models to characterise the different systems which Damasˇka prefers to characterise as ‘adversarial’ and ‘non-adversarial’ to avoid the confusing labels ‘inquisitorial’ and ‘accusatorial’.26 These were not abbreviated descriptions of actual procedures but were rather opposing ideal-types in the Weberian sense, depicting patterns that can be found within the generality of Anglo-American and continental procedures. Rather than being descriptive of actual procedures, they represent particularly distinctive trends and features that contain enough essential elements of Anglo-American and continental processes to enable any particular system to be located somewhere along a spectrum between the two extremes. Although these models are simplistic, Damasˇka argues that this approach is a valuable heuristic tool for theorising about different influences at play in Anglo-American and continental processes and for comparative analysis of the different systems.27 The difficulty once again, however, lies in determining how these ideal types should be characterised and what level of detail should go into them. It is at this point of the discussion that we come to understand why ‘Evidentiary Barriers’ has become such a major reference point for commentators anxious to move away from the sterile debate over how to categorise the accusatorial/inquisitorial labels. To Damasˇka, the essence of the contrast between adversarial and non-adversarial criminal proceedings lies in arranging proceedings around the notion of a dispute or contest between two sides – prosecution and defence @ in a position of theoretical equality before a court which must decide on the outcome and arranging them around the notion of an official and thorough inquiry driven by court officials.28 It is this contrast that is now widely accepted to be the starting point for any discussion of the different styles of procedure in the common law and civil law world. Although Dam25

Damasˇka (1993), p. 562. Ibid. 27 For more recent defences of the use of adversarial and non-adversarial models in order to analyse criminal procedure systems, see Jörg, N/Field Stewart/Brants, Chrisje: Are Inquisitorial and Adversarial Systems Converging?, in: Phil Fennel/Chris Harding/N. Jörg/Bert Swart (Eds.), Criminal Justice in Europe: A Comparative Study, Oxford University Press, Oxford 1995, pp. 41.; Duff, Peter: Changing Conceptions of the Scottish Criminal Trial: The Duty to Agree Uncontroversial Evidence, in: A. Duff/L. Farmer/S. Marshall/V. Tadros (Eds.), The Trial on Trial (1): Truth and Due Process, Hart, Oxford 2004, pp. 29 – 50; Ellison, Louise: The Adversarial Process and the Vulnerable Witness, Clarendon Press, Oxford 2001; Langer (2004). 28 Damasˇka (1973), pp. 563 – 4. 26

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asˇka has generously attributed this insight to continental proceduralists anxious to find an essential contrast between the two procedural systems,29 ‘Evidentiary Barriers’ is widely cited as the origin of this contrast. From it two different models of proof can logically be constructed. In the contest model the prosecution prepares the case, brings the charge and is responsible for presenting the evidence and proving the offence charged. If contested the defendant attempts to rebut the charge by presenting evidence and arguments against the prosecution. The proceedings are presided over by a neutral adjudicator whose function is to see that the parties play by the rules of the contest but not to take an active part in the presentation of the evidence or to decide the outcome of the case. In the inquest model the court takes centre stage in the handling of the evidence. The prosecution may first decide the charge but officials of the court then have the responsibility for gathering, testing and evaluating the evidence. Any role the prosecution and defence play in the proof process is minimal and subordinate to the court’s function of finding the truth. The use of the contest/inquest contrast to differentiate these two models, however, is more than just a useful analytical tool for helping to detect how ‘adversarial’ or how ‘non-adversarial’ particular procedural systems are. In ‘Evidentiary Barriers’ Damasˇka was anxious to rise above the ‘continental legal style’ which views the use of the contrast in purely analytical terms.30 For him the contrast also provides a means of helping to explain why radically different alternatives in structuring criminal process are chosen and to promote study which was much neglected at that time into how broad ideological orientations determine the choice of procedural arrangements. In a further digression from the evidentiary barriers theme, Damasˇka proceeds to take the reader through a rich layer of Marxist and American literature in order to connect the contrasting adversarial and non-adversarial models with the rival ideologies of collectivism and privacy of the individual and with American attempts to articulate the rival ideologies underlying other models of procedure such as Llewellyn’s ‘parental’ and ‘arm’s length’ systems of criminal justice, Griffiths’‘battle’ and ‘family’ models and Packer’s famous ‘crime control’ and ‘due process’ models.31 While adherence to the ideologies underlying these models does not necessarily entail any allegiance to adversarial or non-adversarial procedures, he shows nevertheless that there are close affinities between these ideologies and the choice of adversarial or non-adversarial procedure. This discussion can be viewed as a prelude to his later work in Faces of Justice where he developed his own ideal type models around different conceptions of the purposes to be served by the administration of justice and 29

Damasˇka (2001), p. 482. Damasˇka (1973), p. 563. 31 See Llewellyn, Karl: Jurisprudence: Realism in Theory and Practice, Chicago University Press, Chicago 1962, pp. 444 – 450; Griffiths, John: Ideology in Criminal Procedure or A Third ‘Model’ of the Criminal Process, 79 Yale Law Journal, 1970, pp. 359 – 417; Packer, Herbert: Two Models of the Criminal Process, 113 University of Pennsylvania Law Review, 1964, pp. 1 – 68; Packer, Herbert: The Limits of the Criminal Sanction, Stanford University Press, Redwood 1968, pp. 149 – 73. 30

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around different structures of authority which while independent of the adversarial and non-adversarial models nevertheless had certain affinities with them. What ‘Evidentiary Barriers’ did, however, was to reveal the first beginnings of how a modelling methodology can help to broaden comparative law beyond an exercise in simply cataloguing similarities and differences between legal systems to understanding why such similarities and differences exist linking procedural form to broader ideological preferences and values. Drawing upon some of these wider ideological themes, Damasˇka then returns to the issue of exploring the relationship between evidentiary barriers and the adversarial and non-adversarial models of criminal procedure. He argues that while the creation of high evidentiary barriers helps to preserve values other than truth finding such as human dignity and privacy, this must inevitably lessen the commitment to truth finding. He then illustrates how thecontinental non-adversary system of procedure is more committed to truth finding than the Anglo-American adversary system by making reference to the system’s emphasis on proceedings structured around an official inquiry, to the ‘family’ or ‘parental’ ideology that underpins it and to its historical development which has always organised criminal proceedings around the establishment of the truth and the enforcement of the criminal law. By contrast, the common law adversarysystem is less committed totruth finding by reason of the fact that it is structured around the notion of a contest which in itself betrays a greater concern with settling a dispute than with finding the true facts of the case, by the fact it is underpinned by an ideology that is distrustful of the state and which has developed historically within a tradition that views criminal proceedingsas justified for purposes other than merely the enforcement of the substantive law.

IV. Evidentiary Barriers Revisited in a Changing Europe What started out then as a relatively narrow inquiry into whether common law systems erected higher evidentiary barriers to obtaining convictions and how these related to adversary or non-adversary models of procedure ended in a much wider illustration of how to conduct comparative analysis. ‘Evidentiary Barriers’ demonstrates how the use of comparative ‘ideal type’ modelling can help the comparativist to rise above the minutiae of the details of actual systems and provide a benchmark for examining just how different particular systems are from each other and why these differences persist. What I now seek to illustrate is how such a technique can also help map changes that occur within systems. It is generally accepted that since 1973 the landscapes of many criminal justice systems have changed dramatically. Drivers of change include the pressures on criminal justice to adapt to cosmopolitanism, localism, managerialism, accountability and the inclusion of more ‘voices’ apart from the traditional ones of judges, prosecutors and defendants, for example those of witnesses, victims and other ‘stakeholders’. One of the questions that has given rise to much debate among comparativists during this period is whether these

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drivers are pushing criminal justice systems closer together as they seek to deal with these common problems or whether local legal cultures and traditions are managing to resist this trend towards convergence.32 The debate has taken on a particular urgency as conscious efforts have been made by transnational institutions such as the European Union to harmonise criminal laws and procedures and the European Court of Human Rights (ECtHR) to align procedures in accordance with the human rights enshrined in the European Convention on Human Rights (ECHR).33 Returning to the theme of evidentiary barriers, using Damasˇka’s ideal-type methodology, it is interesting to ask whether in the light of this change, the common law jury trial still presents the prosecutor with more evidentiary obstacles than the continental criminal trial and, if so, whether this is an indication of a greater commitment to truth finding and a lesser attachment to the notion of a contest. While Damasˇka gave particular focus to the American common law trial, I will focus instead on the common law systems as well as the civil law systems in Europe, as these systems may be supposed to have undergone the most change in the light of the ‘Europeanisation’of criminal procedures. If we start by looking at exclusionary rules of evidence, it was Damasˇka’s thesis in Evidence Law Adrift that many of the rules of evidence have been relaxed as various pillars that have sustained the institutional development of common law litigation – the jury system, party control and the concentration of trial proceedings – have become eroded. Damasˇka’s thesis, of course, applied to civil as much as to criminal proceedings and he was again directing his argument more to American procedure than its ‘Anglo’ equivalent. If we focus specifically on the UK, we can see indeed some of the exclusionary rules, particularly those designed to protect against juries giving undue weight to hearsay and bad character evidence, have been relaxed quite considerably.34 This is particularly true of the bad character rules which have reversed the presumption against the admission of bad character evidence against defendants in favour of a presumption that admits such evidence where it is relevant to do so and abolished the old rule against admitting character evidence for the purpose of proving propensity. Alongside these moves to lower the evidentiary barriers against the admission of the defendant’s bad character, there have been countervailing attempts to tighten up the rules governing the admission of bad character evidence of witnesses 32 See Jörg et al. (1995), Bradley, Craig: Criminal Procedure: A Worldwide Study, Durham: Carolina Academic Press, 1998; Mc Ewan, Jenny: From Adversarialism to Managerialism: criminal justice in transition, 31 Legal Studies, 2011, pp. 519 – 546; Colson, Renaud/ Field, Stewart: The Transformation of Criminal Justice: Comparing France with England and Wales, L’Harmattan, Bibliothèques de droit, Paris 2011. 33 See Spencer, John/Delmas-Marty, Mirielle: European Criminal Procedures, Cambridge University Press, Cambridge 2002.; Jackson, John D./Summers, Sarah J: The Internationalisation of Criminal Evidence, Cambridge University Press, Cambridge 2012.; Ryan, Andrea: Towards a System of European Criminal Justice, Routledge, London 2014. 34 For detailed analyses of these rules see Spencer, John: Evidence of Bad Character, 2nd ed., Hart Publishing, Oxford 2009; Spencer, John: Hearsay Evidence in Criminal Proceedings, 2nd ed., Hart Publishing, Oxford 2014.

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so that it is no longer so easy to smear witnesses with the taint of improper conduct in the past. Another development has been a general relaxation of the hearsay rule to permit the admission of witnesses’ statements when witnesses are not available at trial or are unwilling to testify through fear. All this is part of a reform agenda in the UK to put victims and witnesses at the core of criminal justice at the expense of defendants and would seem to lend support to criminal proceedings being less driven by a contest between two parties with more respect to be given to third parties – victims and witnesses – whom it is contended should not have to give evidence if they are in fear nor endure the ritual denigration of their character at the hands of the defence if they do give evidence.35 Whatever benefit these changes have had for victims and witnesses in practice, there is no denying that they have considerably lowered evidentiary barriers for prosecutors making it easier for them to admit witnesses’ written statements, oral hearsay and bad character evidence against defendants. Interestingly, however, the limits to which this movement towards ‘free proof’ can be stretched are being set no longer only by national courts but by the international constraint of abiding by the ECHR the ultimate arbiter of which is a transnational court, the ECtHR, whose jurisprudence under the UK Human Rights Act 1998 the UK courts must take account of. From a common law perspective these rights should not be viewed as some constitutional ‘add-on’ to the existing common law tradition but rather in many instances as simply solidifying existing common law principles. But they do nevertheless provide a filter through which any legislation must pass and ensure the preservation of certain adversary principles such as the right to confrontation or cross-examination which might otherwise wither on the vine of a relentless march towards free proof. A good example is to be found in the human rights challenge to the UK hearsay provisions on the basis that they infringed the defendant’s right to examine witnesses which resulted in an adverse finding by the ECtHR against the UK in 2009,36 although this was partially reversed in 2012 by a later ruling of the Grand Chamber that convictions could be based ‘solely’ or ‘decisively’ on written statements provided there were sufficient counter-balancing measures in place, including the existence of strong procedural safeguards.37 It is important to note that even in its unvarnished form the ‘sole or decisive’ rule is not an exclusionary rule that operates to exclude the trier of fact from seeing the hearsay statement as it is a rule that can only be applied ex post facto in the light of all the other evidence against the accused. Although such a rule may have a prophylactic effect on prosecutors deciding whether to proceed with a case, it points to a weakness in the ECtHR’s regulation of evidentiary rules. The Court has consistently disavowed any attempt to impose admissibility rules on national systems, stating that their reg35

See Jackson, John D.: Justice for All: Putting Victims at the Heart of Criminal Justice, 30 Journal of Law and Society, 2003, pp. 309 – 326; Cape, Ed (Ed.): Reconcilable Rights? Analysing the Tension between Victims and Defendants, Legal Action Group, London 2004. 36 Al-Khawaja and Tahery v. UK (2009) 49 EHRR 1. 37 Al-Khawaja and Tahery v. UK (2012) 54 EHRR 23.

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ulation is a matter for national law.38 It has nevertheless played a major role in regulating criminal evidence across the member states of the Council of Europe with considerable consequences for the evidentiary barriers theme.39 For if the ECtHR’s jurisprudence has had the effect of setting a minimum evidentiary threshold below which common law systems must not fall, the Court would seem to have played a greater role in raising evidentiary barriers up to this threshold in a number of continental jurisdictions. In particular it would seem to have encouraged states not to use evidence that has been obtained in breach of certain fundamental rights contained in the ECHR. While it can be argued that member states were already developing exclusionary rules to safeguard individuals’ constitutional rights independently of the ECHR, the ECHR and the ECtHR have encouraged this trend through their emphasis on the need to prohibit the use of evidence obtained by torture, inhuman and degrading treatment and in breach of rights such as the privilege against self-incrimination and most recently the right of access to a lawyer. A particularly vivid example of the Court’s influence is provided by its support in a ruling against Turkey in 2009 for a Miranda-style requirement that admissions of suspects should not be used against them unless they are offered a right of access to a lawyer when first questioned by the police.40 This ruling has led to both common law and civil law systems opening up police stations to lawyers, challenging the monopoly of access that police and prosecutors had to suspects after they were arrested.41 Turning to the proof-taking phase of the trial itself, again we can see in the European common law systems a trend in favour of lowering evidentiary barriers. One example has been the growing use of cautions warning suspects that their failure to answer questions may lead to inferences being drawn against them at trial and by a new rule permitting triers of fact to draw inferences against defendants who refuse to testify. Although, as Damasˇka has made clear, triers of fact were always able to draw such inferences in practice, whatever the restrictions placed upon them in law, the effect of the warnings on suspects and defendants has undoubtedly had some effect in inducing them to answer questions, albeit untruthfully, thereby easing the burden on prosecutors who would otherwise be faced with the prospect of silent suspects springing ambush defences at trial.42Another fillip for prosecutors has been the abolition of corroboration rules (except as yet in Scotland) and a change in policy 38 Engel and others of Netherlands (1979 – 80) 1 EHRR 647, para 46, Schenk of Switzerland (1991) 13 EHRR 242 paras 45 and 46. 39 See generally Jackson/Summers (2012). 40 Salduz v. Turkey (2009), 49 EHRR 421. 41 See Giannoulopoulos, Dimitrios: Custodial Legal Assistance and Notification of the Right of Silence in France: Legal Cosmopolitanism and Local Resistance, 24 Criminal Law Forum, 2013, pp. 291 – 329. 42 See Jackson, John D.: Silence and Proof: Extending the Boundaries of Criminal Proceedings in the United Kingdom, 5 International Journal of Evidence & Proof, 2001, pp. 145 – 173; Quirk, Hannah: Twenty Years On, the Right of Silence and Legal Advice: the escalating costs of unfair exchange, 64 Northern Ireland Legal Quarterly, 2013, pp. 465 – 83.

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towards vulnerable and intimidated victims and witnesses prompted, as explained above, by a perceived need to rebalance the criminal justice system in their favour. Rather than treat them with suspicion, a plethora of special measures have been devised to enable them to achieve their best evidence, ranging from video-recorded examination in chief and even cross-examination to anonymity orders permitting them to give evidence anonymously. While such measures have to conform with the fair trial requirements of Article 6 of the ECHR, they ease the plight of prosecutors who might otherwise be faced by silent witnesses unwilling to testify. The picture is not one of unremitting advantage to prosecutors. Concerns over miscarriages of justice in the England and Wales 1970s and 1980s have imposed burdensome disclosure requirements on prosecutors that go far beyond those demanded in the US. The defence are now entitled to advance disclosure not only of all prosecution witness statements but of any additional ‘unused’ material that undermines the prosecution or assists the defence.43 These reforms, however, were not completely one-sided as the defence are now in turn required to disclose the names of witnesses they propose to call and issue the prosecution with defence statements. As a result prosecution disclosure of ‘unused material’ is to some extent dependent on what the defence choose to disclose. Criminal procedure rules in addition are making increasing demands on the defence to cooperate by agreeing to evidence and indicating which witnesses they intend to call in plea and case management hearings before the trial.44 While these procedures fall short of shoe-horning all material evidence in the case into a continental-style dossier, they do minimise the opportunities for the parties to spring ambushes on each other at trial. More significantly, from the point of view evidentiary barriers, case management hearings represent an important shift awayfrom party-driven adversary procedures with judges playing a much more significant role in narrowing the scope of any contest and determining which witnesses are necessary to be called. The picture once again in continental systems is conversely one of raising evidentiary barriers as a consequence of opening up the trial and increasingly pre-trial processes to the exercise of defence rights and greater defence participation. The Criminal Procedure Codes in a number of continental jurisdictions in both western and eastern Europe have been updated to provide that the criminal process must be adversarial and respect parties’ rights.45 This has once again been encouraged by the ECtHR which has endorsed the principle of ‘equality of arms’ and the principle of ‘adversarial procedure’.46Admittedly, these requirements fall short of imposing the kind of adversarial trial that is associated with common law jurisdictions.They are instead much more akin to the French notion of ‘procédure contradictoire’ 43 See Redmayne, Mike: Disclosure and its Discontents, Criminal Law Review, 2004, pp. 441 – 462. 44 See McEwan (2011). 45 See Spencer/Delmas-Marty (2002). 46 See Jackson and Summers (2012).

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which permits defendants to be present when procedural activities are underway and to offer counter proof and counter arguments but which falls short, as Damasˇka describes it, of ‘partial presentation of evidence’.47While, as Damasˇka explains, a number of countries have accepted the principle of full access to the dossiers some time ago, the ECHR has encouraged others to give defence lawyers much better and earlier access. There is also little doubt that a number of decisions of the ECtHR requiring that decisions should not be substantially (solely or decisively)based upon the statements of witnesses whom the defence have been unable to examine influenced some of the changes in continental jurisdictions which expanded the right to examine witnesses. The right does not have to be exercised in the course of an adversarial trial.48 What is essential is that at some point in the criminal proceedings some challenge is able to be made. Turning, finally, to the weighing of evidence by triers of fact, a number of factors that Damasˇka identified as encumbering prosecutors in the common law trial would again appear to have eased. Unanimity rules no longer govern jury verdicts in England and Wales and Ireland (Scotland has long permitted jury verdicts by majority vote). England and Wales has introduced legislation permitting prosecutors to appeal against judicial rulings during the trial and there are even opportunities now across the UK and Ireland for prosecutors to retry defendants who have been acquitted when compelling new evidence arises in the case. Steps are slowly being taken to present juries with greater opportunities for understanding and assimilating the evidence, with greater use of written or visual aids and what have been called step by step directions. Although this may be of benefit to either the prosecution or defence, any steps that encourage juries to play a more active role in the proceedings may be considered to assist them to clear up doubts they have about the prosecution case. There is also evidence across the common law world that, notwithstanding judicial attempts to prohibit it, juries are using the internet to inform themselves more about cases which may again help them to fill in gaps and reduce uncertainty about the prosecution case.49 Perhaps more telling than anything else is the discernible trend in the European common law countries to reduce the scope for defendants to elect for jury trial in an increasing range of cases that used to be triable either summarily or on indictment and in certain cases involving terrorism and organised crime jury trial has been abandoned altogether.50 It is perhaps particularly striking that in England, the traditional heartland of the jury system, we see for the first time in centuries the possibility of a professional trial usurping the role of the classic jury in trials on indictment where there is a real and present danger of jury intimidation, although it has to be 47

Damasˇka (1973), p. 561. Kostovski v. Netherlands (1991), 12 EHRR 434 § 41. 49 For evidence of internet use in England and Wales see Thomas, Cheryl: Are Juries Fair?, Ministry of Justice, Research Series 1/10, London 2010. 50 For the position in Ireland see Campbell, Liz: The Prosecution of Organised Crime: removing the jury, 18 International Journal of Evidence & Proof, 2014, pp. 83 – 100. 48

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said that the use of the professional alternative has been restricted so far to all but a handful of trials.51 This situation can be contrasted with that on the continent where the traditional jury has been resurrected in a number of countries since 1973 – notably Russia, Spain and Georgia @with the potential consequence, at least, of raising the evidentiary barriers for prosecutors. It would be wrong to exaggerate this trend as other continental jurisdictions have swung in the opposite direction and abolished their traditional jury systems, for example Denmark and Switzerland.52 It has not proved easy to transplant common law jury systems on to foreign soil as the experience in Russia has shown in particular.53 However, the experience of Spain has shown that it is possible to do so, although juries must justify their verdicts and judges have retained the power to refuse to accept their reasons if they are inadequately articulated.54 The continental experience of re-engaging with juries is far from secure but it is interesting that it has had a particular appeal in countries that have been going through a state of transition since the demise of the Soviet era. Proponents of the jury model see juries as the best way of promoting strong and independent civic participation and accountability in the administration of justice in the transition towards democracy. What does this somewhat fragmented picture of European changes since 1973 mean for Damaska’s thesis that evidentiary barriers are higher in common law jury trials than in continental criminal trials? It would seem that there has been a shift in position with evidentiary barriers lowering in common law jury trials and rising in continental trials. As jurors have become privy to more swathes of relevant evidence relating to the case whether in the form of hearsay statements or bad character evidence or in the form of more frequent testimony from accused persons who feel more compelled to give an explanation for the case against them, fewer uncertainties about the evidence are likely to arise and fewer limitations are put upon the search for the truth. Conversely, as continental systems increasingly respect the defendant’s right to silence and become more inclined to reject evidence that has been obtained in conscious violation of the defendant’s constitutional and human rights, so limitations and conditions qualifying the search for ‘truth’ become more frequent and there is less likelihood of all the available evidence against the accused being used against them. 51

Section 44 of the Criminal Justice Act 2003 (Eng. & Wales & NI). For commentary see Thornton, Peter: Trial by Jury: 50 Years of Change, Criminal Law Review 50th Anniversary Edition, 2004, pp.119 – 137. 52 See Jackson, John D./Kovalev, Nikolai, P.: Lay Adjudication in Europe: The Rise and Fall of the Traditional Jury 6(2), Onati Socio-Legal Series, 2015. 53 See Thaman, Stephen C.: The Two Faces of Justice in the Post-Soviet Legal Sphere: Adversarial Procedure, Jury Trial, Plea-Bargaining and the Inquisitorial Legacy, in: John Jackson/Máximo Langer/Peter Tillers (Eds.), Crime, Procedure and Evidence in a Comparative and International Context, Hart, Oxford 2008, pp. 99 – 118. 54 See Thaman, Stephen C.: Should Criminal Juries Give Reasons for their Verdict?’,86 Chicago-Kent Law Review, 2011, pp. 613 – 667.

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All this does not mean that the different evidentiary styles identified by Damasˇka do not retain some force within each of the systems in terms of the contrasts between the presentation of evidence (party or court driven), the mode of fact finding (a unitary as opposed to a bifurcated court) and the degree to which fact finders become familiar with the case before the trial. But clearly convergences can be seen in terms of a lowering of evidentiary barriers in common law systems alongside a raising of evidentiary barriers in civil law systems. When one steps outside the framework of the trial and looks more holistically at the criminal process as a whole, the convergences appear even more pronounced. On the one hand, one can see significant movement in continental systems towards a contest model of proof. The judicial authorities of an increasing number of continental systems no longer take centre stage in terms of handling evidence. The position of the investigating judge has been abolished in a number of systems and the prosecutor is responsible for conducting investigations. Consequently there is no investigating judge present at many of the investigating activities. Instead the prosecutor presides increasingly with the defence present. At the trial itself as we have seen the defence are playing an increasingly significant role in challenging and making representations against the prosecution evidence. In addition one of the fault lines that Damasˇka rightly emphasised as most significant between the systems in 1973 @ that defendants did not get to choose how their case should be disposed in continental procedure @ is now changing as a number of systems permit prosecution and defence to reach an agreement over the outcome of the case, albeit with the endorsement of the judge.55 Looking at the systems through the lens of the inquest model, on the other hand, we might reach the contrary conclusion that the systems have become more inquest-oriented. For the reality in both systems now is that the majority of cases are resolved without trial through prosecutorial dominance of the process which results either in a decision not to bring charges, often combined with an informal sanction, or in a plea of guilty which is endorsed by a judge. Either way, in the majority of cases, the defence play little meaningful role in this outcome with no resources of its own to combat the prosecution case and no access to the material evidence against the accused at the crucial stage when the outcome is determined pre-trial.

V. Re-Modelling Criminal Procedure With both common law and civil law systems now able to be described as both contest and inquest oriented, some commentators are questioning how useful these models are as ideal types for measuring exactly where a particular system lies along the contest inquest spectrum. This is a criticism that has long been 55 See Thaman, Stephen C.: Plea-Bargaining, Negotiated Confessions and Consensual Resolution of Criminal Cases, in: K. Boele-Woelki/S. van Erp (Eds.), General Reports of the XVII Congress of the International Academy of Comparative Law, Eleven International, Utrecht 2007.

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made of the two models. As Damasˇka points out, however, the models were never designed to be descriptive of real-life processes but rather they claimed to have the heuristic value of enabling us to ‘perceive the grand contours of real-life contrast’ freed from ‘the tyranny of details’ and thus to aid comparative analysis of certain issues such as the relative importance of counsel and procedural form and the commitment to the pursuit of truth in the criminal process.56 If however the ‘grand contours’ no longer represent a ‘real-life contrast’, then even their heuristic value can be questioned. It has been argued that the legal cultural ties that have bound systems to one particular scheme or model – adversarial or inquisitorial – have been loosened and re-shaped over time by political and pragmatic preferences that are subject to transfers and transplants with the result that it is becoming more and more difficult to place some of today’s legal systems in ‘the inquisitorial or adversarial box’.57 Instead ‘mixed’ hybrid systems have been developing which combine both contest and inquest features. In such systems there exists a unilateral pre-trial process often conducted by the police under the guidance of the public prosecutor. The parties present evidence at the trial but the court retains a residual right and obligation to ensure the relevant issues are covered. Such hybrids combine both contest and inquest features but are they just an amalgam of contest and inquest features or have they taken on a new form altogether? All this has given rise to some discussion as to whether we should be seeking new models that might capture better the changes that have been taking place across the common law and civil law systems alike. It has been argued, for example, that some of the developments that have taken place within United States civil processes in the last 20 years, and more latterly, within the procedures of the International Criminal Tribunal for the former Yugoslavia, are better described through a third procedural model labelled ‘managerial’ rather than as falling into either of the traditional adversarial or inquisitorial models of procedure.58 Similar trends may be discerned within the English civil process and increasingly also within English criminal procedure. Far from the English system converging with civil law systems it has been suggested that it has moved towards a managerial model where judges are expected to force parties to cooperate and reach agreement wherever possible with strong incentives on the defence to elect for a contested trial.59 Moving from the descriptive level of mapping change by reference to new procedural models towards the normative question of how procedures should be developed to take account of changes such as the drivers towards cosmopolitanism, localism, managerialism, accountability and human rights, some have argued that systems need to develop towards what has been called a participative or cooperative model whereby the parties and the court work together 56

Damasˇka (1973), pp. 577 – 8, n. 190. Weigend, Thomas: Should We Search for the Truth, and Who Should Do it?, 36 North Carolina Journal of International Law and Commercial Regulation, 2011, p. 402. 58 See Langer, The Rise of Managerial Judging in International Criminal Law, 53 American Journal of Comparative Law, 2004, pp. 835 – 910. 59 See McEwan (2011). 57

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to determine the truth without undermining the rights and interests of the various participants involved which include not merely the interests of the prosecution and defence but include also the interests of victims, witnesses and the state itself.60 Through the modelling methodology that he inspired, Damasˇka opened the door towards the construction of new models beyond the contest/inquest models long associated with common and civil law procedure. Damasˇka himself is famously known for constructing other ideal types around structures of authority and different conceptions of the purposes to be served by the administration of justice.61But does all this mean that the contest/inquest models are no longer apposite? It may be that they do not have the same explanatory force as procedural models for mapping the differences between the common law and civil law systems and the changes that have been occurring within them. But as we have seen Damasˇka did not conceive of the contest/ inquest models just as an analytical tool for helping to detect how adversarial or how non-adversarial particular procedural systems are. He saw them also as encapsulating different ideologies that are rooted in the choices and preferences that are made for certain kinds of procedure and he made reference, as we have seen, to other models that give expression to these ideologies, such as Packer’s ‘crime control’and ‘due process’ models or Llewellyn’s ‘parental’ and ‘arm’s length’ models and Griffiths’‘family’ and ‘battle’ models. As we look at the confusing picture of convergences and divergences between common law and civil law procedures today as they have changed 40 years on, is it not at least possible that beneath the surface of the new changes the actors involved still retain at least some attachment to the value preferences underpinning each of the contest/inquest models? There is a large literature illustrating the difficulties that occur when changes are transplanted from one system to another. In discussing Packer’s famous two models of ‘crime control’ and ‘due process’ in ‘Evidentiary Barriers’, Damasˇka argued that they should be seen as offering not two models of the criminal process but rather ‘two clashing inner tendencies: the tendency towards efficiency and the tendency towards protecting the rights of the defendant’ which is ‘part and parcel of the dialectics of any criminal process’.62 This suggests that we might also be able to conceptualise the contest and inquest models along similar lines, not just as expressions of procedural models depicting the difference between common law and civil law procedures but instead as expressions of ‘clashing tendencies’ to be found within any criminal process depicting different value preferences.With such a confusing picture of change unfolding on the procedural level, the value preferences associated with each model could then be used to gauge the level of commitment that the actors have for these changes. This way it may be possible to assess whether the changes are merely surface 60

Jackson, John D.: The Effect of Human Rights on Criminal Evidentiary Processes: Convergence, Divergence or Realignment?’, 68 Modern Law Review, 2005, pp. 737 – 764. 61 See Damasˇka, Mirjan: Structures of Authority and Comparative Criminal Procedure, 84 Yale Law Journal, 1975, pp. 480 – 544; Damasˇka (1984). 62 Damasˇka (1973), p. 576 (emphasis in original).

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deep or whether they have dug deep into the soul of those who have to implement the changes. There remains, of course, the job of articulating the different ideologies underlying the contest and inquest models. When it comes to articulating the different values within the criminal process, it has been said that it is hard to exaggerate the influence of Packer’s models on thinking about criminal procedure not only in the United States, but throughout the world.63 The tension he identified between law enforcement and due process seems endemic in any criminal justice system. Yet looking at this tension over 50 years since Packer began to describe it, it fails to encapsulate the interests of other participants in the criminal justice system – those of victims and witnesses, for example. The contest/inquest models offer perhaps a better lens for encapsulating a range of tensions to be found within criminal justice – not just law enforcement and due process but the interests of victims and witnesses as well as those of managerialism and accountability and, reverting to other models that Damasˇka mentions such as the ‘parental’ or ‘family’ models, the interests of reintegration and rehabilitation. In order to give the contest and inquest models the expansive interpretation necessary to encapsulate these different interests, we would need to broaden our horizons beyond the adversarial inquisitorial categories that it has been claimed continue to dominate so much of our thinking about comparative criminal procedure.64 The inquest model could be expanded so as to be viewed not as an entirely police, prosecutor or judge driven procedure but rather as a multi-party enterprise dedicated to determining the truth calling upon a range of different actors in order to do this. The contest model could also be expanded so as to be viewed not only as a fullscale adversarial trial procedure but as also offering the defence an opportunity to contest allegations against it at early stages of the process with the benefit of legal representation without, however, requiring its participation. The notion of contest might even be expanded beyond the notion of a dispute between prosecution and defence to encapsulate the right of victims to contest decisions not to prosecute the case or of witnesses to contest rulings that they be required to disclose evidence or answer questions. These opportunities may in themselves serve the interests of truth finding but akin to the contest model, as Damasˇka conceived it, other interests such as protecting dignity, privacy and freedom from abuse of power assume importance here as well. Seen in this light the models retain explanatory power in mapping how systems are responding to the different values and interests at stake in the management of criminal justice and where exactly they are striking the balance between these.

63

Langer, Máximo: The Long Shadow of the Adversarial and Inquisitorial Categories, in: Markus D. Dubber/Tatjana Hörnle (Eds.), The Oxford Handbook of Criminal Law, Oxford University Press, Oxford 2014, p. 904. 64 Ibid., pp. 887 – 912.

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VI. Conclusion Damasˇka’s great ‘Evidentiary Barriers’ article introduced the idea of modelling into comparative criminal justice research as a way of understanding the differences between criminal justice systems. The article opened the door to using models for identifying not only the broad contrasts between different procedures but also different conceptions of the criminal process, different cultural understandings and norms as well as the relationship between procedures and different structures of authority and societies.65 In this chapter I have argued that models such as the contest and inquest models also have their uses in mapping changes that have occurred over a period of time. We have seen that evidentiary barriers would seem to have been lowered in common law systems and raised in civil law systems as common law systems have embraced more truth-oriented features and civil law systems more contest-oriented features. If the drivers of change across Europe are pushing procedural systems in the direction of a hybrid of contest and inquest features, then the contrast between the two models may no longer be so significant as a heuristic device for comparative analysis of procedure. They nevertheless retain force as an expression of values and interests that are still held dear in the systems concerned and as such provide an excellent ‘compass, star or landmark’ to criminal proceduralists trying to navigate their way through what Damasˇka has described as the ‘entangled convergences and differences’ that have arisen among national and now international systems of criminal justice.66

References Bradley, Craig: Criminal Procedure: A Worldwide Study, Carolina Academic Press, Durham 1998. Campbell, Liz: The Prosecution of Organised Crime: removing the jury, 18 International Journal of Evidence & Proof, 2014, pp. 83 – 100. Cape, Ed (Ed.): Reconcilable Rights? Analysing the Tension between Victims and Defendants, Legal Action Group, London 2004. Colson, Renaud/Field, Stewart: The Transformation of Criminal Justice: Comparing France with England and Wales, L’Harmattan, Bibliothèques de droit, Paris 2011. Damasˇka, Mirjan: Evidentiary Barriers to Conviction and Two Models of Criminal Procedure, 121 University of Pennsylvania Law Review, 1973, pp.506 – 589. – Structures of Authority and Comparative Criminal Procedure, 84 Yale Law Journal, 1975, pp. 480 – 544. – Adversary System, in: S. H. Kadish (Ed.), 1 The Encyclopedia of Crime and Justice, MacMillan, New York 1983, pp. 25 – 31. 65

Ibid. Damasˇka, Mirjan: Negotiated Justice in International Criminal Courts, 2 Journal of International Criminal Justice, 2004, pp. 1018 – 9. 66

Re-visiting Evidentiary Barriers to Conviction and Models of Criminal Procedure 257 – The Faces of Justice and State Authority, Yale University Press, New Haven 1986. – Evidence Law Adrift, Yale University Press, New Haven 1997. – Models of Criminal Procedure, 51 Zbornik (Collected Papers of Zagreb Law School), 2001, pp. 477 – 506. – Negotiated Justice in International Criminal Courts, 2 Journal of International Criminal Justice, 2004, pp. 1018 – 1039. Duff, Peter: Changing Conceptions of the Scottish Criminal Trial: The Duty to Agree Uncontroversial Evidence, in: A. Duff/L. Farmer/S. Marshall/V. Tadros (Eds.), The Trial on Trial (1): Truth and Due Process, Hart, Oxford 2004, pp. 29 – 50. Ellison, Louise: The Adversarial Process and the Vulnerable Witness, Clarendon Press, Oxford 2001. Giannoulopoulos, Dimitrios: Custodial Legal Assistance and Notification of the Right of Silence in France: Legal Cosmopolitanism and Local Resistance, 24 Criminal Law Forum, 2013, pp. 291 – 329. Griffiths, John: Ideology in Criminal Procedure or A Third ‘Model’ of the Criminal Process, 79 Yale Law Journal, 1970, pp. 359 – 417. Jackson, John D.: Silence and Proof: Extending theBoundaries of Criminal Proceedings in the United Kingdom, 5 International Journal of Evidence & Proof, 2001, pp. 145 – 173. – Justice for All: Putting Victims at the Heart of Criminal Justice, 30 Journal of Law and Society, 2003, pp. 309 – 326. – The Effect of Human Rights on Criminal Evidentiary Processes: Convergence, Divergence or Realignment?’, 68 Modern Law Review, 2005, pp. 737 – 764. Jackson, John D./Kovalev, Nikolai, P.: Lay Adjudication in Europe: The Rise and Fall of the Traditional Jury 6(2), Onati Socio-Legal Series, 2015 (forthcoming). Jackson, John D./Summers, Sarah J: The Internationalisation of Criminal Evidence, Cambridge University Press, Cambridge 2012. Jörg, N./Field, Stewart/Brants, Chrisje: Are Inquisitorial and Adversarial Systems Converging?, in: Phil Fennel/Chris Harding/N. Jörg/Bert Swart (Eds.), Criminal Justice in Europe: A Comparative Study, Oxford University Press, Oxford 1995, pp. 41 – 56. Langer, Máximo: From Legal Transplants to Legal Translations: The Globalisation of Plea Bargaining and the Americanization Thesis in Criminal Procedure, 45 Harvard International Law Journal, 2004a, pp. 1 – 64. – The Rise of Managerial Judging in International Criminal Law, 53 American Journal of Comparative Law, 2004b, pp. 835 – 910. – The Long Shadow of the Adversarial and Inquisitorial Categories, in: Markus D. Dubber/Tatjana Hörnle (Eds), The Oxford Handbook of Criminal Law, Oxford University Press, Oxford 2014, pp. 887 – 912. Llewellyn, Karl: Jurisprudence: Realism in Theory and Practice, Chicago University Press, Chicago 1962. McEwan, Jenny: From Adversarialism to Managerialism: criminal justice in transition, 31 Legal Studies, 2011, pp. 519 – 546.

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Nijboer, Johannes F.: Common Law Tradition in Evidence Scholarship Observed from a Continental Perspective, 41 American Journal of Comparative Law, 1993, pp. 299 – 338. Packer, Herbert: Two Models of the Criminal Process, 113 University of Pennsylvania Law Review, 1964, pp. 1 – 68. – The Limits of the Criminal Sanction, Stanford University Press, Redwood 1968. Posner, Richard A.: An Economic Approach to the Law of Evidence, 51 Stanford Law Review, 1999, pp. 1477 – 1546. Quirk, Hannah: Twenty Years On, the Right of Silence and Legal Advice: the escalating costs of unfair exchange, 64 Northern Ireland Legal Quarterly, 2013, pp. 465 – 83. Redmayne, Mike: Disclosure and its Discontents, Criminal Law Review, 2004, pp. 441 – 462. Roberts, Paul/Zuckerman, Adrian: Criminal Evidence, 2nd ed., Oxford University Press, Oxford 2010. Ryan, Andrea: Towards a System of European Criminal Justice, Routledge, London 2014. Sklansky, David: Anti-Inquisitorialism, 122 Harvard Law Review, 2009, pp. 1635 – 1704. Spencer, John: Evidence of Bad Character, 2nd ed., Hart Publishing, Oxford 2009. – Hearsay Evidence in Criminal Proceedings, 2nd ed., Hart Publishing, Oxford 2014. Spencer, John/Delmas-Marty, Mirielle: European Criminal Procedures, Cambridge University Press, Cambridge 2002. Summers, Sarah J.: The Right to Confrontation after Crawford v. Washington: A “Continental European” Perspective, 2 International Commentary on Evidence, 2004, Issue 1 Art. 3. Thaman, Stephen C.: Plea-Bargaining, Negotiated Confessions and Consensual Resolution of Criminal Cases, in: K Boele-Woelki/S. van Erp (Eds.), General Reports of the XVII Congress of the International Academy of Comparative Law, Eleven International, Utrecht 2007. – The Two Faces of Justice in the Post-Soviet Legal Sphere: Adversarial Procedure, Jury Trial, Plea-Bargaining and the Inquisitorial Legacy, in: John Jackson/Máximo Langer/Peter Tillers (Eds.), Crime, Procedure and Evidence in a Comparative and International Context, Hart, Oxford 2008, pp. 99 – 118. – Should Criminal Juries Give Reasons for their Verdict?’,86 Chicago-Kent Law Review, 2011, pp. 613 – 667. Thomas, Cheryl: Are Juries Fair?, Ministry of Justice, Research Series 1/10, London 2010. Thornton, Peter: Trial by Jury: 50 Years of Change, Criminal Law Review 50th Anniversary Edition, 2004, pp.119 – 137. Weigend, Thomas: Should We Search for the Truth, and Who Should Do it?, 36 North Carolina Journal of International Law and Commercial Regulation, 2011, pp. 389 – 415. Wigmore, John H.: ATreatise on the Anglo-American System of Evidence in Trials at Common Law, Little, Brown, Boston rev. Peter Tillers 1983, vol. 1 A.

Rituals and Procedure Heike Jung*

I. Introduction Recently, the German periodical GEO, an equivalent of „National Geographic“, has launched a survey on the power of rituals.1 Whereas rituals have for a long time rather been considered to be the sting in the tail of modernity, “late modernity” (Garland) has re-discovered rituals. It is not surprising that historians have gone into the lead, since rituals seem to belong to a long foregone past and thus to their domaine réservé.2 Exhibitions have visualised and fuelled this vivid discourse.3 The German Research Foundation (DFG) has financed two consecutive research projects on rituals, one on medieval rituals, the other one on the dynamisation of rituals. Evidently, rituals are no longer a mere object of retrograde historical research. Rituals still permeate and constitute our present-day societies, their structure and their order.4 Of course, “order” is the catchword for lawyers who have, in the mean-time, joined the interdisciplinary chorus on rituals. Legal positivists may need a reminder about the relevance of rituals for the administration of justice. It is customary, in this context, to refer to the symbolic elements in the administration of justice, i. e. to the architecture of court-rooms, to gowns and to wigs. Stollberg-Rilinger refers to an example which may even be more striking because it toys with the ritual aspect of forms and formulae:5 When Barack Obama took his oath of office as the 44th President of the United States of America he used the wrong formula thus triggering off a vivid debate about the relevance of this mistake. In fact, he took the oath again on the next day, this time using the correct formula. Medieval times are said to have been the high point of symbolic communication. Today, we believe to be living, thanks to the era of Enlightenment, in a world gov* Professor of Criminal Law, Criminal Procedure, Criminology and Comparative Criminal Law at the University of Saarbruecken, Germany. 1 http://www.geo.de/ritual. 2 Cf. for an overview Stollberg-Rilinger, Barbara, Rituale, Campus, Frankfurt/New York, 2013. 3 Stollberg-Rilinger, Barbara et al. (eds.), Spektakel der Macht. Rituale im Alten Europa 800 – 1800, Wissenschaftliche Buchgesellschaft, Darmstadt 2008. 4 Stollberg-Rilinger (2013), p. 13. 5 Stollberg-Rilinger (2013), p. 7.

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erned by rationality. Any radical juxtaposition would, however, be misleading.6 Despite a growing disregard of “empty forms” and a striving for substantive arguments and sound reasoning, rituals have never ceased to structure our daily life.7 The “rites de passage” offer orientation and reassurance in an increasingly complex world.8 Moreover, sociologists have sensitised us for the commanding influence of rituals on the shaping and functioning of our social institutions. Rationalists might worry. Yet, we rather seem to be engaged in an exercise of rationalisation of rituals, i. e. we do not give in to their myth, but try to analyse rituals in a rational manner, dwelling on the consolidated body of knowledge gathered by sociologists, ethnologists and socio-psychologists. This is neither my first go at the question,9 nor am I the first lawyer to engage in a rehearsal of rituals.10 Yet, we still embark on a discovery tour off the beaten track. Or, to put it differently: legal positivism and dogmatism will offer little help. The topic rather invites a theoretical appraisal of the structure of procedure, an appraisal which puts the emphasis on the image and the perception of procedure and on the contribution of rituals to the legitimation and the effectiveness of the justice system. My reading of Lord Hewart’s dictum “Justice must be seen to be done”11 implies a certain presentation not to speak of an orchestration of the justice system. This leads us inevitably to the role of lawyers as the masters of the ceremony. They cherish a discourse which outsiders will consider to be part of the ritual. It is therefore tempting to analyse our profession with its undeniable affinities to the sacré from this perspective.12 What may initially look like a mere historical rehearsal or a remote exercise in ethnology might turn into a real test for the present state of the justice system.

6

Illuminating in this respect Schulze, Reiner, Symbolische Kommunikation vor Gericht während der frühen Neuzeit, in: Schulze, Reiner (Hrsg.), Symbolische Kommunikation vor Gericht in der Frühen Neuzeit, Duncker & Humblot, Berlin 2006, p. 13, 15. 7 E. g. Zirfas, Jörg, Vom Zauber der Rituale. Der Alltag und seine Regeln, Reclam, Leipzig 2004. 8 See the issue No. 43 of Hermès consecrated to Rituels, CNRS Editions, Paris 2005. 9 Cf. Justiz und Ritual, in: Festschrift für Egon Müller, Nomos, Baden-Baden 2008, p. 319; Rituals Forever, European Journal of Crime, Criminal Law and Criminal Justice 18 (2010), p. 67; Justizrituale à la française, Goltdammers Archiv für Strafrecht 2012, p. 519; Maigret et le rituel judiciaire, in: Leblois-Happe, Jocelyne (dir.), Les investigations policières, Presses Universitaires Aix-Marseille 2012, p. 133. 10 E. g. Garapon, Antoine, Bien juger. Essai sur le rituel judiciaire, Éditions Odile Jacob, Paris 1997 (an extended version of his prior work L’Âne portant les réliques); Deprez, François, Rituel judiciaire et procès pénal, L.G.D.J., Paris 2009. 11 R v. Sussex Justices, ex parte McCarthy (1924), 1 KB, p. 256, 259. 12 Cf. Jacob, Robert, La grâce des juges. L’institution judiciaire et le sacré en Occident, Presses Universitaires de France, Paris 2014.

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II. Definitional Issues Lawyers are fond of distinctions. Distinguishing cases is the gist of adjudication. Yet, with rituals, it is not easy to satisfy this preoccupation. “Ritual” is not a legal term, but an analytical concept which has only been developed around 1900.13 It describes a complex social interaction with an inherent structuring effect due to its standardised performative or symbolic message which flows from commonly shared preconceptions and expectations.14 Though a complex phenomenon in itself, rituals tend to reduce complexity since they strike a tune which everybody is familiar with. Rituals dwell on a widely shared and deeply rooted socio-cultural understanding nourished by repetition. They exercise a “social magic” (Bourdieu). This description falls short of the type of definition we are used to. Yet, it is difficult to capture this omnipresent social magic in a nice definition. Also, reserving the term “ritual” for social interactions that lead to a conflict resolution15 would overstate the ethnological perspective and would thus tend to produce a definitional stop. A wider approach takes note of the diverse related social phenomena which should not be discarded when looking at the messages which are communicated by the criminal justice system. Rituals form part of the wider set of symbolic and non-verbal communication. At the same time, even verbal communication, like the oath of office, can turn into a ritual. In short:16 speaking of rituals is a very general façon de parler. Judicial rituals rely on many elements: gavels and gowns, the whole arrangement inside the court room, the scenic presentation of the case, the architecture parlante of court buildings17 etc. According to Garapon the judicial ritual consists of an “ensemble des actes, conduites, prescriptions ou symboles”.18 Taken together this ensemble creates a “symbolic universe” and transforms justice into a performance distinct from everyday life. The comparison with the theatre has been drawn time and again.19 The miseen-scène provides a demarcation and a structured set for a rather formalised interac13

Stollberg-Rilinger (2013), p. 17. Dwelling on and expanding Stollberg-Rilinger’s 2013, p. 9 suggestion for a definition. 15 Cf. Rolinski, Klaus, Rituale und Rituale im Recht unter ethologischem Aspekt, in: Müller-Dietz, Heinz et al. (Hrsg.), Festschrift für Heike Jung, Nomos, Baden-Baden 2007, p. 793, 807. 16 See my article “Justice must be seen to be done”, Nordisk Tidsskrift for Kriminalvidenskab 99 (2012), p. 65, 73. 17 Cf. Esch, Franz-Josef/Jung, Heike/Kroeber/Riel, Werner, Die kommunikativen Wirkungen von Gefängnisarchitektur. Zugleich ein Beitrag zur Symbolik im Strafrecht, in: Martinek, Michael/Schmidt, Jürgen/Wadle, Elmar (Hrsg.), Festschrift für Günther Jahr, Mohr (Paul Siebeck), Tübingen 1993, p. 47 focusing on the symbolic effect of prison architecture. 18 Garapon, Antoine, Rituel judiciaire, in: Cadiet, Loïc, Dictionnaire de la Justice, Presses universitaires de France, Paris 2006, p. 1168. 19 E. g. Schild, Wolfgang, Die Strafgerichtsverhandlung als Theater des Rechts, in: Schulze 2006, p. 107. 14

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tion. It mobilises a traditional pre-understanding: we realize immediately that this is a court session. Thus, rituals underscore the institutional quality of the process.

III. Rituals and Institutions “Institution” is just as vague a term as ritual. I will concentrate on institutional agencies with adjudicative functions.20 My brief analysis will rely on two sources; on insights from the perspective of law and literature and on sociological knowledge which, as we shall see, both confirm the power of rituals when it comes to constitute institutions. My informant on the literary side is Simenon‘s hero Maigret. Simenon‘s detective story “Maigret aux assises” is particularly telling. Maigret, summoned as a witness at a jury trial, philosophises about the special world of law and criminal justice: „Quelques couloirs à franchir, quelques escaliers, et c‘était un décor différent, un autre monde, où les mots n‘avaient plus le même sens, un univers abstrait, hiératique, à la fois solennel et saugrenu”.21 The legal dignitaries appear to be isolated from the world, constituting an island of their own.22 Maigret reminds us of the obscurity of the legal language: “On était tout à coup plongé dans un univers dépersonnalisé, où les mots de tous les jours n‘avaient plus avoir cours, où les faits les plus quotidiens se traduisaient par des formules hermétiques.”23 He alludes to the ceremonialism of the set-up which has nothing in common with the real world: “La robe noire des juges, l‘hermine, la robe rouge de l‘avocat général accroissaient encore cette impression d‘une cérémonie aux rites immuables …”24 Though he was a frequent visitor to the jury trials he had never really interiorised these “derniers rites” which, according to him, bear a striking resemblance to religious ceremonies. At this stage, we need to remind Maigret that his police world at the Quai d‘Orfèvres is also governed by a special set of habits and rites which figure as identity markers of a police station. Maigret‘s message is confirmed by sociological knowledge. The French sociologist Bourdieu has, in his illuminating article “Les rites comme actes d‘institution”,25 expanded the notion of “rites de passages” in order to explain the constitutive power of rituals in the formation and stabilisation of social institutions. Institutions are, according to him, an act of social magic and rituals are at the root of this magic. Legnaro/Aengenheister follow suit: on the basis of ethnographic paradigms and methods 20 For a general view on institutions of law see MacCormick, Neil, Institutions of Law, Oxford University Press, Oxford et al. 2008. 21 Simenon, Georges, Maigret aux assises, Presses de la cité, Paris 1960, p. 7 et seq. 22 Simenon (1960), p. 50. 23 Simenon (1960), p. 37. 24 Simenon (1960), p. 37. 25 Bourdieu, Pierre, Les rites comme actes d’institution, Actes de la recherche en sciences sociales 43, juin 1982, p. 58 – 63.

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they portray criminal justice as a theatrical performance, a “ritual of rationality”. 26 In their view, the trial turns into a “rite de passage”, a ceremony which potentially produces a change of social status27 – an echo of Garfinkel‘s concept of degradation ceremonies.28

IV. Rituals and Authority The administration of justice is an authoritative exercise.29 In the Kelsenean tradition, authority is too weak a word, since law is about force.30 On this background, rendering justice will, in last instance, have to rely on force. In that sense, the courts have their share of power irrespective of the question whether we see the courts within or outwith the state structure. However, the French preference for the term “autorité judiciaire” instead of “pouvoir judiciaire”31 alludes to the fact that the power of the courts is not primarily based upon force but on respect for their decisions. Yet, where is this respect derived from? Historically speaking, judges are an archetype of authority.32 In many societies, judges have resembled priests; Ulpian spoke of “sacerdotes iustitiae”.33 Of course, this notion allowed a certain emancipation and elevation of the judiciary.34 The different religious beliefs and traditions may have fostered particular notions of justice and of the status of judges which will also reflect the role of law in the respective society. Hence the legal traditions of the world will offer a variety of images of judges and a variety of styles of conflict resolution.35 The Christian tradition has certainly left its mark.36 An inventory in German court rooms will show that crucifixes are still present in many of them. Judge’s gowns lend themselves to either association, kings or priests, perhaps depending on the country 26 Legnaro, Aldo/Aengenheister, Astrid, Die Aufführung von Strafrecht, Nomos, BadenBaden 1999. 27 Legnaro/Aengenheister (1999), p. 20. 28 Garfinkel, Harold, Conditions of Successful Degradation Ceremonies, American Journal of Sociology 61 (1956), p. 420. 29 Cf. for the following Jung, Heike, The Authority of Lawyers, Oñati Socio-Legal Series, vol. 1 N. 9 (2011) – Autonomy and Heteronomy of the Judiciary in Europe – online. 30 Kelsen, Hans, Reine Rechtslehre, 2nd ed., Österreich Verlag, Vienna 2000, p. 35. 31 Cf. Garapon, Antoine, Le gardien des promesses, Éditions Odile Jacob, Paris 1996, p. 172. 32 Kojève, Alexandre, La notion de l’autorité, Gallimard, Paris 2004, p. 25. 33 D. 1.1.1 pr. up to 1: „Iuri operam daturum prius nosse oportet, unde nomen iuris descendat. Est autem a iustitia appellatum : nam, ut eleganter Celsus definit, ius est ars boni et aequi. Cuius merito quis nos sacerdotes appellet …“ 34 E. g. Jung, Heike, Richterbilder – Ein interkultureller Vergleich, Nomos, Baden-Baden 2006, p. 21 et seq. with further references. 35 E. g. for the kadi tradition Jung, Heike, Zur Kadijustiz, in: Kühne, Hans-Heiner et al. (Hrsg.), Festschrift für Rolinski, Nomos, Baden-Baden 2002, p. 209. 36 See Schild, Wolfgang, Gott als Richter, in: Pleister, Wolfgang/Schild, Wolfgang (Hrsg.), Recht und Gerechtigkeit im Spiegel der europäischen Kunst, Dumont, Köln 1988, p. 44.

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we are talking about.37 At any rate, we cannot disregard the fact that the repertoire of judicial symbols is of a special character which goes to show that the world of the law cherishes a symbolic tradition of its own which, though overlapping in part, takes a certain distance to representations of state power. Again, we have to beware of generalisations. Whereas court-architecture shares common, almost universalisable features, the ornament inside the court-room may be more indicative of the different socio-cultural aspirations regarding the solemnity of the administration of justice. In that sense, Germany seems to be in a transitory stage,38 since the display of religious symbols rivals with the display of more neutral justice symbols and straightforward state symbols. In France, the republican symbols have carried the day though, for historic reasons, here and there religious symbols subsist.39 On the whole, French court and court-room architecture embodies the majesty of decision-making.40 “Les justiciables” are supposed to be duly impressed, which does not hinder the same public to dream of a “justice familiale”.41 It is, of course, not easy to assess the impact of rituals on the authority of the courts. It is fair to say, however, that the administration of justice has always relied and still relies, to some extent, on manifestations, on the “fabrication of justice”.42 Of course, the quality of the forensic debate and of judicial reasoning accounts for the greater bulk of public acceptance. Yet, there is also a background melody that we seem to know by heart. Its transmission relates to the concept of legal education. Mirjan Damasˇka has alluded to this process when he recalled, in his interview with Máximo Langer, his adaptation to the American legal culture: “My knowledge of the larger American culture and history was poor. People would say, ‘Founding Fathers would agree with this…this sounds like Madison…this is not what Franklin thought‘. But I did not know, or did not know sufficiently, what was their point.”43

37 For more details cf. Jung 2006, p. 141. According to Tamm, Ditlev, Der dänische König als Richter und Gesetzgeber, in: Schulze 2006, p. 357, 372 the first painting of Danish Supreme Court judges in 1911 rather stands in line with the “religious tradition”. 38 Habermas, Jürgen, Politik und Religion, in : Graf, Friedrich Wilhelm/Meier, Heinrich (Hrsg.), Politik und Religion, Beck, München 2013, p. 287, 294 believes that a traditional “sacred complex” (ein sakraler Komplex) subsists as means of promoting social cohesion despite the secularisation of state power. 39 E. g. for an impressive inventory of religious symbols Madranges, Étienne, Les palais de justice de France, LexisNexis, Paris 2011, p. 360 – 373. 40 On the development of the espace judiciaire in France cf. Garapon 1997, p. 23 – 49, as well as Madranges 2011. 41 Cf. Carbonnier, Jean, Préface, in: Garapon 1997, p. 13, 5. 42 Paraphrasing the title of Evans, Robin, The Fabrication of Virtue, Cambridge University Press, Cambridge 1982. 43 Langer, Máximo, Interview with Mirjan Damasˇka, in: Jackson, John/Langer, Máximo/ Tillers, Peter (eds.), Crime, Procedure and Evidence in a Comparative and International Context. Essays in Honour of Professor Mirjan Damasˇka, Hart, Oxford/Portland 2008, p. 415, 426.

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V. Rituals and the Fundamentals of Procedure The search for the relevance of rituals in contemporary procedure invites some preparatory groundwork on procedure itself. This puts me into a predicament since it is, of course, impossible to describe the essence of procedure in a few lines. The topic fills libraries. Studies on the different concepts and models of procedure have turned into a standard exercise of comparatists. In his pioneering work “The Faces of Justice and State Authority”, Mirjan Damasˇka has shown that the different legal cultures and traditions impose themselves commandingly on the structure of procedure.44 This complicates any meaningful stock-taking. Or rather, we have to operate with very abstract parameters and even at this lofty level of debate we have to be careful with generalisations. Instead of stopping here, I venture to present a few ideas.45 To begin with procedure matters: procedure has always been our everyday approximation of justice. Whatever concept of justice we have, it needs to be implemented. By way of implementation, justice becomes tangible. The procedural perspective, which has always dominated Anglo-American legal thought, has infiltrated continental European, even German legal thought as well.46 This may be due to impulses from the Human Rights movement and the constitutionalisation of criminal law. Moreover, criminology, socio-legal studies and ethnography offer a rich body of knowledge on procedure. In particular, socio-psychology has directed our attention to fairness.47 As a matter of fact, Rawls’ concept of “Justice as Fairness”, though Rawls himself only hints at the “real” procedure, sounds like an overarching procedural formula. Also “diverging and converging procedural landscapes, changes in the institutional and political environment and legal transplants”48 have mobilised procedural scholarship for theoretical ventures. In particular, the advance of negotiated justice in Continental systems has triggered off a rehearsal of procedural theory.49 Dwelling on the divide between the Anglo-American and Continental European models of procedure, the discussion has inevitably turned towards the essentials of criminal procedure. Consequently, the German Federal Constitutional Court has ventured a re-

44 Damasˇka, Mirjan, The Faces of Justice and State Authority, Yale University Press, New Haven/London 1986; also Damasˇka, Mirjan, Models of Criminal Procedure, Zbornik 51 (2001), p.477. 45 Expanding the concept of my prior article Justice must be seen to be done 2012. 46 E. g. Jung, Heike, Von der Emanzipation des Strafprozessrechts und der Strafprozesswissenschaft, Schweizerische Zeitschrift für Strafrecht 130 (2012), p. 39. 47 Cf. Tyler, Tom, Why People Obey the Law, Princeton University Press, Princeton/Oxford 2006. 48 Using the title of the first section of the Essays in Honour of Professor Mirjan Damasˇka 2008, p. 36. 49 Cf. my own go: Plea bargaining and its Repercussions on the Theory of Criminal Procedure, European Journal of Crime, Criminal Law and Criminal Justice 1997, p. 112.

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statement on the occasion of its “Verständigungs”-decision.50 Though negotiated criminal justice is omnipresent today, it does not come as a surprise that the debate will strike different tunes and raise different principled questions, depending on the construction mould, i. e. the organization of the particular state. 51 Still, rituals seem to set a counter-point in procedural climate which is otherwise dominated by moves towards bureaucratisation and managerialism. Public trials with their ritual ambience are being sacrificed on the altar of effectiveness. Interestingly enough, such moves seem to simultaneously deal a blow not only to rituals, but also to the received fundamentals of procedure. Therefore, a cross-check between rituals and the fundamentals of procedure might prove to be a telling encounter. This said, you should not expect a lengthy treatise on procedural theory.52 Comparatists have disillusioned us that, even at the level of meta-categories, there is no uncontested set of fundamentals. In our particular context this relativity may not hurt since it will most likely be matched by a relativity of rituals. Hence this albeit brief parade of my personal favorites! It is only meant to illustrate the interactions and possible frictions between rituals and fundamentals. My test-set of fundamentals for the administration of criminal justice consists of impartiality, truth, equality, fairness and transparency. Maher has, in his procedural rehearsal of Rawls’ concept on “justice as fairness” apostrophised impartiality as a natural justice requirement.53 Some contend that forensic ceremoniality fosters an atmosphere of impartiality. Even if this assumption were true, the whole mise-enscène will also produce effects of exclusion, if not elimination and intimidation. Truth is an even more complex case. Fritz Teufel’s famous comment, when ordered to stand up in front of the judges’ bench: “Well, if this helps finding the truth”54 has not just been an ironical expression of disrespect. He insinuated the distinction between the ceremonial arrangement and the process of truth finding. Though the process has a formalised structure, it is all about arguments and their verification and falsification. We have overcome ordeals and do no longer believe in the reproduction of formulae or gestures,55 although “confrontation” may have the ritual touch of an 50 In its decision on the constitutionality of the German “Verständigungsgesetz” BVerfGE 133, 168. 51 E. g. Damasˇka, Mirjan, Negotiated Criminal Justice in International Criminal Courts, International Journal of Criminal Justice 2 (2004), p. 1018; Weigend, Thomas, The Decay of the Inquisitorial Ideal: Plea Bargaining Invades German Criminal Procedure, in: Essays in Honour of Mirjan Damasˇka 2008, p. 39 52 For an idea of the complexity of such a project cf. Gröning, Linda, Towards a Theory of the Criminal Justice System, Nordisk Tidsskrift for Kriminalvidenskab 99 (2012), p. 27. 53 Maher, Gerry, Natural Justice as Fairness, in: MacCormick, Neil/Birks, Peter (eds.), The Legal Mind. Essays for Tony Honoré, Clarendon Press, Oxford 1986, p. 103, 116. 54 “Na ja, wenn’s der Wahrheitsfindung dient.” 55 Illuminating in this respect, with regard to the French procedure towards the end of the Middle Ages, Gauvard, Claude: Rituels et voix vive des avocats au Parlement de Paris dans les causes criminelles, à la fin du Moyen Âge, in : Schulze 2006, p. 73.

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ultimate showdown. Whereas confrontation has passed the test of forensic psychology, the value of the oath as a means of procuring the truth is at best a matter of doubt. Still, the oath forms part of the over-all orchestration of solemnity irrespective of the presence or absence of any religious addendum. It is therefore not surprising that Desprez, an ardent defender of rituals, devotes 40 pages of his thesis on rituals to the role of the oath.56 Equality figures among the prime normative aspirations for procedures despite differing margins of tolerance regarding the result.57 There is a wide array of symbolic representations of equality: the balance, the blindfold iustitia, architectural designs or scriptural ornaments.58 In this sense, equality seems to be a particular suitable candidate for such a back-up strategy. Fairness needs no such backup. As an infiltration into law which is derived from the culture of sports, it is deeply rooted in social life. It radiates social magic on its own. Transparency comes in as a means and as an end. On the one hand, visualisation is the key to the performance of rituals. On the other hand, the publicity principle entails a construction plan for court houses and court-rooms. Of course, these few lines can only allude to the correlation between rituals and the fundamentals of procedure. Apparently, the use of rituals is meant to accentuate the deep structure of procedure. This said, it should be of interest to find out whether the existing repertoire of rituals corresponds to the present-day procedure. Any discrepancy may call for the elimination or the dynamisation of rituals. We might also, as a consequence of the longevity of procedure and their ritual manifestations, have to tolerate a certain tension between the rituals in practice and the demands of the law. Furthermore, we will have to decipher the message emanating from the ongoing deritualisation by way of bureaucratisation.59 Does this mean that we could do away with rituals altogether? Or does it indicate that our procedures have taken the wrong turn? Or are we just compelled to compensate the lack of visibility which goes along with bureaucratic procedures? Or do we have to untie the link between visibility and (procedural) rituals? The answers will hint at the present state of the criminal process or, to be precise, at my view of it, since the state and the form of ritualisation mirror the faces of contemporary justice.

56

Desprez (2009), p. 149 – 190. The kadi, for example, is supposed to take a socially useful decision which might even contradict the letter of the law. Rosen, Lawrence, Anthropology of Justice, Cambridge University Press, Cambridge 1989, p. 67. 58 E. g. the standard reference in Italian court-rooms to Art. 3 of the Italian constitution: “La legge è uguale per tutti.” 59 Desprez (2009), p. 317 has coined the phrase “justice de bureau”. 57

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VI. My Account of Rituals 1. The General Background It is useful to recall that, in Merton’s classification of human behavior, ritualism accounts for standstill.60 Yet, rituals form an integral part of practical logics in that they trigger off an immediate understanding in society or within a particular institution.61 Therefore much will depend on the dosage. An overdose will tend to smother social life and kill spontaneity whereas a lack of rituals may result in a lack of orientation. By necessity, rituals will lean towards the past.62 Still, rituals have their time. They should not be totally out of step with the contemporary social and normative setting. In fact, rituals undergo a change, sometimes gradually, sometimes abruptly. Also our understanding of rituals may vary – see today’s rationalisation of rituals as compared to the outright rejection some fifty years ago. As a matter of fact, the culture of rituals has, throughout history, not followed a consistent line. Today, our approach towards rituals oscillates between “personalisation” and a widely shared longing for a (renewed?) “unversalisation”.63 On this general background, due to the functional differentiation of modern societies, institutional rituals seem to subsist.64 Yet, changes in the operational philosophy of an institution will not leave the “old” rituals untouched. Also, the media have transformed and continue to transform the ritualisation process.65 2. Court Rituals Revisited The renewed discussion about rituals in criminal justice might stem from the rediscovery of emotions in criminal policy and from the “cultural turn” which has caught on in legal discourse. The “anti-ritual” mainstream of the 1960ies and 1970ies which used to cherish the classical Western pejorative connotations of rituals such as superficiality, formalism and irrationality66 has lost its thrust. Also, the informal justice movement seems to have run out of some of its steam. Still, I neither subscribe to Desprez’ emphasis on the sacré in judicial adjudication nor do I second his motion for an “upgrade” of rituals.67 We should not return to unquestioned authorities 60 Merton, Robert, Social Theory and Social Structure, Revised and Enlarged Edition, Free Press, Glencoe 1957, p. 149 – 153. 61 E. g. Bourdieu, Pierre, La distinction. Critique sociale du jugement, Les éditions du minuit, Paris 1979, p. 634. 62 According to Glenn, Patrick, Legal Traditions of the World, 4th ed., Oxford University Press, Oxford 2010, p. 12: „Rituals appear in the present as the unspoken past”. 63 Stollberg-Rilinger (2013), p. 241 et seq. 64 Stollberg-Rilinger (2013), p. 241. 65 Stollberg-Rilinger (2013), p. 240. 66 For this Western reading of rituals e. g. Glenn 2010, p. 327. On this negative connotation see also Stollberg-Rilinger (2013), p. 235. 67 Cf. Desprez (2009), p. 461, 463.

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and to empty forms, nor should we revive the unsaid. Rendering justice in a secular society is not a prerogative of high priests. Also, in a “Rechtsstaat”, judges no longer need to defend their independence by way of “sanctifying” their office. The contemporary judge will rather be respected for the quality of the work, for good delivery. Juridical fact-finding is a carefully orchestrated and minutely regulated rational evaluation of evidence. Yet, this communicative enterprise will take place in a particular setting, inside a court-room with its particular sitting-order and its juridical ornament and attire. This traditional arrangement sets the scene. It is a matter of debate to which extent the”symbolic design” will have an impact on the communication in court. Recent ethnographic research seems to confirm that a formalised setting and sitting-order generates a special mode of communication.68 Rules of order are essential for a meaningful discourse in the public sphere with different rivaling, even quarreling parties. Yet, these rules are not an end in themselves, they serve a purpose; depending on the mode of conflict resolution – take a criminal trial in comparison to mediation – they may be tightly or loosely framed. Yet, in any case, the communication should not take place under the constraint of an overly rigid regime of rules, best illustrated by the tenor of the recent German debate about a reform of the question time in the Bundestag which has figured under the heading “vitality vs. ritualism”.69 3. A Plea for Adaptation Law being the language of democracy70 we may need, on this general background, a democratisation of rituals.71 This requires, first, more respect for “la tradition républicaine”. Despite a certain revival of positions tainted by religious traditions in public discourse,72 the imagery of the courts and the instruments of procedure will have to remain neutral. Secondly, the presentation of the courts should pay tribute to the ideas of transparency, participation and access to law. This will not only have to come to bear in the architectural design, but also in the courts’ media: @ Religious neutrality is at stake with regard to the display of crucifixes and crosses. In Germany, this is still a controversial issue.73 Though the crucifix has disap68 E. g. Scheffer,Thomas/Hannken-Illjes, Kati/Kozin, Alexander, How Courts Know. Comparing English Crown Court, U.S.-American State Court and German District Court, Space and Culture, 12 (2009), No. 2, p. 183. 69 „Vital statt Ritual“ cf. Süddeutsche Zeitung of January 31/February 1, 2015, p. 6. 70 Extrapolated from Habermas, Jürgen, Über den internen Zusammenhang von Rechtsstaat und Demokratie, in: Habermas, Jürgen, Die Einbeziehung des Anderen, Suhrkamp, Frankfurt 1996, p. 301. 71 E. g. Garapon (1997), p. 322: “Il faut repeupler la vie publique avec de nouveaux symboles, des rites efficaces, signifiants et maîtrisés.” 72 E. g. Graf/Meier (2013). 73 E. g. for the recent debate in the aftermath of the removal of the cross in the Saarlouis Upper Administrative Court Bilsdorfer, Peter, Das Kreuz mit dem Kreuz, Neue Juristische Wochenschrift 2014, p. 3.

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peared from many court-rooms, the coalition of “retentionists” comprises not only “traditionalists” in the population at large, but also judges who might appreciate this elevation of their office. The German Federal Constitutional Court has, in an early decision, tolerated this Christian symbol in court rooms subject to religiously motivated exceptions.74 I refrain from engaging in the debate on the presence of crucifixes in schools.75 Yet, in a court room, their display risks to disavow the authority of the secular state. We should therefore follow the practice of other countries, which on the whole, prefer holding recourse to symbols of justice and/or of public authority. @ Court architecture seems timeless. Many court houses, even today, resemble modern adaptations of Greek temples or bear inscriptions – like the “Domus Iustitiae” on Portuguese court buildings – which take up Latin as the traditional language of the law to accentuate the particular status of the building. The French, specialists in representative court architecture anyway, speak of “palais de justice” which recalls the royal tradition.76 There are signs of change of an ambivalent nature. Often enough, new court houses can no longer be distinguished from any other administration building. This may at best stand for a general move away from expressive symbolism and a turn of construction styles towards functionalism pure. Yet, Germany which has, in the Wilhelmenean period, erected some remarkable specimen of court architecture anyway77 is to be credited with a court-building which incarnates transparency: the Federal Constitutional Court at Karlsruhe.78 @ Participation will call for a different set of rituals. Looking a bit closer into Deprez’ category of “justice de bureau” we will detect procedures which have been deformalized for good reasons. This is for example the case with juvenile justice systems which need a certain amount of flexibility.79 Moreover, a formalistic atmosphere with its potentially intimidating character will hardly allow pursuing a philosophy of reconciliation and restoration. This should be the domain of “round tables”. @ Law’s media need a revision in order to promote the presence of law in public. This could be a push for one of my favourite projects: the opening of (German) court sessions for documentary films and television. I do not want to go into de74

BVerfGE 35, 366. See BVerfGE 93, 1; ECHR (Grand Chamber), Lautsi and others v. Italy, Judgment of March 18, 2011 (30814/06). 76 E. g. Elias, Norbert, Die höfische Gesellschaft, Suhrkamp, Frankfurt 2002, p. 95. 77 For an overview cf. Götz, Wolfgang, Das Landgericht in Saarbrücken. Beiträge zur Baugeschichte, in: 150 Jahre Landgericht Saarbrücken, Festschrift, Heymanns, Köln et al. 1985, p. 33. 78 Verein der Richter des Bundesverfassungsgerichts e.V. (ed.), Das Bundesverfassungsgericht in Karlsruhe. Architektur und Rechtsprechung. The Federal Constitutional Court of Germany, Architecture and Jurisdiction, Birkhäuser, Basel/Boston 2004. 79 Cf. Jung, Heike, Structural Problems of Juvenile Justice Systems, Journal of the Law Society of Scotland 27 (1982), p. 325, 327. 75

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tails here.80 The project is delicate, since we have to avoid falling prey to crude sensationalism. Yet, in our modern “media society” we can no longer exclude motion pictures from court sessions altogether. This is not just a question of the freedom of the press. It also relates to justice tout court since justice must be seen to be done. Therefore the “ritual of presentation” needs a gradual modernisation in order to reach the public at large. Inside the court system the modern electronic media have already changed the image of courts and procedure. “Cyber court” ante portas?81

VII. Rituals forever? The term “ritual” lends itself to different associations. Rituals in the narrow sense of a conflict resolving ceremony are not appropriate for a “society of strangers” (Nader). Yet, like any other institution, the administration of justice cannot dispense with rituals in the broader sense. Rituals help shaping and consolidating social, if not corporate identity. Of course, justice is a rational enterprise. Rituals revisited, does not mean “more of the same”! In a democratic society state rituals should no longer erect barriers between those who administer the law and those who are being administered.82 The French “barre” in the “salle d‘audience”, a reminiscence of this divide, is nowadays rather being conceived of and used as a rhetorical device.83 Courts should, instead of representing a remote “self-perpetuating bureaucracy” (Sir Leon Radzinowicz), rather adopt the semantics and semiotics of a “justice with a human face”.84 In that sense, the ship “Tribuna” which brings justice to the people on the banks of the Amazon River is of a highly symbolic value.85

80

For more details cf. Jung, Heike, (Fernseh) Bilder der Justiz oder wieviel Öffentlichkeit verträgt die Hauptverhandlung?, in: Leblois-Happe, Jocelyne/Stuckenberg, Carl-Friedrich (Hrsg.), Was wird aus der Hauptverhandlung?, V&R unipress / Bonn University Press, Göttingen 2014, p. 167. 81 E. g. Vismann, Cornelia, Medien der Rechtsprechung, Fischer, Frankfurt 2011, p. 369; Jung, Heike, Der Strafprozess als Videokonferenz? Ein Blick auf das französische Recht, in: Hefendehl, Roland/Hörnle, Tatjana/Greco, Luis, Streitbare Strafrechtswissenschaft. Festschrift für Schünemann, de Gruyter, Berlin/Bosten 2014, p. 905. 82 To take up the formula coined by Bankowski/Zenen/Mungham, Geoff, Lay People and Law People and the Administration of the Lower Courts, International Journal of the Sociology of Law 9 (1981), p. 85, 99. 83 For further insight into the history of the „barre“ e. g. Halpérin, Jean-Louis, Einige Betrachtungen über die Entwicklung der Ausgestaltung der Gerichtssäle in Frankreich während des 17., 18., und 19. Jahrhunderts, in: Schulze 2006, p. 269. 84 The main theme of the First International Congress on Civil Procedure at Ghent in 1977. 85 See Leuthold, Ruedi, Der schwimmende Justizpalast, in: Chrismon 2012, No. 5, p. 12.

In the Beginning was Fortescue: On the Intellectual Origins of the Adversarial and Inquisitorial Systems and Common and Civil Law in Comparative Criminal Procedure Máximo Langer*

I. Introduction: The Need for an Intellectual History of Comparative Criminal Procedure The distinctions between adversarial and inquisitorial systems and between common and civil law have been central to comparative criminal procedure.1 In the United States, the Supreme Court invokes the adversary character of American criminal procedure to make decisions in individual cases and to distinguish it from the criminal process in civil law.2 In France, commentators characterize continental European criminal procedure as a mix between adversarial and inquisitorial models, in contrast to Anglo-American criminal procedure that would be predominantly adversarial.3 Italy and almost all Latin American countries have introduced substantial criminal procedure reforms in the last few decades that reformers have presented * Professor of Law, UCLA School of Law. I would like to thank Stuart Banner, Samuel Bray, Beth Colgan, Mirjan Damasˇka, Sharon Dolovich, Ingrid Eagly, Henry Ansgar Kelly, Richard Re, Richard J. Ross, Debora Shuger, David Sklansky, Sebastian Sobecki, and participants at the conference in honor of Mirjan Damasˇka, “The Administration of Justice – Past Experiences and Challenges for the Future”, Cavtat, Croatia, May 28 – 29, 2015, and the UCLA Criminal Justice Faculty Workshop, for their feedback on earlier versions of this paper. I would also like to thank the Hugh and Hazel Darling Law Library at UCLA School of Law, especially Gabriel Juárez, Nory Loeung, John Wilson for his research support, and Elyse Meyers for editing the piece. I dedicate this chapter to my mentor Mirjan Damasˇka, with deep admiration, affection and gratitude. 1 See Máximo Langer, The Long Shadow of the Adversarial and Inquisitorial Categories, in The Oxford Handbook of Criminal Law 887 (Markus D. Dubber & Tatjana Hörnle eds., Oxford University Press, 2014) [hereinafter The Long Shadow]; Máximo Langer, Strength, Weakness or Both? On the Endurance of the Adversarial-Inquisitorial Systems in Comparative Criminal Procedure, in Research Handbook on Comparative Criminal Procedure (Jacqueline Ross & Stephen Thaman eds., Edward Elgar Publishing, forthcoming 2016) [hereinafter Strength, Weakness or Both]. 2 See, generally, David A. Sklansky, Anti-Inquisitorialism, 122 Harvard Law Review, p. 1634 (2009) [hereinafter Anti-Inquisitorialism]. 3 See, e. g., Michèle-Laure Rassat, Procédure pénale (2010) § 21.

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as a move from an inquisitorial or mixed criminal process to an adversarial one.4 At international criminal tribunals and the International Criminal Court, commentators, judges, and policy-makers have used the adversarial and inquisitorial categories to justify the adoption of procedural rules, make decisions in individual cases, and explain what type of criminal process these jurisdictions have.5 Comparativists and historians have written on the history of these systems. The predominant account is that the inquisitorial system originated in continental Europe around the twelfth and thirteenth centuries when the Catholic Church and individual secular jurisdictions established professional bureaucracies to prosecute and adjudicate crime, authorized the initiation of legal process by public officials, and adopted a system of legal proof and legal torture.6 As for the adversarial system, the predominant account states that it originated in the eighteenth century when English law and judges gradually authorized the participation of professional defense attorneys in felony trials, which gradually led to the adoption of common law rules of evidence and to the redefinition of the role of judges as passive umpires, among other changes.7 I want to write a different history of these categories: an intellectual history or genealogy about how the adversarial and inquisitorial systems and common and civil law became central categories of comparative criminal procedure. Rather than asking when the adversarial and inquisitorial systems’ rules and institutional features originated, I am interested in a different set of questions, such as: (1) when, how and why judges, legal practitioners, policy-makers, and scholars 4 See, e. g., Elisabetta Grande, Italian Criminal Justice: Borrowing and Resistance, 48 American Journal of Comparative Law, p. 227 (2000); Máximo Langer, Revolution in Latin American Criminal Procedure: Diffusion of Legal Ideas from the Periphery, 55 American Journal of Comparative Law, p. 617 (2007) [hereinafter Revolution in Latin American Criminal Procedure]. 5 See, e. g., Kai Ambos, International Criminal Procedure: ‘Adversarial’, ‘Inquisitorial’ or Mixed?, 3 International Criminal Law Review 1 (2003); Cassesse’s International Criminal Law, p. 329 – 346 (revised by Antonio Cassesse et al., Oxford University Press, 2013); Máximo Langer, The Rise of Managerial Judging in International Criminal Law, 53 American Journal of Comparative Law, p. 835 (2005); International Criminal Procedure. Rules and Principles (Göran Sluiter et al. eds., Oxford University Press, 2013). 6 A classical reference in this line of work is Adhémar Esmein, Histoire de la Procédure Criminelle en France (1882). For recent related historiography, see e. g. Jacques Chiffoleau, Avouer l’inavouable: l’aveau et la procédure inquisitoire à la fin du Moyen Âge, in L’aveu, p. 57 (Renaud Dulong ed., 2001); John H. Langbein, Torture and the Law of Proof: Europe and England in the Ancien Régime (with a new preface, University of Chicago Press, 2006) [hereinafter Torture and the Law of Proof]; Lotte Kéry, Inquisitio – denunciatio – exceptio: Möglichkeiten der Verfahrenseinleitung im Dekretalenrecht, (2001) 87 ZRG, p. 226; James Q. Whitman, The Origins of Reasonable Doubt. Theological Roots of the Criminal Trial, p. 98 et seq. (Yale University Press, 2008). 7 See e. g. J.M. Beattie, Scales of Justice: Defense Counsel and the English Criminal Trial in the Eighteenth and Nineteenth Centuries, 9 Law and History Review, p. 221 (1991); Stephen Landsman, The Rise of the Contentious Spirit: Adversary Procedure in Eighteen Century England, 75 Cornell Law Review, p. 497 (1990); John H. Langbein, The Origins of Adversary Criminal Trial (2003) [hereinafter Origins].

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around the world started to think that the contrast between Anglo-American and continental European jurisdictions was central to the comparative understanding of criminal process; (2) when, how and why judges, practitioners, policy-makers, and scholars started to think that the doctrinal and institutional differences between AngloAmerican and continental European criminal processes were based on different epistemological paradigms for how the legal process does or should produce truthful verdicts; (3) when, how and why judges, practitioners, policy-makers, and scholars started to think that these legal and institutional differences could be explained through or were associated with differences between Anglo-American and continental European societies and cultural values and with different conceptions of the state; and (4) when, how and why judges, legal practitioners, policy-makers, and scholars started to use the adversarial and inquisitorial categories as a way to make sense of the differences between Anglo-American and continental European jurisdictions. In this chapter, I want to start writing this genealogy or intellectual history by analyzing Sir John Fortescue and his book De Laudibus Legum Angliae (In Praise of the Laws of England) [hereinafter De Laudibus]. Legal historians and constitutional and political theorists have analyzed Fortescue as a legal and political figure and considered him to be an important political theorist in fifteenth century England.8 However, 8 See, e. g., J.H. Baker, An Introduction to English Legal History (4th ed. 2007) [hereinafter English Legal History], p. 166: “It was the professional training of the judiciary, and the notion of a constitutional democracy as expounded by Fortescue in the fifteenth century, which transformed the personal loyalty which judges owed the king into a more objective form of loyalty to an impersonal Crown and to the king’s common law”; Alan Cromartie, The Constitutionalist Revolution. An Essay on the History of England, p. 1450 – 1642 (Cambridge University Press, 2006); W. S. Holdsworth, II A History of English Law, p. 566 – 571 (third edition, rewritten, Methuen & co. Ltd., 1923) [hereinafter II History of English Law], especially p. 569: “(Fortescue) shares with Bentham the fame of being at once a lawyer and a practical political philosopher. Both men clearly saw some of the evils from which their own age suffered. Both suggested the remedies which were successfully adopted by the age which followed….”; D.J. Galligan/C. Palmer, Patterns of Constitutional Thought from Fortescue to Bentham, in Constitutions and the Classics, p. 1 (D.J. Galligan ed., Oxford University Press, 2014); M.R.L.L. Kelley, Sir John Fortescue and the Political Dominium: The People, the Common Weal, and the King, in Constitutions and the Classics, p 51 (D. J. Galligan ed., Oxford University Press, 2014); Shelley Lockwood, Introduction to Sir John Fortescue’s On the Laws and Governance of England (Cambridge Texts in the History of Political Thought, 1997) [hereinafter Introduction], at xv: “Sir John Fortescue … was undoubtedly the major English political theorist of the fifteenth century.”; Sebastian Sobecki, Unwritten Verities. The Making of England’s Vernacular Legal Culture, 1463 – 1549, p. 100 (2015) (arguing that Fortescue offered “a first political theory of the common law that defined its assertively conciliar position toward the monarchy and the state”) [hereinafter Sobecki, Unwritten Verities]; William Stubbs, III The Constitutional History of England, p. 240 – 246 (2nd ed., Oxford at Clarendon Press, 1878); Walter Ullman, Law and Politics in the Middle Ages, p. 284 – 285 (Cornell University Press, Ithaca, 1975). Others have dismissed the value of Fortescue as a political theorist. See, e. g., J.G.A. Pocock, The Machiavellian Moment: Florentine Thought and the Atlantic Republican Tradition, p. 9 (Princeton University Press, 1975) (describing Fortescue as “an English lawyer and an amateur of philosophy who helps us understand the ideas of an age by coarsening them slightly”).

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comparative criminal procedure scholarship has not paid attention to Fortescue as one of the intellectual founders of the field.9 At most, Fortescue has been cited as a source of information about the criminal process in England in the fifteenth century or has had his position on individual topics noted.10 But scholars and policy-makers have not evaluated Fortescue as one of the originators of our contemporary understanding of the criminal process. I argue here that Fortescue made at least five crucial contributions to comparative criminal procedure that have survived to this day. First, he was among the very first to concentrate on analysis of the differences between criminal process in civil law and English common law and to offer a specific conceptualization to capture these differences.11 This work impacted later scholarship and policy-makers, but became obsolete as changes in civil and common law criminal process made Fortescue’s conceptualization lose its heuristic value. However, the centrality of the civil law and common law distinction to analyze the criminal process and the idea that we need categories to capture the differences between these traditions persist. Second, Fortescue used the distinction between civil law and English common law in both a descriptive and a normative sense, and argued for the superiority of the English legal process. Normative use of the civil law and common law distinction survives today in an important strand of contemporary comparative criminal procedure and in judicial and legal reform efforts around the world.

9 Within comparative law circles, Harold Berman briefly analyzed the work of Fortescue, though not in reference to the criminal or legal process. Arguing against authors like Thomas Stubbs, Henry Adams, Quentin Skinner and R.C. van Caenegem, Berman claimed that, despite praising the law of England, Fortescue did not consider English laws “to be essentially different in their fundamental nature, sources, and purposes from the customary laws of other countries, except in their antiquity”. In support of this argument, Berman said that “Fortescue’s principal work on legal philosophy was strictly on the school of natural law represented by Thomas Aquinas”. See Harold J. Berman, II Law and Revolution. The Impact of the Protestant Reformations on the Western Legal Tradition, p. 231 – 232 (2003). 10 See, e. g., Mirjan Damasˇka, The Faces of Justice and State Authority. A Comparative Approach to the Legal Process, p. 39 – 40 (1986) (explaining that Fortescue still celebrated the self-informing Angevin jury in the fifteenth century) [hereinafter Faces of Justice]; Langbein, Origins, p. 262 (including Fortescue in a list of English writers who subscribed to the presumption of innocence); p. 340 (mentioning Fortescue in a list of English authors that extolled the superiority of England’s torture-free procedure); John H. Langbein et al., History of the Common Law 155 – 156 (2009) (quoting Fortescue to explain the degree of the serjeant-atlaw); p. 173 (quoting Fortescue to describe legal education in England); p. 240 (citing a text that relies on Fortescue’s statement on self-informing jurors); p. 244 – 245 (quoting Fortescue’s account of civil jury trial); p. 697 (including Fortescue in a list of English writers who subscribed to the presumption of innocence) [hereinafter Common Law]. 11 In fact, S.B. Chrimes, Notes, in Sir John Fortescue, De Laudibus Legal Angliae (S.B. Chrimes ed. and trans., Cambridge at the University Press, 1949) (hereinafter Notes), p. 162, considered Fortescue’s work to be “… the earliest … comparison of English and Roman law …”

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In addition, Fortescue claimed that England’s criminal process was superior to the civil law’s criminal process because it was more accurate. This epistemological perspective has also endured until modern day in comparative criminal procedure. However, I will explain that Fortescue believed in the superior ability of the English criminal process to reach truthful outcomes for reasons somewhat different than those typically articulated in contemporary criminal procedure analyses. Fourth, Fortescue argued that there is a relationship between common law and civil law criminal processes and the societies in which they operate. As a consequence, he claimed that English criminal process could not be transplanted to other jurisdictions. These ideas have also been important in contemporary criminal procedure scholarship and judicial and legal reforms. Finally, like a substantial number of policy-makers and a substantial part of contemporary comparative criminal procedure scholarship, Fortescue claimed that there is a close relationship between the criminal processes in common law and civil law and types of political authority. Specifically, he believed that political authority based on people’s consent would not circumvent due process in English law, but political authority not based on such consent would do so in civil law. This framework could provide avenues for descriptive and normative inquiries that contemporary comparative criminal procedure has not explored.

II. The Adversarial and Inquisitorial Systems as Central Categories of Comparative Criminal Procedure At least since the first half of the nineteenth century, the accusatorial (later adversarial) and inquisitorial systems have been central categories in comparative criminal procedure.12 Judges, practitioners, and scholars have used these categories to capture the differences between common law and civil law jurisdictions. They have also used these two systems as normative models for procedural reform and to make decisions on individual cases.13 Though the precise characteristics of these categories vary in different formulations, the adversarial system is often defined as conceiving of the criminal process as a dispute between prosecution and defense, at an oral and public hearing before a bifurcated court composed of a passive professional judge and a jury. In contrast, the inquisitorial system is defined as conceiving of the criminal process as an impar-

12

See, e. g., H., An Account of the Criminal Law, Criminal Courts, and Criminal Procedure of Germany; With Notices of the Principal Writers on Penal Jurisprudence, and the Principal Theories of Penal Legislation Prevailing There, 11 Law Magazine Quarterly Review of Jurisprudence 1 (1834); Faustin Hélie, Traité de l’instruction criminelle, Vol. 5, (1853); Karl J. A. Mittermaier, Lehre vom Beweise im deutschen Strafprozesse (1834). 13 See supra notes 1 to 5.

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tial single inquiry, carried out through written, secret proceedings by a court composed of active professional judges.14 The adversarial and inquisitorial systems are, respectively, associated with AngloAmerican common law jurisdictions and Continental civil law ones.15 Each system is based on different epistemological paradigms for how the legal process does or should produce truthful verdicts.16 Each system is also associated with a different conception of society – common law with a more individualistic conception and civil law with a more communitarian one – as well as with different conceptions of the political State – the adversarial system with a more democratic or liberal conception and the inquisitorial system with a more authoritarian or non-liberal one.17 Most of these characteristics are even present in contemporary criminal procedure accounts that use other categories instead of the adversarial and inquisitorial systems. Damasˇka’s The Faces of Justice and State Authority is the most sophisticated and 14 See, e. g., Mirjan Damasˇka, Evidence Law Adrift (1997) [hereinafter Evidence Law Adrift]; Mirjan Damasˇka, Adversary System, in 1 The Encyclopedia of Crime and Justice, p. 24 (Sanford H. Kadish ed., 1984); Mirjan Damasˇka, Evidentiary Barriers to Conviction and Two Models of Criminal Procedure: A Comparative Study, 121 University of Pennsylvania Law Review, p. 506 (1973) [hereinafter “Evidentiary Barriers”]; Malcolm Feeley, The Adversary System, in Encyclopedia of the American Judicial System, p. 753 (Robert G. Janosik ed., 1987); John D. Jackson, The Effect of Human Rights on Criminal Evidentiary Processes: Convergence, Divergence or Realignment?, 68 Modern Law Review, p. 737, 742 – 743 (2005) [hereinafter The Effect of Human Rights]. 15 See, e. g., Jacqueline Hodgson, French Criminal Justice. A Comparative Account of Investigation and Prosecution of Crime in France (2005); Máximo Langer, From Legal Transplants to Legal Translations: The Globalization of Plea Bargaining and the Americanization Thesis in Criminal Procedure, 45 Harvard International Law Journal, p. 1 (2004) [hereinafter Legal Translations]. 16 See, e. g., Mirjan Damasˇka, Atomistic and Holistic Evaluation of Evidence. A Comparative View, in Comparative and Private International Law. Essays in Honor of John Merryman, p. 91 (David S. Clark ed., 1990); Damasˇka, Evidence Law Adrift; Damasˇka, Evidentiary Barriers; Mirjan Damasˇka, Truth in Adjudication, (1998) 49 Hasting Law Journal, p. 289; Luigi Ferrajoli, Diritto e raggione. Teoria del garantismo penale (10th ed., 2009); William T. Pizzi, Trials without Truth (1999); Kent Roach, Wrongful Convictions: Adversarial and Inquisitorial Themes, 35 North Carolina Journal of International Law & Commercial Regulation, p. 387 (2010); Thomas Weigend, Should We Search for the Truth, and Who Should Do It?, 36 North Carolina Journal of International Law & Commercial Regulation, p. 389 (2011). 17 See, e. g., Alberto Binder, Justicia Penal y Estado de Derecho (1993) [hereinafter Justicia Penal]; Damasˇka, Faces of Justice; Maria Rosaria Ferrarese, An Entrepreneurial Conception of the Law? The American Model through Italian Eyes, in Comparing Legal Cultures, p. 157 (David Nelken ed., Aldershot: Darmouth, 1997); Antoine Garapon/Ioannis Papadopoulos, Juger en Amérique et en France: Culture juridique française et common law (2003); Abraham S. Goldstein, Reflections on Two Models: Inquisitorial Themes in American Criminal Procedure, 26 Stanford Law Review, p. 1009 (1974) [hereinafter Reflections on Two Models]; Robert A. Kagan, Adversarial Legalism: The American Way of the Law (2003) [hereinafter Adversarial Legalism]; Julio B. J. Maier, I Derecho Procesal Penal (2nd ed., 1996) [hereinafter Derecho Procesal Penal]; Bernd Schünemann, Zur Kritik des amerikanischen Strafprozessmodells, in Festschrift für Gerhard Fezer (Edda Wesslau and Wolfgang Wohlers eds., 2008), p. 555.

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influential illustration of this phenomenon. In this book, Damasˇka proposes two sets of opposing ideal-types instead of the adversarial and inquisitorial categories in order to avoid “narrow and sterile constructs” and “vain attempts to express the core of the contrast between Continental and Anglo-American administration of justice.”18 One set of opposing ideal-types includes the hierarchical and coordinate ideals; these ideal-types articulate two ways in which authority within the administration of justice may be structured. In the hierarchical ideal, the administration of justice is composed of professional decision-makers who apply technical rules to cases and who are in hierarchical relationships of authority among themselves. In the coordinate ideal, the administration of justice is composed of lay decision-makers who apply community standards to cases and who are in horizontal relationships of authority among themselves. The second set of opposing ideal-types includes the policy-implementing and conflict-solving models. These ideal-types articulate two goals for the state and its administration of justice. In the policy-implementing model, the goal of the administration of justice and the state is to implement a certain conception of the good. In the conflict-solving model, the goal of the administration of justice and the state is to provide a framework within which individuals may choose their own conceptions of the good. Using these categories, Damasˇka classified legal processes from around the world. Damasˇka’s insightful framework renovated the comparative study of the legal process by providing two original sets of opposing ideal-types that connect features of the legal process to different types of authority and goals of the administration of justice. However, original as the framework is, it can be understood as an elaboration on the adversarial and inquisitorial systems rather than as a true alternative to them. Like an important strand of the adversarial–inquisitorial literature, Damasˇka’s framework relies on the ideal-types as theoretical devices, effectively creating abstract models as a way to classify and analyze actual legal processes.19 In addition, Damasˇka’s conflict-solving and policy-implementing models can be considered an elaboration on the classical adversarial–inquisitorial opposition between party-contest and impartial inquiry, while the coordinate and hierarchical models can be considered an elaboration on the classical adversarial-inquisitorial opposition between lay and professional decision-makers. The conflict-solving and policy-implementing models can also be considered an elaboration on the classical comparative criminal procedure idea that there is a link between types of criminal process and types of political state. Traditional articulations link the adversarial to a democratic conception of the state and the inquisitorial to an authoritarian or monarchical one, while Damasˇka’s framework links contest18

Damasˇka, Faces of Justice, p. 6. On the conceptualization of the adversarial and inquisitorial systems as ideal-types, see Máximo Langer, La Dicotomía Acusatorio-Inquisitivo y la Importación de Mecanismos Procesales de la Tradición Jurídica Anglo-Sajona, in Julio Maier and Alberto Bovino (eds.), Procedimiento Abreviado, p. 97 (2001); Langer, The Long Shadow. 19

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like proceedings to a liberal conception of the state and inquiry-like proceedings to a non-liberal one. The contribution is new but operates within an intellectual space already opened by the literature on adversarial and inquisitorial systems.20

III. A Normatively-driven Comparative Law of Differences: Politics, English National Identity and the Self-interest of the English Legal Profession I would like to write a history of how these concepts and themes became central to the comparative analysis of criminal process. One of my working hypotheses for this project is that English jurists played a principal role in the articulation and development of these ideas. Scholars and lawyers on the Continent were already distinguishing between accusatorial and inquisitorial process in the twelfth and thirteenth centuries, as a way to differentiate a legal process requiring initiation by a private individual’s accusation from a legal process allowing initiation by public officials on their own motion based on public rumors (fama).21 However, the distinction between these two processes was a distinction within, rather than between, legal systems. In other words, the terms were mainly used to refer to two types of legal processes that coexisted within the same legal system, rather than as a means to compare the processes of different legal systems. Relatedly, at this early time, accusatorial process and inquisitorial process did not connote, respectively, English and Continental jurisdictions. In addition, at least initially, accusatorial and inquisitorial processes were not two autonomous, full procedural systems, but rather two ways to initiate a legal process. In other words, once initiated either by private accusation or by public officials’ motion, the legal processes shared similar features.22 Leaving aside English men trained in civil law and civil law-trained men who lived in England,23 continental scholars did not tend to pay substantial attention to 20

See Langer, The Long Shadow, p. 902 – 903. For a recent review of the main tracts on procedure by medieval and early modern jurists, including their analysis of accusatorial and inquisitorial process, see Kenneth Pennington, The Jurisprudence of Procedure, in The History of Courts and Procedure in Medieval Canon Law (Wilfried Hartmann and Kenneth Pennington eds., Catholic University Press of America, forthcoming 2016). 22 See, e. g., IV Lateran Council, Canon 8 (1215). For an English translation, see Rev. H.J. Schroeder, Disciplinary Decrees of the General Councils, p. 248 – 250 (1937). 23 See, e. g., J.H. Baker, Introduction. English Law and the Renaissance, in II The Reports of Sir John Spelman (J.H. Baker ed., 1978), 94 Selden Society, p. 23 [hereinafter The Renaissance], p. 24: “Intellectuals such as Erasmus and Starkey were attacking the language and content of English law as barbarous and praising the Civil law as refined and humane”; S. E. Thorne, English Law and the Renaissance, in his Essays in English Legal History, p. 187 (The Hambledon Press, 1985) [hereinafter “English Law and the Renaissance”] (describing criticism of English law and reform proposals in England inspired in Roman law). 21

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English common law, which was considered an anomaly within European law at the time: “The common law lawyers had virtually no intellectual rapport with their Continental counterparts, and their law-French dialect would not have been understood in Paris. Their system of law was so embedded in the procedure of the king’s courts as to be largely incomprehensible outside them.”24 In contrast, for English common law lawyers, explaining why common law was as sound as, and even superior to, civil law was crucial to maintaining their legitimacy, because civil law was not only the prevailing law in the rest of Europe but was also used in some English courts, including in the admiralty, the ecclesiastical, and even the chancery courts.25 In addition, the distinction between common law and civil law played a role in the construction of English national identity and in political and religious conflict.26 It is thus not surprising that English lawyers were among the first to think comparatively in a more sustained way about civil law and common law. The competition between the ancient common law courts and other jurisdictions was very much alive at the time Fortescue wrote De Laubidus Legum Angliae (In Praise of the Laws of England) (written 1468 – 71);27 its title and content reflect national identity and national pride.28 John Fortescue became Lord Chief of Justice of the King’s Bench in 1442 and served in that position for more than eighteen years, until the dethronement of Henry VI in 1461. Fortescue followed his dethroned master

24

See, e. g., Baker, English Legal History, p. 29. On civil law’s presence in and influence over English courts and English legal culture, see, e. g., Baker, English Legal History, p. 27 – 29; Baker, The Renaissance; Christopher W. Brooks, Law, Politics and Society in Early Modern England p. 12, 121 – 122, 148 (Cambridge University Press, 2008) [hereinafter Early Modern England]; Frederic William Maitland, English Law and the Renaissance (Cambridge: at the University Press, 1901) [hereinafter, English Law]; Thorne, English Law and the Renaissance. On the legal process of ecclesiastical courts in England and its evolution over time, see, e. g., Henry Ansgar Kelly, Thomas More on Inquisitorial Due Process, CXXIIII-503 English Historical Review, p. 847 (2008); Henry Angsar Kelly, Inquisition, Public Fame and Confession: General Rules and English Practice, in The Culture of Inquisition in Medieval England (Mary C. Flannery & Katie T. Walter eds., Cambridge: D.S. Brewer, 2013); Henry Ansgar Kelly, Mixing Canon and Common Law in Religious Prosecutions under Henry VIII and Edward VI: Bishop Bonner, Anne Askew, and Beyond, XLVI/4 Sixteenth Century Journal, p. 99 (2015). 26 See, e. g., Baker, The Renaissance, p. 25: “The reception of imperial law would surely have embarrassed a king who asserted his completed independence from foreign (especially Roman) authority”; Brooks, Early Modern England, p. 98 – 99, 120; R. C. van Caenegem, The Birth of the English Common Law (2nd ed., Cambridge University Press, 1988) [hereinafter Birth]; Maitland, English Law; Thorne, English Law and the Renaissance, p. 188: “It would indeed be curious if at the very moment when an unmistakable nationalistic note was being sounded …, when the usurped authority of the bishop of Rome was being cast off under the guise of restoring traditional English liberties, that a movement should be under way to substitute an alien system of law for the native variety.” 27 See, e. g., Baker, English Legal History, p. 39 – 41. 28 See Brooks, Early Modern England, p. 23; van Caenagen, Birth, p. 98. 25

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into exile in Scotland and Henry VI appointed him as his Lord Chancellor. He later followed Henry’s wife Margaret and their son Edward to Flanders and France.29 While in exile, Fortescue undertook, among other functions, the education of Edward on the laws of England and the duties of the King of England.30 In this context, Fortescue wrote De Laudibus Legum Angliae.31 In fact, De Laudibus is written as a dialogue between the Prince (Edward) and the Chancellor (Fortescue) and is an example of the “mirror for princes” genre – i. e., as a work written to instruct and advise the prince.32 The book’s influence is indicated by its multiple editions in Latin and English and translations from Latin to English over the centuries.33 This book was among a short list of textbooks that could be recommended to intending barristers for the initial course of reading between the Restoration and the reign of George II (1727 – 1760).34 The book also had practical influence and was used in legal and political debates.35 For instance, it has been stated that, “(n)ext to Bracton, among medieval

29

See, e. g., Thomas (Fortescue) Lord Clermont, Life of the Author, in Chancellor Sir John Fortescue, De Laudibus Legum Angliae. A Treatise in Commendation of the Laws of England, p. viii, xi-xii, xvii, xx, xxiv-xxx (with translation by Francis Gregor and notes by Andrew Amos, Cincinnati: Robert Clarke and Co., 1874) [hereinafter Lord Clermont, “Life”]. 30 Id. at xxx. 31 See S.B. Chrimes, Cronology of Fortescue’s Life, in Sir John Fortescue, De Laudibus Legum Angliae lxvi (edited and translated by S.B. Chrimes, 1949). 32 See, e. g., Rosemarie McGerr, A Lancastrian Mirror for Princes (2011). 33 For descriptions of these editions and translations, see Lord Clermont’s Preface, in Chancellor Sir John Fortescue, De Laudibus Legum Angliae. A Treatise in Commendation of the Laws of England, p. lvii-lix (with translation by Francis Gregor and notes by Andrew Amos, Cincinnati: Robert Clarke and Co., 1874); S.B. Chrimes, Introduction, in Sir John Fortescue, De Laudibus Legum Angliae, p. xcv (edited and translated by S.B. Chrimes, 1949); and Harold Dexter Hazeltine, General Preface, in id. at ix. There is a contemporary edition of S.B. Chrimes’ translation edited by Shelley Lockwood in Sir John Fortescue, On the Laws and Governance of England (Shelley Lockwood ed., 1997) [hereinafter In Praise of the Laws of England]. Unless otherwise indicated, all my quotations of De Laudibus Legum Angliae in English come from this latest edition by Lockwood. 34 Langbein et al., Common Law, p. 935. 35 See, e. g., Holdsworth, II History of English Law, p. 571: “Without departing in any way from the constitutional position which (Fortescue) had taken up in De Laudibus, he made suggestions which were carried out by the Tudors…. At the end of the fifteenth century it was possible to advocate a strong executive founded upon the prerogative, and yet to believe in parliamentary control. It is for this reason that the practical influence of Fortescue’s works has been curiously double. They have enjoyed the rare distinction of having suggested both the measures which led to the establishment of the strongest monarchy which England had had since the time of the Norman and Angevin kings, and the arguments which were frequently and effectively used by the opponent to arbitrary rule.” On the issue of Fortescue’s influence more generally, see Caroline A. J. Skeel, The Influence of the Writing of Sir John Fortescue, 10 Transactions of the Royal Historical Society, p. 77 (1916).

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English writers on law and politics, the author probably most quoted in the great struggles of the seventeenth century was Sir John Fortescue.”36 One of Fortescue’s points in De Laudibus was to argue why the King of England could not reject common law even if he wanted to. Another point was to argue why common law was superior to civil law. In the text, after being persuaded that studying the law was important, the Prince asks “whether I shall devote myself to the study of the laws of England or of the civil laws which are renowned throughout the world”.37 The Chancellor responds that “the king of England is not able to change the laws of his kingdom at pleasure, for he rules his people with a government not only royal but also political.”38 Consequently he cannot “… change the laws without the assent of his subjects nor to burden an unwilling people with strange impositions …”39 The Chancellor says that “… comparisons are … odious …”40 However, he tells the Prince that he “… will be able to gather more effectively whether both of these laws are of equal merit, or whether one more richly deserves praise than the other … from those points wherein their judgements differ. For where both laws agree, they are equally praiseworthy, but in the cases wherein they differ, the superiorities of the more excellent law will appear after due reflection … For if the principles of the two laws are set alongside each other, their qualities will stand out more clearly since, as Aristotle says, ‘Opposites placed in juxtaposition are more manifest’.”41 In this sense, De Laudibus can be considered one of the originators of the comparative law of differences (as opposed to the comparative law of commonalities). With its emphasis on civil and common law, comparative criminal procedure has tended to concentrate on explaining the differences between the legal systems of the different traditions, rather than their commonalities. To capture differences, Fortescue uses binary oppositions such as civil law and English law, and others that I analyze later. This use of oppositions continues in contemporary comparative criminal procedure, with the use of oppositions like common law-civil law and adversarial-inquisitorial systems, and alternatives to them.42 Fortescue’s study of the comparative law of differences and the use of the English law-civil law opposition are normatively driven; his goal in comparing English law and civil law is to argue that one is clearly superior. This normative use of common 36

Charles Howard McIllwain, Growth of Political Thought in the West, p. 354 (1932) [hereinafter Political Thought]. 37 Fortescue, In Praise of the Laws of England, p. 14. 38 Id., p. 17. 39 Id., p. 17. 40 Id., p. 29. 41 Id., p. 29 and 35. 42 See, e. g., Langer, The Long Shadow; Inga Markovits, Playing the Opposite Game: On Mirjan Damasˇka’s The Faces of Justice and State Authority, 41 Stanford Law Review, p. 1313 (book review) (1989).

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law and civil law in comparative criminal procedure is very much alive now, among judges and policy-makers43 and a share of comparative criminal procedure scholars.44

IV. Trial by Witnesses versus Trial by Jury The distinction between English law and civil law, together with the distinction between royal dominium and political dominium that I analyze in detail later, are the central distinctions in De Laudibus Legum Angliae. The first and main difference between civil law and the law of England Fortescue refers to is the legal process. Fortescue spends thirteen of his fifty-four chapters analyzing this difference (and only seven chapters to analyze three other major differences between civil law and English law).45 For Fortescue, the primary difference between civil law and English law legal process is captured by the reliance on trial by witnesses versus trial by jury: “If parties before a judge come to joinder of issue on the matters of fact …, the truth of such issue ought, by the civil laws, to be proved by the deposition of witnesses, for which two suitable witnesses suffice. But by the laws of England, the truth cannot be settled for the judge, unless by the oath of twelve men of the neighborhood where the fact is supposed to have been located.”46

Fortescue treated trial by witnesses and trial by jury as two types of procedure for the discovery of the truth.47 This may be initially surprising coming from a contemporary perspective because, in our current view, we think of witnesses as a source of 43

See, e. g., Langer, Revolution in Latin American Criminal Procedure; Sklansky, AntiInquisitorialism. 44 See e. g. Ennio Amodio/Eugenio Selvaggi, An Accusatorial System in a Civil Law Country: The 1988 Italian Code of Criminal Procedure, 62 Temple Law Review, p. 1211 (1989); Binder, Justicia Penal; Richard S. Frase, Comparative Criminal Justice as a Guide to American Law Reform: How Do the French Do it, How Can We Find Out, and Why Should We Care?, 78 California LR, p. 539 (1990); Richard S. Frase /Thomas Weigend, German Criminal Justice as a Guide to American Law Reform: Similar Problems, Better Solutions?, 18 Boston College International & Comparative LR, p. 317 (1995); Jenia Iontcheva Turner, Judicial Participation in Plea Negotiations: A Comparative View, 54 American Journal of Comparative Law, p. 199 (2006); John H. Langbein, Land without Plea Bargaining: How the Germans Do It, 78 Mich. L. Rev., p. 204 (1979); John H. Langbein, Mixed Court and Jury Court: Could the Continental Alternative Fill the American Need?, American Bar Foundation Research Journal, p. 195 (1981); Lloyd L. Weinreb, Denial of Justice: Criminal Process in the United States (1977). 45 See Fortescue, In Praise of the Laws of England, chapters XXXIX-XLI (on children born out of wedlock); XLII-XLIII (on whether the servile or free condition of children should follow the condition of the mother or the father); and XLIV-XLV (on guardianship of minors). Fortescue also has two additional chapters on procedural matters, LII and LIII, to discuss delays in proceedings. 46 Id., p. 29. 47 Id., p. 29 – 30.

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information and their testimony as an element of proof and we think of the jury as a type of adjudicator. However, the opposition makes sense if one considers that, according to Fortescue, in the case of trial by witnesses, the deposition of two suitable witnesses was enough to prove an issue and, therefore, to adjudicate a case.48 In addition, Fortescue conceived of jurors as not only adjudicators, but also witnesses. In other words, jurors not only got information about the case through evidence and witness testimony,49 but could also rely on their own prior knowledge about and inquiry into the case to adjudicate it.50 The distinction between trial by witnesses and trial by jury tracks the distinction between “trial per proves” (trial by proofs) and “trial per pais” (trial by country) that predated Fortescue in English law. On this distinction, Reeves’ History of English Law says: “The trial by proofs, which is often mentioned in Glanville and Bracton … seems to have been resorted to only in such cases where the matter could not, by construction of law, be supposed to be within the knowledge of the pais or country. The most common instances … of this trial were, where the husband was alleged to be alive in another county.”51

Likewise, trial by witnesses “was applicable, anciently, to an issue arising on the death of the husband in an action of dower … In dower, if tenant pleads that the husband is still living, the trial shall not be by jury, but witnesses … In case of trial by witnesses, the court upon issue of writ orders that both parties produce in court, at a given day, their respective witnesses. The judges examine and decide, and the judgment is pronounced accordingly. On this trial the affirmative must be proved by two witnesses at least …”52 A distinction between trial by witnesses and trial by jury already existed in English law, as Fortescue himself recognizes.53 Instead of using it to distinguish between

48

Id., p. 29 – 31. Id., p. 38 – 40. 50 Id., p. 38. On Fortescue’s conception of jurors as self-informed, see Chrimes, Notes, p. 172; David J. Seipp, Jurors, Evidences and the Tempest of 1499, in The Dearest Birth Right of the People of England – The Jury in the History of the Common Law, p. 75, 82 (John W. Cairns & Grant McLeod eds., Hart Publishing, 2002); James Bradley Thayer, A Preliminary Treatise on Evidence at the Common Law, p. 115 (Elibron Classics series, 2005). For a summary on the debate on whether English juries were ever self-informed, see, e. g., Daniel Klerman, Was the Jury Ever Self-Informing?, 77 Southern California Law Review, p. 123 (2003). 51 See, e. g., Reeves, History of the English Law, Vol. 2, (W.F. Finlanson ed. 1869), p. 401. 52 Id., p. 401. 53 See Fortescue, In Praise of the Laws of England, p. 46. On the use of the two-witness rule in treason cases in England after the time of Fortescue, see L. M. Hill, The Two-Witness Rule in English Treason Trials: Some Comments on the Emergence of Procedure Law, 12 Am. J. Legal Hist.,f p. 95 (1968). 49

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two types of legal process within English law, however, Fortescue uses it as a tool to compare civil law and English law. Comparative analyses of the legal process in England and also in the United States employed Fortescue’s use of these categories. For instance, Sir Matthew Hale relied on the opposition between trial by jury and trial by witnesses in his classical and influential book The History of the Common Law of England “… in order to evidence the Excellency of the Laws of England above those of other Nations …”54 This opposition still was in use in the United States in the early nineteenth century.55 The focus on trial by jury versus trial by witnesses was later abandoned either because the distinction became obsolete as civil law jurisdictions ended the system of legal proof during the nineteenth century – and with it the two-witnesses rule – or because accusatorial and inquisitorial systems became the central categories of comparative criminal procedure. In fact, the opposition between trial by witnesses versus trial by jury seems to be completely unknown in comparative criminal procedure today, this chapter being the first contemporary work that discusses it. However, even if the distinction between trial by jury versus trial by witnesses was abandoned, Fortescue’s broader ideas were not. Comparative criminal procedure still assumes that we must distinguish civil law and common law to understand the criminal process and that we need theoretical categories to make sense of the criminal procedure differences between the two traditions.56

V. The Higher Accuracy of the English Trial by Jury and the Problem of Torture Why did Fortescue believe it important to compare the legal process in civil law and English law? As it is for an important group of comparative criminal procedure scholars today, the comparison was useful in determining which type of legal process better reached accurate verdicts and treated defendants decently.57 Fortescue says that “[t]he question … is which of those two very different procedures should be held to be more reasonable and effective for the discovery of the truth

54

See Sir Matthew Hale, The History of the Common Law of England 160 (Charles M. Gray ed., The University of Chicago Press, 1971). See specially id., p. 164 – 167. 55 See, e. g., The Case of the Sloop Active, p. 36 – 39 (Philadelphia, published by G. & A. Conrad, Mathew Carey, and others, 1809). 56 See Langer, The Long Shadow (analyzing the different ways in which the adversarial and inquisitorial categories are used in comparative criminal procedure as well as alternative approaches to these categories that also try to capture differences between common law and civil law). 57 See works cited supra notes 16, 17 and 44.

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thus in doubt. For the law that can reveal it better and more certainly is superior in this respect to the law that is of less effect and virtue.”58 According to Fortescue, one problem with trial by witnesses was that it required depositions by two witnesses and led to the fabrication of evidence that could not be adequately challenged because the witnesses were often unknown to the opposing party: “By the civil law, the party who has taken the affirmative in the joinder of issue ought to produce the witnesses, whom he shall name at his pleasure … He who cannot find, out of all the men he knows, two who are so lacking in conscience and truth that, for fear, love, or advantage, they will contradict every truth, is deemed feeble indeed and of little diligence. These, then, the party can produce as witnesses in his cause. And if the other party wants to object to them or to their evidence, it does not always happen that they, their conduct, and their habits are known to he who wishes to object, so that such witnesses could be rejected on account of their depravity and viciousness … Who, then, can live secure of himself or his own under such law – a law that offers assistance to anyone hostile to him?”59

Two of the three examples that Fortescue gives to illustrate these dangers come from criminal law-type cases.60 They consist of an allegation by lying witnesses of a defendant’s violations of basic prohibitions, followed by punishment. These examples include the story of Noboth, falsely accused by two witnesses of cursing God and the king and stoned to death61 and the story of Susanna, falsely accused by two witnesses of adultery and sentenced to death – though later saved by God through a boy named Daniel who examined the men and showed contradictions between their testimonies.62 According to Fortescue, a second problem with trial by witnesses is that it may encourage the use of torture, a theme still weighing on legal historians and comparative criminal procedure scholars today:63

58

Fortescue, In Praise of the Laws of England, p. 29 – 30. Id., p. 30. 60 Id., p. 30 – 31. The third case is that of John Fringe, a priest who, according to Fortescue, presented two false witnesses to prove that he had been betrothed to a young woman and was thus compelled to relinquish his holy orders and to consummate a marriage with her. On this case, see Chrimes, Notes, p. 163 – 165; and Henry C. Lea, I History of Sacerdotal Celibacy in the Christian Church, p. 393 (3rd ed. revised, 1907). 61 See I Kings, p. 21. https://www.biblegateway.com/passage/?search=1+Kings+21&ver sion=CEV. 62 Daniel, p. 13 (Vulgate). http://www.usccb.org/bible/daniel/13. 63 See, e. g., Langbein, Torture and the Law of Proof; Mirjan Damasˇka, The Death of Legal Torture, 87 Yale L.J., p. 860 (1978) (book review); Whitman, The Origins of Reasonable Doubt, p. 100 et seq. 59

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“The law of France … prefers the accused to be racked with tortures until they themselves confess their guilt, than to proceed by the deposition of witnesses who are often provoked to perjury by wicked passions and sometimes by the subornation of evil persons.”64

Fortescue argues that torture leads to unreliable verdicts in criminal cases: “The civil laws themselves extort the truth by … tortures in criminal cases where sufficient witnesses are lacking, and many realms do likewise. But who is so hardy that, having once passed through this atrocious torment, would not rather, though innocent, confess to every kind of crime …?”65

Torture not only leads to unreliable verdicts, but it is also cruel: “… (I)f some innocent man … will not lie to the peril of his soul, so that the judge pronounces him innocent, does not the judge by such a judgement declare himself guilty of inflicting all that cruelty and pain on an innocent man? O! how cruel is a law such that when it is unable to convict the innocent, it condemns the judge himself! Truly, such a practice is not to be called a law, but is rather a pathway to hell.”66

According to Fortescue, in contrast with the civil law’s legal process, the English system was more flexible about possible evidentiary bases for conviction, the proceedings were public, and the proceedings used self-informed jurors who were reliable and honest because they had to meet a minimum wealth bar and because they were selected by impartial and independent officials.67 Specifically regarding criminal trials, Fortescue argues that it is crucial who the jurors are and that the accused may challenge potential jurors: “But it is now very necessary to enquire how the laws of England examine the truth in criminal cases, so that the form of the laws being clearly apprehended, we can know for certain which more effectively reveals the hidden truth. If any suspected person in England, accused of felony or treason, denies his crime before the justices, the sheriff of the county where the deed was done shall cause to come before those judges … good and lawful men of the neighbourhood of the vill where the deed was done, who are related to the accused by no affinity, and each of whom has a hundred shillings of land or rents, to certify to the judges as to the truth of that crime. All this having been done, the accused man can challenge them … And further, the accused can challenge, in favour of his own life, the thirty-five men most feared by him, who at his challenge shall be cancelled from the panel …, even though he knows no cause to give for his exception and challenge.”68

Fortescue believes this system not only protects the innocent, but also prevents impunity and the use of torture: 64

Fortescue, In Praise of the Laws of England, p. 31 – 32. Id., p. 32. 66 Id., p. 33. 67 Id., p. 35 – 42. See also id., p. 46 – 47. On the history of jurors’ factual and formal powers to make witness credibility determinations and their relationship with the oaths of witnesses, see George Fisher, The Jury’s Rise as Lie Detector, 107 Yale Law Journal, p. 575 (1997). 68 Id., p. 40. 65

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“Who, then, in England can die unjustly for a crime, when he can have so many aids in favour of his life, and none save his neighbours, good and faithful men, against whom he has no manner of exception, can condemn him? I should, indeed, prefer twenty guilty men to escape death through mercy, than one innocent to be condemned unjustly. Nevertheless, it cannot be supposed that a suspect accused in this form can escape punishment, when his life and habits would thereafter be a terror to them who acquitted him of his crime. In this process nothing is cruel, nothing inhuman; an innocent man cannot suffer in body or members. Hence he will not hear the calumny of his enemies because he will not be tortured at their pleasure. Under this law, therefore, life is quiet and secure.”69

VI. Fortescue on Criminal Procedure, Law and Society, and Transplanting Legal Institutions An important theme in contemporary comparative criminal procedure is that there is a deep relationship between the criminal process in civil law and common law and the institutional and societal context in which it operates.70 This is why transplanting criminal procedure rules and institutions between common law and civil law jurisdictions often leads to substantial transformations or the rejection of the transplanted rule or institution.71 Though Fortescue’s work is absent from contemporary comparative law analyses, De Laudibus actually anticipated and discussed these very issues. Fortescue was not the first to analyze possible relationships between law, environment and society.72 His contribution was making the legal process and the opposition between civil law and 69

Id., p. 41. See, e. g., Markus D. Dubber, The German Jury and the Metaphysical Volk: From Romantic Idealism to Nazi Ideology, 43 American Journal of Comparative Law, p. 227 (1995); Stewart Field, State, Citizen, and Character in French Criminal Process, 33 Journal of Law & Society, p. 522 (2006); Nicola Lacey and Lucia Zedner, Community in German Criminal Justice: A Significant Absence?, 7 Social & Legal Studies p. 7 (1998); Jacqueline E. Ross, The Place of Covert Surveillance in Democratic Societies: A Comparative Study of the United States and Germany, 55 American Journal of Comparative Law, p. 493 (2007); James Q. Whitman, Equality in Criminal Law: The Two Divergent Western Roads, 1 Journal of Legal Analysis, p. 119 (2009); James Q. Whitman, The Two Western Cultures of Privacy: Dignity versus Liberty, 113 Yale Law Journal, p. 1151 (2004). 71 See, e. g., Mirjan Damasˇka, The Uncertain Fate of Evidentiary Transplants: AngloAmerican and Continental Experiments, 45 American Journal of Comparative Law p. 839 (1997); Otto Kahn-Freund, “On Uses and Misuses of Comparative Law”, 37 Modern Law Review, p. 1 (1974); Langer, “Legal Translations”. 72 See, e. g., Aristotle, Politics (translated with introduction and notes by C.D.C. Reeve, Hackett Publishing Company, 1998), p. 38 (stating that the legislator should look at the people, the territory, the amount of property and neighboring states when establishing his laws); p. 99 (analyzing what kind of people are suited to kingship, aristocracy and polity); p. 121 – 123 (discussing which type of constitution is beneficial for which kind of people); p. 180 (describing laws that are useful to establish a farming people that enable the best democracies); p. 197 – 211 (discussing the conditions that should be presupposed to exist by the ideal city-state, including conditions about the population, the territory, access to the sea and to water, and geographical location). 70

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common law the central focus of and the foundation for his comparative analysis and then connecting legal process and the civil law-common law opposition to environment and society. In the text, once he is persuaded that English legal process is superior to civil law process, the Prince wonders “… very much why this law of England, so fitting and so desirable, is not common to all the world.”73 The Chancellor claims that England has the soil, flora, fauna, and society that enable a successful jury system and that these conditions are not present elsewhere. Regarding the soil, flora, and fauna, Fortescue says: “England is indeed so fertile that, compared area to area, it surpasses all other lands in the abundance of its produce. It is productive of its own accord, scarcely aided by man’s labour, for its fields, plains, glades, and groves abound in vegetation with such richness that they often yield more fruits to their owners uncultivated than ploughed lands, though those are also very fertile in crops and corn … Moreover, in that land, pastures are enclosed with ditches and hedges and planted over with trees, by which the flocks and herds are protected from the wind and the sun’s heat and most of them are irrigated, so that the animals … do not need watching by day or by night. For in that land there are neither wolves, bears, nor lions, so that sheep lie by night in the fields without guard in their cotes and folds, whereby their lands are fertilised.”74

Fortescue argues that this environment has led the people of England to become more highly-minded, better investigators and adjudicators than people in other countries: “Hence, the men of that land [England] are not very much burdened with the sweat of labour, so that they live more spiritually, as the ancient fathers did, who preferred to tend flocks rather than to distract their peace of mind with the cares of agriculture. For this reason, the men of that land are made more apt and disposed to investigate causes which require searching examination than men who, immersed in agricultural work, have contracted a rusticity of mind from familiarity with the soil.”75

According to Fortescue, this environment has also created a higher number of land owners and wealthy people who can serve as jurors and not be easily corrupted: “… that land is so well stocked and replete with possessors of lands and fields that in it no hamlet, however small, can be found in which there is no knight, esquire, or householder …; nor numerous other free tenants, and many yeomen, sufficient in patrimony to make a jury … Furthermore, there are various yeomen in that country who can spend more than six hundred scutes a year, so that juries in that country are often made up, especially in important causes, of knights, esquires, and others, whose possessions exceed two thousand scutes a year in total. Hence it is unthinkable that such men could be suborned or be willing to perjure themselves, not only because of their fear of God, but also because of their honour,

73

Fortescue, In Praise of the Laws of England, p. 42. Id., p. 42. 75 Id., p. 42 – 43. 74

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and the scandal which would ensue, and because of the harm they would do their heirs through their infamy.”76

Fortescue argues that these conditions were not present in other countries: “Not any other kingdoms of the world … are disposed and inhabited like this. For although in them there are men of great power, great wealth and possessions, yet not one of them lives close to another, as so many do in England, nor does so great an abundance of heirs and possessors of lands exist as is to be found there … For in those other countries in scarcely a single town can one man be found sufficient in patrimony to serve on a jury. For, outside cities and walled towns, it is rare for any except nobles to be found who are possessors of fields or other immovables.”77

Fortescue says that, since the conditions that enable the jury system would be absent in other countries, other countries may not adopt such a system: “How, then, can a jury be made up in such regions from among twelve honest men of the neighbourhood where the fact is brought into trial, when those who are divided by such great distance cannot be deemed neighbours? Indeed, the twelve jurors there will be very remote from the fact, after the accused in those regions has challenged, without cause shown, the thirty-five nearer ones. Thus it would be necessary in those countries to make a jury either of persons so remote from the fact in dispute that they do not know the truth about it, or of paupers who have neither shame of being infamous nor fear of the loss of their goods, since they have none, and are also so blinded by rustic ignorance so that they cannot clearly perceive the truth … Do not wonder, therefore, Prince, if the law by which the truth is sought in England is not common to other nations, for they cannot, like England, make adequate and similar juries.”78

Since other countries may not successfully import the English legal process, civil law is appropriate for them, even if civil law is a worse law than England’s. The Prince says: “… the civil law in the comparison made by you is delivered from all blame, because, though you have preferred the law of England to it, yet it does not deserve odium, since you have not disparaged it or its makers, but have shown only that the land where it rules is the cause of its not eliciting the truth in disputes by as good a procedure as the law of England does. We cannot dispute that the law of England is, indeed, … more suitable for that realm than the civil law and we have no desire to exchange it for the civil law. Yet still this superiority of the law of England does not spring from the defects of the other law, but is caused only by the fertility of England.”79

Fortescue’s analysis of this point did not go unnoticed. For instance, in the context of discussing the origins of trial by jury, the very influential figure Sir Edward Coke said, in reference to De Laudibus: 76

Id., p. 43. See also id., p. 38. Id., p. 43. 78 Id., p. 44. 79 Id., p. 44. 77

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“… for the excellencie … of this kinde of triall, and why it is onely appropriated to the common lawes of England, reade Justice Fortescue, cap. 25. 26. 27. 28. 29. 30. 31. 32. &c. which being worthy to be written in letters of gold for the weight and worthines thereof, I will not abridge any part of the same, but referre the learned Reader to the fountaine it selfe.”80

VII. Fortescue on Types of Political Authority and the Legal Process Fortescue touches on another important theme in contemporary comparative criminal procedure, that there is a relationship between types of political authority and the legal process. Commentators and policy-makers have assumed that the inquisitorial system is related to authoritarian or non-liberal conceptions of political authority and the adversarial system is related to democratic or liberal ones.81 These assumptions underlie adversarial criminal procedure reforms that states have introduced as part of post-authoritarian democratization processes.82 Fortescue was not the first to write about the relationship between law and courts and different types of political authority.83 His contribution was articulating a specific connection between civil law and common law, types of political authority and the legal process that, in some fashion, survives to this day. To explain how Fortescue conceived of this relationship, it is necessary to explain first his distinction between a royal and a political dominium.84 Fortescue analyzed these two types of political 80 Sir Edward Coke, Part Eight of the Reports. (Preface), in I The Selected Writings and Speeches of Sir Edward Coke, p. 244, 250 (Steve Sheppard ed., Indianapolis: Liberty Fund, 2003). 81 See, e. g., Binder, Justicia Penal; Damasˇka, Faces of Justice; Goldstein, Reflections on Two Models; Kagan, Adversarial Legalism; Maier, Derecho Procesal Penal. 82 See, e. g., Langer, Revolution in Latin American Criminal Procedure. 83 See, e. g., Aristotle, Politics, p. 45 – 47 (criticizing Hippodamus of Miletus’ proposed regulation on the jury); p. 52 (criticizing the constitution of Sparta because drawing the overseers from the entire people leads to corruption); p. 59 – 60 (analyzing different features of the Carthaginian constitution in terms of aristocracy and oligarchy, including how the rulers are chosen); p. 61 (stating that by opening the courts to all, Solon made them democratic); p. 85 and 102 – 103 (laws must be established to suit the constitution); p. 112 – 113 (analyzing the role of law in different types of democracies and oligarchies); p. 123 – 124 (analyzing different regulations of the courts as democratic or oligarchic); p. 132 – 133 (analyzing courts as democratic, oligarchic, aristocratic or characteristic of a polity, depending on the ways courts are organized); p. 170 (tyrants should let punishments be administered by other officials and by the courts); p. 180 (in farming democracies, it is beneficial for all the citizens to elect and inspect officials and sit on juries, but is best for the holders of the most important offices to be elected from those with a certain amount of assessed property); p. 183 (discussing laws and court and lawsuit regulations that are necessary to preserve democracies). 84 On different possible translations of the word “dominium” to modern English, see J.H. Burns, Fortescue and the Political Theory of Dominium, 28 The Historical Journal p. 777, 778 (1985) [hereinafter Political Theory of Dominium].

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authorities first and more thoroughly in his book De Natura Legis Naturae [On the Nature of the Law of Nature].85 Quoting St. Thomas, Fortescue writes: “‘That he is the head of a regal government, who is so according to the laws which he himself lays down and according to his own will and pleasure, but he is the head of a political government, who governs the citizens according to the laws which they have established.’”86

The difference between a royal and a political dominium refers to the source of the law according to which the ruler exercises authority.87 The royal ruler exercises authority under law that he himself has established, while the political ruler exercises authority under law that the citizens have established. Fortescue argued repeatedly that political and royal kings are of equal power,88 even if “… their authority over their subjects is different.”89 In royal kingdoms, “… men excelling in power, greedy of dignity and glory, subjugated neighbouring peoples to themselves, often by force, and compelled them to serve them, and to submit to their commands, to which in time they themselves gave sanction as laws for those people.”90 In such royal kingdoms, the “… kingdom … is incorporated solely by the authority and power of the king, because such a people is subjected to him by no sort of agreement other than to obey and be ruled by his laws, which are the pleasure of him by the pleasure of whose will the people is made into a realm.”91 In contrast, in political kingdoms, a “… king who is head of the body politic is unable to change the laws of that body, or to deprive that same people of their own substance uninvited or against their wills.”92 A political king “is set of the protection of the law, the subjects, and their bodies and goods, and he has power to this end issuing from the people, so that it is not permissible for him to rule his people with any other power.”93 85 Reprinted in Latin and English in I The Works of Sir John Fortescue, Knight, p. 205 (collected and arranged by Thomas Fortescue Lord Clermon, London: Printed for Private Distribution, 1869) [hereainfter De Natura]. Unless otherwise indicated, I take the quotations of this book from this translation. 86 Fortescue, De Natura, p. 205. Fortescue took these concepts from Thomas Aquinas, On Princely Government; and Giles de Rome, On Princely Government. See Burns, Political Theory of Dominium, p. 779 – 780; and Lockwood’s notes to On the Laws and Governance of England (Shelley Lockwood ed., 1997) [hereinafter Notes], p. 128. He elaborated further on these concepts in a third book, The Governance of England, originally written in English. See Sir John Fortescue, The Governance of England (Charles Plummer ed., 1885). For a recent edition of this book, see Sir John Fortescue, On the Laws and Governance of England, p. 83 (Lockwood ed., Cambridge University Press, 1997). 87 Burns, Political Theory of Dominium, p. 778. 88 See, e. g., Fortescue, in Praise of the Laws of England, p. 18, 23. 89 Id., p. 18 – 19. 90 Id., p. 19. 91 Id., p. 23. 92 Id., p. 21. 93 Id., p. 22.

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Fortescue explains that the political dominium is preferable to the royal one because it leads to better results for the governed and for the rulers: “… a king is free and powerful who is able to defend his own people against enemies alien and native, and also their goods and property, not only against the rapine of their neighbours and fellow-citizens, but against his own oppression and plunder, even though his own passions and necessities struggle for the contrary. For who can be freer and more powerful than he who is able to vanquish not only others but also himself? The king ruling his people politically can and always does do this. Hence, Prince, it is evident to you, from the practical effects, that your ancestors, who sought to cast aside political government, not only could not have obtained, as they wished, a greater power than they had, but would have exposed their own welfare, and the welfare of their realm, to greater risk and danger.”94

In De Natura, Fortescue explains that the kingdom of England is both political and royal,95 for “… the kings make not laws, nor impose subsidies on their subjects, without the consent of the Three Estates of the realm … May not … this form of government be called political, that is to say, regulated by the administration of many, and may it not also deserve to be named royal government, seeing that the subjects themselves cannot make laws without the authority of the sovereign, and the kingdom, being subject to the king’s dignity, is possessed by the kings and their heirs successively by hereditary right, in such a manner as no dominions are possessed which are only politically ruled.”96 Fortescue describes several legal consequences of the distinction between a political and a royal dominium.97 One consequence is that, as we have seen, the English king could not replace common law with civil law. Since England was a mixed political and royal government, the king of England “… is not able to change the laws of his kingdom at pleasure, for he rules his people with a government not only royal but also political … (and) … he himself is not able to change the laws without the assent of his subjects nor to burden an unwilling people with strange impositions, so that, 94

Id., p. 53 – 54. On the debate about the origin of this third category, “political and royal dominium”, see, e. g., Burns, Political Theory of Dominium, p. 779 – 780; S.B. Chrimes, Introduction, Sir John Fortescue, De Laudibus Legal Angliae xciv-xcv (S.B. Chrimes ed. and trans., Cambridge at the University Press, 1949) [hereinafter Introduction]; Felix Gilbert, Sir John Fortescue’s ‘dominium regale et politicum’, 11 Medievalia et Humanistica , p. 88 (1944) [hereinafter Dominium regale et politicum]. 96 Fortescue, De Natura, p. 205 – 206. On the advantage or necessity of ruling both politically and royally, see id., p. 214 – 216. On the possible evolution of Fortescue’s use of the term “dominium regale et politicum” from De Natura to De Laudibus and The Governance of England, see Gilbert, Dominium regale et politicum. 97 On the relationship between law and dominium in Fortescue, see, e. g., Burns, Political Theory of Dominium. On Fortescue’s conception of the law, see Norman Doe, FifteenthCentury Concepts of Law: Fortescue and Pecock, X History of Political Thought, p. 257 (1989). For an assessment of Fortescue’s work within a broader exploration about conceptions of common law, see J.W. Tubbs, The Common Law Mind. Medieval and Early Modern Conceptions (The John Hopkinds University Press, 2000). 95

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ruled by laws that they themselves desire, they freely enjoy their goods, and are despoiled neither by their own king nor any other.”98 Fortescue also infers from the distinction between royal and political and royal authorities that law is necessary to prevent tyranny. Fortescue says that the “people rejoice in the same way under a king ruling only royally, provided he does not degenerate into a tyrant. Of such a king, the Philosopher said … that ‘It is better for a city to be ruled by the best man than by the best law.’ … But, because it does not always happen that the man presiding over a people is of this sort, St Thomas … is considered to have desired that a kingdom be constituted such that the king may not be free to govern his people tyranically, which only comes to pass when the royal power is restrained by political law. Rejoice, therefore, good Prince, that such is the law of the kingdom to which you are to succeed, because it will provide no small security and comfort for you and for the people.”99 Fortescue explains that in political and royal kingdoms like England, “… even the judges of realm are all bound by their oaths not to render judgement against the laws of the land (leges terre), even if they should have the commands of the prince to the contrary.”100 A third consequence is that royal governments may enact statutes in the interest of the ruler, while political governments enact statutes in the interest of the people. This is true because in kingdoms in which statutes emanate from the will of the prince alone, “… so often statutes secure the advantage of their maker only, thereby redounding to the loss and undoing of the subjects.”101 In contrast, statutes in England “… are made not only by the prince’s will, but also by the assent of the whole realm, so they cannot be injurious to the people nor fail to secure their advantage. Furthermore, it must be supposed that they are necessarily replete with prudence and wisdom, since they are promulgated by the prudence not of one counsellor nor of a hundred only, but of more than three hundred chosen men … And if statutes ordained with such solemnity and care happen not to give full effect to the intention of the makers, they can speedily be revised, and yet not without the assent of the commons and nobles of the realm, in the manner in which they first originated.”102

98

Fortescue, In Praise of the Laws of England, p. 17. Id., p. 17 – 18. 100 Fortescue, On the Nature of the Law of Nature, in On the Laws and Governance of England, p. 128 (Lockwood ed., Cambridge University Press, 1997). I choose Lockwood’s slightly modified version here over the text of Fortescue, De Natura, p. 205. 101 Fortescue, In Praise of the Laws of England, p. 27. 102 Id., p. 27 – 28. 99

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A final legal consequence is that the different types of dominium would have different legal processes because, in royal governments, due process103 is often not respected. Fortescue says in relation to the royal government of France: “(I)f any one … is accused of crime, even by his enemies, he is not always called before an ordinary judge. But it often appears that he is examined in the prince’s chamber or other private place, indeed sometimes only by messengers, and as soon as he is adjudged to be guilty, on the information of others and according to the king’s conscience, he is thrust into a sack without any form of trial, and is thrown by the ministers of the provosts of the marshalls into the river at night and drowned. You have heard that a great many more men die in this way than stand convicted by due process of law. But still, what pleases the prince has the force of law, according to the civil laws.”104

In contrast, in England, a mixed political and royal government, inhabitants “… are not brought to trial except before the ordinary judges, where they are treated justly according to the law of the land. Nor are they examined or impleaded in respect of their chattels, or possessions, nor arrested for crime of whatever magnitude and enormity, except according to the laws of that land and before the aforesaid judges.”105 In other words, according to Fortescue, the English political and legal dominium did not circumvent due process, whereas royal governments applying civil law, like France’s, did. Later generations of attorneys, policy-makers, and scholars would build upon Fortescue’s ideas on this issue.106

VIII. Making Use of Fortescue: Some Preliminary Leads The intellectual history or genealogy of the adversarial and inquisitorial systems and of comparative criminal procedure, and Sir John Fortescue’s role in it, may be captivating in its own right for anyone interested in these systems and this field or in intellectual legal history more generally.

103 The original sentence in Latin that includes the phrase that both Chrimes and Lockwood translated as “due process” says: “ …; qualiter et mori audivisti majorem multo numerum hominum quam qui legitimo processu juris convicti extiterunt …” [italics added to the original]. See Chancellor Sir John Fortescue, De Laudibus Legum Angliae. A Treatise in Commendation of the Laws of England, p. 266 (with translation by Francis Gregor and notes by Andrew Amos, Cincinnati: Robert Clarke and Co., 1874). 104 Fortescue, In Praise of the Laws of England, p. 51. 105 Id., p. 52 – 53. 106 See, e. g., Paul Christianson, John Selden, the Five Knights Case, and Discretionary Imprisonment in Early Stuart England, 6 Criminal Justice History, p. 65, 67 (1985) (explaining how John Selden, John Bramston and Henry Calthorp built upon Fortescue’s interpretation of the English monarchy as a dominium politicum et regale to question discretionary imprisonment by the King).

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Writing this intellectual history or genealogy may also open new avenues for comparative criminal procedure because it shows the historical and contingent character of the predominant contemporary way people conceptualize comparing criminal processes. This historicization of the field suggests that there may be as yet unexplored or underexplored alternative ways to think about this area. Bringing to light the work of a figure like Fortescue also pushes us to pause and reflect on contemporary comparative criminal procedure. Given the limits of this paper, I can only briefly articulate some of the possible ways to reflect on Fortescue’s work based on the previous sections. First, though it would be inaccurate to characterize De Laudibus as merely propaganda, Fortescue’s work may illustrate the risks of merging descriptive and normative comparative analyses of the criminal process.107 As we saw, his work can be interpreted as an attempt to provide a nationalistic normative argument for the superiority of English common law over civil law. There is a question, then, as to whether this normative drive distorted his descriptive comparison of the two systems. Was trial by witnesses versus trial by jury the best or only way to describe the differences between civil law and common law legal process at his time? Or was it a simplified caricature that enabled him to easily make his normative argument? Were there any attractive aspects of the legal process in civil law in Fortescue’s time? Why did Fortescue not analyze other differences in the civil and common law of his time, such as public versus private prosecution or professional versus lay judges? What about the commonalities in legal process across the systems? Did Fortescue exclude them because he was trying to make his normative case in favor of common law? Since normatively-driven comparative descriptions of the criminal process are still very much used by judges, policy-makers, and some scholars, these questions interrogate not only Fortescue, but also contemporary actors. For instance, have normatively driven analyses led to problematic simplifications or omissions in the descriptive analysis of contemporary comparative criminal procedure? What is the de107 The works by Fortescue about the succession controversy between the Lancastrian and Yorkist houses has been characterized as political propaganda. Gill characterized six of Fortescue’s works this way because Gill argued that “Fortescue was not unaware of the weakness of his defense of the Lancastrian hereditary claims; and …, therefore, he had few hopes of convincing the scholars of his day, but rather was aiming his polemical writings at the ‘people’.” See Paul E. Gill, Politics and Propaganda in Fifteenth Century England: The Polemical Writings of Sir John Fortescue, 46 Speculum, p. 333, 338 (1971). After the death of Henry VI and his son, Edward IV forced Fortescue to refute his previous arguments in favor of the Lancastrian house and Fortescue did so in Declaracion Upon Certayn Wrytinges Sent Oute of Scotteland Ayenst the Kinges Title to the Roialme of England. Gill argues that “the ease with which he could refute his former arguments as he did in the unsophisticated Declaracion gives a reader the impression that he anticipated the obverse of each of his arguments as he wrote them.” Id., p. 338. However, De Laudibus was not one of these works; its subject was not the succession controversy and it did not have the instrumental character of the works on this succession controversy. It would thus be inaccurate to consider it simply a work of propaganda, even if it was normatively and nationalistically driven.

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scriptive and normative value, if any, of the adversarial and inquisitorial systems as categories aimed at capturing the differences between civil law and common law? What features do these categories fail to capture? What are alternative ways to think about differences between the criminal processes of different jurisdictions? What are the important commonalities missing from comparative criminal procedure analyses and how we should think about these commonalities?108 Second, Fortescue argued that the English legal process reached more accurate verdicts than the civil law legal process because it had more flexible rules of evidence and its decision-makers were more educated and less corruptible. Putting aside questions about the accuracy of Fortescue’s description, could his analysis give helpful insight into contemporary analysis of wrongful convictions? Does the background and mode of selection of investigators and decision-makers affect the accuracy of their criminal verdicts? What variables or theoretical tools beyond the adversarial and inquisitorial systems and common and civil law would be necessary to compare the quality of investigators and decision-makers in different criminal justice systems? Third, while contemporary analyses of transplanting legal systems tend to concentrate in the institutional environment in which legal rules and practices operate, Fortescue’s analysis of the issue concentrated on societal and environmental differences between different jurisdictions. Should contemporary analyses pay more attention to these broader societal and environmental differences? Could these types of differences help explain, for instance, the challenges for successful criminal procedure reforms in the developing world? Finally, while majoritarian democracy and due process are often thought to be in tension with each other, Fortescue suggested that government by consent and due process reinforce each other.109 How should we interpret Fortescue’s claim? Whatever our interpretation, would his claim be true from an empirical perspective? Could his analysis provide a starting point to rethink the relationship between democracy and due process from a theoretical perspective, or at least insight into how to rethink it? Though there have been some comparative criminal procedure analyses on the 108 For brief attempts to answer some of these questions, see Langer, Strength, Weakness or Both?; and Langer, The Long Shadow. 109 I am not suggesting that Fortescue was a theorist of democracy or even of constitutional monarchy. In the literature on Fortescue, both McIlwain and Chrimes disputed Plummer’s interpretation of Fortescue as a theorist of constitutional monarchy. See Charles Plummer, Introduction, in: Sir John Fortescue, The Governance of England (Charles Plummer ed., 1885); Stanley B. Chrimes, English Constitutional Ideas in the Fifteenth Century (Cambridge, 1936); McIllwain, Political Thought. I cannot get into this debate in this piece. However, whatever position one takes on it, there is no question that consent by the people played an important role in Fortescue’s account of England as a political and royal dominium. For a critical analysis of the debate on how to best characterize Fortescue’s political theory and the role of consent in it, including possible misuse of Fortescue’s work by Whig historians and other scholars, see Sobecki, Unwritten Verities, p. 70 – 101.

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effect of human rights on the criminal process,110 these types of questions are largely unexplored. Fortescue was not a theorist of democracy or human rights. But his work could provide insights as we assess these questions.

IX. Conclusion This chapter argues that the De Laudibus Legum Angliae by Sir John Fortescue is one of the intellectual origins of modern comparative criminal procedure and its central opposition between the adversarial system/common law and the inquisitorial system/civil law. Like a substantial number of contemporary comparative analyses of the criminal process, De Laudibus relied on the distinction between civil law and common law, proposed categories to capture differences in their criminal process, associated these differences with specific features of English and Continental societies, analyzed the feasibility of transplanting legal institutions, advocated for the superiority of one legal tradition by claiming its criminal process was more accurate and humane, and argued that there is a link between types of political authority and criminal process in civil law and common law. Unearthing these intellectual origins and writing a genealogy of comparative criminal procedure make apparent that this field is a historical and contingent construction and may open new ways to think about the criminal process from a global perspective.

110 Jackson, The Effect of Human Rights; Criminal Evidence and Human Rights (Paul Roberts and Jill Hunter eds., 2012) (exploring the impact of human rights on a wide range of common law jurisdictions).

On the Comparative Autonomy of Forms and Ideas Mitchel de S.-O.-l’E. Lasser* This Chapter consists of an enormously pleasant – if somewhat daunting – exercise, namely, to write about Mirjan Damasˇka’s impact on comparative law theory in a venue that can actually be read by Mirjan himself! To write about the master before the master is, of course, to court disaster. But I take solace in the fact that the Chapter that follows is but the written version of an analysis that, for reasons I shall soon explain, I have performed many times before: it is at its core nothing more than my personal perspective on what I consider to be Mirjan’s magnum opus: The Faces of Justice and State Authority.1 The Chapter is organized as follows. In honor of this Festschrift volume, it begins with a brief personal account of the central place that Mirjan and his work have held in my own life as a comparatist. In its main section, the Chapter then seeks to convey what I take to be the key insights and subtleties that Mirjan’s work has offered to jurisprudence in general and to the discipline of comparative law in particular. Finally, the Chapter concludes by leveraging some of these insights for the purpose of shedding light on my current research project: the recent reforms in the judicial appointment processes of the ECJ and the ECHR.

I. The Centrality of Mirjan Damasˇka in the Life of a Particular Comparatist It is with sincere affection that I will now recount my embarrassing introduction to Mirjan Damasˇka and to the discipline of comparative law, for the two are intimately intertwined. I was a first year doctoral student in comparative literature, who had just gotten his J.D. the previous spring. I had recently met Mirjan’s colleague and great friend, Bruce Ackerman. The latter, in a fit of profound and carefully considered insight, had one day proclaimed something along the following lines: “Mitchel, your mother was born in France. So you should become a comparatist!” And with that, and nothing more, a career in comparative law was launched. And when I say “nothing * Jack G. Clarke Professor of Law at Cornell Law School. 1 Mirjan Damasˇka, The Faces of Justice and State Authority (New Haven: Yale University Press, 1986) [Faces of Justice].

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more,” I mean nothing more: I had never so much as taken a single course in comparative law in my three years of law school. Though deeply moved to have been given such weighty advice by such a legal titan, I was forced in good conscience to confess my complete ignorance. “No problem!,” Bruce replied, “You’re in luck: We happen to have the world’s greatest comparatist right here in this very building! Go see Mirjan Damasˇka. He’ll tell you exactly what to do.” And I am embarrassed to say that with no other preparation than that, I had both the good fortune and the misfortune of knocking on the door of the great Mirjan Damasˇka. As anyone who has ever met or even heard of him undoubtedly knows, Mirjan is not one to suffer fools. So it is only appropriate that he had me out the door of his office in no more than some three minutes. In addition to having the good sense to put me in my proper place, Professor Damasˇka did, however, also have sufficient time in those three minutes to give me one piece of advice: “Go read John Dawson’s The Oracles of the Law.”2 And with that, I was shown the door. But this little story does not end there. For the point is not merely to demonstrate my own youthful foolishness, nor the immense privilege that I had to be exposed to such figures during my education. The point is instead to recognize the colossal importance that those three embarrassing minutes have played not only in my academic and intellectual life, but also in that of my students. The reason for this is simple. I have taught my core Comparative Law course every year that I have been in law teaching, sometimes twice a year. Every single time, without exception, I have framed the course with two books, on which I spend at least a week apiece – which, as any academic knows, is an extraordinary amount of time to devote to a given text in a course that typically meets three times a week. The first is John Dawson’s The Oracles of the Law, which we study at the beginning of the course. It is a stupendous piece of historical work that sets up all that follows, both by placing the exercise of judicial power in a broader institutional and professional context and by propounding a resolutely realist methodology. And the second is of course Mirjan’s Faces of Justice, which we study at the very end, because I can think of nothing more to offer my students than to structure the entire semester’s work in such a way as to be able, in the end, to give them access to that one book. Those three fleeting minutes in Professor Damasˇka’s office, in other words, have truly framed not only my own scholarly and intellectual development, but also that of every student I have ever had the pleasure to introduce to the discipline of comparative law.

2 John Dawson, The Oracles Of The Law (Ann Arbor: University Of Michigan Press, 1968).

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II. The Faces of Justice and State Authority and the Discipline of Comparative Law What is it, then, that makes The Faces of Justice such an indispensible and pathbreaking work? First, the sheer scope of its ambition: the book sets as its task to construct a unitary analytic scheme that would allow one to study, map, explain and compare any and all legal systems through space and perhaps even through time. It offers, in effect, nothing less than a unified field theory for comparative law. The book has no interest in small-scale analysis. How does the book propose to construct such an all-encompassing theory? To begin with, it refuses to be hemmed in by two preexisting comparative approaches that had long dominated the discipline. The first is the enormously influential distinction between adversarial and inquisitorial systems, which analyzes the procedural characteristics of legal systems through the prism of these two procedural models. The second is crude Marxian analysis, which focuses on the relationship (and more often non-relationship) between legal process and the socioeconomic organization of the State. Damasˇka’s objection to these two approaches, though devastating to the point of dismissiveness, turns out to be extremely nuanced. First, and most importantly, they have simply not panned out. The adversarial/inquisitorial distinction, whether studied historically or otherwise, is just too vague, too fuzzy, to be truly incisive. As Damasˇka explains: “Much of the resulting confusion is due to the fact that criteria remain uncertain for the inclusion of specific features into the adversarial and the inquisitorial types.”3 Meanwhile, socioeconomic analyses – which proved far more influential in Eastern Europe and the global south than in Western Europe and North America –, for all that they challenged canonical legal theory (including comparative legal theory) to their core, were hampered by a deeply inconvenient reality: very different procedural approaches have been used in very similar socioeconomic regimes, while very similar procedural approaches have been used in very different socioeconomic regimes. As Damasˇka explains: “But the insights promisded by this alignment of legal systems with Marxian categories turned out to be illusory. The immediate problem was how to account for strikingly similar procedural styles found in categorically different socioeconomic environments, and for strikingly dissimilar styles in categorically identical ones.”4 Indeed, one need only think, for example, of Dutch and English civil procedure to see that countries with quite comparable modes of socioeconomic organization can nonetheless function on the basis of quite disparate modes of procedural organization. Similarly, one need only recognize that procedural structures in most Eu-

3 4

Faces of Justice, p. 4. Id., p. 6.

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ropean post-War socialist regimes were often not terribly different from those that had been used in pre-socialist times.5 Damasˇka’s second objection, though more implicit than explicit, is utterly central to his analysis. This objection can perhaps be reduced to the fundamental proposition that the adversarial/inquisitorial and the socioeconomic approaches were both, at their core, unacceptably materialist. This is clearly applicable to the classic (if oversimplified) Marxist approach, which traditionally focused only on socioeconomic factors as the basic motivators of superstructural legal (and other) phenomena. But the same holds true for the canonical study of the adversarial/inquisitorial distinction, which focuses attention on the cluster of procedural forms associated with each model: active vs. passive judge, active vs. passive parties, the distribution of fact-finding responsibilities, and so on. In both cases, the classical approaches just have not paid enough attention or respect to the ideas operating in different legal and political orders. To Damasˇka, ideas really do matter, especially political ideas about what is and should be the purpose of government (including the purpose of legal institutions and processes). As a result of these two basic objections, one can begin to grasp Damasˇka’s fundamental critique of existing comparative approaches. They were just too simple. They each offered a single, binary opposition: adversarial vs. inquisitorial, bourgeois vs. socialist, or even Common Law vs. Civil Law and so on. In each case, a single binary opposition was offered as the master key for unlocking – or at least organizing – all comparative mysteries. But here is the key to the brilliance of Damasˇka’s new schema: his critique of these traditional approaches is not dismissively categorical. His claim is not that there is no meaningful distinction between adversarial and inquisitorial procedures; nor is that the political and economic constitution of the state is unimportant. As we shall soon see, Damasˇka does not reject all accumulated knowledge out of hand. Instead, the key is that comparative analysis needs to be multidimensional. It has to pay attention to tangible institutional, political and procedural forms. But it also needs, at the same time, to study the dominant ideas that circulate in, and animate, those forms. Only then can the scholar hope to capture enough of a legal system’s procedural, institutional and conceptual makeup to generate meaningful comparison. To take the most elementary – but wonderfully illustrative – example: it is not enough to examine adversarial and inquisitorial procedural forms. When the analysis is limited to that one vector, it tends to examine those forms as alternative mechanisms to arrive at the same end (call it what you will: truth, justice, dispute resolution, etc.). But that is a terrible analytic error: in different times, places and contexts, those procedural forms tend, in fact, to promote quite different conceptions about the pur5

Id., p. 7.

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pose they are intended to serve. In other words, truth, justice, dispute resolution, and so on do not represent the same goal and should not be treated as such. What is so elegant about the analysis offered in The Faces of Justice, however, is that it refuses to fall into an inverted version of the methodologies it critiques. That is, it resists the temptation to jump automatically from one of the critiqued materialist approaches to a purely conceptualist one, in which ideas would be all that mattered, and the procedural forms would be read as mere manifestations of those governing ideas. It is precisely the refusal to take that easy analytic path that makes the book what it is: a quantum leap from anything that came before (or, frankly, after). It is the insistence on maintaining both vectors of the analysis (the material and the conceptual) that yields the multidimensional framework for the book, the two great axes of the ensuing analysis: on the one hand, the apparatus and structure of government (its forms, institutions, procedures, organization, and the like); and on the other, the conceptions of what the function and purpose of government should be. These two great axes establish a “unified field theory” for comparative law: we can plot just about any and all legal orders on this analytic grid. Needless to say, such a unified and integrated ordering scheme is tremendously useful for teaching purposes. It allows my students and me to place all that we have studied throughout the semester (ranging from German civil procedure, to Argentinean criminal procedure, to Japanese labor law, to French constitutional law, to the European fundamental rights regime) in relation to each other on a single, comprehensive grid. This is no minor feat: it empowers the students to adopt an intelligible and comprehensive picture of such wide-ranging legal materials and to deploy a vocabulary for expressing what distinguishes one mode of legal regulation from another. In this respect, Damasˇka’s framework represents an all-encompassing and even totalizing theory. And some might be a little uncomfortable with such a grand scheme. It is important, therefore, to go to the bother of explaining why the book’s analysis is far too rich, flexible and sensitive to fall prey to such critique. The first important point is that the mere fact that The Faces of Justice offers and maintains its two separate axes (regarding the structure and the conceptions of government) means that it offers an implicit theory about the relative autonomy of political ideology from material, structural, institutional or procedural form (and vice versa). Forms and concepts are related, but they do not merely reflect each other in some simple or straightforward way. Otherwise, the two axes would just collapse into one. This is the reason why it was so important for Damasˇka to refuse to produce a conceptualist account that would merely invert the materialism of the prior comparative doxa. As The Faces of Justice demonstrates, there exists a link – a very important link – between the form of legal procedures and the conception of what those

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procedures (and government in general) are supposed to accomplish. But that link is not inherent. To the contrary: it is precisely the contingency or specificity of a particular linkage that constitutes the distinctiveness of that particular mode of regulation. Indeed, and as Mirjan states quite overtly in the early pages of the book, he is particularly interested in tensions, mismatches, and the like, that is, in instances of complexity, difficulty and change. Life is not always clean, static and orderly. And as he states, he is fascinated by what he calls – and I love the phrase – “equivocal compounds.”6 The second important point is that Damasˇka’s book has a unique capacity to offer incredibly sweeping vistas while also fostering ever more fine-grained study. The theoretical implications of this dualism are not immediately obvious; so allow me to explain in a little greater detail. On the one hand, the book surveys legal topography from incredible heights, almost as if it were placed on an orbiting satellite that could take in multiple continents at once. From these great heights, all of public law or all of private law emerges as clear and distinct topographical features so obvious as to be immediately visible. The same holds true for entire legal traditions, such as the common or civil law traditions. And the same holds true once again for characteristic features of these topographical features, such as the fundamental characteristics of their legal forms and ideologies. But on the other hand, that distanced perspective turns out to be extremely nuanced at the same time. How can that be? To begin with, its two defining axes (formal structures vs. governing ideologies) generate four quadrants, not just the two options offered by the kind of simple binary opposition produced by traditional comparative accounts (adversarial vs. inquisitorial, bourgeois vs. socialist, etc.). Even more, Damasˇka’s two axes are sliding scales, not on-off switches. As a result, a regime can have more or less hierarchical or coordinate forms of political authority; and more or less actively policy-implementing or conflict solving governmental ideologies. The two axes each offer two contrasting poles at the extremes; but everything in the middle (which is to say, frankly, everything) is up for grabs and a matter of degree. This capacity for gradation allows us – and therefore implicitly invites us – to study and plot our objects of comparative study with a certain measure of refinement. Take, for example, German and Argentinean criminal law, which Mirjan’s student Máximo Langer has examined so insightfully.7 Both would clearly fall in quadrant #1 of Damasˇka’s analytic grid: each displays the type of paternalistic and value-laden ethos that defines “policy implementing” governmental ideologies; and each dem6

See id., p. 12. See e. g., Máximo Langer, From Legal Transplants to Legal Translations: The Globalization of Plea Bargaining and the Americanization Thesis in Criminal Procedure, 45 Harv. Int’l L.J., p. 1 – 64 (2004). 7

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onstrates the type of centralized, professionalized and top-down organization that defines “hierarchical” legal structures. Yet they also show notable differences, despite these large-scale similarities. Their professional institutions are organized differently; they manage their police, prosecutorial and judicial functions differently; they demonstrate and act on the basis of distinctive governmental philosophies, and so on. Damasˇka’s analytic grid therefore allows us to grasp overarching similarities while also driving us constantly to refine our analyses. Furthermore, this implicit invitation to refine our analysis of our objects of study leads to unusually important insights, both analytically and theoretically. Perhaps the best way to convey this essential feature of Damasˇka’s methodology is to offer an abbreviated account of how class typically proceeds when discussing The Faces of Justice. When my class and I have worked through the basics of Damasˇka’s two great axes, I ask my Cornell students an intentionally simplistic question, such as: “OK, where would you place Civil Law legal systems on Damasˇka’s grid?” Sometimes a relatively naïve student will take the bait and try clumsily to answer the question as asked, sometimes not. Either way, a student will almost immediately respond: “Well, it depends on which Civilian system you mean: based on what we’ve seen, the French one looks like it belongs more over here, but the German looks more like it belongs over there.” With a little bit of encouragement, the student will begin to break down and spell out the reasons for which s/he has suggested placing each of the systems higher or lower on the “hierarchy” axis. Rather quickly, another student will join the conversation to say: “Yes, but it also depends on what subject matter we’re talking about; because French criminal law should probably be plotted over here (pointing more to the left “activist” side of the horizontal axis), but French private law more over there” (pointing more to the right “reactive” side of the horizontal axis. This is excellent. And I believe that it reflects several of Mirjan’s basic points. A legal order is complex; and it includes multiple component features. At one level, this includes the manner in which its procedural authority is organized. But at another, this includes the underlying conception of political and legal authority that animates that legal order. This distinction between procedural/institutional and conceptual/ideological structures is of course what yields Mirjan’s two axes of analysis. The complexity goes further. Implicit in his book’s empirical descriptions is the recognition that different parts of a given legal system are sufficiently distinctive to warrant different placement on his analytic grid. This is what lies behind the student’s excellent remark that French civil and criminal law should be plotted separately and differently. But once Pandora’s box has been opened, other students will begin to make further refinements: “If we go back to the Civil Code, don’t the basic tort rules look more activist and the contract rules more conflict solving? After all, Article 1382 looks fairly activist: ‘Every human act that causes damage to another obliges he by

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whose fault it occurred to repair it.’ But Article 1134 looks totally reactive: “Legally formed contracts stands as law between the parties.’”8 Having made this subject matter distinction within the category of “private law,” the class then raises a rather vexing line of questions: “How are we supposed to factor in rules of civil procedure? That is, should civil procedure be treated as a separate subject matter to be plotted in its own right on the grid? Or should it be factored into our assessment and plotting of the subject matters (such as torts or contracts) to which it will apply when litigating disputes? If the latter, is it factored in as part of French contract law? Or is it accounted for under the analytic rubric of the character of procedural authority?” “And what about the unofficial discussions of the French judicial magistrates when they argue amongst themselves about how cases should be decided and how the law should be developed? Those debates often look surprisingly policy implementing, even when the resulting official judgments look totally conflict solving. How are they to be factored in? Are they to be plotted on their own or lumped in as a mere feature of the rest of the system?” “And which system would this be anyway? The French legal system as a whole? French contract law? French private law? Civilian private law? European civil law systems as a group?” Such an exercise, which flows naturally from studying The Faces of Justice, is incredibly provocative and enlightening for the students. It results from the fact that Mirjan’s methodology drives them (and us) to do two things at the same time. First, it impels them to refine their analysis ever more seriously, paying attention to – and especially differentiating between – the specific legal rules, procedures, or institutions they have studied over the course of the semester. As a result, the students come to understand each of these objects of study as distinct and distinctive objects of comparison. In fact, I see no logical end in sight for this kind of refinement of the object of study: each of the component parts can (and should) be broken down ever further, emerging as a legitimate object of study, to be differentiated from others and examined in its own right. Comparative legal analysis need not be a vague, sloppy and imprecise enterprise. On the other hand, Mirjan’s methodology also drives the students (and their teachers) to engage in a second exercise: to then combine these particulars into larger groupings in order to develop a big-picture perspective on legal systems as a greater whole. The particular rules of contract law cannot be fruitfully examined in isolation of the larger structures in which they are embedded. But note that, here too, I see no logical end in sight for this kind of contextualization of the object of study: each of the component parts can (and should) be aggregated ever further, emerging as but a subpart of a more complete entity that should be studied in a more holistic and embedded manner. The French contract rules must be put in relation to the rules of civil procedure, which must be which must be understood in relation to the educational, recruitment and promotion structures of the French judicial, academic and legal profes8 It takes little, of course, to characterize both of these Code provisions in either a reactive or activist light. But that argument is for another day …

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sions, all of which must be framed by increasingly relevant constitutional law developments, which are of course embedded in increasingly relevant European institutional and normative structures and assorted complex social structures, and so on and so forth. Comparative legal analysis need not be a sterile, formalist and rulebound enterprise. This dual impulse – simultaneously to refine and to combine the objects of comparative analysis – becomes particularly striking when one goes to the bother of plotting particular objects of study on Damasˇka’s grid. Let us return briefly to the same example of French contract law. At first blush, it plots easily in the second quadrant of the grid. Applying Damasˇka’s definitions, the structure of French civil procedural authority emerges as quite hierarchical. It exhibits a strong measure of centralized, organized, professionalized and specialized features that one would expect from such a mode of organizing procedural authority. The French ordinary judiciary has very strong insider/ outsider characteristics, as it is composed almost entirely of life-time magistrates who tested into and were trained at the national judge school in Bordeaux, who exist in a unitary corps in which promotion proceeds not only on the basis of seniority but also of perpetual oversight by peers and senior colleagues, and so on. It demonstrates a great deal of specialization, as can be inferred from the very structure of the Cour de cassation, whose roughly 100 judges are divided among 6 specialized chambers (3 civil chambers, plus the commercial, social and criminal chambers). Indeed, even the civil chambers are subspecialized, with the First focusing, inter alia, on contracts and property maters, the Second on torts and civil procedure, and so on). This all puts the plotting location well above the midway point of the vertical axis. At the same time, the resolutely individualist, even libertarian streak of the French Civil Code in private contractual affairs places the plotting location distinctly to the right of the midway point on the horizontal axis: the governing ideology is that the State functions in such domains as merely a “reactive” conflict solver, with no readily discernable policy preferences of its own. Indeed, the key contract provision, as we noted above, goes so far as to declare openly that it is the parties themselves who make their own law. Putting the two analyses together, French contract law therefore plots quite straightforwardly in the upper right-hand corner of the Damasˇka grid, firmly in the land of hierarchical procedural structures working under a resolutely disinterested and reactive governmental ideology. But this initial plotting quickly becomes more complicated. For instance, French contract law has become increasingly infused by French constitutional law principles. To pick just one example: the Cour de cassation has, in the name of the fundamental principle of the free exercise of a profession, held that employment contracts that include non-competition clauses are illicit and unenforceable unless consideration has been paid by the employer specifically to compensate for such a clause.9 How should this constitutional component be accounted for in plotting French contract 9

See Cass. Soc. 10 July 2002, M. Barbier vs société Maine Agri, n8 00 – 45.387.

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law? Should it be treated as a separate (constitutional) object of analysis that would be plotted farther to the left of the grid (i. e., leaning more towards an activist ideology than contract law generally)? If so, then we have plotted two separate points, which then need to be joined together in some sort of bubble to give a combined analytic result. Or should this constitutionalization be thoroughly assimilated to, and thus incorporated in, our analysis of French contract law, thereby shifting our initial (contractual) plotting location a little to the left? And of course, the same questions recur for each element that one might reasonably associate with French contract law, be it EU law, French public law regulations, European fundamental rights law, and so on, each of which would likely justify an adjustment in one direction or another. Personally, I do not think that it really matters which approach one takes (i. e., whether to lump the objects together or treat them as distinct). What does matter, however, is that the plotting exercise forces the scholar to recognize and account for the complexity of the regulatory approach under analysis. It drives the comparatist to become more fully conscious of the analytic decisions that s/he is making when constructing or defining the object of analysis and of the analytic effects of each of these initial methodological decisions. And this certainly does matter a lot. Moreover, I believe that the analytic and theoretical import of such seemingly pedantic exercises go much further. Indeed, these exercises lead to one of the greatest contributions of Mirjan’s book, however subtle and implicit it may be. For it to come more clearly into view, and for its full import to sink in, one needs to take a step back and take a moment to consider the big picture that Damasˇka has to offer. The Faces of Justice demonstrates quite clearly that Damasˇka sees legal systems as complex. This is very obviously true: all national or supranational legal systems – certainly all that I can we can think of – regulate multiple subject matters via multiple institutions that instantiate multiple regulatory regimes. Legal systems are therefore composed of multiple and somewhat independent subparts. This much is obvious, although it is rarely so clearly depicted as in The Faces of Justice. But here is the key to Damasˇka’s vision: nothing says that legal systems must be fractal, that is, that each of their subparts must organize authority in the same way or be rationalized by the same governing ideology as the other subparts, or, for that matter, that they must do so in the same manner as the legal system as a whole. Sometimes the subparts do indeed seem consistent in this way: French civil, administrative and criminal law institutions and procedures, for example, all look decidedly hierarchical in organization. They each demonstrate the classic attributes of a centralized, organized, professionalized, specialized and top-down structure of authority that Damasˇka labels “hierarchical”: one need only think of the lifetime career structures of the French judges, prosecutorial corps, police, university academics, etc. to get the idea. But very often, we find just the opposite: the subparts seem patently inconsistent with each other. Thus, the actively paternalistic and activist ideology governing French administrative law appears all but impossible to square with the more reactive, quasi-libertarian one that infuses French private law.

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This combination of similarity and difference drives us to the edge of a fantastically rich conundrum. Even in cases where there seems to be great consistency, such as the pronounced hierarchical organization of French civil, administrative and criminal law institutions and procedures, does this mean that we can accurately describe the French legal system as a whole as characteristically hierarchical in organization? As we have seen, each of its subparts is indeed highly “hierarchical” according to Damasˇka’s description. Yet when these subparts are combined, they create a kind of patchwork system with few clear lines of authority. How can this be? The answer is that French ordinary, administrative and constitutional jurisdictions are not in fact very unified at all. To the contrary, each consists of a distinct jurisdictional entity. The French “ordinary” judiciary is composed of trial courts, appellate courts and finally, the Court of Cassation. The administrative “judiciary,” on the other hand, has its own trial and appellate tribunals, overseen by the Conseil d’Etat. Those two hierarchies, for all that they are each impressively organized, centralized, professionalized, and so on, are, however, completely distinct from each other. In other words, France has two quite separate “judicial” structures, neither of which is answerable to the other. Thus, appeal can simply not be taken either from the Court of Cassation to the Conseil d’Etat or vice versa. And then there is the relative newcomer, the Constitutional Council (only established in 1958), which lies entirely outside both the ordinary and the administrative hierarchies.10 In other words, each jurisdictional hierarchy has its own Olympian master (the Court of Cassation, the Conseil d’Etat, and to some extent, the Constitutional Council), but there is no Zeus, never mind a single Yahweh, to rule them all. But this leads to an almost paradoxical state of affairs. The French legal order is, according to Damasˇka’s definitions, thoroughly hierarchical within all of its subparts (e. g., within its ordinary, administrative and constitutional jurisdictions); and yet, when those hierarchical subparts are gathered and combined, they yield a strongly fragmented and thus surprisingly coordinate order: each is largely independent of the others, effectively self-governing within its own domain. And to this highly complex and variegated legal order, one must now recognize the full extent to which the arrival of the ECJ and the ECHR further compound this confounding state of affairs. In short: a legal order can simultaneously be systematically hierarchical and yet massively disaggregated. Indeed, one might even wonder if this seemingly paradoxical state of affairs has become an important and even representative feature of contemporary European jurisdictions today, especially when one takes into consideration both their domestic and their supranational elements. I wish that I could properly express the look of sheer wonder that comes across the faces of the students when this amazing insight comes to gel in their brains. “How far we have come” – I cannot help but tell them – “How far we have come from the sim10 Since a 2008 constitutional revision, the Court of Cassation and the Conseil d’Etat can for the first time entertain and refer constitutional challenges to the Constitutional Council. This very minor overlap represents the sum total of these jurisdictions’ formal interaction.

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ple platitudes that have so often plagued comparative (and all other) legal analysis; and how indebted we are to Prof. Damasˇka for giving us a methodology sufficiently incisive and elegant to let us see such complicated, ‘equivocal’ and nuanced things so clearly.” Frankly, I can hardly wait for that moment every year.

III. The Faces of Justice and Deciphering European Judicial Appointments Reform Having now briefly sketched the tremendous analytic and theoretical insight that Professor Damasˇka’s great book offers to students of comparative law, I would now like to demonstrate the invaluable role that it consistently plays in my own research. To do so, I will turn to my current book project, which seeks to make sense of the ongoing wave of reforms to the judicial appointments processes at the European high courts (i. e., the ECJ and the ECHR). These fascinating developments have been going on for quite a while already. Depending on how one does the math, one could easily argue that the reforms have been under way for at least twenty years, when the Parliamentary Assembly of the Council of Europe [the “PACE”] started debating judicial appointments procedures in anticipation of the ratification and entry into force of Protocol 11. This Protocol, eventually ratified in 1998, would transform the ECHR into a fulltime judicial institution to which individuals could directly lodge complains without having to pass through the previously all-important institutional filter that was the Commission. The appointments debates and reforms have gone on more or less continuously ever since; but they reached a head in 2009 and 2010, when both the ECJ and the ECHR established independent panels to screen candidates proposed by the European Member States11 to fill judicial positions on these European high courts.12 What drove these debates and provoked these reforms? Why did the issue of judicial appointments rise to such a point of relevance and importance? And what do these debates and reforms have to tell us about the nature and development of the European legal orders? I have found these questions to be sufficiently interesting and complex to warrant writing a book. For the next few pages, I will therefore limit myself to explaining how The Faces of Justice has triggered for me an entire line of analysis about these European developments. 11 Technically, one should refer to Member States of the EU but to Contracting Parties of the European Convention. For the sake of linguistic simplicity, however, I shall refer to both as Member States. 12 The EU version was established by Article 255 of the Treaty of Lisbon. The ECHR version was established by the Committee of Ministers, Resolution CM/Res (2010) 26 on the Establishment of an Advisory Panel of Experts on Candidates for Election as Judge to the European Court of Human Rights (10 November 2010).

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The first thing to recognize is that the judicial appointments reforms emerged from a set of debates the terms of which would be completely familiar to any student of Damasˇka. Take the arguments made as early as 1995, when the PACE’s Committee on Legal Affairs and Human Rights proposed a Draft Resolution and Report “on the procedure for examining candidatures for the election of judges to the European Court of Human Rights.”13 Framing its proposals in terms of the rapidly impending ratification of Protocol 11, the Committee stated that “the Assembly wishes to take advantage of the short time left to improve its own procedure for examining the candidatures and for the selection of candidates, for more efficiency and professionalism.”14 The Committee made two technocratic proposals: the candidates should (1) fill out a “model CV” (i. e., a pre-formatted CV form), which “would make it easier to compare the candidates among themselves,” and (2) “be interviewed by a subcommittee of the Assembly, for their qualities to be assessed.”15 The PACE Committee had come to “the opinion that – with the establishment of the new single, full-time European Court of Human Rights – there should be a more professional approach to the election procedure.”16 Having taken steps to professionalize its own part of the selection process, the PACE soon turned its attention to the national part. In the wake of a 1997 questionnaire, the Committee on Legal Affairs and Human Rights produced a Report and Draft Recommendation on “National procedures for nominating candidates for election to the European Court of Human Rights.” The Report concluded, inter alia, that “the method of selecting candidates varies considerably from one country to another,” “in the majority of cases there are no rules governing the selection of candidates,” and “the candidates put forward did not always meet the criteria established by the Convention: either they lacked experience in human rights, or had never held judicial office, or were not sufficiently fluent in at least one of the Council of Europe’s two official languages.”17 Indeed, “Bearing in mind the technical expertise required,”18 too many candidates were simply unqualified to serve as judges in a major human rights court: “The proportion of candidates with recognised experience in the field of human rights is not in keeping with the requirements of the Convention. Some candidates did not even conceal their lack of experience in their curriculum vitae, and others concealed it very clumsily. 13 PACE Committee on Legal Affairs and Human Rights (Rapporteur: Lord Kirkhill), Report on the procedure for examining candidatures for the election of judges to the European Court of Human Rights 1, Doc. 7439, 1403 – 15/12/95 – 1-E (1995). 14 Id. 15 Id. 16 Id., p. 6 – 7 (emphasis added). 17 Committee on Legal Affairs and Human Rights, Report on National procedures for nominating candidates for election to the European Court of Human Rights 2, Doc. 8505 (Rapporteur Wohlwend) (8 September 1999). 18 Id. at para. 37.

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States should take greater pains to select candidates who, being called to hold such prestigious office, can demonstrate human rights activities worthy of the name.”19

Instead, the “process of selecting candidates was almost exclusively the preserve of national governments”20 and “Lists [of judicial candidates] were often the result of an arbitrary political decision.”21 The Committee therefore proposed a series of guidelines for Member State governments to follow when drawing up their lists of judicial candidates. They should: “i. issue a call for candidatures through the specialised press, so as to obtain candidates who are indeed eminent jurists satisfying the criteria laid down in Article 21 (1) of the Convention; ii. ensure that the candidates have experience in the field of human rights, either as practitioners or as activists in non-governmental organisations working in this area; iii. select candidates of both sexes in every case; iv. ensure that the candidates are in fact fluent in either French or English and are capable of working in one of these two languages; v. put the names of the candidates in alphabetical order.”22

Once again, the reforms were pushing to professionalize the judicial selection process, ensuring that the candidates would be technically and linguistically qualified to engage in the human rights jurisprudence. The issue of qualifications was important not only for its own sake, but also for the capacity – or potential incapacity – of the Strasbourg Court to command sufficient authority to have its jurisprudence be properly followed by national courts, especially at the supreme court level. Indeed, a looming concern for the authority of the Court and its jurisprudence thoroughly permeates the judicial appointments debates. In fact, in 2009, the sitting President of the ECHR, Jean-Paul Costa, took the initiative of sending a letter to the “permanent representatives” of the Member States of the Council of Europe (i. e., the national ambassadors in Strasbourg) in order to put forward an important proposal: a panel of senior experts should be established to “advise” Member States regarding the list of three judicial candidates they intended to put forward to the PACE for election to the ECHR. President Costa began by explaining rather dramatically why the selection of judges of sufficient quality was so important to the ECHR: In terms of the future of the Court and therefore the Convention system, one of the decisive factors will be the quality of its Judges. Whatever reforms are undertaken, the system will fail if judges do not have the necessary experience and authority. 19

Id. at para. 36. Id. at para. 14. 21 Id. at para. 35, citing Flauss J.F., Radioscopie de l’élection de la nouvelle Cour européenne des droits de l’homme, Rev. trim. dr. h., 1998, pp. 437 and 440. 22 Id. at para. 5. 20

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The quality of the Judges is important not only to guarantee the high standard of the decisions delivered and the jurisprudence developed. It is also essential because, in a subsidiary system where human rights protection falls primarily to the national courts, the European Court as the ultimate arbiter of human rights issues must be composed of persons of sufficient standing and authority to command the respect of national judges, including senior national judges. If this is not the case, the Court itself will suffer from a deficit of authority and the system will lose credibility and effectiveness. This aspect is also particularly important in view of the prospect of the European Union’s accession to the Convention. One of the critical issues in this context will be the future relationship between the Court of Justice of the European Union and the Strasbourg Court. For that relationship to function it must be based on mutual respect.23

As these key paragraphs demonstrate quite clearly, President Costa framed the issues as a volatile mix of ingredients that was coming to threaten the necessary chain of jurisprudential command between the domestic courts and “the European Court as the ultimate arbiter of human rights issues.” Indeed, this issue was all the more pressing given the EU’s impending accession to the European Convention, which raised the delicate question of how willing the ECJ would be to fall into line behind the ECHR as such an “ultimate arbiter of human rights issues.” As any student of Damasˇka would immediately recognize, the terms of these European judicial appointments debates reproduce quite faithfully the description that The Faces of Justice offers of the “hierarchical ideal” of officialdom. That ideal is composed of three basic elements: the professionalization of officials, strict hierarchical ordering, and technical standards for decision-making.24 The ECHR appointments debates represent in essence a concerted effort to reconstitute the European judiciary in such a manner as to have it conform to the organizational imperatives of an appropriately hierarchical judicial apparatus: the high European Court must be composed of duly certified and experienced professionals who, commanding ultimate authority from the apex of the judicial structure, decide cases according to the technical standards of European human rights jurisprudence. This growing imperative to refashion the European judiciary according to recognizably hierarchical professional standards has recently led to a rather remarkable reform. In 2009 and 2010, independent panels of experts were established to screen candidates proposed by the European Member States to fill judicial vacancies on the ECJ and the ECHR. Gone almost overnight is the old appointments regime that had governed until then, in which, for all intents and purposes, each national government

23 Letter from Jean-Paul Costa, President of the European Court of Human Rights, addressed to member states’ Permanent Representatives (Ambassadors) on 9 June 2010, in Committee on Legal Affairs and Human Rights (Rapporteur: Wohlwend), Report on National procedures for the selection of candidates for the European Court of Human Rights, PACE document 12391 (6 October 2010), Appendix, available at http://assembly.coe.int/nw/xml/ XRef/X2H-Xref-ViewPDF.asp?FileID=12764&lang=en. 24 Faces of Justice, p. 18 – 23.

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had governed its judicial appointments by fiat, unilaterally selecting its choice to sit on each court.25 No less remarkable is how these new review panels have actually behaved: they have aggressively exercised their missions, rejecting a sizable percentage of the judicial candidates nominated by the national governments. In the first three years of its existence, for example, the EU’s Article 255 Panel delivered 7 unfavorable opinions concerning the 32 candidates presented for the first time for ECJ appointment (i. e., non-renewal candidates).26 This means that the Panel rejected almost a quarter (22 % of all new candidates,27 including fully a third (7 of 21) of the new candidacies proposed for the General Court. These are rather astonishing numbers, especially given that until the Treaty of Lisbon came into effect, “no nominee was ever officially rejected, although at least in theory the governments of the Member States could have refused to grant their ‘accord’ to a nomination.”28 The figures from Strasbourg are no less impressive, especially when one recognizes that all of the judicial candidates are put forward to sit on the European Court of Human Rights itself, unlike in the EU context, where Member States propose candidates not only for the eminent ECJ, but also for the lesser General Court. The statistics are also more complicated to parse, given that each Member State proposes a list of 3 candidates from which the PACE is to elect the eventual ECHR judge. The numbers published by the Advisory Panel of Experts’ 2013 Activity Report at the end of its first term in office nonetheless indicate that the APE approved less than half (8 of 17) of the national candidate lists outright.29 Of the 27 candidates on the 9 remaining (suspect) lists, the APE straightforwardly approved only 7. It eventually approved 8 more upon receipt of further information. But it formally rejected 7. And 5 re-

25 This was more clearly the case for the ECJ, where Member States simply put forward one candidate to be rubber-stamped by the Council of Ministers. But even at the ECHR, where appointment depended on election by the PACE of one of the three candidates put forward by the Member State, governments found many ways to signal their preference among their candidates, such as overtly submitting their names in the order of their preference or submitting widely divergent styles of CV (impressively thick for the desired candidate, sadly thin for the others). See, e. g., Committee on Legal Affairs and Human Rights, Report on National procedures for nominating candidates for election to the European Court of Human Rights 3, Doc. 8505 (Rapporteur Wohlwend) (8 September 1999). 26 Third Activity Report of the Panel provided for by Article 255 of the Treaty on the Functioning of the European Union 9 (2013), available at http://curia.europa.eu/jcms/upload/ docs/application/pdf/2014 – 02/rapport-c-255-en.pdf. 27 See id. 28 Tomas Dumbrovsky/Bilyana Petkova/Marijn van der Sluis, Judicial Appointments: The Article 255 TFEU Advisory Panel and Selection Procedures in the Member States, 51 CML Rev. 455, 458 (2014). 29 Advisory Panel of Experts on Candidates for Election as Judge of the ECHR, Final Activity Report for the attention of the Committee of Ministers, Advisory Panel(2013)12 EN (11 December 2013).

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mained forever under an unresolved shadow of doubt.30 These figures suggest that the APE considered a very large percentage of all the candidates (some 40 %) to be questionable to some degree; of these, the APE ultimately found a significant percentage of the candidates (7 of 46) unqualified and another 5 remained thoroughly suspect. This means that the APE would ultimately have declared somewhere between 14 % and 24 % (between 7 and 12 of 51) of the candidates to be unfit to serve as ECHR judges – a figure very much in line with the 22 % declared unfit by the ECJ’s Article 255 Panel. I offer these somewhat detailed figures in order to demonstrate the full extent to which the discourses of professionalism, expertise, experience, quality, authority, and so on that have permeated the debates over European judicial appointments have not been merely empty verbiage. To the contrary, these attributes of “hierarchical officialdom” – to use Mirjan’s terms and framework – have motivated the design and establishment of important institutional mechanisms on the ground and have then justified meaningful interventions by those new institutional mechanisms. The actual importance of what Mirjan describes as the hierarchical ideal can simply not be doubted. There are, however, several other interesting features of the debates to which Mirjan’s framework should alert us. Interestingly, these features are primarily negative. That is, Mirjan’s framework should alert us to aspects of the debates that are quite simply missing. First, for all that the appointments debates have focused on the need to ensure judicial quality, expertise and experience, on the need to foster the jurisprudential authority of the European courts over the domestic ones, and so on, no one ever speaks of “hierarchical structures of governmental authority” (i. e., Mirjan’s first vector of analysis). The debates all focus therefore on the attributes of such hierarchical modes of organization, but never on the overall structure. What are we to make of this overwhelming tendency of the debates to concentrate on the particulars rather than to take a step back in order to consider the larger institutional and even constitutional architecture? The Faces of Justice offers just such wider-angle view, as well as a vocabulary for recognizing and a framework for making sense of it. Why, then, is this larger analytic and intellectual prism so starkly absent from the European debates? Does this represent a failure to perceive, never mind to acknowledge, a coherent, developing and expansive European institutional project? Despite the negative undertones of such a question, the reality is that one need hardly be a conspiracy theorist to recognize the importance of ingrained modes of thought and of their manifestation in particular institutional forms. Would it really 30 In a notable act of resistance, the national governments of these candidates sent their names before the PACE for election without bothering to send further requested information to the APE in time for the Panel to make an assessment. See id.

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be terribly surprising that a developing European legal order should naturally, even reflexively, take on forms ever more reminiscent of those that characterize the great majority of the Member States that comprise it? In other words, if, as is very likely the case, most European national legal systems tend to organize their procedural authority in a manner that Mirjan perceptively recognizes and characterizes as “hierarchical,” is it not to be expected that their agents would tend to reproduce such hierarchical modes of organization when acting in concert at the European level, and even to do so quite unthinkingly? Of course, this is not to suggest that it is appropriate, never mind intelligent, for them to do so. The European legal orders are not, or at least need not necessarily be, national legal orders writ large.31 Indeed, national representatives in the formative European postwar era understood and expressed this quite clearly; and the institutional forms that they devised for their European projects clearly reflected their consciousness of the fact that institutional forms could be rather freely designed in order to address the peculiar hopes, fears and desires of domestic governments operating in a novel supranational environment of their own making. One need only recall the imaginative original design of the Council of Europe’s enforcement mechanism, with its byzantine tripartite institutional architecture (Council of Ministers, Commission and Court), to recognize that the gradual adoption of a more classic, hierarchical mode of procedural and governmental authority at the European level represents a major transformation of the original scheme, for all that this transformation adopts forms and logics that are deeply familiar to all involved. But it is precisely the refusal to recognize the large-scale, systemic nature of this change that characterizes the European judicial appointments developments. Instead, the debates remain stubbornly focused on the specific issues of the candidates’ experience, quality, linguistic and technical capacity, and so on, showing little or no interest in addressing the more far-reaching implications of reordering the European judiciary in this traditional, hierarchical manner. The analysis offered by The Faces of Justice should also alert us to a second – and deeply related – feature that is missing entirely from these judicial appointments debates. However little these debates accept to discuss large-scale European structures of authority, they never overtly address their conceptions of what the function and purpose of European government should be (i. e., Mirjan’s second vector of analysis). That whole issue is left studiously off the table, as if it had nothing to do with the matter at hand. Mirjan’s methodology should alert us to this gaping hole in the participants’ own analyses. This omission is really quite striking. After all, the choice to design selection mechanisms for the European bench in a particular manner would seem to depend on the underlying conception of what the European projects are meant to achieve. 31 See Neil Walker, Postnational Constitutionalism and the Problem of Translation, in European Constitutionalism beyond the State 27 (J.H.H. Weiler and Marlene Wind, eds.) (Cambridge: Cambridge University Press: 2003).

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One might suppose that if a given legal order were intended merely to resolve private disputes (Mirjan’s “conflict-solving” ideal), then it might deploy a judiciary designed and trained specifically to advance this particular mode of governance; similarly, one might suppose that a different legal order, intended instead to elaborate and instantiate State policy in an aggressive manner, might instead create a far more “activist” and “policy implementing” “judicial” institution. Take the high French judiciary, just by means of example. If Mirjan is right (and, frankly, I believe that he is) that a given legal system can have subparts that are each motivated by different conceptions of the proper function of government, then it might indeed make a great deal of sense to try to design a judicial system in such a manner as to coincide with the operative conception governing each domain. Is this not effectively how the French judiciary is designed? After all, in the distinctly “activist” public law sphere, where the French administration is expected to play a highly “policy implementing” role, the Conseil d’Etat takes center stage. Functioning effectively as the “supreme court” in public law disputes, the Conseil is composed of “judges” educated overwhelmingly by the prestigious Ecole nationale de l’administration. That is to say, it is composed of elite civil servants trained in the arts and responsibilities of public administration, not of lawyers trained in private and criminal law subjects and formed at the national judge school. Indeed, the non-judicial, actively policy-implementing logic is taken further in two respects. First, members of the Conseil routinely spend extensive amounts of time (indeed, years at a time) in positions outside the Palais Royal. They can take up posts in the ministries, advise members of government, or even take leadership positions in private industry, often in important firms with strong governmental affiliations. Second, for those members working within the Palais Royal, the Conseil believes in the principle of “brassage,” according to which members perform “judicial” duties one day (reviewing the acts of the administration) and giving advice to the political branches the next.32 This alternation of judicial robes and executive hardhats (to use the Conseil’s own imagery) once again reinforces the institutional self-conception that the Conseil is an active agent of the State policy, even if, in its judicial capacity, it must judge the administration according to the great governing principles of legality (that, furthermore, the Conseil has itself devised). Meanwhile, the French “ordinary” judiciary is governed by a very different ideology. Educated in law schools and then trained in the Ecole nationale de la magistrature, French judges function for the most part under the fundamental idea that they are but the conduits of duly enacted legislation. Spending their entire careers working up the institutional hierarchy of the judiciary, they are rarely in a position to think of themselves as actively implementing some governmental policy that has not been duly formalized and reified in the form of official law. Although these judges are hardly the naive formalists or inveterate positivists that they have all too frequently 32 See L. Neville Brown/John S. Bell, French Administrative Law 63 (Oxford: Oxford University Press, 1998).

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been assumed to be,33 they see themselves above all as agents of the law and as protectors of civil society, not as the vectors of transmission – never mind the initiators – of State policy. To the extent, therefore, that the judicial appointment mechanisms to the European high courts have been the subject of fairly intense and reform-minded discussion, it is remarkable that more serious attention has not been given to the fundamental question of what the role of those judicial institutions might be.34 In fact, it is even more striking that such discussions over the judicial role have made little or no attempt to address overtly the broader context of European transnational legal, political and regulatory development. In other words, the extensive debates over judicial appointments reform have operated in almost glorious isolation from debates about what the European judiciary should be in the business of doing and why. It is as if Mirjan’s entire second axis of analysis simply did not qualify as an appropriate matter for discussion. Third, and finally, although the ongoing judicial appointments debates therefore refuse openly to address such fundamental ideological issues regarding the appropriate function of European government in general and of the European judiciary in particular, it beggars belief that such conceptions are not in fact at work, if only in a tacit and inchoate manner. After all, any concrete suggestions about the appropriate professional background for holding European judicial office, about how such European judges should be selected, about the roles that Member States governments and independent panels of European judicial experts should play in such European judicial appointments, etc., must necessarily depend on fundamental assumptions about the nature and purpose of European and national government authority and about the role of the courts in furthering such purposes. How could it be otherwise? But the whole point is that these “second axis” conceptions about the function of government are not made explicit. Instead, they are tacitly embedded in the “first axis” discussions about the apparatus of government. And to make matters worse, even these discussions have, as we have seen, remained stubbornly focused on the specific attributes of potential judicial candidates, rather than addressing in a more general and holistic manner the overall structures of governmental authority. The end result is a great deal of rather platitudinous discussion about what should be judicial candidates’ experience, quality, linguistic and technical capacity, and the like, with a remarkable dearth of discussion about how certain judicial profiles and selection methods might advance this or that mode of European governance. 33 See Mitchel Lasser, Judicial (Self-)Portraits: Judicial Discourse in the French Legal System, 104 Yale. L.J. 1325 (1995). 34 Damian Chalmers’ proposal, in the judicial appointments context, that ECJ performance be measured on the basis of the “tasks” that it taken to perform represents a minor exception, even for the secondary literature. See Damian Chalmers, Judicial Performance, Membership, and Design at the Court of Justice, in Selecting Europe’s Judges 51 (Michael Bobek, ed.) (Oxford: Oxford University Press, 2015).

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Of course, the major players in the great projects of the European Union and the European Convention have never been fools. They have understood full well that those projects have been complex, ongoing and shifting experiments in both governmental purpose and governmental design. But they have taken great care not only to segregate those two spheres of discussion, but also to sanitize those discussions of overt talk of a certain kind. Take the ECHR appointments debates that we briefly touched upon above, in which the PACE Committee on Legal Affairs and Human Rights proposed a Draft Resolution calling for ECHR candidates to submit standardized CVs and “be interviewed by a sub- committee of the Assembly, for their qualities to be assessed.”35 Why did these proposals come to be made in 1995? The Committee openly answered: because Protocol 11 was soon to be ratified. What difference did this make? The Committee never said. All it had to offer, in either its Draft Resolution or its “Explanatory memorandum” (authored by Lord Kirkhill), was that when Protocol 11 came into effect, the ECHR would become single, full-time Court of professional judges.”36 So what? Even Lord Kirkhill recognized: “When Protocol No. 11 to the Convention – which will introduce a single-court system – enters into force the system of election of the judges will not change considerably.”37 Why then, to ask the question once again, was the PACE Committee proposing to change the appointments process? The Committee offered no more. The only way to make sense of this dogged refusal to link procedural reform to theories of governmental purpose is to broaden the contextual frame. The first question to ask is why Protocol 11 was being passed in the first place? The technical answer was caseload. As the Explanatory Report to Protocol 11 explained, “The backlog of cases before the Commission is considerable… It takes on average over 5 years for a case to be finally determined by the Court or the Committee of Ministers.”38 This had of course been a steadily growing problem: “The number of applications registered with the Commission has increased from 404 in 1981 to 2,037 in 1993.”39 So why the sudden urgency? The primary answer – to cut to the chase – was the accession to the Convention of former Eastern Bloc countries in the wake of the fall of the Berlin Wall. Hungary opened the floodgates by becoming the first to accede to the Convention in 1990, followed swiftly by some thirteen others by the time Russia acceded in 1996. As a result, the number of Contracting Parties, which had risen modestly from 14 in 1950 to 21 in 1987, would explode to 41 by 2000. 35

See supra text accompanying notes 13 – 16. PACE Committee on Legal Affairs and Human Rights (Rapporteur: Lord Kirkhill), Report on the procedure for examining candidatures for the election of judges to the European Court of Human Rights 1, Doc. 7439, 1403 – 15/12/95 – 1-E (1995). 37 Id. 38 Id. 39 Id. 36

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Although the importance of the purely numerical dimension of the problem should not be minimized, accession obviously involved far more. In a 1992 Recommendation that urged moving forward on what would soon become Protocol 11, the PACE thus declared: “2. [The PACE] notes that the number of Council of Europe member states has risen to twenty-seven and will continue to rise in the next few years and that a considerable increase in the number of applications submitted to the Commission and to the Court is thus to be expected. 3. It expects that the number of individual applications will increase disproportionately to the population of the new member states as, contrary to older member states, the Council of Europe’s system for the protection of human rights constitutes for them an important element for the building-up of fundamental rights, democracy and the rule of law.”40

With this paragraph, the PACE had expressed the crux of the matter, but had done so in the context of Protocol 11 reforms, not in the context of judicial appointments. Although accession would undoubtedly significantly affect caseload, the important point was that the Convention system would represent something fundamentally different to the “new member states” than it had for the “older” ones. For the new states, the Convention would be an important means of constructing or establishing “fundamental rights, democracy and the rule of law.” Here, finally, in the historical record, we can therefore find the traces of the fundamental shift in governmental ideologies that was going to provide the necessary impetus to trigger a whole series of reforms that would continue to this day. As the last quotation makes rather clear, the working assumption – by no means unreasonable – was that the new accession states did not in fact possess such constitutional/ legal/ political/ social goods as “fundamental rights, democracy and the rule of law.” The Convention system would therefore be actively used as a tool for “building” them. This was to be distinguished from the role that the Convention system had been playing for the established Member States, for whom it served only as a backstop against particular and localized fundamental rights violations and, at least hypothetically, as a bulwark in the last instance against potential slides toward totalitarianism. This long-established and more static Convention role had actually been the outcome of significant contestation during the post-war period, when more hopeful European federalists in and around the PACE had tried – in the end, unsuccessfully – to institute a Convention system that would use human rights in a more prescriptive and robustly justiciable fashion that might eventually lead to a more sweeping Europeanwide federation (an arguably utopian European Union).41 The result had been a deeply passive subsidiary or backstop system of protection in which the Strasbourg Court 40

PACE Recommendation 1194 (1992) (emphasis added). See Ed Bates, The Birth of the European Convention on Human Rights – and the European Court of Human Rights, in The European Court of Human Rights between Law and Politics, p. 17, 21 – 27(Jonas Christoffersen and Mikael Rask Madsen, eds.) (Oxford, OUP: 2011). 41

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was intentionally hamstrung by two built-in institutional features: the Court was flanked by a Commission and a Committee of Ministers that could all but deny it jurisdiction; and the Convention included two “optional” opt-in provisions that permitted each Member State to decide for itself whether it wished to be made subject to individual complaints or even to submit the Court’s jurisdiction at all. One could hardly have designed a system less conducive to function in an activist, policy-implementing manner. The judicial appointments reforms begun in the 1990’s were thus an explicit overturning of these fundamental assumptions about the purpose of transnational European forms of governmentality. They went hand in hand with the transformation of the ECHR into a full-time, professional court with compulsory jurisdiction to hear complaints brought directly by individuals against the Member States. In this new context, the ECHR and the Convention system were being intentionally leveraged as a means to transform the former members of the Eastern Bloc: they were now actively deployed “for the building-up of fundamental rights, democracy and the rule of law.”42 The new focus on a more “professional” European judiciary – endowed with sufficient expertise, experience, quality, independence and authority – thus served to advance at least two purposes. First, it struck at the capacity, cherished until then by the “older” Member States, of governments (especially, of course, those of the “new” accession States), to tame the Convention system via judicial appointments. And second, it offered at least some assurance to those “older” Member States that they would not come to regret the greatly increased powers that were being vested in European judges (especially, of course, those judges proposed by the “new” accession States). In other words, the function of European transnational governmentality was being intentionally changed. And the judicial reforms were a modification of the structure of procedural authority that was meant both to advance the increasingly activist European governmental agenda (especially in the East) and to limit its potential risks (especially to the West).

IV. Conclusion The brilliance of the analytic scheme that Mirjan Damasˇka developed in The Faces of Justice is almost impossible to overstate. It drives students of comparative law to engage simultaneously in two richly complementary exercises: to refine their analyses in ever-greater detail even as they try to contextualize and theorize them by integrating them into larger and more complex combinations. The resulting shifts in analytic perspectives can generate moments of almost startling clarity, where all is suddenly brought into focus and order only to suggest new, surprising and even disorienting vistas. I can think of no other work that offers such a fabulously rewarding kaleidoscope of comparative visions. 42

PACE Recommendation 1194 (1992).

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For my own research, The Faces of Justice offers a perpetual reminder to think twice about the material I am studying. Procedural reforms need to be taken seriously in their own right and on their own terms. But that is not enough. Such reforms also need to be taken seriously as interventions that instantiate different ways of organizing procedural authority and that manifest different conceptions of what government in general and the legal system in particular should be in the business of doing. The complexity, as Mirjan’s work so brilliantly suggests, is that the relationship between the ways of organizing procedural authority and the conceptions of what government ought to be doing is by no means straightforward. A highly activist and policy-implementing government need not adopt a rigidly hierarchical institutional and procedural structure; and a deeply reactive and merely conflict-solving government need not adopt a disaggregated coordinate structure. This grand theoretical insight – of the relative autonomy of (1) the apparatus of government from (2) motivating conceptions about the function of government – represents one of the great achievements of Mirjan’s work. But it still leaves us with a vexing analytic problem: most of the subjects of our analysis (government actors, jurists, activists, scholars, etc.) behave as if the two were obviously, necessarily and straightforwardly linked. Their assumption, however demonstrably false it may be, nonetheless structures the way that they think, speak and behave. It must be accounted for, even if – and perhaps especially because – it is tendentious. In the context of the European judicial appointments debates, Mirjan’s methodology allows us to see what I think may epitomize the European legal and political orders as they currently exist: namely, a characteristic proclivity to transform foundational political ideas and debates into highly coded, reductive and overdetermined discussions about the apparatus and structure of government, as if one could easily substitute for the other. Mirjan’s incisive analytic methodology permits us to identify, navigate, decode and critique such muddled and misleading modes of thinking. For if The Faces of Justice teaches us anything, it is the relative autonomy of these two axes, of the apparatus of government from motivating conceptions about the function of government. To be a student of Damasˇka is therefore to be constantly alert to the facile reduction of the two vectors of analysis into one, and to resist engaging in such reductiveness even if it may be a defining feature of contemporary European legal discussions. It is in studying the interplay of forms and ideas that comparative law can make its greatest intellectual contribution; and it is Mirjan Damasˇka who will stand as the single greatest theoretician and practitioner of such study.

The Strangely Familiar History of the Unitary Theory of Perpetration James G. Stewart*

I. Introduction International criminal courts and tribunals use the term “modes of liability” to designate forms of participation in atrocity such as instigation, aiding and abetting, joint criminal enterprise (“JCE”) and command responsibility.1 In 2001, Mirjan Damasˇka authored a sublime critique of one of these modes of liability in an article entitled The Shadow Side of Command Responsibility.2 Intellectually, the article was somewhat daunting for me as a then aspiring academic; it drew on a staggering breadth of learning in the history of criminal law, the theory of criminal responsibility and comparative law. Substantively, the article also planted a seed for my own subsequent work – at one point in this wonderful piece, Damasˇka argued that to the extent command responsibility was not objectionable, it merely collapsed into garden-variety omission liability.3 This argument sparked my own thinking about the extent to which forms of liability as a species could be folded into a single unified set of normative principles. Why stop at just command responsibly? Several years later, this intuition led me to the unitary theory of perpetration that I revisit here. Stylistically, Damasˇka’s exceptionally eloquent prose awakened a realization that legal scholarship could be warmly critical, involve a spirited commitment to justice, draw heavily on the imagination and act as a vehicle for one’s own attempt at aesthetic excellence. I hope that my very inferior attempt at emulation here reveals something of his influence.

* Associate Professor, Allard School of Law, University of British Columbia. An earlier version of this paper benefited a great deal from discussions at a workshop held at Cavtat, Croatia in honor of Mirjan Damasˇka. 1 As I have pointed out in earlier work, the phrase “modes of liability” is slightly conceptually misleading and of uncertain historical pedigree. See Stewart, James G., The End of “Modes of Liability” for International Crimes, 25 Leiden. J. Int’l. L. p. 165 – 219, p. 166 (2012). 2 Damas˘ka, Mirjan, The Shadow Side of Command Responsibility, 49 Am. J. Comp. L. p. 455 – 496 (2001). 3 Ibid. p. 462. (“When superiors are aware of the impending delinquency of their subordinates and do nothing to stop them, their omission shades into conventional complicity – aiding by omission – and has therefore hardly any independent purchase.”).

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At present, “modes of liability” are numerous in international criminal law (“ICL”), ranging from traditional notions of instigation and aiding and abetting to more exotic concepts like Joint Criminal Enterprise (“JCE”) as well as the object of Damasˇka’s original critique, command responsibility. To my mind, the difficulties Damasˇka so eloquently pointed to in his earlier work encompass most species in the genus. Viewed as an ensemble, modes of liability appear to be sometimes harsh, occasionally too lenient, frequently very difficult to understand, the source of important inefficiency, and as a combined consequence of all the foregoing, in a state of seemingly continuous flux. In what follows, I reiterate my suggestion that “modes of liability” should be abandoned in ICL, arguing again for a single functional unitary theory of perpetration wherever international crimes are invoked.4 On this theory, whenever an international crime is charged in any forum, national or international, a causal contribution combined with the mental element(s) required by the crime charged would be necessary and sufficient to establish participation in the international crime.5 As things transpire, my project is not new. In 1902, the world’s leading criminal law theorists formally endorsed the unitary theory of perpetration at a distinguished congress of the Union International de Droit Pénal (“UIDP”) in St Petersburg, precisely because it promised to overcome many of the same sorts of problems that modern ICL now struggles with.6 The UIDP, or Internationalen kriminalistischen Vereinigung (“IKV”) as it was also known, represented the who’s-who of world criminal law theorists, at a time when passion for criminal science was arguably at its zenith. As a consequence of its then intellectual prestige, the UIDP’s endorsement of the unitary theory had a marked impact in practice – at least five countries abolished the differentiated system previously in force within their jurisdictions in favor of the uni4

My previous article, entitled The End of ‘Modes of Liability’ for International Crimes, argued that a unitary theory of perpetration follows from the criticisms of individual “modes of liability” of international criminal law, accounts for conceptual shortcomings of complicity in ICL, is theoretically defensible, and offers a set of pragmatic advantages in ICL in particular. See Stewart, supra note 2. I did not commit to a pure, functional, or sentence-based variant of the unitary theory in this earlier work. On this distinction, see Stewart, James G., Complicity, in: Oxford Criminal Law Handbook (Markus Dubber and Tatjana Hörnle eds., 2014). Upon reflection, I am minded to think that a functional unitary theory is preferable to a pure system, since this functional variant announces the various forms of causation, like instigating and aiding for example, while still employing stable substantive elements for all forms of participation. I am grateful to Kai Ambos for suggesting that I clarify this point. 5 For a conceptual overview of different theories of complicity from a comparative perspective, including three variations of the unitary theory, see Stewart, James G., Complicity, in: Oxford Criminal Law Handbook (Markus Dubber and Tatjana Hörnle eds., 2014). 6 Bulletin de l’Union Internationale de Droit Pénal 137 (1904) (“Quant à la question de la complicité, la loi devra abandoner toute distinction doctrinaire entre ceux qui on participé au meme crime et se borner à indiquer les modes de participation qu’elle considérera comme tells”). Abandoning formal distinctions between participants but still announcing forms of participations as a guide to the public makes this theory a functional unitary theory. I also think that a functional unitary theory would be preferable in ICL.

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tary theory on the strength of this intellectual leadership. For reasons I come to momentarily, five is a far greater number than it seems at first blush. In this article, I argue that ICL should imitate this shift, not just within international courts, but also in national systems when international crimes are charged. Ironically, the UIDP also shared this universalizing ambition – according to Professor Franz von Liszt, one of the group’s intellectual forefathers, the significant advance in criminal science that produced the unitary theory of perpetration should feature as a central part of “the unification of criminal codes,” and the “universalization of criminal law.”7 In this Article, I take von Liszt’s project seriously, at least for trials involving international crimes. At least one leading modern scholar also shares these sentiments. Referring to the “universal structure of criminal law” as an “antidote” to the sorts of positivist arguments that reify domestic criminal doctrine, George Fletcher writes that “resolutions on the surface of the law should not obscure the unity that underlies apparently diverse legal cultures.”8 Consequently, “the task of theorists in the current century is to elaborate the general principles of criminal law that should be recognized not only in the International Criminal Court, but in all civilized nations.”9 Instead of revisiting my earlier work defending the unitary theory in abstract terms,10 this article interrogates why, historically speaking, the UIDP then various national legal systems abandoned differentiated forms of blame attribution in favor of the unitary theory. Intriguingly, the problems that led these national systems to a volte-face on the topic of blame attribution are strikingly similar to those the ICL is currently wrestling with. Consequently, the histories that follow should act as a caution against a faith that judge-made law will ultimately produce a settled defensible consensus about forms of attribution in ICL or, in other words, that a dogmatik will eventually emerge with time. In a number of the national systems I discuss below this never came to pass, to the point that leading criminal law theorists of the day ultimately advocated for transcending the very structure that subsumed the doctrine. I again suggest that ICL should consider following this alternative route. I divide the article into five separate parts, each of which singles out a particular rationale for each of the five different states cited for departing from the differentiated system of blame attribution in favor of a unitary alternative. The historical narrative proceeds in chronological order, starting with the initial promulgation of a unitary theory of perpetration in Norway and culminating with the Austrian law adopted 7 Leon Radzinovicz, The roots of the international association of criminal law and their significance: A Tribute and a Re-Assessment on the Centenary of the Ikv 24 (1991). 8 George Fletcher, Basic Concepts of Criminal Law 5 (1998). 9 George Fletcher, The Grammar Of Criminal Law 20 (2007). 10 For a discussion linked to international criminal law particular, see Stewart, supra note 2. More generally, see Thomas Rotsch, “Einheitstäterschaft” statt Tatherrschaft: Zur Abkehr von einem differenzierenden Beteiligungsformensystem in einer normativ-funktionalen Straftatlehre (1. ed. 2009); Johannes Keiler, Towards a European Concept of Participation in Crime, in Substantive Criminal Law of The European Union, p. 157 – 317 (André Klip ed., 2011).

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most recently. Although I have isolated one rationale for the unitary theory per country, I do not mean to imply that these were the only motivations for the normative shift in each context; there were actually a large number of reasons for abandoning the differentiated system of blame attribution in each jurisdiction. Nevertheless, by highlighting five states’ rationales for the juridical change and mapping these rationales onto protracted debates about blame attribution in modern ICL, I hope to shed new light on the ways in which contemporary struggles on the topic at the international level are contingent on the differentiated structure. In each of the national systems I review, scholars were grappling with the very same problems that haunt modern ICL now, before they reached for a transcendent solution. Several disclaimers are necessary at the outset. In what follows, I traverse an unreasonably wide terrain. I have not visited any archive in compiling these histories and my materials are, for the most part, from secondary sources. I have also had to engage the research assistance of native language speakers in each of the countries I write about, so the likelihood that I have misunderstood or distorted original theorists in certain instances is unavoidably high. In addition, I have not highlighted differences between pure, functional and sentence-based unitary systems in the various jurisdictions I discuss,11 thereby failing to illuminate the sometimes marked discrepancies between them.12 Similarly, my project is entirely historical, which overlooks contemporary perceptions of the unitary theory of perpetration’s function in these various systems. Several friends, for instance, have pointed out that in at least one of my examples, the enthusiasm for the unitary theory at the point of codification many decades ago is almost certainly a thing of the past. Because my project is mostly historical, I must defer to others on these questions.13 Finally, I have not engaged with 11 I have explained the differences between these three variants of the unitary theory elsewhere, questioning whether the sentence-based account is properly classified as unitary at all. For an overview, see Stewart, supra note 5, p. 539 – 540. 12 Art. 12, Austrian Criminal Code adopts a functional unitary theory by announcing different forms of participation like perpetrators, instigators and accomplices, but it maintains uniform substantive elements for these various forms, thus justifying its inclusion within the unitary theory family. See Jean Pradel, Droit Pénal Comparé 194. (2e ed. 2002). Norway, on the other hand, has no provision governing substantive rules of participation at all, relegating these issues to the special part of the criminal code. For discussion, see Johannes Andenaes, The General Part of the Criminal Law of Norway p. 274 – 277 (1965). Coincidently, this approach accords with Douglas Husak’s conceptual preference for complicity. Douglas Husak, Abetting a Crime, vol. 33 p. 41 – 73 (2014). In Denmark, to offer one final variation, it appears that causation is no Law and Philosophy required for any form of participation. See Jørn Vestergaard, Criminal Participation in Danish Law – Uniformity Unlimited? In Criminal Law Theory in Transition: Finish and Comparative Perspectives p. 475 – 490 (Raimo Lahti & Kimmo Nuotio eds., 1992). Here again, Anglo-American theorists would concur. Alexander, Morse and Ferzan offer a conceptual defense of a normative scheme precisely like the Danish – one that does not formally distinguish between various forms of participation and removes causation for all aspects of the criminal law. See Larry Alexander, Kimberly Kessler, Ferzan and Stephen J. Morse, Crime and Culpability: A Theory of Criminal Law (2009). 13 For an extensive review of this sort, see Bettina Weißer, Täterschaft in Europa, in: Ein Diskussionsvorschlag für ein europäisches Tätermodell auf der Basis einer rechtsvergleich-

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the thoughtful criticisms of the unitary theory of perpetration that are beginning to emerge in ICL,14 hoping that my opinionated argument below will make a further contribution to a lively but respectful scholarly debate to be staged elsewhere. In this vein, I very much hope that what follows instigates a range of in-country experts to correct, critique and elaborate upon my brief accounts.

II. Intellectual Dissatisfaction in Norway In 1828, the German Professor of criminal law, Christoph Karl Stübel, wrote a highly influential book on criminal legislation.15 In it, he explored the implications of then new thinking about causation for the concept of complicity. According to the then newly popular theory of counterfactual dependence (known as Äquivalenztheorie in the native German), all conditions are considered causal that could not be left out of consideration without the result not occurring.16 By implication, all conditions are conceptually equivalent not temporally sequenced, meaning that both the person who supplies the weapon and the murderer who uses it make equal causal contributions to a consummated crime according to the prevailing test, regardless of their contribution’s temporal distance from it. Stübel was not the first to contemplate the equivalence of causal contributions but he was original in one respect – he doubted whether formal causal equality necessarily resulted in the same sentence for perpetrators and accomplices.17 Thus, the journey to the unitary theory began. If causation unified perpetrators and accomplices alike at the level of attribution, any need for differentiated sentencing could be achieved after responsibility for the consummated crime was attributed.

enden Untersuchung der Beteiligungssysteme Deutschlands, Englands, Frankreichs, Italiens und Österreichs (1. ed. 2011). 14 Werle/Burghardt, Establishing Degrees of Responsibility in: Modes of Participation in Article 25 of the ICC Statute, in Pluralism in International Criminal Justice (Elies van Sliedregt and Boris Burghart eds.), pp. 301 – 319 (criticizing my defense of the unitary theory of perpetration). See also Cassandra Steer, Translating Guilt: Identifying Leadership Liability for Mass Atrocity (T.M.C Asser Press, 2015) (same). 15 Christoph Carl Stübel, Ueber die Theilnahme mehrerer Personen an einem Verbrechen: Ein Beitrag zur Criminalgesetzgebung und zur Berichtigung der in den Criminalgerichten geltenden Grundsätze (1828). 16 For discussion of Äquivalenztheorie, see Claus Roxin, Strafrecht Allgemeiner Teil, 4. Aufl. (Mu¨ nchen: Beck, 2006), vol. 1, p. 352, § 11 Rn 7. For English-language equivalents, see Volker Krey, German Criminal Law General Part, p. 47 – 57 (2002) (providing a helpful English language overview of causation in German criminal theory); H. L. A. Hart/Tony Honoré, Causation in The Law, p. 431 – 464 (discussing dominant German theories of causation) (2 ed. 1985). 17 Rotsch, supra note 9, p. 35.

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After Stübel, a number of other prominent European theorists developed and refined the potentiality of a unitary theory,18 but it is highly unlikely that their intellectual labors would have born fruit in practice without the catalytic effect of the UIDP. Founded in 1888 by three prominent European criminal law theorists,19 the UIDP or IKV as it also described itself in its second working language, brought together the leading scholars of the time. The professional association soon became exceptionally popular internationally – by 1905 it boasted a membership of one thousand two hundred participants from thirty countries.20 Although the organization served as a platform for discussions about a range of topics, complicity was high on the group’s agenda for a number of years: its members were preoccupied with “[t]he influence of the new concepts in the field of criminal law on ways of defining…complicity.”21 Ultimately, this interest led them to abandon the doctrine as an autonomous concept in line with the insights developed by Stübel and his many successors. As I have argued elsewhere, I am of the opinion that ICL should do similarly. Norway was the first to abandon a differentiated system of attribution like that presently applicable in ICL in favor of the unitary theory of perpetration. The Norwegians made this shift, in part, because their leading academic minds viewed the unitary theory of perpetration as conceptually superior. In 1875, for instance, the Norwegian Professor Bernhard Getz published his thesis “Report on the So-Called Complicity in Crimes,” in which he dismissed as invalid all distinctions between parties to crimes, arguing that they should be subsumed within a more extensive singular notion of perpetration.22 The core of his thesis, which should have strong resonance for all familiar with the contemporary connundra with forms of participation in modern ICL, was that “I am aware of the line that legislation and theory draws between the perpetrator on one side, and the accomplice on the other, but the line between the two lacks a solid foundation.”23 In particular, Getz observed that: “I don’t know how a perpetrator is unlike an accomplice and hence I have entitled this paper ‘The So-Called Participation in Crime.’ It seems to me that the accomplice fulfills all the necessary requirements to be perceived as a perpetrator and that every perception of the concept perpetration that excludes the accomplice leads to unreasonable results, which no one is willing to clarify.”24 18

Ibid., p. 34 – 76. (discussing twenty-six other authors in the Germanophone tradition who addressed the unitary theory of perpetration. This, of course, does not summarize the contributions of others in various jurisdictions, especially Scandanavia and Austria). 19 The three included Franz von Liszt, its founder, Adolphe Prins and Gerard Anton van Hamel. 20 Radzinovicz, supra note 6, p. 2. 21 Ibid., p. 11. 22 Bernhard Getz, Om Den Saakaldte Delagtighet I Forbrydelser: En Strafferetlig Undersøkelse 2 (Christiana, 1875). My kind thanks to Jon Erik Lundgaard for his assistance with translations from the original Norwegian. 23 Ibid., p. 2. 24 Ibid.

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Repeatedly referring to the concept of complicity in differentiated systems as “amputated” from the body of blame attribution, Getz argued that the sorts of debates about the separation of perpetration from complicity that now captivate modern ICL arise from the fact that “this concept has been torn out from its natural context.”25 Reintegration, therefore, was a more conceptually attractive means of overcoming what was ultimately for Getz, a false dilemma. Getz raised a number of arguments to substantiate both his intellectual dissatisfaction with the differentiated system and the transcendent solution he preferred. With respect to the accomplice’s objective contribution, he argued, drawing on the then groundbreaking view of the equivalence of causes, that “[e]very action is objectively speaking in the same relationship with the crime, every action leads to the crime.”26 Consequently, “[o]ne must ask: Has the person contributed to the crime or not? If he has, he is a perpetrator and consequently equally to blame.” 27 In the subjective realm, Getz was earnest to point out how motives are normally irrelevant to criminal liability, so appending additional subjective elements in an attempt to differentiate perpetrators from accomplices (i. e. did the actor view the crime as her own) was not only a departure from normal thinking, it amounted to “an unconditional mistake.”28 Concluding his study colorfully, Getz reaffirmed that “every proposition to prove the specific distinction between the accomplice and the perpetrator has flashed before our eyes and must be deemed inadequate.”29 ICL’s plight to solve the riddle Getz found to be without convincing solution has played out in various different ways. Initially, the ICC seemed to treat the plurality of “modes of liability” in the ICC Statute as axiomatic – as if it is made necessary by the very metaphysics of blame attribution. For instance, the ICC’s first decision incorporating the German notion of “control over the crime” as a criterion for delimiting perpetration from complicity simply states that “the definitional criterion of the concept of co-perpetration is linked to the distinguishing criterion between principals and accessories to a crime where a criminal offence is committed by a plurality of persons.”30 The Chamber did not indicate how the Statute made the distinguishing criterion conceptually inevitable. In fact, the use of the definite article to imply an inexorable division between perpetration and complicity is at odds with the scholarly work of Bernhard Getz and others, who had argued that this type of assumption was

25

Ibid. Ibid., p. 4. 27 Ibid. 28 Ibid., p. 52. 29 Ibid., p. 59. 30 Prosecutor v. Bemba, Case No. ICC-01/05 – 01/08, Decision Pursuant to Article 61(7)(a) and (b) of the Rome Statute on the Charges of the Prosecutor Against Jean-Pierre Bemba Gombo, p. 326 (June 15, 2009) (emphasis added). 26

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conceptually invalid.31 Moreover, to assume the contrary is not only insensitive to the theory Getz helped popularize, it is also slightly out of step with the history of ICL. Although the Nuremberg and Tokyo Charters explicitly enumerated different forms of attribution,32 the Nuremberg Tribunal itself merely considered whether an accused was “concerned in,” “connected with”, “inculpated in” or “implicated in” international crimes.33 As many leading commentators now accept, this approach entailed a unitary theory of perpetration that was functionally equivalent to the concept the UIDP and Getz had called for,34 namely, a system of blame attribution that declined to disaggregate modes of participation into formal legal concepts like aiding and abetting, superior responsibility or JCE, instead holding the substantive elements of blame attribution constant across the various roles different actors might play. Thus, the Nuremberg Tribunal dispensed with “the distinguishing criterion” a majority at the ICC would later assume to be structurally inescapable. Although the judges at Nuremberg made no explicit reference to Getz or the unitary theory, their approach does point to a similar intellectual dissatisfaction at some of the earliest stages of modern ICL. The same intellectual dissatisfaction is evident today, albeit among a minority of prominent international judges. Like other aspects of ICL, the differentiated system of blame attribution and the difficult normative dilemmas that accompany it are “haunted by the presence of dissenting counter-narratives.”35 ICC Judge van den Wyngaert, for instance, has argued that “[v]ery often the acts and conduct of political 31

Rotsch, supra note 9, p. 17. Art. 6(3) of the Nuremberg Charter reads: “Leaders, organizers, instigators and accomplices participating in the formulation or execution of a common plan or conspiracy to commit any of the foregoing crimes are responsible for all acts performed by any persons in execution of such plan.” Agreement for the Prosecution and Punishment of the Major War Criminals of the European Axis, 59 Stat. 1544, 82 U.N.T.S. 284, reprinted in (Supp. 1945). 33 For an overview of these cases, see The United Nations War Crimes Commission, Digest of the Laws and Cases, Law Reports of the Trials of War Criminals, Vol. Xv, 49 – 58 (1947). 34 Kai Ambos, Treatise On International Criminal Law: Volume 1: Foundations And General Part 105 (2013) (“the IMT and IMTFE Statutes merely require a causal contribution to a certain criminal result, thereby opting for a unitarian concept of perpetration (Einheitstäterschaft). As will be seen below, the jurisprudence adopted this fairly unsophisticated approach.”); Olásolo et al., The Criminal Responsibility Of Senior Political And Military Leaders As Principals To International Crimes 21 (2010) (“the IMT and IMTFE embraced a unitary model which did not distinguish between the perpetration of a crime… and participation in a crime committed by a third person”); and Albin Eser, Individual Criminal Responsibility 781 (2002) (“for supranational courts and codes, this somehow ‘holistic’ model of perpetratorship [the unitary theory of perpetration] seemed attractive enough to be followed by the Nuremberg and Tokyo Tribunals”). 35 Gerry Simpson, Law, War and Crime: War Crimes Trials and the Reinvention of International Law 92 (2007). Simpson eloquently points out the “discordant notes” dissenting judges have often sounded in the history of ICL. To use his metaphor, these dissents on forms of attribution are discordant with respect to the majority of academic opinion on the topic by they turn out to be harmonic with Bernhard Getz’s unitary theory of perpetration. 32

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and military leaders will simply not fit the mould of principal liability. To try to characterise them as principals at any cost will thus often be problematic from a legal and conceptual point of view. However, once the rigid division between [perpetration and complicity] is abandoned, there is no reason to qualify them as principals in order to attribute the level of blame which they deserve.”36 Similarly, ICC Judge Fulford has argued against “the perceived necessity to establish a clear dividing line between the various forms of liability… to distinguish between the liability of ‘accessories’… and that of ‘principals.’”37 Admittedly, Getz took these sorts of ideas a step further by advocating for substantive consistency in standards of attribution, to the point that the importance of differentiating between them disintegrated. Still, the harmony between aspects of his theory and these dissenting opinions is an important part of what makes the history of the unitary theory so eerie now. The familiarly of the unitary theory’s history for modern ICL also plays out in theory, where recent scholarship by leading theorists proves that intellectual history can also repeat. In a recent set of articles, for instance, one of the leading contemporary theorists of criminal law in the English-speaking world, Michael Moore, has surmised that complicity is conceptually “superfluous.”38 He argues that “there is no unique desert basis for accomplice liability. Aiding another to cause some bad result is not an independent desert basis. It is a mere stand-in for one of the four general bases on which we are rightly blamed.”39 Like the judges at Nuremberg and the ICC, this argumentation does not draw on the UIDP, Getz or the unitary tradition they helped initiate, but the underlying intellectual dissatisfaction with the autonomous concept of complicity mirrors Getz’s discontent a century prior, in ways that create a strange sense of déjà vu. Some of Moore’s language is even reminiscent of Getz – in concluding his brilliant study of the same topic more than a hundred years later, Moore opined that “[w]hat we have seen should be sufficient to sink the good ship Complicity, not rearrange its furnishings.”40 In Norway, this sinking came about at the behest of Getz himself together with the scholarly imprimatur of the UIDP. Professor Getz was a prominent member of the association, which helped the dissemination of this thesis. His work quickly caught the attention of prominent criminal theorists, in an age when the law professor was

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See Ngudjolo Trial Judgement, Case no.: ICC-01/04 – 02/12, Concurring Opinion of Judge Christine Van den Wyngaert, (Dec. 18, 2012), p. 29. 37 Prosecutor v Thomas Lubanga Dyilo, Case No.: ICC-01/04 – 01/06 Judgement pursuant to Article 74 of the Statute, (Mar. 14, 2012), Separate Opinion of Judge Adrian Fulford, p. 6. 38 Michael S Moore, Causing, Aiding, and the Superfluity of Accomplice Liability, 156 U. Pa. L. Rev. 395 (2007); see also Michael S. Moore, The Superfluity of Accomplice Liability, in Causation and Responsibility: An Essay in Law, Morals, and Metaphysics 280 – 323 (2009) 39 Causing, Aiding, and the Superfluity of Accomplice Liability, supra note 38, p. 395. 40 Moore, Causing, Aiding, and the Superfluity of Accomplice Liability, supra note 36, p. 449.

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the “hero figure” of legal globalization.41 Unsurprisingly, this influence increased by some order of magnitude after he was asked to draft the Norwegian criminal code. According to one modern Norwegian scholar, Getz’s Code “won international recognition and, in its time, was considered the most modern penal code in Europe.”42 Of course, its treatment of complicity surprised no one – the Norwegian Code of 1902 contained a pure unitary theory of perpetration, which remains in force to this day.43 So in sharp contradistinction to the origins of global criminal doctrine I address in the context of Brazil below, the unitary theory was developed initially from conceptual first principles that still resonate with ICL judges and theorists today, then it was adopted by a selection of national legal systems like Norway with some important degree of “indigeneity.”44 Certainly, there is still a great deal to be said for and against the unitary theory in ICL, but it is noteworthy how intellectual dissatisfaction was a key motivating factor in Norway’s turn away from a differentiated system, and how that dissatisfaction lives on in ICL today.

III. Undue Practical Difficulties in Denmark As was the case in Norway before its shift to a unitary system (and in ICL presently), the Danish Criminal Code of 1866 embraced a differentiated system of criminal responsibility. But following in Norway’s steed, Denmark parted ways with the differentiated model once presented with the perceived advance in criminal science the unitary theory entailed. To this day, “[i]n Danish literature on criminal law, the [unitary theory of perpetration] is considered to be by far superior to other legal models.”45 In the Danish history, a leading Professor of Criminal Law named Carl Torp emerged as the chief protagonist for this doctrinal realignment, although by that time, the impetus of the UIDP’s endorsement in 1902 and the Norwegian example led by Getz undoubtedly reduced the intellectual leadership required of him. While Torp rehearsed a familiar set of conceptual arguments against the differentiated system in advocating for its dismantling in Denmark,46 he also seized upon a range of prac41 Duncan Kennedy, Two Globalizations of Law & Legal Thought: 1850 – 1968, 36 Suffolk U. L. Rev. 631, 638 (2002) (“The hero figure of the first globalization was the law professor (author of codes and statutory modifications of codes, as well as of treaties)”). 42 Andenaes, supra note 11, p. 20. 43 Ibid., p. 277. (“Whether the defendant is guilty as a principal or a cooperator is merely a factor to be considered in meting out punishment, and there is no judicial interest in drawing a sharp line between the two.”) 44 I borrow the term from Schauer, who points to a frequent desire for reactionary law reform after periods of foreign dominance to create a “transformed republic… whose chief characteristic is its ‘indigeneity.’” Frederick F. Schauer, The Politics And Incentives Of Legal Transplantation (2000). 45 Vestergaard, supra note 11, p. 489. 46 Carl Torp, Den Danske Strafferets Almindelige Del (1905) (“Presumably the participant’s Act may be just as necessary a preliminary Condition as the perpetrator’s crime offence

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tical observations about difficulties with its operation. In one instance, for example, he argued: “Presumably it is now recognized from all sides, that the current Criminal Code in relation to an accessory in a crime sets out a series of rather artificial and mutual artificial delimiting Concepts that only moderately correspond to life’s natural Conditions and cause unnecessary difficulties in applying the law.”47

Based on some years experience at the coalface, I am of the opinion that a wide variety of “modes of liability” in ICL have also become artificial, only moderately correspond to real life, and are unnecessary difficult to apply. To illustrate, I here focus on just one mode of liability, indirect co-perpetration, which appears to exemplify all three of the shortcomings Torp observed of the differentiated model operative in Denmark at the time. Indirect co-perpetration has emerged as the next major trend in ICL’s experimentation with standards of blame attribution.48 The concept is an amalgam of two distinct “modes of liability.” The co-perpetration element, initially rejected at ad hoc tribunals, was recently included within the ICC Statute as a species of perpetration. The second component, indirect perpetration, is analogous to the Anglo-American … It all must come to the recognition that every preliminary Condition in relation to a specific Circumstance is equally necessary and therefore in theory of equal Importance, so that it is impossible to single out one or more Conditions as relevant in contrast to the remaining Conditions.”) I am grateful to Anja Amdi Harild for the translation. 47 Betænkning afgiven af Straffelovskommissionen af 9. November 1917 (Report from the Penal Code Commission of November 9, 1917) In the explanatory notes to the draft Offence Code, the Commission states “it cannot be recognized that there is a sharp essential difference between Perpetrators and Accessories”. See Danish Criminal Code Report of 1923, Explanatory Statements to the Draft Criminal Code, column 73. 48 Strikingly, indirect co-perpetration is charged in most cases before the ICC presently, confirming that it represents the next trend in international blame attributions. The following is a non-exhaustive sample of cases involving indirect co-perpetration at the ICC. Prosecutor v. Bemba, Case No.: ICC-01/05 – 01/08 – 15, Warrant of Arrest, (Jun. 10, 2008), p. 21; Prosecutor v. Katanga and Chui, Decision on the Confirmation of Charges, ICC-01/04 – 01/07 – 717, 30 September 2008, p. 492 [hereafter “Katanga Confirmation Decision”]; Prosecutor v. Al Bashir, Warrant of Arrest, ICC-02/05 – 01/09 – 1, 4 March 2009, at 7; Prosecutor v. Kenyatta et al., Decision on the Confirmation of Charges, Case No.: ICC-01/09 – 02/11 – 382-Red, (Jan. 23, 2012), p. 300 [hereafter “Kenyatta Confirmation Decision”]; Prosecutor v Ruto et al, Case No.: ICC-01/09 – 01/11, Decision on the Confirmation of Charges Pursuant to Article 61 (7)(a) and (b) of the Rome Statute (Jan. 23, 2012), pp. 290 – 292 [hereafter “Ruto Confirmation Decision”]; Prosecutor v Bosco Ntaganda, Case No.: ICC-01/04 – 02/06, Decision Pursuant to Article 61(7)(a) and (b) of the Rome Statute on the Charges of the Prosecutor Against Bosco Ntaganda, (Jun. 8, 2014), p. 97 [hereafter “Ntaganda Confirmation Decision”]; Prosecutor v Laurent Gbagbo, Decision on the Confirmation of Charges Against Laurent Gbagbo, Case No.:ICC-02/11 – 01/11, (Jun. 12, 2014), p. 226 [hereafter “Laurent Gbagbo Confirmation Decision”] Part of my enthusiasm for the unitary theory of perpetration derives from my skepticism about the way in which modes of attribution seem to move in fads internationally, from superior responsibility, to JCE, and now to indirect co-perpetration and its various component parts. It is peculiar that blame attribution moves in fads internationally.

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concept of innocent agency, whereby an individual becomes responsible for a criminal offense by employing an innocent actor (such as a child) as an instrument through which he brings about the crime. By fudging the fact that African foot soldiers are not actually innocent agents, then marrying this slightly fictitious rendering of indirect perpetration to co-perpetration, the ICC has adopted a notion of “diagonal responsibility” to hold one African warlord responsible as a perpetrator for the crimes committed by rank and file soldiers in a separate armed group the warlord co-operated with. In my opinion, this approach dovetails with all of Torp’s practical criticisms of the differentiated system that was once in place within Denmark. First, indirect co-perpetration is highly artificial. For some of the modern advocates of the unitary theory of participation, the very moment differentialists dilute indirect perpetration (a.k.a “innocent” agency) to the point where the actual foot-soldier doing the bloodletting need no longer be innocent, they do irreparable harm to their entire analytical scheme. As Thomas Rotsch has argued, once there is a fully responsible principal perpetrator (i. e. a foot-soldier who enjoys full moral capacity), there should be no leeway for applying the doctrine of indirect perpetratorship to the soldier’s superior if differentiation is to be taken seriously.49 The very idea of a “perpetrator behind a perpetrator” demonstrates inductive reasoning in defiance of the rationale for ex ante differentiation in the first place. Once this idea is entertained, intuitions about culpability and sentencing are generating exceptional concepts that run counter to foundational assumptions about differentiation.50 If differentiation has to rely on a fiction to prop itself up, perhaps the concept should fall? Second, indirect co-perpetration also vindicates Torp’s concern that differentiated systems like that operative in modern ICL “only moderately correspond to real life.” As I have pointed out elsewhere,51 the risk in making a concept as complex as indirect co-perpetration a mainstay of blame attribution in ICL is that the meaning of increasingly abstract legal terms seems esoteric to defendants, victims and ordinary citizens, who no longer understand the terminology or its moral import.52 To illustrate, when the ICC indicted former President Laurent Gbagbo as an indirect co-perpetrator, the BBC placed the mode of participation in parentheses to mark the technocratic legalese it no expectation its readers would understand.53 Contrariwise, if Gbagbo is re49

Rotsch, supra note 9, p. 461 – 462. Ibid., p. 461 – 462. Rotsch’s broader point is that as a result of these dynamics, different forms of participation do not adequately mirror distinct degrees of culpability, traditional doctrines on modes of participation are manipulated in order to achieve fair outcomes, and ultimately, distinguishing between different modes of participation is already unnecessary. 51 Stewart, supra note 2, p. 212. 52 Ibid., p. 212. 53 John James, Ivory Coast: Gbagbo faces murder and rape charges, 30 November 2011, http://www.bbc.com/news/world-africa-15960254 (“Former Ivory Coast President Laurent Gbagbo is facing four charges of crimes against humanity, the International Criminal Court (ICC) has said. He is accused of being an ‘indirect co-perpetrator’ of murder, rape, persecution and other inhuman acts.”). 50

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sponsible for the international crimes he is reproached for, it seems infinitely more likely that his making a substantial causal contribution to the crimes together with the necessary blameworthy moral choice will better “correspond to real life,” in ways that Torp foresaw. Moreover, discarding the label “indirect co-perpetration” could minimize the distancing effect of culturally-specific legal terminology. Third, Torp’s misgiving that differentiated systems “cause unnecessary difficulties in applying the law” also seems apparent from the short history of indirect coperpetration in ICL. In the interests of brevity, I here summarize a set of milestones in that history that, in my opinion, reveal precisely the type of over-complication I imagine Torp had in mind. The ICC has insisted that the combination of co-perpetration and indirect perpetration “allows the Court to assess the blameworthiness of ‘senior leaders’ adequately.”54 However, at least one judge has objected that by this method, the Court has invented a “totally new mode of liability.”55 The unitary theory of perpetration that so inspired Torp and his diverse contemporaries within the UIDP would not allow for even the suggestion of totally new modes of liability like this since the unitary theory is, by definition, singular. Similarly, the ICC has adopted Claus Roxin’s theory of organizational perpetration as a part of the co-perpetration component of indirect co-perpetration,56 even though one leading German theorist feared that this “may create more problems than it solves.”57 Then, after the initial appearance of indirect co-perpetration at the ICC, subsequent Chambers added another complicated mental element,58 before having to determine whether dolus eventualis was a

54 Prosecutor v Germain Katanga et al, Decision on the Confirmation of Charges, Case No.: ICC-01/04 – 01/07 – 717, (Sept. 30, 2008), p. 492. 55 Prosecutor v Mathieu Ngudjolo Chui, Judgment Pursuant to article 74 of the Statute, Case No.: ICC-01/04 – 02/12, (Dec 18, 2012), Concurring Opinion of Judge Van den Wyngaert, ICC-01/04 – 02/12 – 4, pp. 60 – 61. 56 See Katanga Confirmation Decision, supra note 48, p. 498; Ruto Confirmation Decision, supra note 48, p. 313; Ntaganda Confirmation Decision, supra note 48, p. 104. Laurent Gbagbo Confirmation Decision, supra note 48, p. 234. 57 Thomas Weigend, Perpetration through an Organization: The Unexpected Career of a German Legal Concept, 9 J. Int’l Crim. Just. 91, 105 (2011) (“Since criminal liability for ordering or instigation is a sufficient basis for imposing severe sentences on responsible figures in the background of the actual crimes, adopting the notion of ‘perpetration through an organization’ may create more problems than it solves.”). I am inclined to extend this reasoning to all modes of liability, but even if there is a principled basis for denying the criticism that reach, it is still telling that a figure of Weigend’s authority would question the merit of employing a German concept whose use is so widespread at the ICC now. 58 Although the Lubanga Confirmation of Charges Decision had not required this element, the Katanga Confirmation of Charges Decision added that “the suspects must be aware of the character of their organisations, their authority within the organisation and the factual circumstances enabling near-automatic compliance with their orders.” Compare Prosecutor v Thomas Lubanga Dyilo, Decision on the Confirmation of Charges, Case No.: ICC-01/04 – 01/ 06 (Jan. 29, 2007), p. 326 [hereafter “Lubanga Confirmation Decision”] with Katanga Confirmation Decision, supra note 48, p. 534.

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sufficient basis for establishing indirect co-perpetration.59 Presently, depending on which interpretation one follows, the test for indirect co-perpetration involves five objective elements and four subjective, all of which are linguistically complex.60 Most significantly, I suspect that Torp would find all these difficulties to be of no conceptual importance,61 and therefore categorize them as “unnecessary.” There is much for ICL to learn from this very brief history. After almost two decades of negotiations Torp led in Denmark, the Danish parliament adopted a unitary theory of perpetration. Like Getz, Torp was also the author of the criminal code that contained the system of blame attribution he saw as preferable in a national context that did not have to synthesize multiple legal traditions from throughout the world. So by a process that was not entirely original but still infinitely freer than that which brought about differentiated systems of blame attribution in most systems of criminal justice (see Brazil below), the Danish adopted a unitary theory of perpetration with the backing of global criminal law theorists and the good example of a Nordic cousin. Moreover, despite the power and influence of the largest European states that adopt a different system, and the rise of international criminal justice that defers to these powerful systems, Denmark has stuck with a unitary theory of perpetration to this day.62 Strikingly, the practical reasons for its shift to the unitary theory are now mirrored internationally, except that the need for coherence is far greater for a global brand of criminal attribution.

59 In the Katanga and Kenyatta Confirmation Decisions, Pre-Trial Chambers I and II made no mention of whether dolus eventualis would suffice for indirect co-perpetration. Subsequently, Pre-Trial Chamber III explicitly excluded it in the Bemba and Ruto Confirmation Decisions. Compare Katanga Confirmation Decision, supra note 48, p. 531 and Kenyatta Confirmation Decision, supra note 48, p. 410 with Ruto Confirmation of Charges Decision, supra note 48, p. 333 – 336 60 For an excellent summary of this and other ICC case law on forms of participation, see Women’s Initiatives for Gender Justice, Modes of Liability: A Review of the International Criminal Court’s Current Jurisprudence and Practice, p. 60 – 61 (2013), http://iccwomen.org/ documents/Modes-of-Liability.pdf (setting out the elements of indirect-perpetration across two pages). 61 In this respect, while I view Shachar Eldar’s excellent article on indirect co-perpetration as the most sophisticated conceptual account of the topic I have read, the very thoughtful piece does not articulate why a substantial causal contribution plus the mental element of the crime charged should not suffice for indirect perpetration, in which case we could dispense with this complicated architecture. Conversely, if these two elements are not sufficient, the question may become whether indirect co-perpetration is in danger of illiberal excess. See Shachar Eldar, Indirect Co-Perpetration, 8 Criminal Law and Philosophy, p. 605 – 617 (2014). 62 Vestergaard, supra note 12 (discussing the parameters and merits of the unitary theory in modern Danish law).

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IV. A Multiplicity of Competing Solutions in Italy Italy adopted a variant of the unitary theory of perpetration in 1930, in a process that again saw the UIDP and leading local scholars (as distinct from colonializing masters, market pressures or reactionary assertions of autonomy) play a leading role. In 1889, the Criminal Code of the Kingdom of Italy, known as the Zanardelli Code after its author, formally propagated a differentiated model of attribution replete with the usual catalogue of “modes of liability.” In 1919, however, an influential member of the Italian positivist school of criminology named Enrico Ferri was chosen as President of the Criminal Reform Commission, which began a process of rationalizing these forms of participation. It was not until the then Minister of Justice, Alfredo Rocco, tabled his “Report on the Final Draft of the 1930 Code,”63 however, that this process of rationalization reached its apogee – Italians abandoned modes of participation in favor of a unitary theory of perpetration like that endorsed by the UIDP. Once again, aspects of this history reveal points of strange commonality with modern ICL. Besides the conceptual motivations others had voiced, the Italians also saw real practical advantages in this new rationalization of diverse standards of blame attribution, reasoning that a unitary theory would provide a definitive solution to the multiplicity of competing theories about the distinction between perpetration and complicity, which never congealed into a stable shared understanding. In this respect, the important point, which dovetails with the experience of international courts and tribunals since their modern revival, is that the shift to a unitary theory became important in Italy when attempts at distinguishing perpetrators from accomplices created enormous legal uncertainty. Numerous creative solutions proliferated without ever proving terribly convincing.64 As Sergio Seminara shows, at the time the old Zanardelli Code was in force in Italy, there were a wide range of doctrine on offer claiming to separate perpetrators from accessories, but none were able to point to convincing criteria, such that the problem remained without stable solution from start to finish.65 In the words of Alfredo Rocco himself, “it is precisely for practical needs that doctrine and law have struggled to find a secure criteria to distinguish, in case of participation in a crime, principals from accessories.”66 This history is somewhat sobering. If international criminal lawyers assume that a consistent international dogmatik will inevitably emerge from the ashes of numerous failed experiments, in some instances, history suggests otherwise. 63 Alfredo Rocco, Progetto definitivo di un nuovo codice penale con la relazione del Guardasigilli On. Parte I. Relazione sul Libro I del Progetto, Lavori preparatori del codice penale e del codice di procedura penale, vol. V, p. 165 (1929). 64 Sergio Seminara, Techniche normative e concorso di persone nel reato, p. 31 – 42 (1987) (listing a number of doctrines which, at the time the old Zanadelli Code was in force, were not able to point out straight criteria for distinguishing between principals and accessories.). 65 Ibid., p. 31 – 42. 66 Rocco, supra note 63, p. 166.

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Already, attempts to differentiale perpetration from complicity in ICL are displaying many of the qualities that led Italians to walk away from the entire project. The Italian concern that no satisfying point of differentiation ever emerged in Italy despite no shortage of competing theories has proved prescient for ICL now. Famously, the ICC’s adoption of “control over the crime” to do this work met with powerful dissenting opinions by two prominent judges, both of whom disputed the need for the test at all.67 Likewise, in the academy, the very best scholars have disputed objective, subjective and mixed theories of differentiation with great insight and rigor but without discernible agreement between them,68 in ways their Italian predecessors experienced and would probably have anticipated in ICL anew. In fact, some of the very best scholars have ultimately concluded that “it is highly questionable whether [the ICC rules governing blame attribution are] based on a single coherent, normative theory of participation.”69 The Italians, on the other hand, did embrace a single coherent, normative theory that stands to transcend the difficulties ICL is (also) now negotiating. Again, the similarities with ICL’s present are eerie. Instead of retracing the various theories proffered to differentiate perpetration from complicity, I pause to offer a qualified defense of the Rocco Code in which the Italian rendition of the unitary theory first appeared. Some will object that this code is an example of illiberal criminal law in the service of totalitarianism. Rocco was a self-proclaimed fascist, who unashamedly described the legislation he crafted for Mussolini’s autocratic regime as “a political code.”70 Consequently, much of the comparative literature still describes the Rocco Code as “the Fascist Code.”71 As a result of this unholy historical association, the unitary theory of perpetration is often unfairly dismissed out of hand – one Argentine theorist argues that “due to the connection between the unitary theory and these ideas [Fascism

67

See statements by ICC Judges Van den Wyngaert and Fulford, supra notes 36 and 37. For a set of excellent but contrasting perspectives on the dividing line between perpetration and complicity, see Neha Jain, The Control Theory of Perpetration in International Criminal Law, 12 Chi. J. Int’l L., 159 – 200 (2011); Jens David Ohlin, Elies Van Sliedregt & Thomas Weigend, Assessing the Control-Theory, 26 Leiden J. Int’l L., p. 725 – 746 (2013); Jens David Ohlin, Searching for the Hinterman In Praise of Subjective Theories of Imputation, 12 J Int Criminal Justice, p. 325 – 343 (2014); Carl-Friedrich Stuckenberg, Problems of “Subjective Imputation” in Domestic and International Criminal Law, 12 J Int Criminal Justice, p. 311 – 323 (2014); Alicia Gil Gil & Elena Maculan, Current Trends in the Definition of “Perpetrator” by the International Criminal Court: From the Decision on the Confirmation of Charges in the Lubanga case to the Katanga judgment, 28 Leiden J. Int’l L., p. 349 – 371 (2015); Thomas Weigend, Perpetration Through an Organization: The Unexpected Career of a German Legal Concept, 9 Journal of International Criminal Justice, p. 91 – 111 (2011); Kai Ambos, Treatise on International Criminal Law: Volume 1: Foundations and General Part, p. 102 – 180 (2013). 69 Ohlin/Van Sliedregt/Weigend, supra note 68, p. 744. 70 Marc Ancel, Social Defence: A Modern Approach to Criminal Problems, p. 65 (1966). 71 Richard Vogler, A World View Of Criminal Justice, p. 64 (2005); Ancel, supra note 67, p. 65. 68

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and Nazism] today nobody argues them.”72 That reasoning, however, is likely a non sequitur, deploying a kind of guilt by association to discredit a concept that does not deserve the reputational sleight. In truth, the Rocco Code was not all bad – it also ushered in a range of liberal changes,73 then survived several decades of reform by multiple democratic governments in Italy that were “avowedly anti-fascist.”74 This, at the same time that certain provisions, especially that governing perpetration, were voluntarily “transplanted” into adjacent criminal systems, most notably in Brazil (see below).75 From a wider vantage point, too, the almost invariable irony of episodes of mass violence is that they can also contain isolated pockets of liberal development. Some of the most important “discoveries” in German criminal science, for instance, were first unearthed and applied during the Nazi reign of terror.76 Thus, as a general rule, pointing to the fascist origins of the Rocco code is not necessarily an indictment of all of the concepts that appear in that code. Some, for instance, may have amounted to important normative developments that have escaped the gaze of theorists of blame attribution in modern ICL. In the case of the unitary theory in particular, the allegations from illiberal authoritarianism are clearly specious. As a matter of history, the concept’s origins pre and post-date WWII, as Getz, Torp, von Liszt and the UIDP show. Substantively, the theory also holds comparative advantages in the subjective realm – by maintaining parity in the mental elements required for perpetrators and accomplices, the unitary theory avoids “modes of liability” acting as a prism that distorts responsibility, instead of assigning it in line with the culpability announced in the crime (with which both perpetrator and accomplice will be convicted). A doctrine like JCEIII has proved highly controversial in international criminal law, precisely because it tolerates major clea72

Edgardo Alberto Donna, Teoria Del Delito Y De La Pena, p. 75 (2003) (arguing that “due to the connection between the unitary theory and these ideas [Fascism and Nazism] today nobody argues them. Because of its obvious danger and its incompatibility with the Rule of Law.”); See also, Miguel Díaz Y García Conlledo, Estudios De Filosofía Del Derecho Penal, p. 75 (2006) (criticizing the unitary theory for similar reasons). 73 Giuliano Vassalli, The Background of Current Italian Penal Law Reform, in Studies In Comparative Criminal Law, p. 51 – 64, p. 59 (Edward M. Wise & Gerhard O. W. Mueller eds., 1975) (“The Rocco Code raised the age of criminal capacity (i. e., the age at which punishments may be imposed in cases of recognizable maturity) from nine to fourteen years. It expressly authorized detentive punishment aimed solely at the child’s moral reeducation and it permitted judicial pardon of the first offense attributable to minors up to eighteen years in cases where a detentive punishment not exceeding one year would otherwise be imposed.”). 74 Ibid., p. 52 – 54. (explaining why the Italian government never enacted a different code after the fall of Mussolini). For a brief English-language overview of the changes since the Rocco Code, see Astolfo Di Amato, Criminal Law in Italy, p. 43 – 46 (2011). 75 See Part IV below. 76 See, for instance, Markus D. Dubber, The Promise of German Criminal Law: A Science of Crime and Punishment, 6 German L. J., p. 1049 – 1071, 1061 – 1066 (2005) (discussing the significance of Hans Welzel’s theory of finalism in the realm of action, which emerged in 1939 and 1940, as “easily the most influential recent theory of German criminal law”).

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vages between the mental element announced in the mode of liability (foreseeability) and that contained in many crimes with which the mode couples (genocide, for instance, requires a specific purpose). By solving this problem in a defendant’s favor, the unitary theory promotes greater liberalism, vindicating the UIDP’s enthusiasm for what they perceived as a genuine advance in criminal science. In short, Italian fascism is no blemish on the unitary theory’s liberal credentials. Consequently, if ICL is committed to liberal principles of blame attribution, it might also choose to transcend the dilemmas it currently faces through recourse (back) to the unitary theory of perpetration applied at Nuremberg, or even better, towards a more self-conscious variant that is crafted by academics in keeping with the origins of the unitary theory nationally. After all, the Italian experience is instructive in at least one important respect: it suggests that if left unchecked, the very thoughtful disagreement that presently exits among leading judges and scholars about the dividing line between perpetration and complicity in ICL may not come to any widelyshared conclusion, or to say the same thing differently, may continue in perpetuity without ever reaching consensus in theory or practice. This prospect of disagreement ad infinitum should be unsettling to criminal lawyers concerned about the right to a trial based on pre-established, stable legal principles rather than a process that involves a multiplicity of goal posts that are constantly in motion. At the very least, a unitary theory like the one adopted in Italy in 1930 warrants far great scholarly engagement as a plausible solution to debates that could well turn out to be intractable.

V. Autonomous Choice in Brazil Until the year 1822, Brazil was a juridical dependency of Portugal. In the year 1822, what we now know as Brazil proclaimed its independence.77 The first Penal Code of Brazil was promulgated in 1830, and for better or worse, it maintained the differentiated system of blame attribution that was in place under the authority of its erstwhile colonial masters, who had in turn borrowed it from the French Penal Code of 1810 and the Spanish Penal Code of 1822.78 The differentiated system of blame attribution continued in the Brazilian Penal Code of 1890, but in 1940, Brazilian legislators too would make the transition to a unitary theory of perpetration on the strength of the UIDP’s influence and the example set by pioneering European nations. Article 25 of the Brazilian Penal Code of 1940 states that “Whoever, in any way, concurs for the crime is under the penalties attributed to it.” There is some debate as to the origins of the provision – the received wisdom is that it was 77

Celso Campilongo, History and Sources of Brazilian Law, in Introduction to Brazilian Law p. 1 – 14, 2 – 3 (Fabiano Deffenti ed., 2011). 78 Nilo Batista, Concurso De Agentes: Uma Investigação Sobre Os Problemas Da Autoria E Da Participação No Direito Penal Brasileiro 5 (Liber Juris: 1979). On the history of the 1830 criminal code, see Tobias Barretto, Do Mandato Criminal, in Estudos De Direito, p. 223 – 227 (Rio. 1822).

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borrowed from the Italian Rocco Code.79 Costa e Silva, however, argues that the Norwegian Penal Code of 1902 inspired the position, since the Norwegian influence was evident in Brazil within ordinances prior to that date.80 Whatever the dominant source of inspiration, ICL can learn something significant from the manner in which the unitary theory was adopted in Brazil – it was openly elected not imposed. To those familiar with debates about “modes of liability” in modern ICL, the Brazilian refusal to differentiate between forms of attribution will appear bizarre, uninformed, or fringe, but in fact the abundance of differentiated systems of blame attribution throughout the many systems of criminal law globally that informs these perceptions largely has forced imposition through colonialism to thank. With the partial exception of Italy, the European states that had adopted a unitary theory like that employed at Nuremberg and Tokyo were never colonial powers. Hence, when Brazil came to adopt the unitary theory of perpetration, it did so far more willingly. England, France, Spain and Germany, by contrast, all adopted the differentiated system now ascendant in ICL, then disseminated this system to the four corners of the global as part of European colonial rule. As I have argued elsewhere together with Asad Kiyani, the implications for our appreciation of diversity in criminal doctrine globally are appreciable – criminal doctrine is not a safe guarantor of a diversity in underlying social and cultural values.81 The Brazilian relationship to the unitary theory is, however, an exception to this trend, which ICL may wish to replicate for symbolic as well as functional reasons. The truth is that ICL frequently absorbs laws that are colonial artifacts, including standards of blame attribution. In the Bagasora Trial Judgment, for instance, an ICTR Trial Chamber cited to the Indian Penal Code (IPC) of 1860 as the embodiment of Pakistani criminal law in a survey of global criminal law.82 In fact, the British used the IPC as a template for most all their colonial territories: it was implemented verbatim in countries as diverse as Uganda, Singapore and Australia, without calibration to local circumstances.83 Similarly, by decree dated January 7th, 1886, the 79

Batista, supra note 78, p. 12. See Antonio José Da Costa E Silva/Luiz Fernando Da Costa E Silva, Comentários Ao Código Penal Brasileiro, p. 154 (1967). Batista, however, retorts that there is no concrete evidence that such code had exercised any kind of influence in Brazil. Ibid. 81 See James G. Stewart/Asad Kiyani, The Ahistoricism of Legal Pluralism in International Criminal Law, forthcoming. 82 Prosecutor v. Bagosora et al., Case No. ICTR-98 – 41-A, Appeals Judgement, p. 729, n.1680 (Dec. 14, 2011). See also, Prosecutor v. Kunarac et al, Case No. IT-96 – 23-T& IT-96 – 23/1-T, Judgement, p. 454 n.1160 (Int’l Crim. Trib. for the Former Yugoslavia Feb. 22, 2001) (drawing on Pakistani criminal law, and many other national definitions, to interpret the scope of rape). 83 Uganda received the Indian Penal Code (IPC) and Criminal Procedure Code in 1897 and 1902 respectively. See Henry Francis Morris, A History of the Adoption of Codes of Criminal Law and Procedure in British Colonial Africa, p. 1876 @ 1935 (1974) 18 J. Afr. L. 6, 6 – 7. For discussion of the IPC’s transmission to Singapore, see Barry Wright, Stanley Yeo & WingCheong Chan, Codification, Macaulay and The Indian Penal Code: The Legacies and Modern 80

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Belgian King Leopold promulgated the first Code Pénal du Congo. The code involved “vocabulary, formulation, and structure that was directly borrowed from Belgian criminal law legislation”.84 Independence in 1960 just continued this trend,85 such that the leading modern textbook on Congolese criminal law – authored by the Dean of the School of Law at the Université de Kinshasa – still draws a direct line between the current criminal code and Belgian decrees of 20 January 1940 and 7 January 1886.86 To cite one final example from a national system that was not formally colonized, the Japanese adopted German notions of (differentiated) blame attribution at the turn of the 19th Century to ward off full-blown colonial occupation.87 Gunboat diplomacy by Western states compelled the Japanese to “elect” a European model of criminal justice, such that they would do internally what colonialism would have achieved otherwise.88 As Anthony Anghie has explained, the litmus test for the type of international recognition that would forestall formal colonial rule, known as standards of civilization, demanded that states like Japan create “idealized European standards in both their external and, more significantly, internal relations.”89 To comply with this exigency, Japan initially adopted the French Napoleonic Penal Code (1880)

Challenges of Criminal Law Reform 2 (2013). Evidently, the imposition of the IPC was delayed a generation in Australia because European settlers baulked at the prospect of adopting criminal law standards that were originally crafted for Indians. See Barry Wright, SelfGoverning Codifications of English Criminal Law and Empire: The Queensland and Canadian Examples (2007) 26 U. Queensland L. J. p. 39, 46 – 47. 84 Marie-Benedicte Dembour, La peine durant la colonisation belge, in La Peine – Punishment, p. 67 (De Boeck Université 1991) (1989) Dembour is also of the opinion that at the time of writing, this remained true: “[e] ncore aujourd’hui, le système pénal zaïrois reste fortement imprégné des principes que le colonisateur belge a introduits …” 85 In discussing the history of criminal law in the DRC, Rubbens argues that [“with the change to Republican status, the criminal law has scarcely changed.”] Antoine Rubbens, The Congo Democratic Republic, in African Penal Systems 14, p. 16 (1969). Although Rubbens was writing in 1969, only a matter of years after independence, more recent studies conclude similiarly. Dembour, for instance, is also of the opinion that “[e]ncore aujourd’hui, le système pénal zaïrois reste fortement imprégné des principes que le colonisateur belge a introduits …” Dembour, supra note 84, p. 69. 86 Nyabirungu Mwene Songa, Traité De Droit Pénal Général Congolais 49 (2001) (“La loi pénale trouve son siège principal au code pénal. Celuici, qui est aujourd’hui porté par le décret du 30 janvier 1940, a eu un début de formulation dans un texte législatif du 7 janvier 1886”.). 87 See Shigemitsu Dando, The Criminal Law Of Japan: The General Part, p. 34 – 35 (B.J. George trans. 1997). See also, Sally Engle Merry, Colonial and Postcolonial Law, in The Blackwell Companion to Law and Society, p. 569, 570 (Austin Sarat, ed., 2004). 88 Ram Prakash Anand, Family of “Civilized” States and Japan: A Story of Humiliation, Assimilation, Defiance and Confrontation, 5 J Hist. IntQl L. 1, p. 9 – 14 (2005). Michael R. Auslin, Negotiating With Imperialism: The Unequal Treaties And The Culture Of Japanese Diplomacy, p. 1 – 8 (2006). 89 Antony Anghie, Imperialism, Sovereignty And The Making Of International Law, p. 84 (2007).

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and the Code of Criminal Instruction (1880),90 but after only a very brief period in effect, the French-based code came to be perceived as overly liberal, and incapable of legitimating the structure and values of the imperial regime.91 In looking for European alternatives, the Japanese found German law more advanced and German society more comparable.92 Consequently, when one turns to Japanese modes of attribution now, they reveal a differentiated system quite alien to Anglo-American audiences, which mirrors German criminal law and theory more or less precisely.93 Through all these processes, not the legislative autonomy apparent in Brazil, the differentiated system of blame attribution became most prevalent throughout the world. By the same dynamic, it also permeated international law. Asad Kiyani and I have spent long hours plotting the history of criminal law doctrine at each major interval in the development of supranational ICL institutions.94 I will reiterate just one telling anecdote here to show how modes of attribution at the international level are infused with the same influences that propagated the differentiated model throughout much of the world. As Kiyani and I show, in elevating Joint Criminal Enterprise (“JCE”) into ICL, the Tadic´ decision cited a very limited set of state practice from “England and Wales, Canada, the United States, Australia and Zambia.”95 Regrettably, drawing on just English-speaking systems effectively double-counted the influence of law generated through British colonialism: once in the metropole then

90

Wilhelm Röhl, Generalities, in History Of Law In Japan Since 1868, p. 24 (Wilhelm Röhl, ed., 2004). 91 Karl-Friedrich Lenz, Penal Law, in History Of Law In Japan Since 1868, supra note 90, p. 609 – 10. See also Shigenori Matsui, The Constitution Of Japan: A Contextual Analysis, p. 9 (2011). 92 The German code appeared especially relevant to the Japanese context: Germany was a relatively new nation, trying to create a federation out of a monarchical system of government while reconciling historical and customary practice with statutory law. Ronald Frank, Civil Code, in History of Law in Japan since 1868, supra note 90, p.183. 93 To cite but a few illustrations, Japanese criminal law adopts a German tripartite structure, differentiating the paradigm of the crime from justifications and excuses, whereas AngloAmerican systems amalgamates the latter two of these categories. Dando, supra note 87, p. 3 – 4. Following their German inspiration, Japanese criminal law also includes dolus eventualis as the lowest sub-category of intention, in contrast with Anglo-American criminal law, whose closest equivalent is a stand-alone mental element called recklessness. For the Japanese treatment of dolus eventualis as intention, see ibid, p. 154 – 55. Normally, recklessness is not assimilated to intention in English-speaking systems as occurs in Germany, and by mimicry now, Japan. Finally, Japanese criminal also rejects the objective theory of perpetration in favor of quintessentially German accounts of the dividing line between perpetration and complicity – while Anglo-American criminal law (unconvincingly) always treats the person doing the killing as the perpetrator, both Japanese and German criminal law do not. Compare Dando, supra note 87, p. 217 – 219, with Michael Bohlander, Principles Of German Criminal Law, p. 156 – 166 (2008). 94 See The Ahistoricism of Legal Pluralism in International Criminal Law, supra note 81. 95 Prosecutor v. Tadic´, Case No. IT-94 – 1-A, Appeals Judgment, (Int’l Crim. Trib. for the Former Yugoslavia July 15, 1999), p. 224.

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several times again within former colonies the parent system had constructed in its own image. Ironically, the same dangers are evident within judicial opposition to aspects of JCE. A decision of the Extraordinary Criminal Chambers of Cambodia (ECCC) rejecting one component of Tadic´’s rendering of JCE pointed to the absence of this aspect of the concept in Cambodian criminal law.96 Yet, as authority for this more restrictive reading of JCE, the ECCC cited a French text on the Cambodian Projet de Nouveau Code Pénal, which explained Cambodian modes of attribution in terms that reflected French law par excellence.97 This parallelism was largely unsurprising since French criminal law was introduced into Cambodia as early as 1929 as part of colonial control over “French Indochina,” and French law remains the dominant legal influence in Cambodia to this day.98 The net effect, given that this anecdote is in step with a global trend, is that the existence and shape of international “modes of liability” is often a product of (competing) colonial legacies rather than a volitional adoption of criminal law standards among affected populations. Through these ignoble processes, then, the differentiated system of blame attribution has gained ascendancy globally. By contrast, the Brazilian choice to adopt the unitary theory of perpetration appears to epitomize a far greater degree of autonomy, without the layers of coercion that are woven through the history of the differentiated system.

VI. Avoiding the Recharacterization Problem in Austria In 1975, the Austrian legislature adopted a unitary theory of perpetration too, chiefly due to the seminal work of Austrian criminal theorist Diethelm Kienapfel.99 Like its forbearers elsewhere, the prior Austrian Criminal Code of 1852 contained differentiated “modes of liability.” At the same time, the earlier Austrian system adopted the conceptually bizarre practice of assigning equal punishments to all participants within the confines of a general part that differentiated between different forms of participation, as is now the case in England, France, and the ICC.100 The

96 See Prosecutor v Kaing Guek Eav (Duch Case), Decision on the Appeals against the CoInvestigative Judges Order on Joint Criminal Enterprise (JCE), Case No: 002/19 – 09 – 2007ECCC/OCIJ (PTC38), (May 20, 2010), p. 41. 97 Ibid. 98 Phann Vanrath, The Basics of Substantial Cambodian Criminal Law, in Introduction To Cambodian Law 198, 201 (Hor Peng, Kong Phallack, & Jörg Menzel, eds., 2010) (noting as well that French criminal law was in force in Cambodia since 1929 and that the 2009 code was drafted jointly by Cambodian officials and French experts). 99 Diethelm Kienapfel, Der Einheitstäter im Strafrecht (1971). 100 Weißer, supra note 12, p. 126. For further discussions of this history, see Wolfgang Schöberl, Die Einheitstäterschaft als europäisches Modell: Die strafrechtliche Beteiligungs-

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peculiarity, to draw again on George Fletcher, is that this back-end equivalence arguably renders the front-end division redundant.101 When the Austrian Commission of Criminal Law was established soon after WWII to rethink the earlier code, doing away with this normative oddity was high among their priorities. Strangely, however, the same oddity is retained in the ICC Statute – the ICC sets out a differentiated system of blame attribution without formally requiring a reduction in an accomplice’s sentence, and thus far, the ICC’s various Chambers have opined that complicity need not warrant a reduction of any sort.102 I seize, however, upon a different point of commonality between modern ICL and Austria pre-unitary theory. One of the key factors in the unitary theory’s favor, which carried great weight in the Austrian decision to abandon “modes of liability” was that the new unitary theory precluded the possibility of appealing against the stipulation of a “mode of liability” if the classification changed late in a trial.103 Since all forms of participation were substantively identical, there would be no prejudice to the defendant if the form of perpetration was wrongly determined at the outset.104 By chance, this coincides perfectly with the Regulation 55 conundrum the ICC now faces, which has caused a great deal of consternation in judicial and extra-judicial writing. I pause, then, to introduce the current dynamics of the Regulation 55 debate internationally, showing once again how curiously, history sometimes repeats. Regulation 55 of the ICC Rules of Procedure and Evidence provides that a “Chamber may change the legal characterization of facts to accord with the crimes […] or to accord with the form of participation of the accused […] without exceeding the facts and circumstances described in the charges and any amendments to the charges.”105 The rule has proved controversial in practice, with respect to the ability to legally recharacterize crimes as well as forms of participation. As regards the former, an ICC Pre-Trial Chamber invoked Regulation 55 to recharacterize an armed conflict regelung in Österreich und den nordischen Ländern, p. 50 – 56 (1 ed. 2006); Rotsch, supra note 9, p. 177 – 187. 101 George Fletcher, Rethinking Criminal Law 651 (1978) (in discussing the French and English statutes differentiating perpetrators from accomplices then assigning them the same maximum penalties, Fletcher asks “why the French and Anglo-American systems ever recognized distinctions among perpetrators, joint perpetrators and accomplices.”). 102 The Katanga Sentencing Decision states that “[a]s stated by the Chamber in its Judgment, article 25 [of the ICC Statute] merely identifies and lists various forms of illegal conduct and, in that respect, the proposed distinction between the liability of a perpetration of a crime and that of an accessory to a crime does not in any way amount to a hierarchy of blameworthiness, let alone prescribe, even by implication, a scale of punishments.” See Prosecutor v Germain Katanga, Case No.: ICC-01/04 – 01/07, Decision on Sentence Pursuant to Article 76 of the Statute, 23 May 2014, p. 61. I am grateful to Barbora Holá for her very helpful advice about this issue. 103 Weißer, supra note 12, p.143. 104 Ibid., p. 143. 105 Regulations of the Court, Adopted by the judges of the Court on 26 May 2004, Official Documents of the ICC, ICC-BD/01 – 01 – 04.

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in the DRC as international rather than non-international.106 The test’s larger controversies, however, have come in cases involving the recharacterization of forms of participation, sometimes well after in-court proceedings have come to a close,107 thereby emulating the very problem Austrians sought to resolve through recourse to a unitary theory of perpetration. On 21 September 2012, after the prosecution case had closed and the Court was over a month into the Defense case, an ICC Trial Chamber gave notice pursuant to Regulation 55 that it could choose to modify the legal characterization of the facts that had emerged in one-time DRC Vice-President Jean-Pierre Bemba’s trial. Instead of requiring Bemba’s “knowledge” of his subordinates’ crimes for the purposes of superior responsibility, the Court intimated that “should have known” would suffice.108 Then, far more controversially, six months after both the prosecution and defense cases had ended, a Trial Chamber notified the parties that it intended to consider Congolese warlord Germain Katanga’s liability as an entirely lesser form of participation, not co-perpetration as he was charged with.109 One of the judges in the case rebuked the decision severely in dissent, arguing that it went “well beyond any reasonable application of the provision and fundamentally encroaches upon the accused’s right to a fair trial.”110 With one notable exception, academic studies of the topic have mirrored the judicial disquiet,111 but few have recognized that some jurisdictions have resolved the larger part of the problem structurally. 106

Lubanga Confirmation Decision, supra note 58, p. 156. By chance, I also think the difference between international and non-international armed conflict should be abandoned, especially for the purposes of war crimes in ICL. See James G. Stewart, Towards a Single Definition of Armed Conflict in International Humanitarian Law: A Critique of Internationalized Armed Conflict, 85 Int’l Rev. Red Cross 313 – 350 (2003). 107 Susana SáCouto and Katherine Cleary have written an excellent report summarizing the cases to date and considering their implications for rights of the accused. See Susana Sácouto/ Katherine Cleary, Regulation 55 and the Rights of the Accused at the International Criminal Court (2013), https://www.wcl.american.edu/warcrimes/icc/documents/Report17.pdf (last visited Oct 23, 2015). 108 The Prosecutor v. Jean-Pierre Bemba Gombo, Decision Giving Notice to the Parties and Participant that the Legal Characterisation of the Facts May be Subject to Change in Accordance with Regulation 55(2) of The Regulations of The Court, Case No.: ICC-01/05 – 01/08 – 2324, (Sept. 21, 2012), p. 5. 109 The Prosecutor v. Germain Katanga and Mathieu Ngudjolo Chui, Decision on the Implementation of Regulation 55 of the Regulations of the Court and Severing the Charges Against the Accused Persons, ICC-01/04 – 01/07 – 3319-tENG/FRA, p. 6 (notifying the parties that “Katanga’s mode of participation could be considered from a different perspective from that underlying the Confirmation Decision”). 110 Prosecutor v. Katanga, Case No.: ICC-01/04 – 01/07 – 3436, Dissenting Opinion of Judge Christine Van den Wyngaert, Mar 17, 2014, p. 1. 111 Carsten Stahn has offered the leading justification of Regulation 55. See Carsten Stahn, Modification of the Legal Characterization of Facts in the ICC System: A Portrayal of Regulation 55, 16 Crim. L. Forum 1 – 31 (2005). For other excellent commentary, see Margaux Reynauld, The “Fair Fight” Against Impunity: A Proposal on the Modalities for Implementation of Regulation 55, http://ssrn.com/abstract=2334803; Sácouto and Cleary, supra

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For instance, in an excellent article criticizing the recharacterization of modes of participation at the ICC, Kevin Jon Heller opines that Regulation 55’s shortcomings are manifest: “the defence will now have to rebut each and every possible form of complicity during trial, because it cannot be sure which one(s) the Trial Chamber will ultimately deem to be the proper legal characterization of the facts.”112 Notice, however, that this problem mostly recedes into obscurity once standards of responsibility are condensed into a single form. In other words, the factor that makes recharacterization simultaneously desirable and problematic for forms of participation is that it is possible to talk about “each and every possible form of complicity” (or perpetration) at all. If this troublesome doctrinal pluralism is acknowledged and withdrawn, modes of participation would not have different substantive contours. As such, the parties would be left to contest whether the accused made a substantial causal contribution to a crime with the requisite mental element announced in it, and most significantly, these elements could never shift. As the Austrians foresaw, the need to recharacterize forms of participation at least would be almost entirely obviated. Once again, the UIDP played a vital role in paving the way for Austria to escape these types of problems, even though the doctrinal shift from differentiated to unitary took place over seventy years after the UIDP’s famous endorsement of the theory. Interestingly, the Austrian legal change of heart seemed less a stubborn insistence on autonomy from the highly influential German neighbor, and more the product of a sustained philosophical commitment over that long duration. While German criminal theory engulfed systems of criminal justice that were far more distant in language, geography and culture (like Japan and now the International Criminal Court), Austrian academics kept the unitary theory alive through continual debate. One leading Austrian commentator concludes that “it was their constant publications on unitary perpetration theories that reached the result that (German) ideas of accessory participation (i. e. derivative perpetration of accomplices) could never really become domestic in Austria.”113 In my humble view, they should not have become international either. Nonetheless, that international courts and tribunals have adopted a differentiated system does not mean ICL has crossed the Rubicon; each of the national systems I discuss here replaced differentiated systems of blame attribution with unitary alternatives, even when the former appeared to be firmly entrenched within the respective legal cultures.

note 105. Dov Jacobs, A Shifting Scale of Power: Who is in Charge of the Charges at the International Criminal Court?, in The Ashgate Research Companion To International Criminal Law: Critical Perspectives 205 – 222 (William A. Schabas, Yvonne McDermott, & Niamh Hayes eds., 2013). 112 Kevin Jon Heller, ‘A Stick to Hit the Accused With’: The Legal Recharacterization of Facts under Regulation 55, In The Law And Practice Of The International Criminal Court 981, 1002 (Carsten Stahn ed., 2015). 113 Schöberl, supra note 98, p. 31.

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VII. Conclusion For someone familiar with modes of participation in contemporary ICL, reading the history of the unitary theory of perpetration will probably produce a strange sense of déjà vu. So many of the problems that bedevil this aspect of modern ICL were confronted and overcome when a set of European nations followed the advice of the UIDP, then the largest international congregation of criminal law theorists globally, by dismantling their differentiated system of blame attribution in favor of a unitary alternative. In this article, I have sought to pay homage to Professor Mirjan Damasˇka’s catalytic effect on my professional life and scholarly agenda by again suggesting that ICL should undertake a similar turn, such that responsibility for international crimes would mean something clear, stable, and conceptually defensible throughout the many jurisdictions capable of trying these offenses. There is, no doubt, much critical scholarly work still to be done to test the buoyancy of this vessel, but as I hope the foregoing has shown, our understandable affinity for the differentiated model presently in force is mostly a byproduct of our socialization in systems of criminal law from powerful Western states. If I have exceeded myself, this piece will have challenged these sorts of received wisdoms for others half as well as Damasˇka’s masterpiece once did for me.

An Increasingly Blurred Division between Criminal and Administrative Law Katja Sˇ ugman Stubbs* “For all models are by definition suggestive caricatures and simplifications departing from reality.” Damasˇka1

I. Introduction “Law is fundamentally about boundaries,” wrote Susan R. Klein, at the beginning of an article on redrawing the boundary between civil and criminal law.2 Her discussion goes on to prove that the classic distinction between the two fields of law no longer exists, in neither its substantive or procedural aspects. We can notice similar developments in the division of criminal and administrative law. The truth is that the theoretical line between the fields of administrative and criminal law has never been entirely clear, neither in theory nor in practice.3 Numerous definitions and various concepts have been developed in the attempt to define the border, but, as is frequently the case, the efforts of theory have failed to bring more coherence to reality. The problem is made more complicated by the various criteria different countries use to define what falls under the jurisdiction of criminal law and what is covered by that of administrative law.4 One would hope to find some guidance for solving these questions in the legal developments of the supra-national entities: such as the Council of Eu* Professor of Criminal Law and Criminology at the Faculty of Law of the University of Ljubljana. 1 Damasˇka, p. 577 2 Klein, p. 679. 3 As AG Stick-Haxl pointed out specifically for penalties: “… a comparison of the legal systems of the Member States …reveals, in particular, that the boundary between criminal and administrative penalties is a fluid one.” (ECJ, 11. July 2002, Judgement C-210/00, Käserei Champignon Hofmeister, ECR, p. I-6468.) 4 Smith and Hogan, noting “the difficulty frequently encountered in defining the subjectmatter of a particular branch of the law” go on to point out that “…nowhere has this been more greatly felt than in the criminal law.” Smith/Hogan, p. 15. Fletcher has come to a similar conclusion: “Yet the truly difficult problems in determining the scope of the criminal law are left unresolved. We may share an intuitive sense that deportation, expatriation, tort damages, customs fines, and impeachment are not cases of criminal punishment, yet it is by no means easy to explain why.” Fletcher, p. 412.

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rope or the EU. But sadly, it seems that the case law of ECtHR and developments in EU law have not helped with answering this question:5 if anything, the boundaries between the two domains are becoming ever more blurred.6 Despite the fact, as beautifully pointed out by Damasˇka in the quotation above, that all categorizations are simplifications of reality and that, luckily, life in its full richness cannot be perfectly classified by them, every legal scholar intuitively feels that there is and there should be a difference between those disciplines. Law subjects are still taught in courses named after one of these main legal areas and the courts still hold jurisdiction in the same manner. If nothing else, a court has to decide whether a case falls under its jurisdiction as an administrative or a criminal case. The distinctions therefore still serve some practical purpose. The aim of this chapter is to contribute to the debate on developments which endanger the traditional concept of criminal law. In order to do this we will move from the hard core of the classical notion of criminal law (substantive and procedural) and examine the periphery, the outskirts of this legal field. This mental journey will take us to the area where criminal law merges with other legal disciplines; especially administrative law. I will try to show that the boundary between the disciplines is being blurred in (at least) two different ways, each one carrying different consequences, and point out some dangers which come when the traditional area of criminal law loses its once relatively firm definition.

II. Differences between Criminal and Administrative Law It is clear that in the life of law one comes across infractions (to use the most neutral term) of differing gravity. One of the most challenging legal questions is how to classify those offences into different categories in order to deal with them in a (procedurally) fair and sensible way.7 By answering these questions we define the boundaries of a certain legal discipline. It only seems logical that this should be done by using some sort of balancing and gradation8 according to the principle of proportionality: more severe offences require a different approach to the obviously less malign 5 “In the past, opaqueness in the qualification of sanctions served a purpose. Criminal law was not part of the competence of the EC, and therefore any hint that a sanction might be qualified as a criminal charge had to be avoided.” De Moor-Van Vugt, p. 41. 6 Vervaele, for example, discusses the emergence of EU administrative punitive sanctions: sanctions with mixed nature – criminal and administrative. Vervaele, p. 10. 7 See e. g. Husak (2008). 8 Parker, discussing the idea of the optimal penalties points out that: “… any developed form of the criminal law includes the perception that a legislative definition of offenses is not intended to be absolute, but rather is subject to general principles that call for the balancing of the costs and benefits of punishment, and recognize that sometimes punishment does more harm than good. One of the virtues of optimal penalty theory, particularly as contrasted with a view of absolute deterrence or absolute ‘desert,’ is its consistency with this balancing principle that undergirds much of the criminal law.” Parker, p. 569.

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ones. The next questions therefore are (1) what are the criteria by which we judge which infractions are mild and which severe9 and (2) what legal consequences follow from classifying a certain infraction under a certain category. In other words: what exactly are we balancing and grading? The obvious answers which come to mind are: while with the increasing gravity of offence the state has a proportionately greater right to interfere, the people involved in those offences should also be protected by more rights.10 We should consider the overall fairness of the procedure and its effectiveness: maximum results for minimum ‘investment’ of resources. In an attempt to make things clear and transparent great legal minds have constructed (at least) two different kinds of area of law with two different kinds of procedure: (1) administrative law for dealing with milder offences and (2) criminal law for dealing with the severe offences which threaten the core of society. Some sound theoretical concepts have been developed seeking either to (1) define the differences between the two disciplines: one tackling the most severe offences criminal law field and the other dealing with minor offences, or (2) make at least an attempt to define the area of criminal law clearly and by this exclude all the other legal disciplines which might overlap with criminal law. Without any pretence of offering an exhaustive discussion I will set out a quick overview of a few potential criteria by which it is possible to tackle this question. Herbert Packer in his classical study, for example, has offered the following criteria for deciding what conduct should be criminalised, rather than regulated by other fields of law: (1) most people view the conduct as socially threatening; (2) the conduct is not condoned by a significant section of society; (3) criminalisation is not inconsistent with the goals of punishment; (4) suppressing the conduct will not inhibit socially desirable conduct; (5) it may be dealt with through even-handed and nondiscriminatory enforcement; (6) controlling the behaviour will not expose the criminal justice system to severe qualitative or quantitative strains; (7) there are no reasonable alternatives to the criminal sanction dealing with it; (8) the costs of enforcement are not prohibitive.11 Some other authors elaborated on elements of Parker’s theory or focused on different factors. These include anything from philosophical categories, e. g. a harm principle,12 harm to others,13 infliction of deserved punishment on culpable wrongdoers,14 moral condemnation of the community15, strictly 9

Hart, for example, asks himself: “What are the ingredients of moral blameworthiness which warrant a judgment of community condemnation?” Hart, p. 412. 10 “It is evident that the view which the constitution-maker takes of the function of criminal law will be important in shaping his attitude on inclusion in the document of many of the traditional guarantees of fair procedure in criminal trials.” Hart, p. 411. 11 Packer, (1968). See also Ashford (2000), p. 230 – 237. 12 Mill, p. 21 – 22. 13 Feinberg (1970). 14 Moore (1997). 15 Hart, p. 405.

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legal factors e. g. severity of infraction,16 differences in liability,17 procedural standards,18 the nature and harshness of penalties,19 different goals20 emerging from the idiosyncrasies of certain legal cultures in their criminal policies.21 However, as pointed out above, the concepts are far from clear and are further blurred by different factors specific to a certain country or specialised field. 1. An Ideal In an ideal world the fields of criminal and administrative law would be (1) well defined and arranged in a (2) well-planned and (3) well-run co-existence. Minor or medium infractions in certain legal fields (e. g. tax, environmental offences, market manipulation) would be processed through the administrative channel and serious infractions through that of criminal law. For such a division to be successful, legislation would be needed to separate jurisdiction clearly between different authorities. In the most elaborate scenario, different cases would be handled by different authorities, leading e. g. to administrative infractions being investigated through inspections by relevant agencies and criminal offences by the police, public prosecutors and later on criminal courts. For such a solution to be effective, the investigative powers of administrative and criminal law authorities should be designed carefully to ensure that there is no overlap in their power to act. Ideally, the investigative powers of administrative authorities would be less invasive (e. g. administrative search) as compared to those of criminal law investigators (e. g. house search). Each procedure 16 It is well-accepted in criminal law theory that only the harshest infractions warrant criminal penalties and there should be limits to criminalization. See e. g. Husak (2008). 17 Fault in criminal proceedings and strict liability in administrative ones. See e. g. Duff, in: Duff et al. (2010), p. 103, Cane (2002). 18 Faure and Heine report that in many countries (e. g. Austria and Germany) there are specific features in the administrative procedure which are absent from that of criminal law. Faure/Heine, p. 49. 19 Traditionally criminal law sanctions are considered denunciatory and educational, carrying moral outrage, whereas administrative penalties do not. See e. g. Feinberg (1970), Duff (1986). Kelsen has also compared criminal law sanctions with civil law ones: “Penal law is distinguishable from civil law principally through the fact that its sanction has a different character… The difference between penal and civil sanction lies rather in its purpose. Civil sanction is to make reparation for the damage caused by the socially harmful conduct; penal sanction is retribution …” Kelsen, p. 247. 20 Richardson compares the goals of criminal as opposed to those of administrative. She argues that whereas “the sole purpose of the criminal trial is to reach an accurate finding of guilt or innocence […] there may be no uniquely correct outcome …” in administrative procedure. Richardson, in: Richardson/Genn, p. 111. 21 The theoretical attempts to distinguish between administrative and criminal law seem particularly difficult in common law systems, where criminal law is still dominated by judgemade doctrines. Ashworth’s observation to this effect is well illustrated by the fact that “there are probably more than 8,000 criminal offences in English law.” Ashworth, in: Feldman, p. 1211.

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would also respect different procedural standards clearly based on the principle of proportionality: more invasive measures would be accompanied by stricter legal guarantees (e. g. judicial order for intrusive investigative acts in criminal procedure). According to the same principle, administrative law sanctions would have limited reach (e. g. fines to a certain sum, no deprivation of liberty) as compared to those of criminal law (e. g. higher fines, pre-trial detention, custodial sentence). There should be elaborated rules of evidence transfer between the administrative and criminal law channels.

Figure 1: Graphic Illustration of a Parallel Well-defined Co-existence of Criminal and Administrative Law

This being said, even the most elaborate legislative division cannot prevent overlaps in practice; there would always be cases of a “mixed” nature. The precondition for a clear and well-functioning system would therefore be efficient cooperation between all authorities involved. If a case is to be processed justly and efficiently, only collaboration at the outset can eliminate the problems of jurisdiction which might arise. In practice, it is extremely difficult to bring about a completely clean-cut division. Firstly, such a solution would have to be planned well ahead already on a legislative level, making comprehensive use of realistic information on actual practice. Secondly, it is only possible to imagine a given legal system achieving such a clear division

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within one certain legal domain or the other (e. g. tax law, environmental law). In reality most states have fragmented legislation adopted consecutively (through amendment) which is therefore “fluid” rather than systematically pre-designed. That being the situation in reality, it is nearly impossible to design a transparent division which approaches the ideal. Thirdly, since this ideal would require well-organized, wellmeaning institutions communicating and collaborating openly and efficiently, reality might also often leave a lot to be desired. We can therefore conclude that there are many reasons why most legal systems willingly or unwillingly end up with some kind of parallel organization with powers of administrative and criminal authorities overlapping22 and have to cope with a more or less chaotic parallel arrangement, with the spheres administrative and criminal law working together as best they can. 2. Hazy Areas As a result of this more or less chaotic parallel coexistence there is a certain overlap between the fields in each legal system.23 We will try to show that there are at least two ways in which the blurring of those boundaries occurs, each one carrying different legal consequences. (1) The first blurring situation occurs when two (relatively) clearly defined concepts overlap and the section in between them can be dealt with either by a clearly defined administrative or clearly defined criminal procedure or sometimes, both. This is a case in which national legislation on a given area of life causes segments of criminal and administrative law to interact or operate in parallel. What is common to all such systems is the fact that they are attempting to regulate this zone of overlap by applying either classical criminal or administrative concepts to it (and sometimes both). Some systems involving parallelism decide to solve the problem of possible overlaps by creating rules governing priority in cases where such overlaps might occur: e. g. they enact the so-called una via mechanism by which it is determined already at the legislative level, for example, that in a case where certain facts can be considered either a criminal offence or an administrative offence, one of the systems will take priority. Sometimes the same case can take the path offered by the other legal system if the route provided by the first proves unsuccessful, for whatever reasons. If a criminal prosecution, for example, fails, the case can still be processed in administrative procedure.24 Sometimes una via is not provided for by the 22 Faure and Heine point out that in the field of environmental law “establishing a side system to criminal law, which allows different kinds of repressive sanctions by administrative bodies is a European-wide tendency.” Faure/Heine, p. 65. 23 Widdershoven also notices that in the Netherlands “there is a development where the administrative law and criminal law are slowly edging towards each other.” Widdershoven, p. 460. 24 This is the case in Slovenian tax law, which provides for three types of procedures (1) determination of tax levy; (2) administrative procedure to impose a fee; (3) criminal procedure for serious offences. The tax levy procedure can always run parallel to an administra-

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Figure 2: Graphic Illustration of two Relatively Clearly Defined Concepts of Criminal and Administrative Law Overlapping

legislation, but practice solves the problems of overlaps by creating a de facto una via solution. There is an explicit or tacite agreement among the authorities that certain cases will only be dealt with in a certain way (either administrative or criminal).25 And sometimes case law decides this question. Una via systems have some definite advantages over the more chaotic ones. Overlaps are successfully resolved in a way that allows both legal fields to serve their purposes: minor infractions being dealt with by administrative authorities and severe ones by criminal courts. Good cooperation and clear divisions also help respect the ne bis in idem principle. Criminal courts are not overburdened with minor offences and can serve their purpose of sanctioning the most serious offences better (ultima ratio). Since administrative offences are handled by quicker and simpler procedures, tive and a criminal one, while criminal procedure always takes priority over administrative, if a certain act constitutes both a criminal and administrative offence. The administrative procedure is suspended until the criminal procedure ends. However, if the criminal case is dropped, an administrative procedure may then be activated. In a case where an administrative procedure, by any chance, takes place first, a criminal procedure may also still follow. Jenull, pp. 99 – 113. 25 Faure and Heine mention the German and Belgian example of administrative agencies having a legal duty to refer a serious environmental case to the Public prosecutor, thus resigning their right to settle the case through an administrative procedure. Faure/Heine, p. 65.

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more of them can be successfully processed; the result being that more wrongdoings are punished one way or another. Such a system also helps develop a better understanding of what is an administrative matter on one hand and what is a criminal one, on the other. In certain systems the same case can be processed by both tracks; an example of true parallelism. The same facts can therefore be processed in an administrative and criminal procedure, each following their own rules and each ending up with certain consequences (e. g. administrative prohibition and a criminal sanction). Such systems can only work if the cooperation between different bodies and the feed-back provided on the measures taken and cases handled is excellent. Clear rules and good practice on culmination of penalties passed in different procedures in order not to breach the ne bis in idem principle should also exist in such a system.26 It is much more likely however that such a system produces many problems, especially if it is accompanied with fragmented or obsolete legislation, bad cooperation and feed-back between different authorities.27 The same case can be dealt with by different authorities, causing potential problems with the ne bis in idem principle;28 on the other hand some cases can be completely overlooked due to weak communication between the different bodies involved. As a result such a solution tends to be unpredictable, unstable and does not provide for legal certainty or transparency. To illustrate how these systems work, we can consider the model of parallel coexistence as it occurred in the Flemish Region in Belgium in its law against environmental violations. Until mid-2009 the system was rather chaotic, according to Raedschelders,29 namely demonstrating most of the characteristics of the chaotic parallel system where no authority is certain as to what its authorizations are: fragmented legislation, lack of harmony between different enforcement actors resulting from a lack of clarity on which authority will be taking on a certain case30 are all factors which

26

In the case of Slovenian tax law, if an administrative procedure takes place first, a criminal procedure can still follow; however, an administrative sentence already passed must be deducted from the criminal sentence. 27 Faure and Heine report that in some countries: “it has been well-documented … that there has been a kind of ’civil-war’ between the criminal prosecutor and the administrative agency in respect of the adequate kind of reaction in the case of environmental pollution.” Faure/Heine, p. 65. 28 Gorunescu reports such problems in the Romanian legal system. She notes that no clear criteria to distinguish between criminal offences and administrative infringements have been set either by legislation or jurisprudence. In her opinion the current vague legal regulation in Romania contradicts the ne bis in idem standard established by ECtHR. Gorunescu, p. 169 – 175. 29 Raedschelders, p. 617. 30 “Enforcement was not evident and often no precedence was provided for the effective sanctioning of offences.” Ibid., p. 617.

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caused inefficiency in this field.31 Such a system could not provide equality before the law and legal certainty.32 As a result of this confusion the system largely relied on public prosecutors, using only criminal law as a means of fighting environmental violations.33 A chaotic parallel system therefore resulted in a de facto exclusion model, whereby criminal law basically took on all the cases.34 However, the Flemish legislator decided on a complete change of approach. With the introduction of the Environment Enforcement Act the option of a parallel system was chosen, with the criminal law system handling only severe cases, all the rest being processed via the more efficient administrative approach. They tried to organize a parallel system with clear divisions, by defining precisely the difference in (1) legal definition of administrative environmental infringements on one hand and criminal environmental offences on the other.35 This difference consequently determines the (2) type of sanctioning: administrative infringement can result in an administrative fine or deprivation of advantage, while a criminal environmental offence can also result in a criminal sanction being passed. Although environmental offences are established by the police or even administrative supervisors, they are always handed over to the Public Prosecutor for assessment on how to proceed. The system therefore also established a clear division on (3) who makes the final decision on how to handle a case: administrative cases are dealt with by supervisors and criminal ones by Public Prosecutors.36 Interestingly, if the Prosecutor does not start criminal proceedings, the procedure for imposing an alternate administrative sanction (e. g. fine) must be initiated.37 In this way coherence and much greater efficiency were achieved. The una via solution helps reduce double or even multiple conflicts of jurisdiction and solves the problem of priorities avoiding the complications of cumulating sanctions and possible ne bis in idem conflicts. For wrongdoings which can be qualified as environmental offences, the system obviously adopted the una via solution. Despite the fact that criminal offences are (mostly) also established by administrative authorities the legislator nevertheless decided that their judgment will later on be reviewed 31

“In addition to this fragmentation, there was a lack of harmony between the different enforcement actors, which caused the efficiency of the environmental policy to remain very limited.” Ibid., p. 617. 32 “Moreover, there were significant differences in approach and prioritisation at the public prosecutor’s offices of the various districts.” Ibid., p. 617. 33 A similar situation is described by Watson in English law in the field of environmental law infringements. The system has relied on the use of criminal law to deal with environmental infractions resulting in a vast number of wrongdoings not being punished at all. Watson, p. 3 – 6. 34 In the exclusion model, there is only either a criminal or administrative jurisdiction for sanctioning infractions in a certain legal field; there is no co-existence. For more on exclusion models see Sˇ ugman/Jager (2014). 35 Raedschelders, p. 618. 36 Id., p. 618 – 619. 37 Id., p. 619.

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by the Public Prosecutor. In the event that the Prosecutor deems a case to involve a criminal rather than administrative offence, he must report this decision to the administrative authority, which can no longer impose an administrative fine: criminal charge and sanctioning take over. Administrative procedure is also prohibited in cases where the Public Prosecutor makes no decision at all. He can also decide not to insist on criminal prosecution and on referring the case back to the administrative authority will allow them to go ahead and impose a fine.38 We can see from this example that overlapping was solved by applying either typical criminal law or characteristic administrative solutions to the “grey zone”: i. e. by drawing a clearly defined line between the types of sanctioning, with clearly set authorizations divided between the administrative and criminal law authorities. Raedschelders reports that the system works well: it accelerated handling of cases,39 and created a clear and much more coherent structure.40 What is of further interest for our discussion is that it elegantly used only the classic tools which belong to either of the two well-defined legal fields. (2) However, all the above mentioned solutions stem from the presumption that differences between criminal and administrative law in certain legal system actually do exist and that criminal justice is designed to fight crime and administrative justice is intended to handle administrative affairs and that they must try somehow to coexist. However, experience shows that even these simple presumptions seem to be less and less true in many legal systems. On one hand, classical administrative bodies with their administrative authorizations based on administrative procedural solutions are increasingly being used to fight crime.41 We can therefore observe the overextension of some administrative law authorizations into areas which would traditionally be viewed as belonging to criminal law.42 On the other hand we are also witnessing the downgrading of criminal law standards to better fit a tendency for efficiency.43 In such a case it is basically impossible to discuss the existence and co-existence of the two legal disciplines: it seems more adequate to understand the question as one of both disciplines merging into a new one.This second type of blurring, therefore, occurs in systems which invent solutions that cannot indisputably be classified under one or other of these two categories. In other words, the boundaries between the two 38

Id., p. 620. Ibid., p. 621. 40 Ibid., p. 625 – 626. 41 Faure and Heine point out that: “as a result to the so-called administrative dependence of environmental criminal law it is often the administrative authorities that determine the content of environmental criminal law.” Faure/Heine, p. 73. 42 See Duff’s idea on subversions of criminal law, which expresses something similar. He claims that criminal law is subverted when conduct that should be dealt with by the criminal law is dealt with by other modes of legal control. Duff, in: Duff et al. (2010), p. 92 – 93. 43 As Huisman and Koemans succinctly point out: “New administrative sanctions have been created here as well, such as the administrative fine, but existing measures under administrative law are also used now for a new purpose: to fight crime.” Huisman/Koemans. p. 123. 39

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fields are becoming hazy, because they are starting to take on elements from each other, creating a third kind of phenomenon: a hazy grey zone of “criministrative law.”44

Figure 3: Graphic Illustration of Emergence of a “Grey Zone” which cannot be Described by Criminal or Administrative Law Concepts

In this state of affairs, we can no longer look for solutions from the discrete fields of criminal or administrative law, since the ‘grey zone’ is actually breaking down their traditional composition. As such, the situation calls for altogether different ways of dealing with blur and overlap, since the classical subject of criminal law is irreversibly dissolving.45 To paraphrase Damasˇka: is criminal law becoming an antiquarian period piece?

44

Bailleux (2014), Careira (2014). Administrative law is by no means the only reason for this. There are other factors involved: e. g. surveillance technologies, fight against terrorism, creation of cyber space etc. All such phenomena contribute to the break-down of a classically conceived legal field of criminal law, either by putting the stress on prevention rather than reaction, intelligence rather than evidence, or by weakening the traditional concepts on which criminal law is based: e. g. space, time, jurisdiction etc. 45

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Without attempting to be exhaustive we will enumerate just a few solutions of a mixed, criminal and administrative nature.46 We can witness solutions which downgrade criminal law standards, pushing them closer to what were traditionally considered standards of administrative law. This trend is most clearly seen in simplified criminal or vaguely criminal procedures compensating for less rights with lower penalties such as petty offence solutions, out-of court sanctioning (cautioning),47 compounding (UK, France),48 and the proliferation of the “penal order” (Strafbefehl (Germ.), ordonnance penale (Fr.), kaznovalni nalog (Slo.)).49 A good example of downgrading strict criminal law standards to a near administrative level of procedure is the mechanism of plea-bargaining, with its long tradition in common law countries and its extremely rapid adoption in the traditional continental European countries.50 On the other hand the rising harshness of penalties issued and the increasing severity of infringements dealt with in administrative procedures shows the tendency to engulf an area previously reserved for criminal law. An example of this is the socalled punitive administrative sanctions, such as surcharge or exclusion. In case of surcharge a punished subject is required not only to reimburse the sum owed (e. g. unduly paid or owed), but must also pay an additional charge which is obviously penal in nature.51 Therefore, alongside the administrative element of a sanction 46 Damasˇka points out that most continental countries distinguish between criminal and non-criminal offences; the latter being handled by administrative agencies applying looser evidential rules. But even among the criminal offences there are two distinctive categories regarding their gravity: “The less serious the crime, the less elaborate the rules.” Damasˇka, p. 511. 47 Jasch, p. 1207 – 1216. 48 In France for example, compounding of tax cases is in the hands of administrative authorities which decide not to hand the case to the prosecution if the investigated party accepts to pay a certain sum (usually a fixed tax levy and an administrative fee and a tax fine). As Vervaele points out, the decision not to prosecute is an administrative procedure which strongly resembles a criminal law decision, since it serves to disable both criminal and administrative procedures. In England and Wales extrajudicial disposal of tax cases is also possible in the form of compounding. This is a certain form of diversion, an administrative act under which further criminal prosecution is waived on the condition that a certain amount of money is paid. Ibid., p. 200 – 201, 231. 49 A penal order is issued by a judge only on the basis of a file, without a trial. Jehle/Wade, pp. 74 – 75. 50 As Wright and Miller succinctly wrote: “We now have not only an administrative criminal justice system, but one so dominant that trials take place in the shadow of guilty pleas” Wright/Miller, p. 1415. See as well e. g. Lynch pointing out that the American criminal justice system has become an administrative system run by executive-branch officials, prosecutors. Lynch (2003). 51 See the case law of ECtHR regarding the question of when a surcharge requires the protection of Art. 6 rights in Bendenoun (Eur. Court HR, 24 February 1994, Bendenoun v. France, Series A, no. 284), Janosevic (Eur. Court HR, 23. July 2002, Janosevic v. Sweden, App. no. 34619/97), Morel (Eur. Court HR, 12 February 2004, Morel v. France, App. No. 43284/98), and the already mentioned Jussila case (Eur. Court HR, 23 November 2006, Jussila v. Finland, App. No. 73053/01).

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(namely restitution) surcharge entails a punitive effect as well. The same is true of the administrative sanction of exclusion.52 Some countries also exercise so-called administrative detention: the classic criminal law practice of detention is adopted in those countries in administrative cases following a procedure which does not satisfy the standards of criminal law.53 We can also observe the transformation of certain traditionally administrative bodies into institutions of a mixed administrative and criminal nature. A good example is offered by the case of Dutch administrative authorities, sworn officials of the Tax and Customs Administration, who traditionally fought customs irregularities. They recently acquired not only the power to conduct a criminal investigation following the standards of their Criminal Code in respect of all criminal offences in their jurisdiction, but these powers even extend to ordering the detention of suspects in police custody.54 The classical organization of powers by which Police, Public Prosecutor or a criminal pre-trial judge are the sole authorities with criminal investigative authorizations and especially the sole authority to infringe the right to liberty, is therefore completely lost.55 A solution unthinkable even a few decades ago, of an administrative authority possessing the most essential invasive criminal law authorisation, is therefore very much real and active at the present time. The examples mentioned above illustrate how traditional legal concepts increasingly struggle or even fail to explain the nature of such newly invented bodies, their authorisations, and even the nature of evidence gathered in newly developed procedures.56 We obviously need to create different kinds of concepts which will help us deal with the situation.

52 In Germany v. Commission (ECJ, 27. October 1992, Judgement C-240/90, Germany v. Commission ECR I-5383) Germany claimed that the sanction of exclusion from Regulation EEC No 1279/90 of 15 May 1990 (OJ 1990 L 126, p. 20) and its predecessors are criminal in nature. ECJ with a rather brief explanation concluded that exclusion is not penal in nature. 53 “Austria, after the criticism from the European Court has given up the possibilities of detaining offenders according to so-called administrative criminal law.” Van Zyl Smit/Dünkel, p. 816. 54 This solution thoroughly unacceptable in countries such as France or Slovenia because of the stricter separation of power principle they observe. Vervaele points out that in the French system the judicature serves as a true counterweight for the executive, while in the Netherlands the primary consideration is the most effective cooperation between different authorities. Vervaele/Klip, p. 77 and 181. 55 A similar phenomenon is occurring in the USA. “Although we have been discussing administrative inspections as if they were totally different from traditional searches by the police for evidence of crime, the reality is not so clear-cut.” Funk/Seamon, p. 343. 56 See different concepts of division between criminal and administrative investigation and the rules on the transfer of evidence between those two procedures in the Netherlands, Germany, France, and England and Wales in Vervaele/Klip, p. 91 – 93, 163 – 168, 211 – 213, 235 – 239.

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3. CoE and EU This trend of blurring the boundaries has also been supported by two supra-national entities: the Council of Europe and the EU. It has to be admitted that the case law of ECtHR contributed a great deal to a clearer supra-national definition of a criminal charge. In its landmark Engel case57 and the cases following it,58 ECtHR clearly wanted to reach a goal of achieving a common, autonomous definition of what is a criminal case with the purpose of avoiding the idiosyncrasies of certain legal cultures and label-swindling. However, the Jussila59 case brought a different understanding of what a criminal case is. The core question of the case was whether the procedure on assessment of tax and the imposition of tax surcharges in Finland at the time fell within the autonomous meaning of Article 6 ECHR and thus attracted the guarantees of Article 6, in this particular case the right to an oral hearing. The court firstly had to decide whether the case was criminal and it stated that: “it is self-evident that there are criminal cases which do not carry any significant degree of stigma. There are clearly ‘criminal charges’ of differing weight” and the judgment concludes: “Tax surcharges differ from the hard core of criminal law; consequently, the criminal-head guarantees will not necessarily apply with their full stringency”.60 With this a way was opened to different gradations in the weight of a criminal charge and consequently in the different rights traditionally applying to such colours of grey. It is therefore important to realize that the ECtHR judgement just cited super-imposes a distinction onto the classical scale by which criminal law has traditionally sought to find its requisite balances. The territory of criminal law itself is partly overtaken by a miasma, for we are now to understand that within criminal law there is something that should be considered a “hard core,” for which the old standards still apply, and there is also a periphery to which relaxed procedural standards are now appropriate. Part of criminal law’s traditional domain is now therefore assigned to an unknown law regime. This by itself is contributing to the blurring of the boundaries between a clear classical concept of criminal law and nuances departing to administrative law. What is interesting is the need of the court to emphasize the existence of this “hard core” criminal law in the first place: this is tantamount to admitting that there are some criminal law cases which are more essentially criminal law cases than others, thus pointing out the non-exclusive nature of the division between the fields of criminal and administrative law.61 As Judge Loucaides pointed out in his partly dissenting 57

ECtHR, 8 June 1976, Engel v. The Netherlands, Series A, no. 22. E. g. ECtHR, 22 May 1990, Weber v. Switzerland, ECtHR 27 August 1991, Demicoli v. Malta. 59 2 ECtHR, 23 November 2006, Jussila v. Finland. See as well the comment on the case in Barkhuysen/van Emmerik, p. 444. Jusilla was not the first case in which ECtHR relaxed procedural standards for minor offences. See e. g. ECtHR, 29 October 1991, Fejde v. Sweden. 60 Jussila v. Finland, p. 43. 61 The Court continues: “What is more, the autonomous interpretation adopted by the Convention institutions of the notion of a “criminal charge” by applying the Engel criteria 58

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opinion: “I find it difficult, in the context of a fair trial, to distinguish, as the majority do in this case, between criminal offences belonging to the ‘hard core of criminal law’ and others which fall outside that category. Where does one draw the line? (…) To accept such distinctions would open the way to abuse and arbitrariness.”62 The position of the Court is more than reasonable since it is hardly possible to put a genocide and a minor tax evasion on the same scale of justice. The problem lies with the lack of defined criteria for tackling cases that involve a less obvious disparity: distinguishing black from white is simple, but how are we to delineate the many shades of grey encountered by much legal practice?63 Even the case law of ECtHR, which invented the new distinction between more and less serious criminal offences is inconsistent in this respect. Obviously an offence of a minor nature (such as the possession of a rifle without the required licence) justifies the lack of an oral hearing before an appellate court (Fejde (1991)),64 and peripheral cases can be dealt with in the first instance by an administrative authority (Lauko (1998)).65 There are also limitations of a right to be present at the hearing in cases where there is a fine order procedure in question (Kammerer (2010)).66 However, the case law is far from being clear and consistent, thus contributing to the blurring of boundaries between the “core” and “periphery” of criminal law on one hand and of criminal and administrative law on the other. It seems that developments in EU law have not helped answering this question either: if anything, the boundaries between the two domains are becoming even more blurred. Not having criminal law competences, the EU searched extensively for ways of extending the legitimate administrative powers it did possess into the criminal law field, thus heavily contributing to the over-extension of administrative law solutions to what were traditionally considered matters of criminal law. The solutions yielded by this search include the EU Commission’s extended investigative powers,67 the creation of so-called administrative penalties serving criminal law purhave underpinned a gradual broadening of the criminal head to cases not strictly belonging to the traditional categories of the criminal law…” Jussila v. Finland, p. 43. It seems like the Court is describing a phenomenon of over-extension of criminal law and tries to achieve the reverse effect with its decision. 62 Judge Loucaides, partly dissenting opinion, Jussila v. Finland. 63 Bailleux traces the consequences of Jusilla distinction between the core criminal law and its periphery in EU law as well. See Bailleux, p. 143. 64 ECtHR, 29 October 1991, Fejde v. Sweden. 65 ECtHR, 2 September 1998, Lauko v. Slovakia. 66 ECtHR, 12 May 2010, Kammerer v. Austria. In this respect see an excellent analysis of the application of ECHR standards to administrative procedures in De Moor-Van-Vugt (2012). 67 Vervaele observes that the EU Commission’s investigating powers to supervise companies and third parties, namely administrative inspection, strongly resemble the search authorizations regulated by criminal law systems. He concludes that it is “apparent that the dividing line between administrative law supervision and criminal law investigation is beginning to fade.” Vervaele, p. 10.

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poses, etc.68 This tendency probably reached its climax to date with ECJ case C-176/ 0369 in which the ECJ in its own activist way “invented” criminal law competences of the European Communities.70 Consequently the EU contributed to the confusion of criminal and administrative law: it did so by compensating for the constitutional limits which prevented it (before the Lisbon Treaty) from adopting criminal law measures to protect its legitimate goals by stretching the scope of its administrative penal measures. These solutions were then imported into national systems; in some cases the solutions changed the system’s basic understanding of what are criminal and what are administrative affairs.71

III. Conclusion Despite the fact that solutions downgrading criminal law and upgrading administrative law serve some positive ends (e. g. the aims of de-burdening criminal justice systems and improving their efficiency), the trends reviewed here have considerable negative side-effects. Firstly, the traditionally designed boundaries between the criminal and administrative law disciplines are being eroded into an unrecognizable mess. Historically the concepts may never have been completely clear, and different minds placed differing emphases on different aspects of the two systems; nevertheless history still indicates the essential traditional distinctions between the administrative and criminal dimensions were well-grounded, and worked towards protecting and enacting higher principles of legal justice. The concepts were developed with a certain purpose in mind, and supported the protective effect of the principle of proportionality on human rights. New solutions downgrading criminal law, and others over-extending administrative authority, blur the boundaries between the disciplines in ways that carry farreaching possibilities of widespread breaches of human rights. It is not clear any more according to what standards and procedures different agencies of an uncertain legal nature will be acting. We are therefore witnessing a shift to preventive strategies, administrative in nature, which bypass the criminal law standards. Should, for example, a certain search of premises apply all the protective standards developed in criminal proceedings (e. g. standard of proof, judicial order) or should it follow only administrative procedure, which need only satisfy much lower safeguards? Is a certain 68

Vervaele, p. 10. ECJ, 13 September 2005, Commission v. Council, C-176/03. 70 See the extensive critical literature on the so-called ‘battle of pillars’: Wasmeier/ Thwaites (2004), Mitsilegas (2006), Apps (2006), Sˇ ugman/Jager (2009). 71 De Moor-van Vugt analyzes the emergence of the mixed-natured administrative sanctions introduced by the EU (e. g. loss of a deposit, administrative fine, surcharge, exclusion from subsidies and blacklisting) which did not previously exist in Dutch law and examines their legal nature by applying ECtHR standards. De Moor-van Vugt, p. 5 – 41. 69

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sanction still a measure of criminal law, thus demanding all the required procedural standards previously guaranteed to accused parties (e. g. a fair trial, the right to remain silent), or is it merely an administrative one, executed according to much looser principles? Can the evidence gathered in one procedure be produced in the other if a case is transferred? Procedural efficiency, if that is the priority, arguably is lowered if we continue applying the stricter criminal procedure standards in milder cases. But an incontrovertible hierarchy of values should tell us which is the greater danger if change continues in the opposite direction: namely, if we continue introducing lower procedural standards to cases which would merit stricter regulation. Secondly, such solutions extend the area of criminalization. What at first glance seems a preventive strategy has hidden repressive effects.72 It allows an invasion of lower (administrative) procedural standards into criminal law without the protection of criminal law guarantees.73 As an end result we witness the net-widening of the criminal law,74 namely a greater number of individuals being controlled by a criminal justice system partly disguised by widened administrative powers. It is beyond the scope of this chapter to address in all their complexity the issues of what procedural rights should apply in all kinds of proceedings; it is, however, instructive to witness the struggles national and supra-national courts have faced in dealing with such questions.75 The fact is that in our understanding of the changing legal world we can no longer rely on the typology (however uncertain it was) developed in earlier times; this is not to concede that we should abandon the values and principles that typology sought to support. The fight for definitions is once again tak72 As Huisman and Koemans convincingly show by means of examples of the introduction of ASBO in Dutch law. Huisman/Koemans, p. 142. 73 Such as privilege against self-incrimination, presumption of innocence etc. As Duff and Green point out: “Presumption of innocence has been progressively eroded by broad offence definitions, shifts in burdens of proof, and the use of strict liability …” They also warn of various “hybrid civil-criminal proceedings.” Duff/Green (2011), p. 11 – 12. 74 “Normalization of crime permits a routinization of crime control that licenses the removal of lesser offences from the hallowed bastions of the criminal trial to the instrumental channels of civil and administrative law.” Ashworth/Zedner, p. 39. 75 See for example elaborated discussions on a form of responsibility for administrative irregularities in the ECJ Käserei Champignon Hofmeister case (ECJ, 11. July 2002, Judgement C-210/00, Käserei Champignon Hofmeister, ECR, p. I-6453). At the end of an extensive debate on the nature of sanctioning in criminal and administrative procedure, the court decided that general applicability of the fault principle to penalties of an administrative nature cannot be derived from the legal tradition of the Member States. See as well ECJ, 18. November 1987, Judgement Case 137/85, Maizena and Others, ECR, p. 4587, paragraph 13 deciding that the special arrangement involving advance release of security is not a criminal penalty, and ECJ, 27. October, 1992, C-240/90, Germany v Commission, ECR, p. I-5383, paragraph 25, discussing exclusion and deciding that it is not a penal sanction. In the Bonda case a Polish court asked for a preliminary ruling on a question of a legal nature of the penalty provided for in Art. 138 of Regulation No. 1973/04 which refuses a farmer direct payments in the years following the year in which he submitted an incorrect statement. (ECJ, 5. June 2012, Judgement C-489/10, Bonda, ECR, p. 217/2).

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ing place and new questions are being asked: what are the appropriate measures for those myriad cases filling the ‘grey’ areas between criminal and administrative law in their classic configurations; what authorities should deal with those cases; in what ways can we deal with evidence gathered in sui generis procedures, and what really constitutes “sufficient” instruments for the protection of rights in a given procedure? Undoubtedly we must realize that the times have passed where crime was crime and an administrative infraction was something clearly other in nature. We find ourselves in an era that we could choose to regard as one of opportunity for reform and innovation, for new solutions to the ongoing puzzles of how to find fair and proportionate solutions for blurred zones in the law. It may well be time for a ‘makeover.’ But change will only be progressive if the values underpinning legal systems in their most serious operations – balancing human rights against retributive justice – are retained in the course of the overhaul.

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Moore, Michael S.: Placing Blame, Oxford University Press, Oxford1997. Packer, Herbert L.: The Limits of the Criminal Sanction, Stanford, Stanford University Press, Stanford 1968. Parker, Jeffrey S.: Criminal Sentencing Policy for Organizations: The Unifying Approach of Optimal Sentences, American Criminal Law Review, 26/1988 – 89, pp. 513 – 604. Raedschelders, Sigrid: Interrelations between Administrative and Criminal Sanctions in Environmental Law: New Legislation and Actual Practice in Flanders, Ninth International Conference on Environmental Compliance and Enforcement, 2011, p. 616 – 627: available at http://inece.org/conference/9/proceedings/65_Raedschelders.pdf Richardson, Genevra: The Legal Regulation of Process, in: Genevra Richardson, Hazel G. Genn (Eds), Administrative Law and Government Action, The Courts and Alternative Mechanisms of Review, Clarendon Press, Oxford 1994. Smith, John Cyril: Hogan, Brian: Criminal Law, 7th ed., Butterworths, London, 1992. Sˇ ugman Stubbs, Katja/Jager, Matjazˇ : The Organization of Administrative and Criminal Law in National Legal Systems: Exclusion, Organized or Non-Organized Co-existence, in: Francesca Galli, Anne Weyembergh (Eds.), Do Labels Still Matter: Blurring Boundaries Between Administrative and Criminal Law, The Influence of the EU, Institute d’etudes Europeennes, Bruxelles 2014, pp. 155 – 169.

– Judicial resolution of “the battle of pillars” and the idea of using criminal law as the “selfevidently necessary” policy tool, in: Stefan Braum, Anne Weyembergh, (Eds.), Le contrôle juridictionnel dans l’espace pénal européen. Editions de l’Université de Bruxelles, Bruxelles 2009, pp. 23 – 36. Van Zyl Smit, Dirk/Dünkel, Frieder: Conclusion, in: Dirk Van Zyl Smit, Frieder Dünkel (Eds.), Imprisonment Today and Tomorrow: International Perspectives on Prisoners’ Rights and Prison Conditions, Kluwer Law International, The Hague 2001, p. 796 – 859. Vervaele, John/Klip, André: European Cooperation between Tax, Customs and Judicial Authorities, Kluwer Law International, The Hague 2002. Vervaele, John A. E.: The Europeanisation of Criminal Law and the Criminal Law Dimension of European Integration, European Legal Studies, College of Europe, Brugge 2005. Wasmeier, Markus/Thwaites, Nadine: The ‘battle of pillars’: does the European Community have the power to approximate national criminal laws?, European Law Review, 29/2004/ 5, pp. 613 – 635. Watson, Michael: The enforcement of environmental law: civil or criminal penalties?, Environmental Law and Management, 17/2005/1, p. 3 – 6. Widdershoven, Rob: Encroachment of Criminal Law and Administrative Law in the Netherlands, Electronic Journal of Comparative Law, 6/2002, 2002, p. 460. Wright, Ronald/Miller, Marc: Honesty and Opacity in Charge Bargains, Stanford Law Review, 55/2003/4, pp. 1409 – 1417.

Globalizing Procedural Justice – Some General Remarks Michele Taruffo*

I. Introduction The label “globalization” has become so “loose and possibly rhetorical”1 and has acquired so many meanings that any attempt to define its contents would be meaningless. Yet, multifaceted and ambiguous as it is, the real phenomenon is under our eyes more every day, and therefore more every day it makes sense to analyze it trying at least to identify some of the effects that it provokes on the administration of justice all around the world. If we assume that the law in general, or at least many areas of the law – if not all – have been, are being or will soon be globalized, then it is meaningful to discuss a topic dealing with the “globalization of procedural justice”. It is not enough, however, to introduce such a label – that might also be loose and rhetorical – without trying to deal with some of the most relevant issues that immediately arise from that label.

II. Globalization of what? A first question that may be asked while talking of the globalization of procedural justice may be “globalization of what?”, referring to the areas of civil litigation that are more deeply and more frequently affected by the globalization of disputes and conflicts, i. e. those areas in which the “transnational” character of litigation is more frequent. In its general meaning, “transnational” refers to any kind of litigation arising among parties (private citizens, companies, nation states, international organizations, multinational enterprises, and so forth) that “belong” to different national jurisdictions.2 One could say that any civil dispute about any matter could have this character, but such a statement – although true – would not say much. More concretely, it is easy to consider that at least prima facie the areas in which transnational disputes are specially frequent, and then in which we could think of globalizing civil * Professor of Law, Càtedra de Cultura Jurídica, Girona (Spain). 1 See Twining: Globalization and Legal Theory, Northwestern U. Press, Evanston, 2000, Ill., p. 2. 2 For a systematic use of the word in this sense see e. g. ALI/UNIDROIT Principles of Transnational Civil Procedure, Cambridge U. Press, Cambridge 2006.

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justice, are those of international commerce, of the fluxes of financial capital, and generally the world of “economy and business”. The evidence for this is the fact that in the last decades the so-called lex mercatoria has been considered as the real if not the only subject matter of globalization.3 Correspondingly, one might be inclined to think that globalizing procedural justice means just globalizing the solution of disputes arising in the area covered by the lex mercatoria. Nobody could reasonably deny that this is by far the most important area in which globalization has occurred in the last decades and is developing at present, but this – although important – is only a part of the problem. The practical development of economies indicates several other areas of the law in which significant problems are arising insofar as the administration of justice at a transnational level is involved. Just to stress some of them, we could think of: a) labor disputes, becoming more and more transnational as a consequence of the outsourcing and the de-localization of industrial production, so that the employees working for the same employer (national or multinational) actually are located in different countries; b) environmental protection, which is clearly necessary at a global level due to the global dimension of pollution and mass disasters; c) intellectual property, as an effect of the global circulation of cultural products. And so forth. Moreover, besides such very important but specific subject matters it is worth stressing that an extremely significant aspect of cultural and legal globalization is the growing generalization of the sensitivity towards the recognition and the enforcement of fundamental rights at a supra-national level. This is an extremely relevant aspect of the complex phenomenon of judicial globalization,4 i. e. of the trend that is growing in the practice of several supreme, constitutional and supra-national courts to make references to the case law and to the precedents of other national or international courts all around the world, mainly when the subject matter of their decision deals with the interpretation and the implementation of fundamental rights. In such a practice these courts go far beyond the boundaries of national law and national jurisdictions and refer to what seems to be a “common – and hopefully global – core” of fundamental rights.5

3 In the extremely broad literature about this topic see for instance Galgano: La globalizzazione nello specchio del diritto, Il Mulino, Bologna, 2005, p. 43; Ferrarese: Diritto sconfinato. Inventiva giuridica e spazi nel mondo globale, Laterza, Roma-Bari, 2006, p. 76; Twining, Globalization and Legal Theory, p. 51, 139. 4 See generally Taruffo: Globalization, Processes of Judicial, in: Clark, David D. (Ed.), Enc. of Law & Society. American and Global Perspectives, vol. 2, SAGE Publ., Los Angeles 2007, p. 656. 5 See mainly Markesinis-Fedtke: Judicial Recourse to Foreign Law: A New Source of Inspiration?, UCL Press, London 2006; Markesinis-Fedtke: Engaging with Foreign Law, Hart Publ., Oxford-Portland 2009, Ore., p. 127; Slaughter: Judicial Globalization, in; 40 Va.J.Int’l. Law, 1999 – 2000, p. 1103.

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III. Globalization for whom? Trying to understand how globalization might affect the implementation of procedural justice, a further question may arise. It can be stated in these terms: “globalization of justice for whom?” Such a question seems to be meaningful for various reasons. On the one hand, it is well known that that powerful phenomenon of globalization that was the colonization of some continents of the world was made also through the forced imposition of legal models by the colonizers on the colonized, obviously in favor of the former with the aim of subordinating the latter. On the other hand, it seems clear that the current legal globalization is not a “neutral” or “equal” means oriented towards achieving a higher level of justice for all. Actually, there are some subjects that would take advantage from a globalized civil justice, and many other subjects that could be disadvantaged by it. A globalized civil justice may actually work, under the formal label and the appearance of the rule of law, in favor of “strong” parties, such as powerful countries, multinational companies, banks, commercial organizations, and so forth, since it may result in more efficient devices that could be used by the “strong” in order to exploit the “weak” (which could be small countries, individual debtors, private investors, workers, and so forth). As is well known, the globalization of financial markets is a very efficient means to export financial crises to weak countries and weak investors. In a similar way, the globalization of the labor market is a powerful way to exploit less protected workers (such as minors and women) all around the world. Even procedural devices that prima facie would seem able to protect the weak parties of commercial transactions may reveal their actual nature as double-edged weapons. Transnational efficient procedures for small claims are usually presented as a useful device for the protection of small creditors against big transnational debtors, but we should not forget that the same procedures may be used as efficient mechanisms for quick and inexpensive debt collection by big creditors (such as insurance companies, banks, commercial networks, and so forth) against thousands or millions of small debtors. Moreover, it seems worthy to take into account – notwithstanding the time which has passed – the fundamental analysis made in the Seventies by Marc Galanter about the strategic advantages of the “Haves” over the “Have-nots”.6 Actually one may wonder whether any kind of procedural globalization would work in the sense of reducing the strategic, economic and cultural differences among “repeat players” and “one-shotters”. A first impression can be just in the opposite sense: at the global level “repeat players” are much bigger, more powerful and better organized than at the national level, while “one-shotters” tend to be relatively smaller, weaker and less able to take advantage of transnational or international procedural devices (which in many cases do not exist or are not available). It might be said, therefore, that globalization 6 See mainly Galanter: Why the “Haves” Come Out Ahead: Speculations on the Limits of Legal Change, in 9 Law & Soc.Rev., 1974, p. 1.

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may work as a powerful “multiplier” of the differences among the parties, and correspondingly as a relevant factor of procedural inequality. Looking at the same problem from the standpoint of the weak and of the “Havenots”, the most important aspect deals with the judicial implementation of fundamental rights. As abovesaid, such rights tend to be recognized at a global level, and then their implementation cannot be intended only as a “domestic” problem within the borders of single nation-states. As Luigi Ferrajoli writes, jurisdiction is the fundamental guarantee of all rights, but specially of the fundamental ones that are specially important for the weakest subjects: no right – and no fundamental right – actually exists if it cannot be vindicated and protected by jurisdictional means.7 This entails at least two consequences that should be taken into consideration in a global perspective. First: fundamental rights – as well as all rights – should be interpreted and implemented on a bases of equality: so to say, any citizen of the world is entitled to be treated as equal to any other, mainly when he or she is economically, socially or culturally weak. From this point of view, the globalization of procedural justice might be considered as a powerful factor of equalization insofar as it may ensure an equal access to the judicial protection of fundamental rights of everyone, and specially of the weak. Second: such a protection should be effective and not only symbolically affirmed. This requires an analysis that cannot be properly made here, but a reference to one specific aspect of the problem may give an idea of the dimension of the issue. Considering the frequency and the disastrous effects of “global torts” deriving for instance from pollution, sale of dangerous products, and so forth, the moment has come to think in terms of supra-national devices for the protection of collective interests. A sort of transnational class action could be useful as an effective means for the equal protection of rights in a global dimension.8

IV. Devices of Globalization The preceding remarks lead to a further question concerning the ways in which procedural justice could possibly be globalized. An almost immediate answer to this question is that the solution should be found by looking at the set of devices known as “informal justice” or ADR.9 But such an answer needs to be carefully considered, mainly because a clear distinction has to be made between mediation and arbitration due to the structural and functional differ7 See Ferrajoli: Principia iuris. Teoria del diritto e della democrazia. 1. Teoria del diritto, Laterza, Bari, 2007, p. 675 ss. 8 See e. g. the essays collected in: D. R. Hensler/Ch. Hodges/M. Tulibacka (Eds.), The Globalization of Class Actions, Thousand Oaks 2009, CA. 9 About the role of such devices in the globalized world, still useful is the article by Glenn: Globalization and Dispute Resolution, 136 CJQ, 2000, p. 137.

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ences existing between the two types of dispute resolution devices. There is no need to insist here about such a distinction, but different remarks are worthy about mediation and arbitration in the perspective of the globalization of civil justice. 1. About Mediation Reaching the settlement of the conflicting interests of the parties may be an acceptable means to solve a dispute, and this is the reason why most lawgivers try to persuade (or even to compel) the parties to settle their dispute, with the clear aim of reducing the workload of courts. It seems clear, however, that mediation cannot be taken as the unique and ideal device for the resolution of all disputes, for at least three reasons (but many other reasons could be referred to). First: reaching a compromise between conflicting interests is not the same as doing justice by establishing rights and obligations. Therefore, mediation is not a real functional equivalent of jurisdiction. At most, it could be a second-best (or even a third-best) solution of the problem. Thus it cannot be said in general terms that some forms of mediation could be the main road to the globalization of procedural justice. Second: mediation may be accepted mainly when the matter at stake is money, since an agreement can always be achieved about a fair compensation, but it may not be acceptable when the matter at stake is a right without any monetary value (or that cannot be completely transformed into a right to compensatory damages in case of violation). This is particularly clear in the area of fundamental rights. For instance: could my right of freedom be “mediated” with the result that I sell myself as a slave for a fair sum of money? Is it more acceptable if a new form of slavery is created just because a good mediation could be used to fix the market price of liberty? Or could I give up my right to my physical personal integrity provided a mediator establishes the current market value of my organs? Third: last but not least it is worth stressing that mediation is structurally unable to compensate the differences between a strong party and a weak party. The mediator has to be neutral and impartial, although his task is to help the parties to reach an agreement, but he is not there to ensure the equity of the agreement. Therefore, when the differences between the parties are particularly strong – as happens in many globalized areas – it seems clear that the weak party will “voluntarily agree” with the solution determined and imposed by the other party.10 In this sense, globalizing mediation may result in the globalization of injustice and inequality.

10 On such topics the fundamental reference is the article by Fiss: Owen, Against Settlement, recently reproduced, in: Fiss, The Law as It Could Be, New York U Press, New YorkLondon 2003, p. 90.

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2. About Arbitration It is well known that in the last decades arbitration has been, and at present continues to be, the most important – and virtually the only – means to solve disputes concerning international commercial transactions. In a sense, lex mercatoria has become a synonym for international commercial arbitration. No wonder about that: the advantages of arbitration (such as speed, control of the parties, privacy, choice of the arbitrators, and so forth) largely exceed its disadvantages (costs and complexity), and this is particularly clear when two parties – possibly of the same strength and with converging interests – are making up an international commercial transaction. Moreover, although international commerce is by far the most important area of economic globalization, one may even think of a broader use of arbitration well beyond the application of lex mercatoria. For instance, a very interesting suggestion refers to the possibility of a “class action international arbitration”.11 Although the clear success of arbitration in a broad area of transnational disputes shows that it may be the best method to solve many such disputes, it does not prove that arbitration is always the ideal device to be used in every kind of litigation. On the one hand, arbitration is the best solution when jurisdiction is not available or when going to a court would be exceedingly complex, but this is not enough to claim that arbitration is a priori the best alternative. All things considered, arbitration requires an agreement of the parties to withdraw from jurisdiction, and then to give up the fundamental guarantees of procedural justice: but nothing proves that this is always a positive choice. On the other hand, a necessary condition of arbitration is the capacity of the parties to dispose of the substantive subject matter at stake, but such a condition in many cases does not exist. Once again, the puzzling issue is the implementation of fundamental rights: usually they are considered as absolute rights just to stress that they cannot be given up or disposed of by a mere act of will or by an agreement with the adverse party. Therefore, it is difficult to imagine an arbitration agreement concerning the implementation and the protection of a fundamental right. For similar reasons Ferrajoli claims, as abovesaid,12 that jurisdiction is the essential guarantee of fundamental rights. Moreover, there are some matters in which the use of arbitration may raise relevant objections. For instance, one might wonder whether in labor relationships the employer (i. e. the strong party) may impose on the employee (i. e. the weak party) an arbitration clause with which such a party gives up her right to the judicial protection of her legal position. Or one may wonder whether arbitration could be a viable and fair solution in a case of pollution of the air or of the sea, where the need is not only to compensate damages but also – or mainly – to impose in a public and global dimension compliance with general standards of environmental protection. 11

See Strong: From Class to Collective: The De-Americanization of Class Arbitration, in: 26 Arb.Int., 2010, p. 493; Id., Class Arbitration Outside the United States: Reading the Tea Leaves, in Dossier VII: Arbitration and Multiparty Contracts, ICC, Paris 2010, p. 183. 12 See supra, fn. 7.

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V. Which Globalization of Procedural Justice? Coming back – finally – to jurisdiction, the main issue is to imagine how a globalization of procedural justice could be achieved. Such an issue may have several solutions, and we may take into account at least the three most significant ones. 1. Unification of Procedural Systems At first sight, a suggestion may be to unify all the national procedural systems: if all the countries had the same procedural regulations, globalizing the administration of civil justice would be virtually in re ipsa. Unfortunately, such a solution sounds practically impossible, but even if it were practically possible there would be good reasons not to adopt it. The impossibility is clear if we consider that a single and unique code of civil procedure to be enacted in all the countries of the world is just an abstract product of the imagination lacking any reasonable connection with any predictable future. On the other hand, even within the limited range of the European Union of the Nineties the project of unifying at least some relevant aspects of civil procedure was theoretically very interesting but was not successful.13 At any rate, a unification of civil procedure at a global level would be unacceptable for various cultural reasons. A procedural code is not just a set of rules of thumb that could be applied everywhere all around the world with just a few technical adaptations. The systems of justice are the historical outcomes of complex evolutions involving different social, ethical, economic and even religious factors and values. Such systems may evolve and change and they may be adapted – to some extent – to new needs and new situations, but they cannot – and should not – be set aside just in order to enact a completely new and uniform system of justice falling down – so to say – from heaven. Such remarks are meaningful not only when a unification of procedural systems is imagined at an abstract level of thinking, but also when the practical issue is whether or not to apply in other contexts an already existing system of justice. Actually the real problem is whether or not the American system of civil procedure should be adopted in other countries and possibly all around the world. Many Americans are so deeply persuaded that their system of litigation is “exceptional” (in the sense of: the best of all), that they could wish to benefit the rest of the world by exporting such a system everywhere.14 However, such a perspective may raise some doubts.

13 See Marcel Storme (Ed.), Rapprochement du droit judiciaire de l’Union européenne – Approximation of judiciary law in the European Union, Dordrecht 1994. 14 About American exceptionalism in the field of civil procedure see e. g. Marcus: Exceptionalism and Convergence: Form versus Content and Categorical Views of Procedure, in: 49 Sup. Ct. L. Rev., 2010, p.521; Chase: American “Exceptionalism” and Comparative Pro-

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First of all, if anything is really exceptional it may be difficult or even impossible to export it elsewhere: the American procedural system is becoming more and more exceptional or even unique (mainly after the English reforms of the last years), but this is going to be an obstacle to a possible globalization of such a system by means of its application in quite different social, political and ethical contexts. So to say: the more exceptional, the less global. On the other hand, it may be difficult to accept, outside of the US, that the American procedural exceptionalism be converted into a sort of American procedural imperialism (as has already happened in some Latin American countries, where the American system of criminal procedure was adopted under the threat of not obtaining funds from the World Bank or from the International Monetary Fund). Moreover, being clear that the American system of civil litigation is largely inefficient and continues to be accepted only in the very peculiar social and ethical context of the US,15 it is difficult to understand by which reasons all the other countries of the world should adopt such a system. So to say, people may well accept the Coca-Colaization of soft drinks and kids may appreciate the McDonaldsization of fast food, but the administration of justice at a global level is something different. Nevertheless, while it seems very difficult to imagine or to accept the idea of a complete unification of procedural regulations, several partial unifications are possible and useful in the domain of international judicial assistance. As the European example clearly shows, uniform rules concerning for instance the choice of jurisdiction, the recognition and enforcement of foreign judgments and awards, the circulation of evidence and monetary injunctions, are important for the efficiency of transnational litigation. A broad unification of rules like these could provide partial but valuable solutions to several problems provoked by globalization. 2. Regional Models One of the reactions that may be provoked by globalization in the domain of civil justice is the trend to figure out regional models of civil proceedings and to use them either directly as a basis for reforms concerning domestic procedural codes, or as “model laws” representing a common frame of reference for procedural reforms in a specific area of the world. A well-known and important example of this trend is the Codigo Modelo for Latin America16 that was directly enacted in Uruguay but still is referred to as a model when the system of civil justice is reformed in other countries of the continent.

cedure, in: 50 Am. J. Comp. L., 2002, p. 277; Id., Law, Culture, and Ritual. Disputing Systems in Cross-Cultural Context, New York U. Press, New York-London, 2005, p. 47. 15 See Kagan: Adversarial Legalism. The American Way of Law, Harvard U. Press, Cambridge, Mass.-London, 2001, p. 99, 229. 16 See El codigo procesal civil modelo para Iberoamerica, Montevideo, 1988.

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The experience of drafting regional models for civil litigation is extremely interesting from many points of view but can hardly be considered as a viable solution for the globalization of civil justice. On the one hand, in point of fact the Latin American experience has not been completely successful, at least so far, but above all it is still unique. As abovesaid, the attempt to unify at least some parts of civil proceedings failed in Europe, but it is also very difficult to imagine a common European model of procedure, if one considers that historically, and at present as well, in Europe there are at least four important procedural models: the German–Austrian one, with all its variations in Scandinavian and East European countries; the French one, with its variations in Italy and in Belgium; the Spanish one and – last but not least – the English one. In such a fragmented and diversified situation a common “model code” of civil procedure is clearly beyond reach. On the other hand, in many important “regions” of the world there are simply no model codes for civil litigation, and it is hardly predictable whether or not they will be drafted in the future. Could we realistically imagine an Islamic model code of civil procedure, an African model code or even an Asian model code made applicable in China, Japan, Korea and Singapore? Maybe, but all this needs to be verified in the future. At any rate, even imagining that the worldwide map of procedural systems were “covered” by a horizontal set of regional procedural codes, such codes would probably be very different from each other. Then the variety of local procedural systems would be reduced to some extent, but there would be no real globalization of procedural justice. In this direction a more positive perspective could emerge if the various regional models were converging on a common set of principles or rules. This could be an intermediate step in the direction of a global harmonization of procedural systems. 3. Harmonization If a complete unification of procedural regulations is impossible and undesirable, and that of regional models seems to be in itself – at least so far – an uncertain perspective, a possible solution to the problem of globalization could consist in the harmonization of procedural systems. Actually one may reasonably believe that the differences existing among the various national systems of civil procedure, and even within some national systems, are too many and too deep, and that significant advantages could derive from a substantial reduction of these differences. If the European and the extra-European landscapes of procedures were to some extent simplified and clarified – one might say – judicial resolution of transnational disputes would become easier, less complicated, less expensive and more efficient. Such remarks are very obvious and may be shared by anyone involved in the administration of civil justice. However, after having said that a fair degree of harmonization among the national systems of civil procedure would be desirable, the problem arises of determining “which” harmonization, and “of what”, could and should possibly be implemented.

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Harmonization is clearly a matter of degrees. Moreover, since we are thinking of extremely complex sets of rules, and the idea of unification is rejected, the other side of the coin is to decide which rules, or which procedural devices, should be harmonized. Finally, a further problem would concern the technique that should be used to implement such a harmonization. Thinking of a possible harmonization of the current procedural systems in terms of degrees, the two extremes of the scale could be set aside. The top extreme includes a narrow set of extremely general principles, such as: independence of the judiciary, fair trial, right to be heard, reasonable delay, effective protection of rights. Such principles are very important, but they have become so obvious and so “commonsense” that they should be assumed as valid in each modern system of civil litigation. They may not be effectively implemented – and actually they are not – in every procedural system all around the world, but they are recognized without difficulty in any system of procedure. They are also expressly stated by several national constitutions and in article 6 of the European Convention on Human Rights as well as in other international conventions. It does not mean that these principles are stated and interpreted in the same ways in every country, and some uncertainties may arise about which principles should be included and which may not be included in this short list. However, roughly speaking it may be said that there is a general agreement about a group of principles concerning the fundamental guarantees of the administration of justice in civil matters.17 At this level of generality, therefore, there is no problem for a future harmonization: to a large extent, actually, such principles are already harmonized. Therefore it may be said that a “substantial” convergence, if not a complete harmonization, already exists at the level of the fundamental guarantees of civil litigation. At the bottom level of procedural regulations there is a broad and chaotic array of very specific and detailed rules concerning a number of procedural devices and regulating the peculiar features of the judicial practice in each national system. It is well known that all the procedural codes include several hundreds of rules, many of which have some subsections. Moreover, a huge number of technical adjective norms is necessary for the functioning of the procedural machinery. Perhaps the harmonization of some of these rules (for instance: how to direct the notice of a complaint) may be useful, but when we think of harmonizing procedural systems we cannot realistically believe that it should concern all the hundreds of rules regulating the proceedings in all the jurisdictions involved. In other terms: at this level the problem of harmonization cannot be stated at a general level, although harmonizing “some” technical mechanisms could be useful. Between the top level and the bottom level of procedural regulations there is a broad intermediate area in which several degrees can be distinguished by taking into consideration differences and similarities concerning the subject matter, the im17 Significant steps in this direction were already made in the Würzburg congress of the Association. See Effektiver Rechtsschutz und verfassungsmäßige Ordnung – Effectiveness of Judicial Protection and Constitutional Order, Würzburg 1983.

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portance, the form and the structure of procedural provisions. Somewhere in this area there is a level at which a possible and fruitful harmonization might be achieved: actually one might think of a set of principles and rules conceived with the aim of representing a reference point for different and perhaps more specific particular regulations. It is the level where the so-called Model Laws, as for instance those drafted by UNCITRAL, can be placed. It is also the level to which sets of procedural rules actually in force, such as the American Federal Rules of Civil Procedure or the Federal Rules of Evidence, may belong. These sets of rules are specific enough not to be confused with abstract principles, but general enough not to include excessively detailed regulations of procedural devices. This is just the level at which a substantial harmonization of procedural regulations may be imagined. If a personal reference is allowed, I would say that an interesting example of procedural harmonization at the intermediate level just defined is the set of principles and rules that were drafted and recently published by the American Law Institute and by UNIDROIT.18 This text includes 31 Principles and 36 Rules, each Principle and each Rule being composed of several subsections. The Principles are stated in rather general terms and cover a long and detailed list of procedural problems such as jurisdiction, procedural equality of the parties, due notice, provisional and protective measures, structure of the proceeding, obligations of parties and lawyers, direction of the proceeding, evidence, presentation of evidence, roles of the parties and of the court, decision, settlement, enforcement, appeals and recognition of judgments. The Rules are somewhat more specific and detailed, although they are also stated in rather general terms, and provide an example of how the Principles could be implemented. The Rules deal with various topics including jurisdiction, joinder and venue, composition of the court, contents of the pleadings, role and powers of the court, law of evidence and disclosure and presentation of evidence, final hearing and decision-making, appeals and enforcement of judgments. If taken together,19 the Principles and Rules represent a consistent set of provisions that are much less general than abstract principles and much less detailed than a procedural code: however, they cover a broad number of procedural topics and for each of these topics they provide a model of regulation. It has to be underlined that the Principles and the Rules were not initially conceived and were not proposed as a model for the procedural regulation of domestic disputes. Actually, their declared purpose was at the same time narrow and immodest: the inspiring idea was of drafting a set of procedural rules that could be applied by 18

See ALI/UNIDROIT, Principles of Transnational Civil Procedure, supra, fn. 2. The project initially sponsored by the American Law Institute was aimed at drafting a group of Rules, with Geoffrey C. Hazard and Michele Taruffo serving as co-reporters. When UNIDROIT joined the project it was shifted to a drafting of Principles, which finally were approved by both the sponsoring institutions. The Rules are then – so to say – a work product that may be referred only to the American Law Institute. However, the two texts are the outcomes of the same project and may be read as a homogeneous system of provisions. 19

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any national courts in any country of the world while trying and deciding transnational commercial disputes.20 As a rule, as is well known, domestic procedures are applied by national courts also when they deal with such disputes, and this is exactly the point that triggered the beginning of the ALI/UNIDROIT project: the variety of domestic procedures applied by national courts to transnational commercial disputes is provoking an incredible amount of problems due to the practical impossibility of controlling proceedings occurring everywhere, and under different procedural systems, in the world of the globalized economy. Ideally, then, the Principles and Rules could be applied by any national court all around the world when a transnational commercial dispute has to be decided. To the extent that it may happen, the proceedings and the decisions concerning transnational commercial disputes could follow the same procedural pattern, on the basis of the application of the same standards. Of course the Principle and Rules should be connected and combined with the existing domestic procedures, since such procedures should remain applicable to all the subject matters not directly regulated by the Principles and Rules. However, they could create an interesting degree of uniformity in the proceedings concerning transnational disputes, since they could be able to overcome, at least to some extent, the diversity of national procedures. In such a sense, the adoption of the Principles and Rules (by means of international conventions or by adoption by national lawgivers) could be a powerful factor of harmonization in the treatment of transnational disputes by different national jurisdictions, and therefore could be an efficient method to globalize procedural justice. Although the ALI/UNIDROIT Principles and Rules were drafted with specific and explicit reference to transnational commercial disputes, it seems clear that they might be read and used also beyond the original intent of their drafters. Actually, just by setting aside a few provisions concerning specifically commercial disputes, most of the Principles and Rules may be read as a sort of Model Law, i. e. as a set of rules that could also be used as a frame of reference for procedural provisions concerning any kind of civil dispute. Provisions concerning pleadings, provisional measures, settlements, presentation of evidence, role of the court in managing the proceeding, form and contents of judgments, appeals, enforcement, and so forth, could be easily taken as “models” for regulations concerning several relevant aspects of civil litigation. Of course each national lawgiver could conceive more specific and detailed regulations of these topics, but different regulations could be “harmonized” just by the fact of being partially different variations based upon the same Leitmotiv. This sort of harmonization could be a fair and efficient way to globalize procedural justice without meeting with the inconveniences that seem to be inherent in the other methods of globalization.

20 See Hazard: A Drafter’s Reflections on the Principles of Transnational Civil Procedure, in: ALI/UNIDROIT Principles, supra n. 3., at p. xlvii.

Reanchoring Evidence Law to Formal Rules: A Step toward Protecting the Innocent from Conviction for Capital Crimes? Stephen C. Thaman*

I. The Problem: How can Evidence Law be Anchored so as to Prevent Horrific Miscarriages of Justice? “[R]eason has almost never been the legislator of nations; that the most atrocious or most obscure and chimerical crimes, those as to which the improbability is greater, are proved with conjectures and evidence weaker and more equivocal; as if the laws and the judge were interested not in determining the truth, but in proving the crime.”1

It seems that since time immemorial, the accuracy of criminal proceedings plummets, the more serious the crime and threatened punishment. The “landscape of the law darkened,” Mirjan Damasˇka noted, in writing about late 13th century inquisitorial systems when the “enormity of crime” permitted intentional violations of the procedural order.2 Since 1989 in the United States (U.S.), 330 innocent persons have been exonerated by the use of DNA testing after having been convicted, nearly always by juries, in trials which were otherwise “fair” in the sense that the judgments were not overturned on any legal grounds by the higher courts, including that of insufficiency of evidence. These innocent persons served an average of fourteen years in prison.3 Since 1976, at least 155 persons sentenced to death for aggravated murder have been exonerated

* Professor of Law, Saint Louis University School of Law. AB, MA, J.D. Univ. of California, Berkeley; Dr. iur. University of Freiburg, Germany. 1 Beccaria, Cesare: Dei Delitti e Delle Pene, Feltrinelli, Milan 91, 4th ed, 1995, p. 91. 2 Propter enormitatem delicti licitum est iura transgredi. Damasˇka, Mirjan: The Quest for Due Process in the Age of Inquisition, 60 American Journal of Comparative Law, 2012, pp. 919, 941. 3 See http://www.innocenceproject.org/Content/Facts_on_PostConviction_DNA_Exonera tions.php (last visited on Aug. 3, 2015). In a study published in 2005, which examined 340 exonerations between 1989 and 2003, only 20 (less than 6 %) were the result of guilty pleas. Gross, Samuel R.: Exonerations in the United States 1989 Through 2003, 95 Journal of Criminal Law & Criminology, 2005, pp. 523, 523 – 24, 536.

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through DNA testing and other means.4 72 % of the first 325 wrongful convictions discovered by DNA analysis were due to erroneous eyewitness testimony. In 27 % of the cases innocent people made damning admissions, full confessions, or pleaded guilty. 15 % of the wrongful convictions involved testimony of an informant and 47 % involved dubious or dishonest forensics. Bad lawyering and negligent or outright dishonest practices of police and prosecutors also often played a role.5 The U.S. statistics show, echoing Beccaria, that convictions of the innocent based on questionable evidence are more likely to happen in the prosecution of grave felonies, the historically capital crimes of rape and murder.6 Even where innocence has not been proved, capital-murder cases are subject to high rates of reversible error in general.7 Although the U.S., which is the global leader in incarcerating its own people, may also be the global leader in convicting the innocent, wrongful convictions have been discovered in nearly all countries. In the Netherlands, currently, 26 cases are being investigated after several wrongful murder convictions were uncovered.8 The German literature is also replete with exposés and treatises dealing with the wrongfully convicted.9 Japan has freed three innocent men who had been sentenced to death or life imprisonment for murders, because police coerced them into confessing.10 At

4

See http://www.deathpenaltyinfo.org/documents/FactSheet.pdf (last visited on Aug. 3, 2015). 5 See http://www.innocenceproject.org/causes-wrongful-conviction (last visited Aug. 3, 2015). See also State of Illinois, Commission on Capital Punishment. Report (April 2002), available at http://www.idoc.state.il.us/ccp/ccp/reports/commission_report/index.html (last visited on Sept. 16, 2015). 6 96 % of the known exonerations in the U.S. have been for murder (60 %) and rape or sexual assault (36 %). Gross (2005, 528 – 29). 7 A study of 4,758 capital cases tried between 1973 and 1995 found that 68 % were reversed on appeal for various reasons. Liebman, James S./Fagan, Jeffrey/West, Valerie: A Broken System: Error Rates in Capital Cases 1973 – 1995 (2000), p. i, available at http:// www2.law.columbia.edu/instructionalservices/liebman/liebman_final.pdf. 8 See http://www.knoops.info/en/knoops-innocence-project_en/cases (last visited Sept. 16, 2015). 9 See, inter alia, Darnstädt, Thomas: Der Richter und sein Opfer. Wenn die Justiz sich irrt, Piper, Munich 2013; Velten, Petra: Fehlentscheidungen im Strafverfahren, in Goltdammers Archiv für Strafrecht, 2015, pp. 387 – 409; Neuhaus, Ralf: Fehlerquellen im Ermittlungsverfahren aus Sicht der Verteidigung, Der Strafverteidiger, No. 3, 2015, pp. 185 – 94. 10 New Evidence Wins Retrial for Inmate on Death Row 33 Years, Japan Times, April 6, 2005, http://www.japantimes.co.jp/cgi-bin/getarticle.pl5?nn20050406a2.htm; Tabuchi, Hiroko: Japan Clears Man Imprisoned for 17 Years, N.Y. Times, March 27, 2010, p. A8; http://www. nytimes.com/2010/03/27/world/asia/27japan.html?ref=world; Tabuchi, Hiroko: Soul-Searching as Japan Ends a Man’s Decades on Death Row, NY Times, March 28, 2014, p. A1; http:// www.nytimes.com/2014/03/28/world/asia/freed-after-decades-on-death-row-man-indicts-ju stice-in-japan.html?ref=world&_r=0.

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least 100 wrongful convictions have also been revealed in China since 1980, nearly all based on coerced confessions to grave crimes.11 Of course, the numbers of people actually determined to have been factually innocent depends on whether DNA was still available to test (the exonerations through DNA testing have thus been almost exclusively limited to rape and rape-murder cases),12 or whether active innocence projects were present to undertake investigations of alleged innocence.13 What is clear, however, is that extreme pressure is put on police and prosecutors by the community, politicians and the newsmedia to find culprits in rape and murder cases and this leads to the arresting of the “usual suspects” and then often to the manufacturing of evidence by the police to confirm their suspicions.14 How many wrongful convictions are there? An old study of the sources of errors in Germany by Karl Peters in 1970 estimated that there were around 150 – 350 erroneous convictions each year.15 Gross estimates that, if one includes convictions based on frame-ups by the police, guilty pleas by innocent defendants to lesser felonies or misdemeanors just to get out of jail, or based on mistaken identification in cases where no DNA is available, such as with most robberies, that the number of wrongful convictions could reach into the tens of thousands in the last 15 years.16 Review courts are sometimes able to stop the locomotive of injustice in these cases. Some countries, such as Germany, have an extraordinary procedure to reopen cases when convicted persons present new evidence of innocence17 and several of the victims of miscarriages of justice in Germany have eventually been acquitted as a result of this procedure.18 I have written about the case of Dolores Vásquez, also known as the Wanninkhof case, in Málaga, Spain, in which the conviction of an innocent woman for murdering 15-year-old Rocío Wanninkhof was overturned because the jury, which in Spain must give succinct reasons for its verdicts, could 11 Jiahong He/Ran He; Empirical Studies of Wrongful Convictions in Mainland China, 80 U. Cin. L. Rev., 2012, pp. 1277, 1286 – 87. 12 Garrett, Brandon L.: Judging Innocence, 108 Columbia Law Review. 2008, pp. 55, 60. 13 Innocence projects are just getting off the ground in many countries. See http://in nocencenetwork.org/ (last visited Aug. 15, 2015). 14 Gould, Jon B./Carrano, Julia/Leo, Richard A./Hail-Jares, Katie: Predicting Erroneous Convictions, 99 Iowa Law Review, 2014., pp. 471, 506. 15 Peters, Karl: Fehlerquellen im Strafprozess, C.F. Müller, Karlsruhe 1970, p. 9. 16 Gross (2005), p. 551. 17 These are rare. For instance, in 2010, while 800,000 were convicted in the courts, only 1,176 Wiederaufnahmeverfahren were allowed, not all ending in acquittals. Darnstädt (2013), p.14. 18 The court sometimes makes a finding of actual innocence, as in the case of Horst Arnold (see below for details of case) (Darnstädt (2013), p. 84), but in other cases, despite the ludicrous nature of the evidence, the court refuses to actually exonerate the wrongfully convicted person, thus leaving a lingering suspicion over their heads (Harry Wörz case) Darnstädt (2013), pp.47 – 48.

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not explain why the evidence led to a determination of guilt.19 But in general, the rules and practices of courts of appeal and cassation in Europe and elsewhere do not provide an effective barrier to wrongful convictions. The overwhelming majority of the cases of innocents convicted in America passed through the courts of appeal with the issue of the insufficiency of the evidence scarcely meriting a discussion.20 In the first part of this essay I will briefly sketch the drift of evidence law from objective formal rules, to the purely subjective, in the words of Mirjan Damasˇka, “romantic” French standard of intime conviction, derived from the English jury’s “verdict according to conscience,” and finally to the “less expansive” German approach of “free evaluation of the evidence” coupled with reasons, now the dominant approach in civil law systems, which no longer permits the ignoring of “extra-legal canons of valid inference.”21 I will also discuss why the requirement of reasons, while erecting an additional theoretical barrier to convicting the innocent, still does not protect the innocent when they are charged with horrendous crimes against the person which spawn fear among the civilian population and excessive zeal among police and prosecutors.22 In conclusion, I will suggest a new version of minimal formal rules of evidence, which, coupled with strengthened exclusionary rules, should apply at least in relation to grave felonies such as rape, robbery and murder, before long prison sentences or death may be imposed as punishment. Whether this would mean a two-tier criminal justice system, with fortified rules for grave crimes and the traditional rules when lesser punishments are threatened, will be expanded upon, as well, in the conclusion.23 Mirjan Damasˇka described an “evidence law adrift” nearly 20 years ago, which I think needs to be anchored to avoid miscarriages of justice. 19

After the reversal of her conviction, the real culprit murdered another girl and was linked by DNA to the Wanninkhof victim. The pathetically weak nature of the circumstantial evidence in the case was overcome, likely, by a witch hunt atmosphere created by the press against the lesbian defendant. See Thaman, Stephen C.: Should Juries Give Reasons for Their Verdicts: The Spanish Experience and the Implications of the European Court of Human Rights Decision in Taxquet v. Belgium, 86 Chicago-Kent Law Journal, 2011, pp. 613, 639 – 43. 20 A study of 200 DNA exonerations published in 2008, found that one-third of the cases were not even given the blessing of a published opinion. Although 14 % of the cases were reversed on appeal, it was not due to insufficiency of evidence. Many opinions underlined the “overwhelming” nature of the inculpatory evidence. Garrett (2008), pp. 59 – 61. 21 Damasˇka, Mirjan: Evidence Law Adrift, Yale University Press, New Haven 1997, p. 21. See Thaman (2011), pp. 613 – 18, for an earlier description of this history. 22 I explore in greater detail in a forthcoming essay why I think judges, both at the trial and appellate-cassational levels are unable to accurately protect the innocent in continental European courts despite the requirement of reasoned judgments. Thaman, Stephen C.: Ensuring the Factual Reliability of Criminal Judgments: Reasoned Judgments or a Return to Formal Rules of Evidence?, in: Ross, Jacqueline E./ Thaman, Stephen C. (Eds.), Handbook of Comparative Criminal Procedure, MA/Cheltenham, Elgar, Northhamton (forthcoming 2016). 23 I held out this possibility in Thaman (forthcoming, 2016).

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II. The Drift of Evidence Law between Objective and Subjective Criteria The kind of evidence which leads to most wrongful convictions would have been insufficient to convict someone in many traditional legal systems. It is worth quoting the great Jewish religious scholar, Maimonides (b. 1135?, d. 1204) in this respect, who wrote about the dangers of convicting on the basis of circumstantial evidence: “We are forbidden to punish one on the basis of strong or even virtually conclusive circumstantial evidence. Thus if A pursues B with intent to kill and B takes refuge in a house into which the pursuer follows, and we enter after them and find B in his last gasp and his pursuing enemy, A, standing over him with a knife in his hand, and both of them are covered with blood, the Sanhedrin may not find A liable to capital punishment, since there are no eyewitnesses to the actual murder.” (…) “The Almighty has therefore foreclosed this possibility, ordaining that no punishment may be imposed unless there are witnesses who testify that they have clear and indubitable knowledge of the occurrence and it is impossible to explain the occurrence in any other way. If we do not impose punishment even on the basis of a very strong probability, the worst that can happen is that a transgressor will go free; but if we punish on the strength of probabilities and suppositions, it may be that one day we shall put an innocent person to death, and it is better and more desirable that a thousand guilty persons go free than that a single innocent person be put to death.”24

In the era in which Maimonides wrote, two radically different systems of proof were developing in Europe: (1) in the British Isles, a public oral trial in front of a jury which decided, guided by no rules of evidence, according to its conscience; and (2) on the continent, a written, judge-driven inquest governed by strict formal rules of evidence, which in most cases made conviction impossible without a confession, which could be induced by torture if certain conditions were met. A good indication of how the continental European inquisitorial system’s formal rules of evidence worked, can be gleaned from one of the most famous pre-modern Codes, the German Constitituo Criminalis Carolina of 1532. In general, at least two or three “believable, good” eyewitnesses to the crime constituted “full proof” and were required to convict and sentence to death.25 If such evidence was not available, the testimony of one “believable, good” eyewitness, or of two “good” witnesses to certain types of listed circumstantial evidence, constituted a kind of probable cause (gnugsame anzeygung), to administer torture if the suspect would not volun-

24

Quoted in Menachem, Elon/Auerbach, Bernard/Chazin, Daniel D./Sykes, Melvin J.: Jewish Law (Mishpat Ivri): Cases and Materials. Matthew Bender: New York, San Francisco 1999, p. 201. 25 § 64 Constitutio Criminalis Carolina, For original 16th century German text, see https:// login.gmg.biz/earchivmanagement/projektdaten/earchiv/Media/153_peinliche_halsgerichts ordnung.pdf.

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tarily confess.26 Categories of circumstantial evidence were laid out in the code, such as, that the suspect: has committed similar crimes in the past; was caught near the scene of the crime, or in possession of evidence related to the crime; lived with persons who committed similar crimes; had a motive to commit the particular crime; was accused by the victim in a dying declaration; or fled from the scene of the crime.27 Since “full proof” was extremely difficult to come by, confessions resulting from judicial torture became the “queen of evidence” and the lynchpin of the most criminal convictions.28 If a tortured person refused to confess and “full proof” was otherwise not present, he could not be convicted and sentenced to death. But the judge could still impose, after the unsuccessful torture a “suspicion punishment” (Verdachtsstrafe), a so-called “special punishment” (poena extraordinaria) which sometimes amounted to spending the rest of one’s life in a dungeon.29 Enlightenment criticism led to the abolition of torture and continental Europe gradually abolished the formal rules of evidence after the French revolution in favor of a purely subjective standard of “inner conviction” (intime conviction), which came with the introduction of juries and public, oral trials. Continental European jury courts differed from those in England and the U.S. in two crucial ways. First, they used a special verdict or “question list” which required jurors to specifically answer questions relating to proof of the elements of the charged crimes, or to the existence of excuses or justifications, and perhaps to the existence of aggravating or mitigating circumstances.30 In addition, they were not the default jurisdiction for criminal cases, but were mainly reserved for the trial of only the most serious felonies such as murder, and perhaps robbery or rape. Otherwise, professional judges continued to decide cases, alone or in panels, or, in Germany, in misdemeanor cases, in a panel with lay assessors, called a Schöffengericht. The question which remained was whether professional judges should be still limited by formal rules of evidence, or could they now decide according to their inner conviction, like the jury. In Germany, there was a reluctance to allow professional judges to decide freely, based on intime conviction without being bound by strictures of some kind. A com26

§ 23 Constitutio Criminalis Carolina, cited in Thaman, Stephen C.: Comparative Criminal Procedure: A Casebook Approach, Carolina Academic Press: 2d ed, Durham N.C., 2008a, p. 10. 27 Thaman (2008a), pp. 10 – 11. 28 On the interrelation of the formal rules of evidence and the reginam probationam of the confession in 17th Century Germany, Deppenkemper, Gunter: Beweiswürdigung als Mittel prozessualer Wahrheitserkenntnis: Eine dogmengeschichtliche Studie zu Freiheit, Grenzen und revisionsgerichtlicher Kontrolle tatrichterlicher Überzeugungsbildung, V & R Unipress, Göttingen 2004, pp. 171 – 81. 29 Langbein, John H.: Torture and the Law of Proof: Europe and England in the Ancien Regime, Univ. of Chicago Press, Chicago 1977, pp. 47 – 52. 30 Thaman (2011), p. 615.

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promise was suggested by the great German jurist Savigny in 1846 when he was the Prussian Minister of Justice. He suggested that judges would nonetheless be bound in their evaluation of the facts to the “laws of thought (Denkgesetze), experience and human knowledge.” In the same year, a Berlin ordinance instituted the requirement that the judge give reasons for his decisions.31 Although § 261 CCP-Germany, still exhorts the trial judge to rule based on his “free conviction derived from the content of the trial,” one spoke in the literature and jurisprudence not of “inner conviction” but of “free evaluation of the evidence” (freie Beweiswürdigung). The German’s rejected the French approach as irrational in favor of what has been called “reasoned conviction” (conviction raisonée).32 The German standard of “free evaluation of evidence” plus reasons has clearly become the gold standard for determinations of guilt in non-jury courts, whether staffed by professional judges alone, or sitting with lay assessors in a mixed court, and is even making inroads into the jury courts.33

III. The Inadequacy of Judgment-reasons in Preventing the Conviction of the Innocent 1. The Subjective Character of Judgment Reasons Although most civil law systems require reasoned judgments, their aim is still to justify what is a very subjective assessment of the facts by the court based on “inner conviction”,34 “conscience”,35 or “free evaluation of the evidence.” Even when the codes, or the case law require the reasons to be based in the “axioms of science,” “logic”,36 or “laws of thought”, seldom if ever do the codes or high court decision rules apply these terms to the character of the evidence introduced — pretty much any evidence, other than coerced confessions may be taken into consideration by the judge in its assessment of the facts and deciding guilt.37 In most systems, however, 31 Geipel, Andreas: Handuch der Beweiswürdigung, ZAP-Verlag, Münster 2008, p. 11. On the influence of Savigny in this reform, Deppenkemper (2004), pp. 209 – 10. 32 Deppenkemper (2004), p. 208. 33 See, in general, Thaman (2011). 34 Cf. § 427 CCP-France. § 17 CCP-Russia. 35 § 741 CCP-Spain. 36 The Spanish Constitutional Court requires reasons be based on “logic and experience.” STC, July 4, 2001. 37 In Spain, evidence gathered in violation of the constitution may not be used to rebut the presumption of innocence, nor be taken into consideration in judgment-reasons. Dec. No. 49, Spanish Constitutional Court of 1996, STC 49/1966, 180 BJC 133, 137 – 38. Most other European countries will allow evidence to be used which was gathered in violation of important constitutional rights, especially in serious cases where such evidence is required for a finding of guilt. Thaman, Stephen C.: Balancing Truth Against Human Rights: A Theory of Modern Exclusionary Rules, in: Thaman, Stephen C. (Ed.), Exclusionary Rules in Comparative Law, Springer, Dordrecht, Heidelberg, New York, London 2013, pp. 437 – 40.

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the court in its reasons must discuss all of the important evidence and explain why it was accepted or rejected.38 2. The Presumption of Innocence The intime or free conviction of the judge not only is limited by axioms of science and experience or “rules of thought” but it is now universally accepted that the trial court must presume that the defendant is innocent until and unless the evidence adduced at trial convinces it beyond a reasonable doubt as to the truth of the charge or charges. But do professional judges actually presume the defendant’s innocence at the threshold of evidence-taking? This would require the judge to “assume an attitude of incipient doubt”,39 and, in essence, not presume that any piece of prosecution evidence or testimony is true.40 Iacoviello distinguishes between external doubt, when a counter-hypothesis is provided by the defense which gives rise to doubt, and internal doubt, when the weight of the evidence, is insufficient to support a guilt-finding. He gives an example: “if the accused was the last person with the victim and had a motive to kill, that is not enough. Even if one cannot imagine alternative hypotheses, this is not enough to convict. The thesis is logical, but improbable in the etymological sense. A judgment which organizes in a logical manner little probative evidence will not be illogical, but foments reasonable doubt”.41 This “falsificationist” stance42 is only possible in an adversary system with a judge who has not pre-analyzed the evidence and accepted it, and where an active defense can present “falsifying” theses.43 In many countries, reports prepared by state investigative officials, including the police, are admissible hearsay and are presumed to truly reflect the acts and obser-

38 § 261 CCP-Germany requires a “comprehensive evaluation of the evidence.” § 546(e) CCP-Italy requires the judgment to indicate “the evidence which forms the basis of the decision itself and an enunciation of the reasons why the judge held the contrary evidence to be not reliable.” § 307(1 – 2) CCP-Russia also requires reasons why evidence contrary to the judgment was not accepted. 39 Perfecto, Andrés Ibáñez: Los “Hechos” en la Sentencia Penal, Fontamara, Mexico City 2005, p. 173. 40 Iacoviello, Francesco Mauro: Lo standard probatorio dell’al di là di ogni ragionevole dubbio e il suo controllo in cassazione, Cassazione penale, 2006, pp. 3869, 3876. 41 Iacoviello (2006), p. 3877. 42 The term comes from the philosophical writings of Karl Popper. Fallone, Antonino: Il processo aperto: il principio di falsificazione oltre ogni ragionevole dubbio nel processo penale, Giuffrè Editore, Milan 2012, pp. 79 – 84. 43 That is, where “dialectical” theories of rationality are applied which stress the “importance of assertion and refutation. Damasˇka (1997), p.200. This has also been called a “slowthinking,” elaborate testing of the evidence, rather than an approach which merely checks whether the evidence confirms the prosecutorial hypothesis. Velten (2015), pp. 398 – 99.

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vations of the preparers.44 Even when investigative officials and experts testify in court, they are also presumed, at least de facto by the court, to be telling the truth. The astonishing number of convictions of the innocent in the U.S. based in part on dishonest police, prosecutors, and even expert witnesses have shown that these old presumptions of official integrity are misplaced. In fact, in high-profile grave felony cases, which are subject to the highest occurrence of wrongful convictions, all “police-produced” evidence should be presumed to be false, if not distorted, until its validity is corroborated by independent evidence. 3. The Problem of the Trial Judge with a Prosecutorial Bias If there is a presumption of innocence, and a high burden of proof, why are acquittals such rarities in most countries? They are virtually non-existent in Japan and China.45 Although juries traditionally acquitted at a higher rate than did mixed or purely professional courts, jury acquittals make up an infinitesimal percent of the criminal cases charged and litigated today in the U.S.46 The acquittal rates in Russia and other post-Soviet republics are also under 1 %, even if, in Russia, one includes a near 15 % acquittal rate in jury trials.47 The number of acquittals has also fallen in Germany, from around 8 % in 1958, to around 3 % in 2012.48 Have the presumption of innocence and the rule of in dubio pro reo become, in Damasˇka’s words, “toothless maxims”?49 When a file in a grave rape or murder case is turned over to the prosecutor, he or she is usually ill-equipped to second-guess the police’s conviction that the suspect is guilty. As Claus Roxin famously wrote, the prosecutor is a “head without hands”.50 44

For Russia and other ex-Soviet republics, see Thaman, Stephen C.: The Two Faces of Justice in the Post-Soviet Legal Sphere: Adversarial Procedure, Jury Trial, Plea-Bargaining and the Inquisitorial Legacy, in: Jackson, John/Langer, Máximo/Tillers, Peter (Eds.), Crime, Procedure and Evidence in a Comparative and International Context. Essays in Honour of Professor Mirjan Damasˇka, Hart Publishing, Oxford 2008b, pp. 105 – 06. 99 – 118. 45 Johnson, David T.: The Japanese Way of Justice: Prosecuting Crime in Japan, Oxford University Press, Oxford, New York 2002, p. 215; Chinn, Jeff: International Wrongful Convictions: China Suspects Presumed Guilty Before Trial, California Innocence Project, May 20, 2013, http://californiainnocenceproject.org/blog/2013/05/20/intl-wrongful-convictions-china-su spectspresumed-guilty-before-trial/. 46 In 2009, there were acquittals in only .5 % of all cases, if one includes guilty pleas, and dismissals. 2.8 % of those charged were acquitted after a full trial. Federal Justice Statistics, 2009, table 7, S. 9, http://www.bjs.gov/content/pub/pdf/fjs09.pdf. 47 Thaman (2008b), p. 108. 48 Geipel (2008), p. 151. Kinzig,Jörg/Vester, Thaya: Der Freispruch – ein statistischer Überblick zu einem zwar seltenen, aber (nicht nur für den Beschuldigten) bedeutsamen Verfahrensausgang, Der Strafverteidiger, Vol. 4 StV. 4, 2015, p. 261. 49 Damasˇka (2012), p. 927. 50 Roxin, Claus: Rechtsstellung und Zukunftsaufgaben der Staatsanwaltschaft, Deutsche Richterzeitung, 1969, pp. 385, 388.

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Prosecutors tend to accept evidence created and packaged by the police uncritically, even when it is patently weak, as they do not have the expertise the police do in criminalistics and investigation to second-guess it. Such “pan-ready” cases are then routinely charged and passed on to the courts.51 Today, in some post-inquisitorial countries, notably in Germany, the trial judge functions as the “filtering” instance for felony charges. He or she receives the investigative file of the investigating magistrate or prosecutor, reads it, and thoroughly reviews the evidence to see if the defendant is “sufficiently guilty” to set the case for trial.52 German judges set around 95 % of all cases, in which the prosecutor files charges, for trial.53 I agree with Mirjan Damasˇka that systems in which the trial judge, who is simultaneously trier of the facts, has already pre-judged the case to the detriment of the defendant before the trial begins, take the presumption of innocence “somewhat less seriously”.54 Damasˇka would say that the German system is “undercut” by a tendency to form “early reality hypotheses”.55 Professor Bernd Schünemann conducted a study which clearly confirmed the perceptions of practitioners that German trial judges act in a community of interests with the public prosecutor, or literally, in a “shoulder embrace” (Schulterschluss), and will nearly always consciously or unconsciously view the evidence at trial in conformity with the prosecutor’s initial assessment in the file. Evidence contradicting the prosecutor’s version of events in the file was consciously or unconsciously rejected and that confirming it was noted and emphasized in the judgment-reasons.56 The “cognitive dissonance” recognized in Schünemann’s study is similar to the “tunnel vision” which has contributed to wrongful convictions in the U.S., that is: “the social, organizational, and psychological tendencies that lead actors in the criminal justice system to focus on a suspect, select and filter the evidence that will build a case for conviction, while ignoring or suppressing evidence that points away from guilt”.57 For all practical purposes, the German judge presumes guilt if she sets the case for trial, but then has the inquisitorial duty to ascertain the truth in a neutral manner, which not only gives us a biased “truth-finder,” but one with an “overburdening of roles” which is psychologically difficult to manage.58 Indeed, it has been questioned whether there can be a presumption of innocence where there is clear inequality of the 51

Neuhaus (2015), p. 186. § 203 CCP-Germany. 53 Velten (2015), p. 408. 54 Damasˇka, Mirjan: Models of Criminal Procedure, 51 Zbornik (collected papers of Zagreb Law School), 2001, p. 491. 55 Damasˇka (1997), p. 102. 56 Schünemann, Bernd: Der Richter im Strafverfahren als manipulierter Dritter? Zur empirischen Bestätigung von Perseveranz- und Schulterschlußeffekt, Der Strafverteidiger, Vol. 3, 2000, p. 160. 57 Gould et al. (2013), pp. 503 – 04. 58 Schünemann (2000), p.159. 52

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parties and the prosecutor and judge share the same investigative roles to ascertain the truth.59 It is true that not all European judges are structurally “overburdened” like the German judge. Reforms in Italy and other countries, while not removing the duty to ascertain the truth, have limited the trial judge’s access to the investigative file and have assigned the preliminary “filtering” decision on the setting of trial to a different judge. Reforms in Russia, and elsewhere, which proclaim a turn to adversary procedure, have also removed from the trial judge the duty to ascertain the truth. But judges always tend to rely in various ways and for various reasons on the prosecutor’s assessment of the case, thus undercutting the presumption of innocence.60 Because the judgment reasons are the main document reviewed by most courts of cassation, as we will discuss below, it is extremely important to know how they are articulated. Whereas a single judge may decide a case based on his or her individual psychological orientation to the case, in collegial courts, whether mixed or purely professional, the individuality of the judge is submerged, in the words of Küper, becoming part of an “anonymous collective will”. This can lead to “decisions, which, while derived from the deliberation and voting of individual judicial personalities, are supported by only a minority, for perhaps not a single judge was truly convinced or would claim responsibility for them.” As with juries, the strong and convincing judicial personality may control the proceedings and even decide the case alone.61 Damasˇka attributes the outcome of deliberations of collegial courts to “a host of sociopsychological factors” and a lot of guesswork by the presiding judge who usually is responsible for the judgment reasons.62 In performing this task, continental judges “use fixed formulae just as readily as their common law brethren employ ‘boilerplate’ language in their instructions to the jury”.63 Judgment-reasons are even more problematic, when, for instance, the lay assessors outvote the professional judge. This is often suspected when mixed courts return a rare acquittal in a high-stakes case. Here the judge-rapporteur is giving reasons for a judgment with which he does not agree. He or she may thus intentionally sow the seeds of reversal by constructing a judgment which does not comport with the canon of judgment-reasons. The Italians call this a sentenza suicida (suicide judgment) at least since the Sopri case, in which an acquittal of Italian anarchists for 59 Illuminati, Giulio: La presunzione d’innocenza dell’imputato, 6th ed., Nicola Zanichelli, Bologna 1984, p. 119. 60 One of the most classic manifestations of this dependence is the way judges “cut and paste” the conclusions of the prosecutor in the accusatory pleading into their final judgment reasons. For Spain, see Ibáñez (2005), p. 147. Soviet and Russian judges traditionally drafted the judgment reasons before all the evidence was taken. 61 Küper (1967), pp. 309 – 19. 62 Damasˇka (1997), p.42. University of Marburg legal philosopher Walter Grasnick has called judicial fact-finding one of “the darkest chapters of legal science”, in that “everyone does it, but no one knows how they do it.” Cited in Darnstädt (2013), p.207. 63 Damasˇka (1997), p. 43 – 46.

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the killing of a police inspector was reversed. The case gained notoriety through the intervention of Nobel laureate playwright Dario Fo.64 Just such a “suicide judgment” is suspected in contributing to the reversal of the acquittal of Monica Weimar in a notorious German case involving the murder of her two children.65 Most judges in reason-giving jurisdictions admit that they can write a reviewproof judgment justifying guilt or acquittal in any close case. The French cour d’assises, a mixed court of six lay and three professional judges must now, after the decision in Taxquet v. Belgium, give reasons for its verdicts. Madeleine Cohen, in her interviews with French judges, has found that judges will draft reasons both for a conviction and an acquittal before deliberations and then amend the drafts to conform with the deliberation of the jury.66

IV. The Efficacy of the Appellate Courts in Protecting the Presumption of Innocence and Discovering Potential Wrongful Convictions – Technical Aspects of Review of First Instance Factual Findings The trial court’s decision on the facts used to be beyond the scope of European appeals in cassation, which were restricted to question of law and did not involve the taking of new evidence. Today, however, decisions on the facts are subject to review in cassation, because a violation of the “laws of thought, axioms of reason or scientific maxims” in the judgment reasons is viewed as “legal” and not factual error. In addition, many legal systems provide for a second trial on the facts, called an “appeal”,67 in which the court can rehear the testimony and call new witnesses. In Italy and France judgments of the large mixed court, the cour d’assises, which only hears very serious felonies, may be “appealed” to another assizes court composed of professional and lay judges. The judgment of appeals courts may then be appealed in cassation. Although having two levels of second instance courts to check the facts could function as a check against the conviction of the factually innocent, it seldom works in this way. In the U.S., the appellate courts, which function more or less 64 Fo, Dario: L’orrendo papocchio del caso Sofri, letter to La Repubblica of April 6, 1998, available at http://www.repubblica.it/online/fatti/sofri/dariofo/dariofo.html. Dario Fo and Franca Rame also wrote and performed in a play, “Mario, libero! Mario innocente!” based on the case. http://www.archivio.francarame.it/scheda.aspx?IDScheda=15954&IDOpera=99. 65 Darnstädt (2013), pp. 254 – 58. 66 Cohen, Mathilde: Ex Ante Versus Ex Post Deliberations: Two Models of Judicial Deliberations in Courts of Last Resort, 62 American Journal of Comparative Law, 2004, pp. 951, 964 – 65. 67 Appel in France, appello in Italy, appelación, in Spain, appeliatsiia in Russian or Berufung in German.

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like cassational courts, do engage in a limited review of the sufficiency of evidence produced at trial. According to the modern approach the relevant question is whether “after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt”.68 In addition, the prosecution need not rule out “every hypothesis except that of guilt”.69 In Spanish doctrine, a distinction is made between the presumption of innocence, which is treated as an objective question of evidentiary sufficiency, reviewable in cassation, and proof beyond a reasonable doubt or in dubio pro reo, which is deemed to be a subjective decision by the trier of fact not traditionally subject to review by the higher courts. Yet to overcome the presumption of innocence, the prosecutor need engage in only “minimal evidentiary activity”.70 Similarly, in Italian law, the “subjective” aspect of free evaluation of the evidence is “elastic” and can lead to different conclusions among different triers of fact, whereas the “objective” aspect, whether the decision and reasons comport with axioms of science, logic, experience, etc., is subject to appeal in cassation.71 The presumption of innocence also seems to get short shrift in continental European courts even when the first instance trial court has returned a rare acquittal after an oral and immediate trial. In the U.S., such an acquittal, whether by jury or judge, is final and not appealable based on the principle of double jeopardy or ne bis in idem, but this is not the case in Europe, where acquittals may be relitigated on “appeal” as to the facts and law, or appealed in cassation based on “legal error”, to wit, the inadequacy of the judgment reasons. “Appeals” courts, however, often do not actually rehear the witnesses heard in the first instance, but just decide, in violation of the principle of an oral and immediate trial, based on the transcripts or records of the testimony given at trial, making their procedure virtually indistinguishable from that of a court of cassation. An even more shocking practice, at least for an American lawyer, is the fact that European “appeals” court will often overturn an acquittal and convict the defendant, without even hearing the witnesses heard by the first instance court in an oral and immediate trial. Fortunately the European Court of Human Rights (ECtHR) has taken steps to put a stop to this practice by finding a violation of the right to confrontation and the

68

Jackson v. Virginia, 443 U.S. 307, 319 (1979). Wright v. West, 505 U.S. 277, 296 (1992). 70 Thaman (2011), pp.643 – 45. 71 Fallone, Antonino: Appello dell’assoluzione, motivazione rafforzata, principio dell’oltre ogni ragionevole dubbio, rinnovazione dibattimentale; la giurisprudenza italiana e della corte di Strasburgo, Cassazione penale, No. 2, 2015, pp. 829 – 32. 69

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right to a fair trial under Art. 6(3)(d) and Art. 6 of the European Convention of Human Rights (ECHR).72 In 2006 the Italian legislature tried to strengthen the presumption of innocence and due process by finally providing for proof beyond a reasonable doubt in the CCP and by preventing the prosecutor from appealing acquittals in the absence of newly discovered evidence of guilt.73 Unfortunately, the Italian Constitutional Court undermined this reform by finding that the prosecutor’s right to equality of arms was violated by this provision.74 Trial courts must generally explain in their reasons justifying an acquittal, why they rejected the prosecution’s theory of the case, why they accepted an exculpatory over an inculpatory witness, the defendant’s trial testimony denying guilt over a pretrial admission or confession in a police interrogation, etc.75 The Spanish Constitutional Court, in a decision in 2004 overturning a jury acquittal, held that, even where there are no contradictions in the special verdict or question list, for the jury, it “remains absolutely necessary to explain, even if in an elemental and succinct manner, why one accepts some declarations and rejects others, why one attributes greater credibility to some over others, why one prefers one statement made in the police station to others made at trial, and that a part or parts of different contradictory declarations of the defendants should prevail, and why, over the rest”. The President of the Constitutional Court, María Emilia Casas Baamonde, joined by two other justices, wrote a dissent in the above-cited case, and maintained that requiring reasons for jury acquittals violated the presumption of innocence, she wrote: “When one is dealing with judgments of acquittal, to demand an exteriorization of the reasons for finding the existence of evidence sufficient to declare innocence presupposes an inversion of the understanding of the fundamental right to a presumption of innocence. It is guilt which must be proved, not innocence, and when it is not done, the defendant is presumed innocent, it being the constitutional burden of the prosecution to present evidence of the guilt of the accused and it is sufficient for the trier of fact to acquit based on reasonable doubt as to the sufficiency of the incriminating evidence necessary for a conviction. Neither the Constitution nor the Jury Law require the existence of sufficient evidence to justify the innocence of the defendant.”76

72 See Constaninescu v. Romania, ECtHR No. 28871/95 (June 27, 2000); Destrehem v. France, ECtHR, No. 56651/00 (May 18, 2004); Mischie v. Romania, ECtHR, No. 50224/07 (Sept. 16, 2014). 73 § § 533, 593, 603 CCP-Italy (206). 74 Decision No. 26, Corte costituzionale (2007), English translation available at http:// www.cortecostituzionale.it/documenti/download/doc/recent_judgments/S26_2007_Eng_sito. pdf. 75 See § 305 CCP-Russia; § 546(1)(e) CCP-Italy. 76 STC 169/2004, cited in Thaman (2011), pp. 657 – 58.

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Courts of Cassation do not easily accept acquittals when it comes to grave capital crimes. The notion of proof beyond a reasonable doubt seems quite fragile. In the Monika Weimar case, the German Supreme Court, held that it is not enough if the “court acquits a defendant because it cannot overcome doubts as to his identity as the perpetrator” because faulty judgment reasons can constitute “legal error”: “This is the case in a substantive legal sense if the evaluation of the evidence is contradictory, unclear, or fraught with gaps or violates laws of thought or secure axioms of experience. Evidentiary conclusions of the trier of fact are also subject to attack if they reveal that the court placed over-stretched demands on the formation of the inner conviction necessary to convict and thereby fails to recognize that an absolute certainty, which of necessity compels the intellect to exclude the opposite and is doubted by no one, is not required; rather a measure of confidence suffices which is sufficient according to life experience and excludes only reasonable doubt and not doubt based on conceptual theoretical possibilities. (…).”77

Many wrongful conviction cases, as well as cases based on the kind of threadbare evidence which is typical of wrongful conviction cases, slide through the appellate courts without even meriting a written decision. The percentage of reasoned judgments in cassation issued by the German Supreme Court has fallen from around 38.2 % in the 1950 s, to a mere 6.6 % in the 1990 s.78 In Italy, in the period from 1989 to 1995, the Court of Cassation rejected around 48.5 % of all appeals without issuing a reasoned judgment,79 and in France, in 2013, the criminal panel of the Court of Cassation summarily rejected, without an opinion, 68.4 % of all appeals.80 For example, Horst Arnold, a school teacher with no criminal record, was wrongly convicted of rape and served 13 years in prison based on an utterly fantastic uncorroborated claim by a fellow teacher that he had raped and sodomized her between classes. After the trial, it was learned that the complaining witness had falsely accused other men of rape and was a pathological liar. The German Supreme Court affirmed the trial court’s judgment without issuing an opinion, saying the “review of the judgment … reveals no legal errors to the detriment of the defendant”.81 Appellate courts in the U.S. have a full verbatim transcript of the trial available for them when they need to evaluate the sufficiency of the evidence. This is not, however, the case in many countries. In Russia and Germany, the only record of the case that makes it to the appellate court is a summary of the evidence created by the clerk of the 77 BGH, Der Strafverteidiger, Vol. 5, 1999, pp. 5 – 7, English translation in Thaman (2008a), pp. 209 – 13. 78 Geipel (2008), p. 47. 79 Carnevale, Stefania/Orlandi, Renzo: “Italien”, in: Monica Becker/Jörg Kinzig (Eds.), Rechtsmittel im Strafrecht. Eine internationale vergleichende Untersuchung zur Rechtswirklichkeit und Effizienz von Rechtsmitteln, 85 – 150, Iuscrim, Freiburg im Breisgau 2000, p. 141. 80 Cour de Cassation. 2013, Rapport annuel, 649. https://www.courdecassation.fr/IMG/pdf/ cour_de_cassation_rapport_2013.pdf. 81 BGH, 2 StR 444/02 (Dec. 13, 2002). On the Arnold case, see Darnstädt (2013), pp.80 – 84.

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court with little or no input of the parties. Although audio recordings are available in France, Spain, Portugal, and elsewhere, they are seldom used by the higher courts. Efforts to require a verbatim record of trials have continually been defeated in Germany and are opposed by the courts.82 In practice, the only record reviewed by cassational panels in Germany and Spain is the reasoned judgment written by the presiding judge.83 But these are one-sided concoctions of the rapporteur judge in the first instance designed to justify the judgment. Judges will punctiliously describe important facts, circumstantial evidence, and statements which fit in with their conclusions, but avoid controversial and doubtful points.84 In fact, in Germany, one of the main causes for reversals of judgments by the courts of cassation is the inadequate rendition or description of the facts in the judgment reasons (Darstellungsrüge).85

V. Anchoring Evidence Law to Strict Intrinsic Exclusionary Rules and Objective Requirements of Corroboration 1. Formal Rules for Inherently Suspect Categories of Evidence a) Introduction It has been said that “free evaluation of the evidence”, not to speak of intime conviction, must give way to formal rules of evidence in order to avoid arbitrariness.86 The German Constitutional Court has intimated as well that standards based on “scientific rules of experience” derived from “criminalistic, forensic and psychological investigations” should be developed for particularly troublesome types of evidence, such as “inter alia, judging a hearsay declarant (…), cases in which the testimony of one witness is contradicted by that of another (…) as well as cases of identification”.87 Yet, despite this admonition, no hard rules have been developed to deal with even the most controversial types of evidence. The most untrustworthy evidence upon which wrongful convictions are built, is that which is literally created by law enforcement organs to bolster otherwise weak evidence of guilt in serious felony cases: police-induced confessions, suggestive 82

Geipel (2008), pp. 42 – 43. Statement of German Supreme Court judge Thomas Fischer, cited in Darnstädt (2013), p.279. 84 Geipel (2008), p. 40. 85 Deppenkemper (2004), pp.364 – 65. 86 Geipel (2008), p. 58. 87 BVerfG, 2 BVR 2045, 2003 StV 293 (April 30, 2003). paras. 34 – 52. 83

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identification procedures, informant testimony and pseudo-scientific if not falsified criminalistics.88 I will suggest intrinsic exclusionary rules89 for unreliable police-created evidence such as retracted confessions and testimony of jailhouse informants, and requirements of corroboration for cases based on the testimony of one witness, inter alia, an eyewitness. b) Eyewitness Identification Testimony “The identification of strangers is proverbially untrustworthy” the U.S. Supreme Court recognized nearly 50 years ago,90 yet, despite the fact that 72 % of all wrongful convictions are wholly or partially based on this kind of evidence, courts and legislatures still allow witnesses, who have been subject to suggestive pretrial police identification procedures, to positively identify suspects with no requirement of substantial corroboration.91 The approach in other countries is no better. For instance, the trial judge in the case of Rafael Ricardi, who served 13 years in Spain for a rape he did not commit based on erroneous eyewitness and voice identifications,92 stated in the judgment reasons that the victim’s testimony was “so clear, emphatic and errorless” that it “leaves no room for doubt.” For the judge, such direct evidence “alone destroyed the presumption of innocence” and was sufficient for the conviction.93 Many U.S. states still do not allow expert testimony regarding the dangers of eyewitness testimony or jury instructions informing the jury of the reasons for its inherent unreliability.94

88 In 23 % of the wrongful convictions in Garrett’s study, scientifically imprecise serology evidence was coupled with eyewitness identification, informant or confession evidence to convince the jury of the guilt of an innocent person. In 22 % of the cases bogus hair-identification was used. Garrett (2008), pp.83 – 84. 89 I. e., “those that reject probative information, on the belief that its elimination will enhance the accuracy of fact-finding”. “Extrinsic” exclusionary rules exclude evidence, on the other hand, to deter the police, vindicate a constitutional right, etc. Damasˇka (1992), pp. 12 – 17. 90 United States v. Wade, 388 U.S. 218, 228 (1967). 91 Although a defendant can move to suppress an in-court identification as being a fruit of a suggestive police identification procedure, such motions are almost always denied, especially since the decision in Manson v. Braithwaite, 432 U.S. 98 (1977), rejected a strong exclusionary rule in favor of a fuzzy “trustworthiness” test. 92 Espinosa, Pedro: Rafael Ricardi, el inocente que pasó 13 años en prisión, El País, June 6, 2014, p. 52. 93 Sentencia No. 125/96, Fundamentos de Derecho, p. 2, Audiencia Provincial de Cádiz, October 21, 1996. 94 Thompson, Sandra-Guerra: Beyond a Reasonable Doubt? Reconsidering Uncorroborated Eyewitness Testimony, 41 U. C. Davis Law Review., 2008, pp. 1487, 1514.

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It has been recently suggested that a rule requiring corroboration of eyewitness identification testimony should be introduced in robbery cases.95 Although misidentification in robbery cases, due to the fleeting nature of the crime, is likely more widespread than in rape cases,96 there is no reason to limit a corroboration rule to robberies. Eyewitness testimony by strangers, due to its psychological infirmities, is perhaps best treated as circumstantial opinion evidence.97 Though the eyewitness may honestly believe she is identifying her assailant, she may actually be proffering an opinion induced by suggestive police practices. If impermissible suggestion can be proved, then no trier of fact could find the truth of the identification to have been proved beyond a reasonable doubt and should exclude the in-court testimony. If the in-court testimony is allowed, however, then substantial corroboration, independent of assessments of the subjective “trustworthiness” of the identifying witness, should be required to constitute proof beyond a reasonable doubt. Such corroboration could be in the form of DNA, fingerprints or other evidence tying the suspect to the crime (such as possession of the loot from a robbery), but not in the form of “policeproduced” evidence, such as a retracted confession or the testimony of a jailhouse informant or other witnesses who have received benefits from police or prosecution for the testimony. c) Testimony by Informants and Co-Defendants A 1987 study of 350 wrongful convictions in potentially capital cases in the U.S. revealed that the testimony of jailhouse informants contributed to 117 of them, making it one of the greatest sources of conviction of the innocent.98 Jailhouse snitch testimony contributed to 21 % of the DNA exonerations compiled in the U.S. and to onethird of all California murder convictions in which the death penalty was imposed. It occurs in 45.9 % of all of the capital cases in which defendants have been eventually exonerated.99 There is also strong evidence that this evidence is literally created by police to use in serious cases where the evidence is too weak to support a conviction.100

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Thompson (2008), pp. 1524 – 26. Though, due to the lack of DNA in robbery cases, it is much harder to prove actual innocence. Garrett (2008), pp. 530 – 31. 97 Supporting such a view, see, Andrés Ibáñez, Perfecto: Prueba y convicción judicial en el proceso penal: Hammurabi, Buenos Aires 2009, p. 50. 98 Bedau, Hugo-Adam/Radelet, Michael L.: Miscarriages of Justice in Potentially Capital Cases, 49 Stanford Law Review, 1987, pp. 21, 57. 99 Covey, Russell D.: Abolishing Jailhouse Snitch Testimony, 49 Wake Forest Law Review, 2014, pp. 1375, 1378 – 79. 100 A Los Angeles County grand jury found that a network in the county had been set up to create informant testimony to bolster weak cases. Covey (2014), pp. 1382 – 83. 96

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Despite the inherent untrustworthiness of such testimony, the U.S. Supreme Court has ruled that it does not violate the constitutional privilege against self-incrimination to put an informant into an uncharged prisoner’s jail cell in order to grill him about the facts of the case and to use the unrecorded testimony of the informant as evidence against the prisoner at trial.101 Although informants may be placed into the cells of charged defendants and listen to what they say, active questioning has been held to violate the right to counsel under the Sixth Amendment.102 But even if police do actively interrogate a charged prisoner and the prisoner asserts his innocence at trial, the prosecution may then use the alleged statements, even if unrecorded and untrue, at the trial to attempt to impeach the defendant.103 In the Ventris case, the defense tried to get the U.S. Supreme Court to support a formal rule of evidence excluding jailhouse snitch testimony, but the court relied on the typical justification for admitting weak and untrustworthy evidence, that it is “the province of the jury to weigh the credibility of competing witnesses.” I agree with Russell Covey that jailhouse snitch testimony should be subject to an intrinsic exclusionary rule and excluded from the criminal trial as it is less reliable even than coerced or otherwise involuntary confessions which are inadmissible evidence in nearly all countries.104 d) Confessions Induced by the Police and Retracted Before Trial Police-generated confessions are not solid evidence. Some 27 % of those who have been exonerated in the last years through DNA analysis have confessed or pleaded guilty at some time during the proceedings.105 Police-induced false confessions to murder have led to convictions of innocent persons for the murder of girls or young women, in the Netherlands in the “Schiedam Park Murder” and the “Hilversum Showbiz Murder” cases106 and in Germany, in the cases of Franz-Josef Sträter, a slightly mentally retarded postman,107 and Ulvi Kulac, who had a 67 I.Q.108 False confessions, even when uncorroborated, are a juggernaut which usually lead to conviction. An innocent person who makes incriminating statements or confessions stands an 88 % chance of being convicted if he or she takes the case to trial.109 Ralf Eschel-

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Illinois v. Perkins, 496 U.S. 292, 298 (1990). United States v. Henry, 447 U.S. 264 (1980); Kuhlmann v. Wilson, 477 U.S. 436 (1986). 103 Kansas v. Ventris, 556 U.S. 586 (2008). 104 Covey (2014), pp. 1422 – 28. 105 Innocence Project (2015). 106 See http://www.knoops.info/en/knoops-innocence-project_en/cases (last accessed Sept. 16, 2015). 107 Neuhaus (2015), p. 189. 108 Darnstädt (2013), pp.109 – 10. 109 Gould et al. (2014), p.495. 102

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bach, a judge of the German Supreme Court, has speculated that up to 10 % of all confessions to police are false.110 Although there is no doubt that police-induced confessions should never be sufficient for a conviction without independent corroboration, should they even be admissible evidence? In Russia, Spain and Italy, if a defendant retracts a confession or admission given in the absence of counsel, it is categorically inadmissible at trial.111 The American common law used to have a rule that a defendant’s confession or admission was inadmissible unless the prosecutor had already proved the corpus delicti of the offense independent of the confession. The federal courts have moved, however, to a “trustworthiness” approach, according to which “proof of any corroborating circumstances is adequate which goes to fortify the truth of the confession or tends to prove facts embraced in the confession”.112 Confessions should be seen as “police-created” evidence in two senses. In the absence of evidence that a person turns himself in out of a pang of conscience and confesses a crime, confessions given to the police today are products of psychological and sometimes physical coercion as much today as they have ever been. They are produced in the back rooms of police stations and do not even have to be recorded in Germany and most U.S. states. But they are also police creations in a second sense, in that the police, as has often been seen in notorious cases of wrongful convictions, actually invent the content of the confessions and feed it to mentally retarded or psychologically or physically overwhelmed suspects who end up signing off on it.113 Several recent codes of criminal procedure treat the interrogation as a defense means of gathering evidence which cannot be initiated by the police or prosecution. In Italy, even spontaneous statements by the suspect to police are inadmissible.114 If a defendant retracts a confession, he or she refuses to have it used as evidence and it is inadmissible. I believe that the only way the prosecution should be able to induce a confession from the defendant is during negotiations with counsel within the framework of consensual procedures such as plea bargaining.

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Darnstädt (2013), p.106. § 175 CCP-Russia extends this rule even to cases where the defendant waived the right to counsel in custody, Thaman (2013), pp. 423 – 24. The ECtHR has also virtually recognized the right of a criminal defendant to speak to counsel before being interrogated, Salduz v. Turkey [GC], no. 36391/01 (Nov. 27, 2008), 49 E.H.R.R. 19, 421. 112 Opper v. United States, 348 U.S. 84, 92 – 93 (1954); Thompson (2008), pp. 1536 – 37. 113 Neuhaus (2015), pp. 189. Darnstädt (2013), pp. 110 – 18, presents two cases in Germany where police suggested a scenario to mentally challenged suspects who ended up signing off on it. In the case of the disappearance of Rudolf Rupp, police suggested to his wife and children that they likely killed him, chopped him up, and fed him to the dogs. They eventually admitted this and it was accepted by the court. Rupp’s intact body was found sometime after the trial in his car in the bottom of the Danube River! See also Garrett (2008), pp. 89 – 90, on how police feed facts to suspects or even lie as to what they said. 114 Thaman (2008a), pp. 88 – 89, 93, 103. 111

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2. Formal Rules for Untrustworthy Evidentiary Constellations a) Witness against Witness Cases Misplaced trust in false witness testimony, whether or not it is coached by police or prosecution,115 is at the root of most miscarriages of justice, in the form of outright perjury or mistaken eyewitness identification testimony.116 Because of the dangers of basing a conviction on testimony of a single witness, there should be a formal rule requiring substantial corroboration, which does not mean corroboration by questionable police-created evidence (retracted confessions, jailplant testimony, etc.). In murder cases, due to the Draconian punishments, there is more incentive for the real culprits to falsely accuse others, to falsify evidence, etc. There is also more to gain by jailhouse informants in alleging they hear incriminating statements from suspects.117 In Gross’s study, 71 % of the witnesses who testified against, and misidentified, the innocent defendant, did not know the defendant, whereas 85 % of exonerated murder defendants knew the main witnesses against them, who were lying to get him convicted. In 17 cases, the real culprit lied under oath in blaming the defendant for the crime.118 “Witness against witness” cases are often cases of acquaintance rape and provide great challenges to judges and juries alike. Proof beyond a reasonable doubt is often difficult to achieve and convincingly justify in a reasoned opinion.119 Experts in the U.S. and Germany have, for instance, put the percentage of false claims of rape at anywhere between 6.1 % (a Hamburg study in the 1980 s) to 41 % (an American study hotly disputed by feminists).120 The German Supreme Court, in reversing a conviction for acquaintance rape, has called for “special credibility testing” of the complaining witness in such cases “because the accused in such cases has few avenues of defense through his own statements”.121 The case of Horst Arnold was an acquaintance rape case in which the defendant firmly denied responsibility and the lying complaining witness’s testimony was accompanied by no corroboration. A rule of corroboration is necessary because courts in such cases are unable to effectively engage in “special credibility testing.” 115

On the coaching of child witnesses in wrongful convictions for child molestation in Germany and the U.S., see Darnstädt (2013), pp. 132 – 77; Gross (2005), pp. 539 – 40. 116 Darnstädt (2013), p. 251. 117 Gross (2005), pp. 542 – 43. Garrett found three cases where the informant was actually the perpetrator. Garrett (2008), p. 87. 118 Gross (2005), pp. 543 – 44. 119 Of the 8 % of rape cases that go to trial in the U.S., approximately 25 % result in acquittals. Garrett (2008), p. 103. In 2012, although only 1.4 % of those held in pretrial detention in Germany were acquitted, the acquittal rate was 5.6 % in sexual assault cases. Kinzig/ Vester (2015), p. 263. 120 Darnstädt (2013), pp. 68 – 69. 121 BGH 5 StR 63/12 (March 14, 2012), StV 2013, 7.

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According to Ralf Neuhaus, German courts almost always believe the complaining witness in “witness against witness” sexual assault cases. This reflects a widespread social and institutionalized solidarity with alleged sexual assault victims. In such cases, lawyers for the victims prepare them to testify in a credible fashion, much as prosecutors and defense lawyers in the U. S. coach their witnesses to improve their credibility. A coached witness’s testimony should therefore never be the sole basis for a conviction without independent corroboration.122 American law, including the influential Model Penal Code, once had a corroboration requirement in rape cases which, embedded in a series of other procedural hurdles to rape prosecutions, was rightly attacked by feminists and has, in all but perhaps two States, disappeared from American law.123 I believe the error in the Model Penal Code was to have limited the corroboration requirements to rape cases, rather than all “witness against witness” felonies. It should also be noted, that the corroboration rule only related to felony rape, which in several states at the time was still a capital offense which was used almost exclusively against African-Americans accused of raping white women. Although rape is no longer a capital offense,124 the punishments for rape have skyrocketed in the U. S. in recent years. Forcible rape is punishable by life imprisonment in some states, for instance in Missouri.125 b) Circumstantial Evidence Cases Although the formal rules in the Carolina and other ancient codes are no longer acceptable, the rule requiring at least two credible eyewitnesses to prove a circumstance from which guilt may be inferred contains a seed of truth. Today courts are too quick to allow inferences of guilt from pieces of circumstantial evidence which are of themselves ambiguous or shaky, if not fabricated by investigative officials or others. A “falsificationist” stance of the judge should apply as to each piece of circumstantial evidence presented by the prosecution to prove the defendant’s guilt, whether or not the defendant testifies and expressly denies guilt. The Spanish Constitutional Court, over 30 years ago pronounced, that “in order to trace the distinction between one hypothesis and another, that is, between the existence of a true piece of circumstantial evidence capable of rebutting the presumption of innocence and the presence of simple suspicions”, the circumstances, from which one may deduce guilt, must be “completely proved”, because “no certainties may be constructed on the basis of simple probabilities”.126 The law in California is similar to that in Spain. In cases based on circumstantial evidence, the jury is instructed that 122

Neuhaus (2015), pp. 190 – 92. Denno, Deborah W.: Why the Model Penal Code’s Sexual Offense Provisions Should Be Pulled and Replaced, 1 Ohio State Journal of Criminal Law, 2003, pp. 207 – 18. 124 Coker v. Georgia, 433 U.S. 584, 592 (1977). 125 Vernon’s Annotated Missouri Statutes § 566.030 (1,2). 126 STC 174/1985 of Dec. 27, 1985. 123

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each piece of circumstantial evidence, that is necessary to prove guilt, must be proved beyond a reasonable doubt and that if the circumstantial evidence gives rise to two reasonable inferences, one of guilt and the other of innocence, then the inference of innocence must be adopted and the defendant acquitted.127 The German and Italian courts, however, have promulgated doctrines that facilitate the conviction of persons suspected of grave crimes such as murder solely on questionable circumstantial evidence, without requiring that each piece thereof be proved beyond a reasonable doubt. The German Supreme Court calls this the “mega-evaluation” theory: “If there are several sources of evidence, it does not suffice to deal with them individually. The individual piece of evidence must rather be placed in a mega-evaluation with all other circumstantial evidence. Only the evaluation of the totality of the evidentiary material will indicate whether the judge arrived at his conviction as to the guilt of the accused and the fact determinations which support it in an error-free manner. Even when none of the circumstantial evidence, by itself, would suffice to prove that the accused was the perpetrator, there is a possibility, that it, when viewed in its totality, could lead the trier of fact to the corresponding conviction.” 128

A similar approach was also applied in the notorious case of Amanda Knox and Rafaele Sollecito, who were charged with the murder of an English student, Meredith Kercher, while she was studying in Perugia, Italy. As in the German Weimar case, this was a case based on weak, purely circumstantial evidence, where there was an alternative suspect for the court to consider, and no clear motive for the killing. Knox and Sollecito were convicted by the mixed court (corte di assisi) but won an acquittal on “appeal” before the corte di assisi di appello of Perugia, which ordered new expert testimony calling into question the DNA testimony taken in the first instance, and refused to consider the testimony of unreliable witnesses who claimed to have seen the defendants near the scene of the crime. The court rejected the “mega-evaluation” approach, called the theory of “convergence of the manifold,” (convergenza delle moltiplice) as being violative of the requirement of proof beyond a reasonable doubt.129 On March 26, 2013, the Italian Court of Cassation overturned the acquittal and returned to the “convergence of the manifold” approach. In overturning the acquittal, the Court of Cassation instructed the court on remand to conduct “a global and unitary examination of the circumstantial evidence”, through which it should be ascertained “whether the relative ambiguity of each piece of evidence can be resolved, for in a comprehensive evaluation each piece of circumstantial evidence is added to, and integrates itself with the others”.130

127

CALJIC, No. 2.01. BGH, 1 Str 114, NStZ 2012, 112. 129 Signori, Diletta: Passato i futuro nelle sentenze per l’omicidio di Amanda Kercher, Diritto penale e processuale, No. 6, 2015, pp. 748 – 51. 130 Cass. Pen., sez. un., 26 marzo 2013, n. 422/13, 40 – 41. 128

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As in the Weimar case in Germany, the third mixed court convicted Knox and Sollecito based on the same questionable circumstantial evidence, but in late March, 2015, the Italian Court of Cassation reversed the convictions and entered final judgments of acquittal. The high court made statements that could also depict the evidence which was used in many of the U. S. miscarriages of justice. It found that the case was marked by “culpable omissions of investigative activity” and “contradictory evidence” that raised reasonable doubt of guilt. It found that the “unusual media hype” which was unleashed by the murder led to a “sudden acceleration of the investigation” (which had been “flawed from the start”) to find suspects “to consign to international opinion” which “certainly did not assist in the finding of the truth”.131 In many of the murder cases upheld on appeal in the U. S. the evidence has also been woefully meager. Two death judgments were based on a single piece of evidence, one on a mere bite-mark comparison and another on eyewitness identification by non-victims. Another case relied on a jailhouse informant and hair comparison evidence. Three more involved eyewitness evidence together with an informant’s testimony.132 It seems to be a practice of prosecutors or police, when they believe someone is guilty but have no solid evidence, to elicit testimony from jailhouse snitches, or questionable experts, or to facilitate conviction by hiding exculpatory evidence.133 In wrongful conviction cases, however, the defendant often does proclaim his or her innocence from the outset, or at least at trial, after having retracted a police-induced confession. These cases should teach the court to treat testimony by the defendant of his/her innocence seriously. Unfortunately, judges, mixed courts and juries often presume that the defendant is lying, and in many European countries the defendant is presumed to have a motive to lie and is therefore not placed under oath. The German Supreme Court, in overturning the acquittal of an alleged transporter of marijuana, who claimed he did not know the contents of the bags in his car, wrote that the trier of fact may not simply acquit based on exculpatory testimony of the accused, even if there is no direct evidence contradicting it.134 It also overturned an acquittal of a woman for intentionally injuring her four year-old son in the bathtub, which relied on the woman’s claim that the injuries were accidental and expert testimony that the injuries could have been caused in the way the defendant claimed. The Supreme Court found the reasons “sufficient on their face”, but reversed claiming the trial court failed to investigate the “history and personality of the defendant”,

131 Povoledo, Elisabetta: Italy’s Highest Court Explains Decision to Clear Amanda Knox, New York Times, Sept. 8, 2015, at A9, http://www.nytimes.com/2015/09/08/world/europe/ita lys-highest-court-explains-decision-to-clear-amanda-knox.html?ref=world. The opinion of the Court of Cassation has still not been officially released as of Oct. 10, 2015. 132 Garrett (2008), pp. 92 – 93. 133 Gould et al. (2014), pp. 501 – 02. 134 BGH, 1 StR 600/10, NStZ 5 (2011), 302 – 03.

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in other words, failed to presume the guilt of the defendant and look into her past for motives that might corroborate the prosecutorial thesis.135

VI. Conclusion: Return to Formal Rules of Evidence in a Two-level System? Based on the above analysis, I will try to “capture clouds”136 and formulate some minimal formal negative rules of evidence which would help protect innocent persons caught in the juggernaut of prosecutions for grave felonies. If the prosecutor is seeking a punishment in excess, of, say, six or eight years deprivation of liberty, she must prove guilt without the help of the defendant. There must be evidence independent of alleged statements of the defendant, whether made during custodial interrogation in the absence of counsel or to jailhouse plants or other hearsay declarants which proves guilt beyond a reasonable doubt. Whether trustworthy physical fruits gathered as a result of an unlawfully obtained confession may be used as “independent” proof is a question I won’t address right now.137 Indeed, there should be a strict exclusionary rule in relation to jailhouse informant testimony, and retracted confessions of the defendant given in the absence of counsel. If the prosecution wants to obtain a confession of the defendant, it should enter into negotiations and offer a plea agreement which the defendant can accept. Otherwise, a statement of the defendant should be considered solely as defense evidence and it should be the decision of the defense, whether it be admitted or not.138 A single witness to the commission of the crime, when contradicted by the defendant or a third witness should not be sufficient for proof beyond a reasonable doubt without independent corroboration. In witness-against-witness acquaintance rape cases, where consent is alleged as a defense, the issue of corroboration is more complex but grave felony punishments should not be imposed without independent corroboration. Eyewitness identification, without independent corroboration, going beyond subjective appraisals of the “trustworthiness” of the witness, should also be insufficient to prove guilty of a grave felony beyond a reasonable doubt.

135

BGH 4 Str 22/10, 10 NStZ 2010, 529. See Damasˇka (2012), p. 933, commenting on the futility of compiling exhaustive evidence rules in the late Middle Ages. 137 With the exception of the U. S. and Spain, most legal systems do not exclude the physical fruits of unlawful confessions, unless they are procured through torture. Thaman (2013), pp. 442 – 43. 138 This is the approach taken in Italy, § § 65, 350 CCP-Italy, and in some other recent codes of criminal procedure. 136

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Finally, the test for proving guilt based on circumstantial evidence should be tightened. The credibility of each piece of circumstantial evidence should be proved beyond a reasonable doubt before it can be used to deduce guilt of a grave crime. I have struggled with whether we should impose these fortified rules of evidence only in formerly capital cases, i. e., today those punishable by death, life imprisonment, or long prison sentences or whether there should be looser rules for the proof of crimes with lesser punishments similar to those currently in use in common law and civil law countries. In cases based on unreliable forms of uncorroborated evidence, which might amount to “probable cause” but cannot of themselves undermine the presumption of innocence, the prosecutor, if personally convinced of guilt, could try to resolve the case with a plea bargain or consensual stipulation to a sentence of less than, say, six or eight years.139 If the defendant, however, demands a trial, then the prosecutor can try to prove guilt beyond a reasonable doubt based on traditional procedural arrangements in the respective jurisdiction, but the sentence could not exceed six or eight years. Whether one can have different evidentiary rules depending on the type of sentence threatening the defendant may seem controversial. Poena extraordinaria, a kind of “suspicion punishment” could be imposed in the old inquisitorial systems, if “full proof” could not be obtained. Before Illinois abolished the death penalty, its legislature enacted a statute barring death sentences based solely on uncorroborated eyewitness or informant testimony.140 There is already a de facto two-lane system of criminal justice in nearly all countries. Plea-bargaining, penal orders and other guilty plea or stipulation procedures are making full criminal trials a vanishing species. America’s inherently coercive system of plea bargaining has led to the resolution of more than 95 % of all cases with a guilty plea, that is, based on “probable cause” without the prosecutor having to prove guilt beyond a reasonable doubt at trial. The percentages are lower in most European countries, where so-called “consensual” procedures are usually limited to less-serious offenses, but they are rising every year and in many countries exceed 50 % of all cases.141 As a result, perhaps the majority of guilty defendants in Europe – thieves, burglars, drunk drivers, and white collar criminals can, and do benefit from consensual justice. There is also no community or media pressure to proceed with ambiguous evidence 139 Most European and Latin American jurisdictions limit plea bargaining to crimes the punishment for which does not exceed six or eight years. Thaman, Stephen C.: A Typology of Consensual Criminal Procedure: an Historical and Comparative Perspective on the Theory and Practice of Avoiding the Full Criminal Trial, in: Thaman, Stephen C. (Ed.), World Plea Bargaining: Consensual Procedures and the Avoidance of the Full Criminal Trial, Carolina Academic Press, Durham, N.C. 2010, pp. 347 – 350. 140 720 Ill. Comp. Stat. Ann. 5/9 – 1(h-5) (West Supp. 2005), cited in Garrett, 93. 141 Thaman (2010), pp. 344, 387 – 80.

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as there is in the high-profile rape and rape-murder cases and the like. Those who waive trial are, in a sense, given a lesser sentence, without proof beyond a reasonable doubt, or a rigorous reasoned judgment. There is a kind of proportionality in this setup. Those who take advantage of their trial rights, however, are treated more harshly if they are convicted, for wasting the court’s time and sometimes for “perjuring themselves” by claiming innocence. In practice, asserting one’s innocence is treated as an aggravating factor in most criminal justice systems.142 It is, thus, no surprise that so many innocent people are caught up in this Catch 22 system and convicted of the most serious crimes of violence.

142 In Germany an active defense is often received by the judge as criticism that he/she is not doing a good inquisitorial job in questioning witnesses and marshalling the evidence. This can then effect the judge’s treatment of the defendant when he/she is convicted. Velten (2015), pp. 396 – 97.

One Face of Human Rights for Two Faces of Criminal Justice: A European Perspective Ksenija Turkovic´* and Kresˇimir Kamber**

I. Introduction There is no doubt that Damasˇka’s Faces of Justice1 still today remains one of the most important pieces of legal writing for the understanding of the function and logic of legal process. His conceptualization of two ideal types of justice – policy-implementing and conflict-solving –2 is deeply rooted in our understanding of legal process and it very often, with a doctrinal force, influences and shapes our considerations of various procedural solutions and designs in comparative law. There is, nevertheless, an aspect of legal process which Damasˇka, probably for some obvious reasons, did not address when construing his design of procedural systems and their actual workings. That is the human rights element of legal process. More particularly, he refrained from treating the right to a fair trial as a human right.3 * Judge, European Court of Human Rights. – ** Lawyer, European Court of Human Rights. – Opinions expressed are personal. We are grateful to James Brannan for his editing suggestions concerning an earlier version of this article. 1 M.R. Damasˇka, The Faces of Justice and State Authority: A Comparative Approach to the Legal Process (New Haven, Yale University Press 1986). 2 In Damasˇka’s typology, the conflict-solving and policy-implementing ideals denote two designs of legal processes determined by the prevailing views on the function and organization of government in society. He devises this theory by observing two models of political ideologies – the Activist State and the Reactive State – and two models of organizing procedural authority – the coordinate and the hierarchical – and their implications for the judicial process. In the Activist State the government performs a managerial function and the administration of justice is focused on the implementation of state policies. Accordingly, laws are manifestations of the perceived policies and the judicial process is an official inquiry leading to their implementation. The Reactive State is concerned with maintaining the social equilibrium. Thus, the state activities are concerned with securing dispute resolution between individuals and the judicial process is formed as a contest between two parties. Furthermore, proceedings adapted to the needs of coordinate officials center on the single echelon of authority, the process is less bureaucratized and oriented towards substantive justice, while proceedings adapted to the needs of hierarchical officialdom are characterized by officials locked in a chain of subordination, with a higher degree of bureaucratization and affinity for logical legalism. 3 When Damasˇka wrote his Faces of Justice human rights were almost exclusively within the domain of public international law.

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This does not, however, mean that the concept of fairness, seen through procedural safeguards,4 does not exist in Damasˇka’s ideal types of legal process. But such a fairness, which Damasˇka conceived, is understood as an instrumental good in the forensic contest rather than an individual human right.5 The difference between fairness as a human right and fairness as an instrumental value is perhaps not so manifest in the operational sense as it is fundamentally important. This can be observed in the following abstraction. Imagine a legal process, similar to that of Damasˇka’s conflict-solving or policyimplementing ideals, in which an individual does not have any personal rights.6 In this imagined legal process the government is vested with unfettered liberty to do what it pleases in performing its assigned or perceived role in society (to implement policy or to resolve conflicts). The government, in this case, has no duty to recognize the need to protect an interest of an individual implicated in the proceedings, nor does it have any duty not to recognize or react to the needs of the particular individual interests at stake. The individuals concerned with the proceedings may nevertheless acknowledge that it is in their interest that the government should fulfill certain socially agreed-upon and commonly perceived governmental duties, which are, as we learn from Damasˇka, inevitably reflected in the legal process. Consequently, the individuals concerned may plead the government to honor its duties and to treat their interests fairly in the proceedings. But they could never righteously demand this, simply because they have no individual rights. In other words, the government has no duty to either honor or disregard interests of individuals involved in the legal process or to treat them fairly as such, due to their dignity, and the individuals involved could never righteously demand fair treatment as a matter of their intrinsic right, which, as some authors contend, belongs to them simply by virtue of being human.7 In a policy-implementing type of administration of justice fairness is, as Damasˇka convincingly explained, “attached to concern for maintaining a process that maxi-

4

Such as the presumption of innocence, privilege against self-incrimination, the right to silence, the right to legal aid and assistance, the right to be brought promptly before a court, the right to release pending trial, the right to disclosure of documents, the right to confrontation of witnesses, the right to be tried on evidence not obtained by violation of fundamental rights, the right not to be placed in double jeopardy. 5 On a discussion of procedural fairness as an instrumental good as opposed to an intrinsic value and the ways to connect the two approaches (“instrumental” and “dignitarian”) see: T.R.S. Allan, “Procedural Fairness and the Duty of Respect”, 18 Oxford Journal of Legal Studies (1998), pp. 497 – 515. 6 The illustration is an allusion to Joel Feinberg’s contemplation of “Nowheresville” presented in his seminal essay on rights: “The Nature and Value of Rights”, 4 The Journal of Value Inquiry (1970), pp. 243 – 257. 7 Francesca Klug has claimed that “the concept of inalienable rights is aimed precisely at distinguishing those rights which are essential for furtherance of human dignity from those which are not,” in: Values for the Godless Age: The Story of the United Kingdom’s New Bill of Rights (London, Penguin 2000), p. 197.

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mizes the probability of attaining accurate results on the merits.”8 On the other hand, in the conflict-solving type of process fairness is related to a need to sustain the procedural legitimation of decisions by fairly observing the rules of party contest and thus ensuring an appropriate and sound outcome which need not necessarily always be the accurate one.9 In any case, by invoking the concept of fairness in defining the governments’ duties in the administration of justice, Damasˇka is not entering into a discussion about human rights. He rather attempts to define, on the basis of the structure and functions of government in a particular society, the optimal or politically acceptable extent of recognition of various individual and public interests in the legal process.10 Fair trial guarantees so understood are of course contextualized and at the same time subject to political instrumental changes.11 A contemporary European reader would outwardly find such an approach odd for she is confident that her particular legal system has adequately domesticated the relevant human rights standards under the European Convention on Human Rights (ECHR) as interpreted by the European Court of Human Rights (ECtHR) and that she is under the protection of those standards.12 Moreover, she knows that if something goes wrong with the authorities’ securing of the fair trial standards (i. e. when she believes either that she has been treated unfairly by the state or that the state and its institutions have failed to protect her properly), she can always exercise the right of individual petition under Article 34 ECHR by bringing a complaint before the ECtHR.13 That would ordinarily, through the ECtHR’s finding of a violation of her rights and the mechanisms for execution of the restitution measures pertaining

8

See Damasˇka, supra n. 1, pp. 148 – 150. Ibid., pp. 101 – 104. 10 See further ibid., p. 152. 11 For example, the right to remain silent and the privilege against self-incrimination have been incorporated in the Chinese criminal justice system as a means of securing reliable information and proper evidence rather than as human rights standards. See W. Wu and T. Vander Beken, “Relativism and Universalism in Interrogation Fairness: A Comparative Analysis between Europe and China”, 19(3) European Journal on Criminal Policy and Research (2013), pp. 183 – 213. See further on the Chinese criminal justice system: D.C. Clarke and J.V. Feinerman, “Antagonistic Contradictions: Criminal Law and Human Rights in China”, 141 The China Quarterly (1995), pp. 135 – 154. 12 “Article 6 § 1 of the Convention imposes on the Contracting States the duty to organise their judicial systems in such a way that their courts can meet the requirements of this provision” (Bottazzi v. Italy, no. 34884/97 [GC], 28 April 1999, para. 22). For a discussion on the process of “internalization” of international human rights norms into domestic legal systems in general see H.H. Koh, “How Is International Human Rights Law Enforced?”, 74 Indiana Law Journal (1999), pp. 1397 – 1417. 13 See further A. Ashworth, “Principles, Practice, and Criminal Justice”, in: P. Birks (ed.), Pressing Problems in the Law, Volume 1, Criminal Justice & Human Rights (Oxford, Oxford University Press 1995), p. 43. 9

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to such finding, including the possibility of re-opening of the relevant proceedings, secure the authorities’ compliance with her human rights.14 There is no doubt that international human rights law, through the jurisprudence of the ECtHR15 and more recently the European Court of Justice,16 directly stimulates and reshapes relevant European domestic dialogues in law,17 where the administration of justice is no exception. Moreover, in the European legal systems, irrespective of whether they observe a monistic or a dualistic approach to the application of international treaties, domestic constitutional discourses additionally foster this process.18 In other words, human rights law has become the ultimate touchstone underlying any acceptable and desirable governmental action in Europe,19 making respect for human rights an indispensable aspect of the rule of law and democracy.20 We could thus say without hesitation that there is no longer any administration of justice, and in particular any criminal procedure, without human rights.21

14 On the implementation of ECtHR judgments see: 2014 Seminar background paper for the opening of the Judicial year “The Implementation of the Judgments of the ECtHR: Shared Responsibility,” available at http://www.echr.coe.int/Documents/Seminar_background_paper_ 2014_ENG.pdf (last visited 6 February, 2016). 15 The ECtHR plays for Europe approximately the same role, in safeguarding essentially the same set of basic rights, as the United States Supreme Court plays in enforcing constitutional rights among the fifty states, with comparable substantive outcomes and degrees of compliance. 16 The trend increased following the adoption of the Charter of Fundamental Rights of the European Union, Official Journal of the European Communities (2000/C 364/01). 17 Outside Europe this influence is primarily indirect and often still sporadic. Generally, on direct and indirect effects of international human rights law on rights protection in the world see D. Cassel, “Does International Human Rights Law Make a Difference?” 2 (1) Chicago Journal of International Law (2001), p. 122. 18 M.C. Bassiouni, “Human Rights in the Context of Criminal Justice: Identifying International Procedural Protections and Equivalent Protections in National Constitutions”, 3(235) Duke Journal of Comparative & International Law (1993), pp. 235 – 297. 19 E. Brems, “Human Rights: Minimum and Maximum Perspectives”, 9(3) Human Rights Law Review (2009), p. 349. Fundamental guarantees form an essential, indispensable part of the constitutional structure and are spread across different legal systems in Europe. 20 See further T. Bingham, The Rule of Law (London, Penguin 2011), p. 37. 21 P.J. Spiro, “The States and International Human Rights”, 66 Fordham Law Review (1997), p. 569. The ECtHR itself considers that depriving the applicant of his or her rights under Article 6 ECHR is incompatible with the principle of the rule of law which the Contracting States undertook to respect when they ratified the ECHR (see, for example, Immobiliare Saffi v. Italy [GC], no. 22774/93, 28 July 1999, paras. 63 and 74) and that violations of Article 5 ECHR run counter to the fundamental aspects of the rule of law (see, for example, Assanidze v. Georgia [GC], no. 71503/01, 08 April 2004, paras. 173 and 175). The ECtHR also emphasized that the right to a fair hearing before a tribunal as guaranteed by Article 6 § 1 ECHR must be interpreted in the light of the Preamble to that Convention, which declares, among other things, the rule of law to be part of the common heritage of the Contracting States (see, for example, Bruma˘ rescu v. Romania [GC], no. 28342/95, 28 October 1999, para. 61).

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The above considerations have directed our inquiry to an examination of the relevancy of Damasˇka’s conceptualization of the ideal types of judicial process from the perspective of human rights law. It would indeed be interesting to see how Damasˇka would write his book today and whether he would find a place for human rights in his ideal types of legal process and what place human rights would occupy. Be that as it may, it does not seem to us that the requirement to observe human rights has rendered Damasˇka’s ideal types obsolete, either for classificatory purposes or for tracing supposed structural affinities between procedural arrangements and forms in contemporary European criminal justice systems. In our view, the fact that the government of our European reader has, in Damasˇka’s terms, opted for a more or less hierarchical or coordinate structure in the organization of the legal process and has prioritized certain policy implementing (activist state) or conflict resolution (reactive state) functions,22 neither has nor should have any bearing on its duty to secure fundamental human rights. This is not to say that the structure and functions of legal process, as epitomized in Damasˇka’s ideal types, do not have any bearing on how the duty to observe human rights is implemented by the European states, both in law and in practice. On the contrary, we believe that Damasˇka’s theoretical framework could provide useful insights into the position of human rights in the structure of contemporary European criminal justice systems. This discussion can have various features and can turn on many different considerations. For the purposes of the present article we shall limit our inquiry to two aspects: the role of the ECtHR’s jurisprudence in striking a balance between public interest and human rights in the administration of criminal justice, and the accommodation of human rights requirements in the conflict-solving and policy-implementing environments.

II. The ECtHR in Search of Compromise between Human Rights and Public Interest in the Administration of Criminal Justice The relationship between human rights and public interest exceptions is one of the most important issues in contemporary human rights jurisprudence. The ECtHR is often criticized for usurping the powers that should rather be reserved for the democratic decision-maker as well as for failing to develop a coherent set of tests for de22

Of course, Damasˇka’s ideal types are abstractions. He himself emphasizes repeatedly in his book that actual structures of authority may be more or less hierarchical or hierarchical in some respects and not in others, while the goals pursued by states may more or less strongly focus on the resolution of conflicts or the implementation of policies (see Damasˇka, supra n. 1, pp. 12, 71 and 97). Thus, we agree with Swart that while two pairs of archetypes construed by Damasˇka are meant to be antithetical, in real life they merely form the extreme ends of the continuum of possibilities; see B. Swart, “Damasˇka and the Faces of International Criminal Justice,” 6(87) Journal of International Criminal Justice (2008), p. 93.

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termining when rights prevail over public interests and vice versa.23 The debate becomes especially heated within the area of criminal justice, largely in relation to the implementation of the right to a fair trial in the context of the fight against terrorism and organized crime. The right to a fair trial is often portrayed as an ultimate criterion of democracy and the rule of law24 based on the premise that it protects individuals from unlawful and arbitrary curtailment or deprivation of other basic human rights and freedoms. Thus understood, the right to a fair trial is described as a set of numerous, complex and constantly evolving standards, guarantees or component-rights, some explicitly listed in the ECHR and others recognized by the ECtHR as being implicit in the text of Article 6 ECHR. Their key feature is that of a limitation of governmental authority in the administration of justice. Through the fair trial guarantees, an inseverable link between the protection of individual human rights, the rule of law and democracy is created, going to the heart of any legal system.25 It has been understood that a criminal justice system has two primary goals: preventing and controlling crime and doing justice.26 Many scholars have argued that these are two competing interests in a society and that they cannot be simultaneously achieved.27 The ECtHR is mindful of the different competing rights and interests at stake in the administration of criminal justice and of the fact that fair trial guarantees

23 See further B. Hale, “Argentoratum Locutum: Is Strasbourg or the Supreme Court Supreme?”, 12(1) Human Rights Law Review (2012), pp. 65 – 78. 24 See, for example, Sutter v. Switzerland, no. 8209/78, 22 February 1984, para. 26: “a fair trial, the guarantee of which is one of the fundamental principles of any democratic society, within the meaning of the Convention.” 25 L.R. Helfer, “Overlegalizing Human Rights: International Relations Theory and the Commonwealth Caribbean Backlash against Human Rights Regimes”, 102 Columbia Law Review (2002), p. 1834. 26 Some key goals of the criminal justice system include: protecting the public (preventing and deterring crime through incapacitation and rehabilitation in order to ensure public safety), preserving public order (achieved through the maintenance of law and social order), supporting victims of crime their families and witnesses (through the provision of appropriate advice and assistance), punishment (the sentencing of offenders in accordance with specific principles and helping them to return to the community and become law-abiding members of the community), reinforcing justice and the rule of law (ensuring the proper treatment of defendants, successfully prosecuting those who have committed a crime and acquitting those who are innocent), instilling public confidence (ensuring that the criminal justice system is perceived as dealing effectively and fairly with the threat to the public posed by offenders). 27 This notion was best expressed in the work of Herbert Packer, who argued that there were two models for the criminal justice system: one emphasizing crime control, the other emphasizing due process. He sees the Crime Control Model as an assembly line where repression of criminal conduct is the most important function to be performed by the criminal process whereas the Due Process Model is an obstacle course where each of the successive stages in the proceedings is designed to present formidable impediments to carrying the accused any further along in the process (see H.L. Packer, The Limits of the Criminal Sanction (Stanford, Stanford University Press 1968) pp. 149 – 239).

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may sometimes hamper the effective prosecution of crime.28 In its jurisprudence it has repeatedly emphasized that while the victims of crime and their families, as well as the public, have an interest in the prosecution and punishment of criminals, there is also a vital public interest in preserving the integrity of the judicial process and thus the values of civilized societies founded upon the rule of law.29 In our view there is nothing in the fair trial guarantees under the ECHR that is inherently incompatible with the recognition of other goals of the criminal justice system, such as to ensure public safety and public order through crime prevention and control or the protection of victims and witnesses before, during and after criminal proceedings.30 At the same time, it is true that there might occasionally be tensions between these interests. Sometimes the tension is over-exaggerated for different political reasons, but in reality various needs and values (interests) implicit in the administration of criminal justice reinforce each other more often than they conflict.31 The criminal justice system which seeks to reinforce the community’s desire for public safety by respecting fair trial guarantees will, as a rule, through the total number of cases over time, be a more effective system for controlling crime.32 Nonetheless, once the tension arises it needs to be clearly articulated and then accommodated.33 The way in which this task is approached by Member States and the Strasbourg Court is not necessarily the same. At the national level, as Richard Fallon has observed, individual constitutional rights, which we will simply denote as fundamental or human rights, are too conceptually interconnected with government powers to function as independent constraints

28 In any criminal proceedings there may be competing interests, such as national security or the need to protect witnesses at risk of reprisals or to keep secret police methods of investigating crime, which must be weighed against the rights of the accused (see Dowsett v. United Kingdom, no. 39482/98, 24 June 2003, para. 52). 29 See, for example, Gäfgen v. Germany [GC], no. 22978/05, 1 June 2010, para. 175. 30 Packer’s “Crime Control” and “Due Process” models of criminal procedure should not be equated with the juxtaposition of procedural efficiency and procedural guarantees made by continental procedural theory. See M.R. Damasˇka, “Models of Criminal Procedure”, 51(3 – 4) Collected Papers of the Zagreb Law School (2001), p. 502. 31 Ibid., pp. 500 – 502. 32 The concept of fairness in criminal procedure seen from the perspective of the ECHR is both a right available to the individual concerned and a general public interest. The idea that there is a “public interest” in recognizing and protecting rights underlies the very existence of the ECHR and, indeed, fundamental human rights as such. The argument here is simply that society as a whole benefits when individuals are safeguarded from excessive state power and are able to live and function as autonomous persons. 33 Damasˇka himself in commenting upon Packer’s original “Crime Control” and “Due Process” or “Fairness” models of criminal procedure emphasized that criminal justice served various needs and values coexisting in tension and requiring accommodation and that this complex mixture of procedural objectives must be clearly articulated before the issue of whether the functions of the criminal process are efficiently pursued can be examined. See Damasˇka, supra n. 30, p. 501.

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on that power.34 Indeed there are great differences between the conceptions of rights used by liberal philosophers, on the one hand, and by the constitutional courts, on the other. One core feature of current constitutional rights practice worldwide seems to be that constitutional rights, including the fair trial guarantees, are capable of being put into a balance or proportionality analysis in which they might be limited or even outweighed by a public or some other governmental interest.35 Of course, not all legal systems are ready to entertain the balancing exercise with the same zeal and that exercise does not always need to produce the same result. Indeed, it suffices to note for the present discussion that Damasˇka’s ideal types of justice structured around organization of state apparatus and the role of government36 could serve as a basis for analyzing and making sense of any differences.37 At Strasbourg, on the other hand, the assumption is made that the ECHR contains a hierarchy of rights, with some more central to democratic society than others.38 That Convention, like other human rights treaties, does not formally priorities rights, yet by recognizing some rights as absolute,39 others as qualified40 and the remainder (in34

See R.H. Fallon, “Individual Rights and Governmental Powers”, 27(2) Georgia Law Review (1993), p. 344. 35 For the discussion on the balancing of rights against interests, see ibid., pp. 343 – 390; F. Schauer, “A Comment on the Structure of Rights”, 27 Georgia Law Review (1993), pp. 415 – 434; K. Möler, “Balancing and the structure of constitutional rights”, 5(3) International Journal of Constitutional Law (2007), pp. 453 – 468. For an analysis of trends of finding public interest arguments attractive by many governments see: J. Waldron, “Security and Liberty: The Image of Balance”, 11(2) Journal of Political Philosophy (2003), p. 191; and C. Gearty, Civil Liberties (Oxford, Oxford University Press 2007), pp. 30 – 58. 36 See Damasˇka, supra n. 1. 37 The more the realization of public interest is central to the administration of criminal justice, the more the value of truth discovery will be emphasized; while the more conflict resolution is central to the administration of criminal justice, the more the integrity of judicial process will be emphasized. See ibid., p. 161. 38 The ECtHR has referred to the “hierarchy of human rights,” usually in the context of the right to life (see, for instance, Vasiliauskas v. Lithuania [GC], no. 35343/05, 20 October 2015, para. 158) and the right to one’s home (see, for instance, Gladysheva v. Russia, no. 7097/10, 6 December 2011, para. 105) but only in passing. On the hierarchy of human rights see: T. Meron, “On a Hierarchy of International Human Rights” 80 International Journal of Human Rights (1986), pp. 1 – 23; and T. Koji, “Emerging Hierarchy in International Human Rights and Beyond: From the Perspective of Non-derogable Rights”, 12 European Journal of International Law (2001), pp. 917 – 941. 39 According to Article 15 ECHR some rights are non-derogable even in time of war or other public emergency threatening the life of the nation. The non-derogable rights are the right to life, except in respect of deaths resulting from lawful acts of war (Article 2), the right not to be subjected to torture, inhuman or degrading treatment (Articles 3), the right not to be subjected to forced labor (Article 4 § 1) and the right not to be subjected to retrospective criminal laws or penalties (Article 7). T. Koji (ibid) argues that non-derogable rights provide the key to understanding hierarchy in international law in general. 40 These are rights which might be interfered with on certain grounds that may vary depending upon the right concerned (for example the interests of national security, territorial integrity, public safety or the economic well-being of the country, the prevention of disorder or

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cluding the right to a fair trial) as some kind of intermediate rights between the two groups,41 it undoubtedly assigns them different weight or strength.42 The ECtHR takes that into consideration while performing its adjudicative and constitutionalist functions,43 in particular when arguments related to competing public interests or victims’ rights are raised. Absolute rights are not intended to give way to “public interest” considerations44 and qualified rights should do so only when that is prescribed by law and is necessary in a democratic society.45 However, the ECHR did not specify any method for resolving conflicts between public interests and intermediate rights.46 Subject to the principles of interpretation, this task is, therefore, largely at the ECtHR’s discretion. This discretion has its own limits. These limits are determined, on the one hand, by the status of Article 6 ECHR as an unqualified but derogable right;47 and, on the crime, the protection of health or morals, the protection of the rights and freedoms of others, maintaining the authority and impartiality of the judiciary, public interest), to the minimum extent possible. The examples of qualified rights are the right to respect for private life (Article 8), the right to freedom of thought and religion (Article 9), the right to freedom of expression (Article 10), the right of freedom of assembly and association (Article 11), the right to property (Article 1 Protocol 1). No restrictions are to be placed on the exercise of these rights other than such as are prescribed by law and are necessary in a democratic society on one of the stated grounds. 41 This intermediate category would include the right to liberty and security (Article 5) and the right to a fair trial (Article 6). 42 Here we adopt Ashworth’s classification of rights into these three groups. See A. Ashworth, Human Rights, Serious Crime and Criminal Procedure (London, Sweet & Maxwell 2002), pp. 75 – 77. 43 Under Article 19 ECHR the purpose of the ECtHR is “[t]o ensure the observance of the engagements undertaken by the High Contracting Parties in the Convention and the Protocols thereto.” By resolving disputes between individuals and states over whether states have complied with the ECHR guarantees and by providing redress in individual cases the ECtHR is also outlining and formalizing constitutional principles of the ECHR and thus performs at the same time adjudicative as well as constitutionalist functions. 44 In Gäfgen the ECtHR emphasized that “[b]eing absolute, there can be no weighing of other interests against [Article 3], such as the seriousness of the offence under investigation or the public interest in effective criminal prosecution, for to do so would undermine its absolute nature …” See further Gäfgen v. Germany [GC], no. 22978/05, 1 June 2010, para. 176. 45 See the further exception/restriction clause of Articles 8, 9, 10 and 11 ECHR. 46 See Council of Europe, Collected Edition of the Travaux Préparatoires Vol. I (Leiden, Martinus Nijhoff 1975), pp. 168 – 170. For the discussion on the Travaux Préparatoires see R. Goss, Criminal Fair Trial Rights (Oxford, Hart Publishing 2014), pp. 121 – 123. 47 Given the status of Article 6 as an unqualified but derogable right some authors argue that the ECtHR should clearly state that public interest balancing and proportionality have no place in the assessment of whether or not Article 6 has been violated (see Goss, supra n. 46, p. 203). Others argue that greater weight should be given to the right to a fair trial under Article 6 than to the rights in Articles 8 – 11 and thus any argument to the effect that constituent elements of the right to a fair trial should be restricted out of deference to the “public interest” should be at least as strong, and probably stronger, than a similar argument for justifying interference with one of the qualified rights such as those under Articles 8 – 11 (see

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other, by the need to produce judgments that are enforceable at the domestic level.48 Consequently, it would appear that the ECtHR has rather limited ability to take aggressive stances towards advancing fair trial rights. These considerations also explain why the ECtHR approaches the rights or guarantees under Article 6 ECHR and their relationship with other competing interests in a rather flexible way, taking into consideration “the specificities of the particular legal system concerned” and weighing “in the balance the competing interests of the defence, the victim, and witnesses, and the public interest in the effective administration of justice.”49 At the same time, the ECtHR cautiously but constantly reiterates that “the right to the fair administration of justice holds so prominent a place in a democratic society that it cannot be sacrificed for the sake of expedience”50 and that “the general requirements of fairness embodied in Article 6 apply to proceedings concerning all types of criminal offence, from the most straightforward to the most complex.”51 Furthermore, it should be noted that the ECtHR has emphasized that “it is in the face of the heaviest penalties that respect for the right to a fair trial is to be ensured to the highest possible degree by democratic societies.”52 There are numerous adjudications which show that the Strasbourg Court has taken the position that restrictions in the name of various competing interests, including the public interest in the effective administration of justice, might be imposed upon procedural guarantees expressly or implicitly contained in Article 6 ECHR. However, the extent of these restrictions should be clearly circumscribed and their application

also Ashworth, supra n. 42, pp. 64, 69 – 80); while some authors accept the application of proportionality in the Article 6 context (see P. van Dijk, F. van Hoof and L. Zwaak (eds.) Theory and Practice of the European Convention on Human Rights (Mortsel, Intersentia 2006) p. 573). 48 The readiness of a Member State to adjust its legal system to procedural protections guaranteed by the ECHR is conditioned by the type of administration of justice into which these guarantees need to be embedded as well as by the Member State’s attitude towards the interference in its domestic affairs. For the line of reasoning that the ECtHR itself is operating under political constraints which curtail its ability to act as an advocate for human rights norms beyond what the Member States define as acceptable levels of observance see M. Burstein, “The Will to Enforce: An Examination of the Political Constraints upon a Regional Court of Human Rights”, 24(2) Berkeley Journal of International Law (2006), pp. 423 – 443. 49 See further Al-Khawaja and Tahery v. The United Kingdom [GC], nos. 26766/05 and 22228/06, 15 December 2011, para. 146. This passage from Al-Khawaja and Tahery has subsequently been repeatedly cited by the ECtHR and confirmed in Schatschaschwili v. Germany [GC], no. 9154/10, 15 December 2015, para. 101. 50 See, for example, Kostovski v. the Netherlands, no. 11454/85, 20 November 1989, para. 44. See also Teixeira de Castro v. Portugal, no. 25829/94, 9 June 1998, para. 36; and Ramanauskas v. Lithuania [GC], no. 74420/02, 5 February 2008, para. 53. 51 See, for example, Teixeira de Castro v. Portugal, no. 25829/94, 9 June 1998, para. 36. 52 See Salduz v. Turkey [GC], no. 36391/02, 27 November 2008, para. 54. See also, for instance, Oulahcene v. France, no. 44446/10, 10 October 2013, para. 43.

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strictly limited in time.53 In short, the ECtHR has accepted that the public interest might be balanced against the right to a fair trial.54 This is not, however, so straightforward a matter as it may appear at first sight. There are numerous subtle nuances when the balancing of the public interest against the right to a fair trial, under Article 6 ECHR, is compared with the balancing exercise related to the qualified rights provided for in Articles 8 – 11 ECHR. Traditionally with regard to Articles 8 – 11 ECHR, in accordance with the principle of subsidiarity,55 the Strasbourg Court leaves the balancing task to the domestic authorities, which are better placed than an international court to make the requisite assessment on the basis of their superior knowledge of local needs and conditions and the particular context, which usually determines the range of different but legitimate solutions.56 The ECtHR’s task is to consider whether the method adopted in this respect and the possible restrictions imposed have, in a given case, produced results which are compatible with the ECHR.57

53 See, for example, Salduz v. Turkey [GC], no. 36391/02, 27 November 2008, para. 54. Thus, the ECtHR often finds that in a particular case, notwithstanding the existence of a public interest in, for instance, prosecuting drug-related crimes (or terrorism or fraud), the fair trial rights have been violated. 54 Contrast Ashworth, supra n. 42, pp. 56 – 61; and Goss supra n. 46, pp. 176 – 201. In our view, although in a significant number of cases the ECtHR has refused to allow the public interest to be used as justification for restrictions on Article 6 rights, in none of these cases has the ECtHR described Article 6 as being an absolute right (see Saunders v. the United Kingdom, no. 19187/91, 17 December 1996, para. 74), while in some of these cases the ECtHR has underlined that public interests “cannot justify restricting [particular Article 6 rights] to this extent”, suggesting that there is at least a possibility that considerations of some public interest may justify restricting the particular right under Article 6 to a lesser extent (see, for instance, Saïdi v. France, no. 14647/89, 20 September 1993, para. 44). Finally, in relatively recent cases the Grand Chamber has confirmed on several occasions that in making its assessment the ECtHR will have regard to the interests of the public and the victims that crime be properly prosecuted. See, for example, Jalloh v. Germany [GC], no. 54810/00, 11 July 2007, paras. 97 and 117, where the ECtHR stated: “The general requirements of fairness contained in Article 6 apply to all criminal proceedings, irrespective of the type of offence in issue. Nevertheless, when determining whether the proceedings as a whole have been fair the weight of the public interest in the investigation and punishment of the particular offence in issue may be taken into consideration and be weighed against the individual interest that the evidence against him be gathered lawfully.” See also: Schatschaschwili v. Germany [GC], no. 9154/10, 15 December 2015, para. 101. 55 For the ECtHR’s approach in general to its subsidiary role see S.A.S. v. France [GC], no. 43835/11,1 July 2014, para. 129. 56 See, by contrast, the Soering case in which the ECtHR used an overly broad statement saying that “inherent in the whole of the Convention is a search for a fair balance between the demands of the general interest of the community and the requirements of the protection of the individual’s fundamental rights.” (Soering v. the United Kingdom, no. 14038/88, 7 July 1989, para. 89). 57 See Taxquet v. Belgium [GC], no. 926/05, 16 November 2010, para. 83.

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In Article 6 cases, in our view, the ECtHR’s task should not be fundamentally different.58 However, in assessing Article 6 complaints the ECtHR should refrain from taking public interest concerns directly into consideration.59 Instead, for the reasons which we will develop further below, the ECtHR should provide a framework for the domestic authorities within which they can apply the balancing test and it should censure the Member States only when their authorities have overstepped the acceptable boundaries. It appears that the ECtHR has laid down in its jurisprudence several restraints which the domestic authorities must observe in performing this balancing task: first, some procedural rights are so basic to a fair trial that their infringement can never be viewed as acceptable;60 second, no restriction should be such as to destroy or extinguish the very essence of the relevant Article 6 right;61 third, the restrictions may in general be imposed if they pursue a legitimate aim;62 fourth, a restriction should be reasonably proportionate to the aim sought to be achieved;63 and fifth, any restriction(s) imposed may never override the fairness of the trial as a whole.64 This is the manner in which, in our view, the ECtHR is providing a delimitation framework for the legitimate balancing of different competing interests in the administration of justice by the domestic authorities. This framework is conceptually different from that envisaged under Articles 8 – 11 ECHR, in that it inevitably leaves the domestic authorities a narrower maneuvering space in the balancing exercise. We see this as a commendable endeavor that is fully consistent with the place of Article 6 in the purported hierarchy of the ECHR rights. Furthermore, the observance of the fair trial guarantees satisfying the above criteria creates a protective perimeter that determines the limits of governmental author58

See, for instance, Salduz v. Turkey [GC], no. 36391/02, 27 November 2008, para. 51. See Al-Khawaja and Tahery v. the United Kingdom [GC], nos. 26766/05 and 22228/06, 15 December 2011, para. 146. 60 See Gäfgen v. Germany [GC], no. 22978/05, 1 June 2010, para. 167. 61 In the Jalloh case, relying on Heaney and McGuinness v. Ireland, no. 34720/97, 21 December 2000, para. 58, the ECtHR emphasized that “public interest concerns cannot justify measures which extinguish the very essence of an applicant’s defence rights, including the privilege against self-incrimination guaranteed by Article 6 of the Convention” (Jalloh v. Germany [GC], no. 54810/00, 11 July 2006, para. 97). See also Heglas v. the Czech Republic, no. 5935/02, 9 July 2007, para. 87; and Bykov v. Russia, no. 4378/02, 10 March 2009, para. 93. It seems that the inquiry about the essence of the right has been designed as a safeguard against excessive consideration of public interest factors. 62 See further Kostovski v. the Netherlands, no. 11454/85, 20 November 1989, para. 44. 63 See, in the context of the right of access to a court, Waite and Kennedy v. Germany [GC], no. 26083/94, 18 February 1999, para. 59. 64 In applying the holistic approach (now conceived as an “overall examination”) in order to determine the fairness of the trial, this Court has never stated that fairness can still be achieved if one of the fundamental rights is deprived of its essence. See the Joint Partly Dissenting and Partly Concurring Opinion of Judges Sajó and Karakas¸ in Al-Khawaja and Tahery v. the United Kingdom ([GC], nos. 26766/05 and 22228/06, 15 December 2011). 59

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ity in the context of the balancing exercise and it shapes the government’s particular legal relationship with an individual in the administration of criminal justice. In this way, as we see it, the ECtHR is actually treating the right to a fair trial as an instrumental good and at the same time as an intrinsic human right that can never be legitimately trumped as such.65 In short, the ECtHR is providing an arrangement for the coexistence and mutual reinforcement of procedural and substantive justice. In this context Damasˇka’s framework could be instructive in the search for the constellation of the fair trial guarantees necessary to secure the overall fairness of the process in a particular procedural culture, as well as in finding an adequate definition of the essence of a particular fair trial guarantee and in identifying rights which should be conceived as implicit guarantees of Article 6 ECHR. Damasˇka has arguably demonstrated how the features of the administration of justice flow from variations in the organization of procedural authority and from two distinctive objectives of justice.66 Consequently, similar procedural features are hardly the result of a consensus between different legal systems. It therefore appears erroneous to justify certain procedural solutions, when observed from the perspective of Article 6 ECHR, by the existence or lack of a comparative consensus. The ECtHR should rather be attentive to the manner in which two distinctive objectives of justice – the preservation of the integrity of the forensic contest and the attainment of accurate outcomes on the merits – are realized in a particular legal system. We will return to this discussion in the next section. For now, we find it important to follow another avenue to which this contention directs us. As we have seen in the introductory discussion, the understanding of the legal process in the contemporary European legal landscape is the perception of a structure consisting of two limbs or aspects, human rights and public interest considerations, in the administration of criminal justice. In societies across Europe the realization of the public interest has become more central to the administration of criminal justice and very often this realization is reflected in an increased emphasis on the value of truth discovery or the attainment of an accurate outcome of the process.67 The question which arises in this context is related to the possibility of simultaneous conceptual65 This is a vision somewhat different from that of Dworkin, who used the term “rights as trumps.” He allows curtailment of basic rights in extremis. See further R. Dworkin, Taking Rights Seriously (London, Duckworth 1977), p. 200. 66 Damasˇka identified two distinctive ends of the judicial process: ensuring an accurate outcome on the merits in the policy-implementing type of process, and maintaining the integrity of the party contest in the conflict-solving type of process. 67 See infra section 3. This is also reflected in two recent Grand Chamber judgments: Schatschaschwili v. Germany [GC], no. 9154/10, 15 December 2015, which took a more holistic approach to the right to examine witnesses; and Dvorski v. Croatia [GC], no. 25703/ 11, 20 October 2015, which apparently took a holistic approach to the right to be represented by a lawyer of one’s own choosing on the first interrogation of a suspect by the police. Both judgments focus upon the overall fairness of the proceedings rather than upon potential individual deficiencies.

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ization of the need to consistently uphold individual fair trial guarantees – purportedly more adept to the perception of legal process as a forensic contest of equal opportunities (conflict-solving) – and the need to secure an accurate outcome of the process (policy-implementing). Although one may see this as a conflict or tension between human rights and the policy-implementing aims in the administration of criminal justice, we consider, however, that any such conflict or tension is spurious. Once it is accepted that any political end of a judicial process, including the achievement of accurate outcomes, inevitably requires upholding the individual human rights in the administration of justice, it becomes clear that it is misplaced to pose a dilemma between upholding human rights and ensuring accurate verdicts. As Galligan has observed “accurate decisions themselves constitute an important element of fair treatment, which in turn constitutes an important element of respect for persons.” 68 Indeed, there is no reason why each jurisdiction, irrespective of whether it opted to place emphasis on the conflict-solving or policy-implementing ends of a judicial process, should not be able to make its own juridical accommodations of the right to a fair trial under Article 6 ECHR. In our view, the theories advocating legal monism in the contemporary European legal order, which are allegedly induced by the human rights discourse,69 and advocating the necessity of unification and/or standardization of diverse criminal justice systems in Europe on the basis of the ECHR standards,70 are marked with significant conceptual fallacies. Our principal difficulty with such an approach is that it apparently neglects the fact that the perceived ends of the legal process, and their implications for the choice of procedural form, are determined by the particular disposition of governing political authority, which, conceptually speaking, may be placed at one of Damasˇka’s extreme ends of Activist State and Reactive State.71 At the common European level such governing political authority (still) does not exist.72 Assigning that or any similar role to the function of the ECtHR would be a futile endeavor as it would run counter to the concept of subsidiarity, which leaves it primarily to the 68 See D.J. Galligan, Due Process and Fair Procedures: A Study of Administrative Procedures (Oxford, Clarendon Press 1966), p. 78. 69 Irrespective of possibly diverse practical arrangements of different theories advocating such an approach. 70 Admittedly, critics could say that our discourse is too ostensible and that it ignores specificities of the particular theoretical assumptions. Our intention, however, is to contrast the contemplation of pluralistic and polyvalent discourse of human rights against unitary and monistic assumptions. We do not therefore need to engage in a detailed elaboration of approaches advocating one side of the extreme. 71 Damasˇka, supra n. 1, pp. 71 – 96. 72 We leave it open whether the future of the European Union will progress to that end (see further J. Ouwerkerk, “Criminal Justice beyond National Sovereignty. An Alternative Perspective on the Europeanisation of Criminal Law”, 23(1) European Journal of Crime, Criminal Law and Criminal Justice (2015), pp. 11 – 31).

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ECHR Contracting States to choose the best means of securing the ECHR rights.73 Or, as the ECtHR, has stated: “[I]t is not the Court’s task to standardise [the variety of legal systems existing in Europe]. A State’s choice of a particular criminal-justice system is in principle outside the scope of the supervision carried out by the Court at European level, provided that the system chosen does not contravene the principles set forth in the Convention.”74

It is true, however, that there is a tendency of national criminal justice systems to seek the appropriate guidance for institutional reforms in the law of the ECHR. Thus, for example, the ECHR Contracting Parties are required to carry out structural reforms when joining the ECHR system75 and are constantly in the process of adjusting their systems to the ECHR standards.76 This arguably, as some commentators submit, creates a challenge to national sovereignty induced by a supranational control over all aspects of the criminal process.77 At the same time it marks the constitutionalization process of the ECHR (as “a constitutional instrument of European public order”)78 through which the ECHR is framed and institutionalized in national legal orders. We are thus faced with the process in which the ECHR rights should be protected, firstly, by national courts, and then by the ECtHR through the medium of law.79 However, we do not see this as a dictate of commonality and unification. It is rather an induction of the human rights element in the discourse of criminal process. This induction should be viewed, in our opinion, as the formation of an equitable medium

73 See further for the discussion on subsidiarity: R. Spano, “Universality or Diversity of Human Rights? Strasbourg in the Age of Subsidiarity”, 14 Human Rights Law Review (2014), pp. 487 – 502; J. Gerards and H. Senden, “The structure of fundamental rights and the European Court of Human Rights”, 7(4) International Journal of Constitutional Law (2009), pp. 619 – 653; and G. Letsas, “Two Concepts of the Margin of Appreciation”, 26(4) Oxford Journal of Legal Studies (2006), pp. 705 – 732. Note that the principle of subsidiarity was embedded as a normative concept into Protocols Nos. 15 and 16 to the ECHR (CTS No. 213, 24 June 2013 and No. 214, 2 October 2013). 74 Taxquet v. Belgium [GC], no. 926/05, 16 November 2010, para. 83. 75 See, for instance, the case of Finland: M. Joutsen, R. Lahti and P. Pölönen, The Criminal Justice System of Finland (Helsinki, The European Institute for Crime Prevention and Control 2001), p. 5. 76 See J. Hodgson, “Suspects, Defendants and Victims in the French Criminal Process: The Context of Recent Reform”, 51 International and Comparative Law Quarterly (2002), p. 782; and I. Motoc and I. Ziemele (eds.), The Impact of the ECHR on Democratic Change in Central and Eastern Europe: Judicial Perspectives (Cambridge, Cambridge University Press 2016). 77 See F. Tulkens, “Criminal Procedure: Main Comparable Features of the National Systems”, in: M. Delmas-Marty (ed.) The Criminal Process and Human Rights (Dordrecht, Martinus Nijhoff Publishers 1995), p. 11. 78 See Loizidou v. Turkey (Preliminary Objections) [GC], no. 15318/89, 23 March 1995, para. 75; and Bosphorus Hava Yolları Turizm ve Ticaret Anonim S¸irketi v. Ireland [GC], no. 45036/98, 30 June 2005, para. 156. 79 See S. Greer and L. Wildhaber, “Revisiting the Debate about ‘constitutionalising’ the European Court of Human Rights”, 12(4) Human Rights Law Review (2013), pp. 667 – 669.

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through which the state conducts its relationship with the individuals concerned80 rather than an argument for overbearing unitary or monistic assumptions. Its central function is to promote individual interests in the course of procedural actions with the consequential effect in practical terms that the possible conflicts between public interest and individual rights cannot be resolved without turning to the solutions provided for in international human rights law. We find it, however, salutary to reiterate that we do not see this induction of the human rights element in the criminal process as an impediment to achieving the perceived end of the process, but rather as the recognition of the fact that in the contemporary European legal landscape advancing any political end of a judicial process inevitably means upholding human rights. Our contemplation arguably provides for a solution which could be accommodated in the policy-implementing and conflict-solving ends of legal process, without any need for a structural transformation or approximation of the two ends into a single form (irrespective of the fact that one of them might appear as a preferable model). In other words, as the ECtHR explained in the case of Al-Khawaja and Tahery v. the United Kingdom,81 there should be no conceptual disagreement in observing “substantial differences in legal systems and procedures” against ECHR standards. Consequently, the national political authority enjoys considerable freedom in the choice of the means calculated to ensure compliance of its judicial systems with the ECHR, and the international supervision of such observance by the ECtHR must be limited to ascertaining that the applied method is compatible with the ECHR.82 We intend to demonstrate the above contentions by looking at the accommodation of the ECtHR’s case-law to the policy-implementing tendencies in the European legal orders.

III. The ECHR Guarantees of a Fair Trial in the Conflict-solving and Policy-implementing Environments There are several recent examples showing how the ECtHR case-law on a particular procedural guarantee, initially developed on the basis of the conflict-solving conception of the administration of criminal justice, has become accommodated to the contemporary counter-tendencies towards the conflict-solving model, placing emphasis on the value of truth discovery or the attainment of an accurate outcome of the process (policy-implementing tendencies). Our analysis will focus on the procedural implications of the ECtHR case-law related to witness evidence, more precisely

80

See the discussion on the morality of the State in J. Laws, “Beyond Rights”, 23(2) Oxford Journal of Legal Studies (2003), p. 275. 81 Al-Khawaja and Tahery v. the United Kingdom [GC], nos. 26766/05 and 22228/06, 15 December 2011, para. 130. 82 See Taxquet v. Belgium [GC], no. 926/05, 16 November 2010, para. 84.

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the right to examine or have examined witnesses for the prosecution under Article 6 § 3 (d) ECHR. One of the express guarantees of Article 6 ECHR (right to a fair trial), contained in paragraph 3 (d) of that provision,83 is the right of anyone charged with a criminal offence84 to examine or have examined witnesses85 for the prosecution. The central premise for including this right in the inventory of Article 6 ECHR was to “place the accused on a footing of equality with the public prosecutor, as regards the hearing of witnesses.”86 It is therefore one of the specific guarantees which must be understood in the context of the general concept of a fair trial under Article 6 § 1 ECHR.87 The concept of equality, referred to by the drafters of the ECHR, was in general construed as the procedural guarantee of “equality of arms” according to which “each party must be afforded a reasonable opportunity to present his case under conditions that do not place him at a disadvantage vis-à-vis his opponent.”88 Inextricably related to this is the fundamental conception of the adversarial trial which implies, in the narrow sense, that both “prosecution and defence must be given the opportunity to have knowledge of and comment on the observations filed and the evidence adduced by the other party.”89 The fact that ordinarily in the criminal process the public prosecutor, acting as the state agent, is the opposing party has no bearing on these requirements of equality.90 Furthermore, the concept of equality is not exhausted by a requirement of equal treatment of the prosecutor and the defense in the proceedings but also implies that the hearing of witnesses and other evidence must in general 83 This provision reads: “Everyone charged with a criminal offence has the following minimum rights: … to examine or have examined witnesses against him and to obtain the attendance and examination of witnesses on his behalf under the same conditions as witnesses against him …” 84 Note that the concept of “criminal charge” has an autonomous meaning under the ECHR denoting “any official notification given to an individual by the competent authority of an allegation that he has committed a criminal offence” (Deweer v. Belgium, no. 6903/75, 27 February 1980, para. 46). 85 The term “witness” under the ECHR designates any participant to the proceedings whose testimony may serve as a basis for conviction (Lucà v. Italy, no. 33354/96, 27 February 2001, para. 41). This may, accordingly, relate to co-accused (Vidgen v. the Netherlands, 29353/06, 10 July 2012, para. 42), victims (Lucˇ ic´ v. Croatia, no. 5699/11, 27 February 2014, para. 75) or expert witnesses (Gregacˇ evic´ v. Croatia, no. 58331/09, 10 July 2012, para. 67). It may also extend to documentary and other evidence (Mirilashvili v. Russia, no. 6293/04, 11 December 2008, paras. 159 – 160). 86 Observations on the draft Article 6 by the Report of the Conference of Senior Officials to the Committee of Ministers (Preparatory work on Article 6 of the European Convention on Human Rights, CEDH (68) 3 Bilingue, 19 March 1968, p. 32). 87 Asch v. Austria, no. 12398/86, 26 April 1991, para. 25. 88 Bulut v. Austria, no. 17358/90, 22 February 1996, para. 47. 89 Brandstetter v. Austria, nos. 11170/84, 12876/87 and 13468/87, 28 August 1991, para. 67. 90 Zahirovic´ v. Croatia, no. 58590/11, 25 April 2013, paras. 44 – 50.

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be adversarial.91 This means that “all the evidence must be produced in the presence of the accused at a public hearing with a view to adversarial argument,” irrespective of whether that guarantee is secured at the pre-trial stage of the proceedings or at the trial.92 These general observations on the ideal procedural form of equality under the ECHR suggest a strong preference for the reactive ideology of the administration of justice where the state is always placed on an equal footing with the individual, irrespective of the fact that the state may perform the function of the opposing party and, essentially, the adjudicator. The proceedings in each case should mark the contest between two sides which advance their claims and press for a disposal of the case in their favor. Such concept resembles the “adversarial process,” as known in the common-law cultures, or the “accusatorial process,” as it is recognized in the Continental legal culture, or broadly speaking “conflict-solving process,” as contemplated by Damasˇka.93 The conflict-solving preferences in the administration of justice, devised under Article 6 ECHR, were initially well reflected in the requirement of fairness with regard to evidence gathering through the examination of witnesses for the prosecution (Article 6 § 3 (d) ECHR). The ECtHR case-law in this context implied the necessity of strict observance of the adversarial principle and the equality of parties in the proceedings. Exceptions were naturally envisaged but they were confined to an extent which excluded any structural disorder capable of undermining this state of affairs. As a general rule, under this case-law, it was imperative that the accused should have the possibility of confronting a witness for the prosecution at an adversarial hearing before a judge.94 It was accepted that there could be instances where the statement of a witness, made at the pre-trial stage of the proceedings, was read out during the trial without the possibility for the accused to examine the witness at the hearing.95 However, if the accused had never been given an opportunity to confront and question a witness for the prosecution, either at the trial or at the pre-trial stage of the proceedings,96 and if the statement of that witness had been the sole or decisive evidence for her conviction, the rights of the accused were considered to be restricted to an extent 91

Barberà, Messegué and Jabardo v. Spain, no. 10590/83, 6 December 1988, para. 78. Kostovski v. the Netherlands, no. 11454/85, 20 November 1989, para. 40. 93 See Damasˇka, supra n. 1, pp. 78 – 80. 94 Kostovski v. the Netherlands, no. 11454/85, 20 November 1989, para. 41. 95 Unterpertinger v. Austria, no. 9120/80, 24 November 1986, para. 31; and Kopecky v. the Czech Republic (dec.), no. 32456/04, 30 March 2010. See, however, where the pre-trial questioning was not considered sufficient as, in the particular circumstances, it did not secure an effective examination of the witness (Vladimir Romanov v. Russia, no. 41461/02, 24 July 2008, para. 105; and Melinkov v. Russia, no. 23610/03, 14 January 2010, para. 81). 96 Because of, for example, death (Mika v. Sweden, no. 31243/06, 27 January 2009), or inability to trace the witness (Mirilashvili v. Russia, no. 6293/04, 11 December 2008, para. 220), or unwillingness of the witness to give evidence at the trial (Craxi v. Italy, no. 34896/97, 5 December 2002, paras. 86 – 87). 92

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incompatible with the requirements of a fair trial under Article 6 §§ 1 and 3 (d) ECHR.97 Similar considerations were applicable to anonymous and other witnesses who gave evidence outside the ordinary proceedings. In particular, the ECtHR did not exclude a conceptual need for the rights of the defense to be balanced against the rights of victims and/or the rights of witnesses. Accordingly, when life or well-being or other legitimate interests were at stake, the domestic authorities were required to organize their systems so as not to imperil the legitimate interest at issue and, at the same time, not to unreasonably restrict the rights of the accused.98 In other words, the domestic authorities were obliged to put in place sufficient counterbalancing procedures capable of compensating for the handicap under which the defense labored99 but they were always required to deploy less restrictive measures limiting the rights of the defense.100 In any case, however, when the conviction was based solely or to a decisive extent on the statement of a witness examined under such circumstances, an issue arose as to the requirement of fairness under Article 6 §§ 1 and 3 (d).101 A disputed aspect of the above approach was the principle underlying the “sole or decisive” test for the (in)admissibility of witness evidence for a conviction. As we have seen, in so far as the witness statement was the sole or decisive evidence, such statement could not be used for a conviction unless the accused had had the opportunity to confront and question the witness during the proceedings. The opposition to this test was articulated, in what is often denoted as dialogue between international and domestic judges,102 in the United Kingdom Supreme Court’s case of R v. Horncastle and Others103 where Lord Phillips, giving the judg97 See, amongst many others, Saïdi v. France, no. 14647/89, 20 September 1993, para. 44; A.M. v. Italy, no. 37019/97, 14 December 1999, paras. 26 – 28; and Guilloury v. France, no. 62236/00, 22 June 2006, para. 61. 98 Doorson v. the Netherlands, no. 20524/92, 26 March 1996, para. 70. This in particular concerns the victims of sexual abuse (see, for example, S.N. v. Sweden, no. 34209/96, 2 July 2002, para. 47). 99 Such as by securing the questioning of anonymous witnesses through counsel but in the absence of the parties (Doorson v. the Netherlands, no. 20524/92, 26 March 1996, para. 73) or via technical devices or reproduction of the video-recording of the interview, allowing the accused to observe the victim’s conduct during the testimony (Bocos-Cuesta v. the Netherlands, no. 54789/00, 10 November 2005, para. 71; and W.S. v. Poland, no. 21508/02, 19 June 2007, para. 61). 100 Van Mechelen and Others v. the Netherlands, nos. 21363/93, 21364/93, 21427/93 and 22056/93, 23 April 1997, para. 58. 101 See, for example, A.L. v. Finland, no. 23220/04, 27 January 2009, para. 44. 102 See, for example, M. Amos, “The Dialogue between United Kingdom Courts and the European Court of Human Rights”, 1(3) International and Comparative Law Quarterly (2012), pp. 557 – 584; L.R. Helfer, “Redesigning the European Court of Human Rights: Embeddedness as a Deep Structural Principle of the European Human Rights Regime”, 19(1) The European Journal of International Law (2008), p. 151. 103 [2009] UKSC 14.

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ment of the Supreme Court, considered that the ECtHR had not sufficiently accommodated certain aspects of English law concerning the admission of hearsay evidence. In particular, in his view, the ECtHR test had been conceived in relation to continental jurisdictions which did not have such a comparable body of jurisprudence or rules governing the admissibility of evidence as did the common-law jurisdictions. He thus doubted whether there was justification for imposing an overriding principle applicable equally to continental and common-law jurisdictions. Lord Phillips considered the “sole or decisive” test paradoxical as it permitted the court to have regard to evidence if the support that it gave to the prosecution case was peripheral, but not where it was decisive. At the same time, he contended, there would be some cases where the evidence in question was demonstrably reliable.104 He thus argued that, to the extent that the justification for the sole or decisive test would be that the risk of an unsafe conviction based solely or decisively on anonymous or hearsay evidence was so great that such a conviction could never be permitted, English law provided sufficient safeguards averting the risk that the use of such witness evidence would render the verdict unsafe and the trial unfair.105 Although these doubts concerning the ECtHR test for the (in)admissibility of witness evidence were construed on the basis of the ECtHR’s failure to accommodate differences between continental and common-law jurisdictions in this matter, Damasˇka’s teaching can well demonstrate that the difficulty related to something else. The question is rather whether the ECtHR recognized the need to accommodate policyimplementing tendencies (of effective control and suppression of crime) into its devised conflict-solving environment, which initially underpinned the general orientation premises of equality and fairness under Article 6 §§ 1 and 3(d) ECHR. In particular, as Damasˇka explains, in an environment in which the emphasis is placed on the conflict-solving tendencies, the procedure is a matter of substance in a sense that proceedings are a contest between two parties before an impartial conflict resolver, where the winning party is the one whose forensic skills prevail over those of the other party. Accordingly, judgments tend to be justified procedurally and procedural law acquires independence and its own integrity in relation to substantive law (procedural legitimating of judgments). There may, however, be instances in which the decision-maker will be confronted with discordant procedural and substantive voices: where a view which prevailed in the contest does not coincide with the 104

He gave the following example: “A visitor to London witnesses a hit and run road accident in which a cyclist is killed. He memorises the number of the car, and makes a statement to the police in which he includes not merely the number, but the make and colour of the car and the fact that the driver was a man with a beard. He then returns to his own country, where he is himself killed in a road accident. The police find that the car with the registration number that he provided is the make and colour that he reported and that it is owned by a man with a beard. The owner declines to answer questions as to his whereabouts at the time of the accident. It seems hard to justify a rule that would preclude the conviction of the owner of the car on the basis of the statement of the deceased witness, yet that is the effect of the sole or decisive test” (ibid., para. 91). 105 Ibid., para. 92.

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proper outcome on the merits. Favoring one side for the benefit of the merits by sacrificing the contest’s incentives beclouds the impartiality of the conflict resolver. Ideally, in instances of such a conflict, a conflict-solving type of proceeding provides mechanisms to avert or resolve the conflict without undermining the integrity of proceedings based on the contest principle. This will be achieved, inter alia, by the application of mechanisms aimed at securing that no source of information is exempted from the party contest which would, in turn, minimize the risk that the decisionmaker might arrive at a conclusion different from the one supported by the winner of the contest. In any case, the proceedings are fair to the extent that the parties are afforded equal chances of success and the fairness is secured by providing the parties with equal weapons for the contest.106 Accordingly, as explained in Mirilashvili v. Russia, when the accused did not have an opportunity to question a witness whose statement was admitted in evidence in favor of the prosecution, the principle of equality of arms and adversarial trial was undermined.107 The appearances of equality of the parties were thereby beclouded and thus the proceedings fell short of the requirement of fairness. Fairness in this sense has nothing to do with the question whether the verdict is substantively safe since the trial is fair not because the outcome is fair but because the parties had equal chances of success. Indeed, the ECtHR has explained that the observance of the equality of arms does not depend on further, quantifiable unfairness flowing from a procedural inequality.108 In other words, as submitted by commentators, the rationale behind the ECtHR’s test was not that it was unsafe to convict an accused on untested evidence but that it was simply unfair.109 However, when the evidence in question was not of sufficient relevance for the case (sole or decisive), the risk that the decision-maker might arrive at a different conclusion from the one supported by the winner of the contest was minimized to the highest extent, or was perhaps even non-existent. Thus, excluding the possibility that such evidence should raise an issue from the perspective of fairness was far from being paradoxical. On the contrary, it may be seen as an attempt of the ECtHR to recognize the reality: the need for the domestic systems to take account of mechanisms preventing the above-mentioned discordant procedural and substantive voices. However, as we learn from Damasˇka, there could be tendencies where a state begins to use the legal process to advance values and policies more broadly than for the resolution of a particular dispute (effective control and suppression of crime). Now 106 Damasˇka, supra n. 1, pp. 101 – 103. Brian Barry moreover observed that an enhanced respect for a fair trial is more likely to eventuate in a just verdict (B. Barry, Political Argument (London, Routledge & Kegan Paul 1965), p. 102). 107 Mirilashvili v. Russia, no. 6293/04, 11 December 2008, paras. 225 – 226. 108 Bulut v. Austria, no. 17358/90, 22 February 1996, para. 49. 109 See I. Dennis, “The Right to Confront Witnesses: Meaning, Myths and Human Rights”, 4 Criminal Law Review (2010), pp. 271 – 272.

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the procedural integrity becomes a commodity more easily to sacrifice for the benefit of a substantive outcome. In this case the image of the judge as the neutral conflict arbiter fades away, for he is required to perceive the right solution to the merits notwithstanding the litigants’ procedural fortunes. In practice, this denotes departure from the pure conflict-solving process and approximation to the policy-implementing mode.110 Accordingly, one understanding of the United Kingdom Supreme Court judgment in Horncastle and Others could assert that the human rights argument in the context of the examination of witnesses can be adequately recognized and upheld to the extent that its structural value is devised so as to contribute to the sustainability of a conviction. In other words, the proceedings are fair to the extent to which the verdict is safe. We could develop this argument more concretely by conceiving the “sole or decisive” test as an equitable medium between the reality of a judicial process and the human rights ideal, which should, in the cited understanding of fairness, contribute to the assurance of the substantive value of a conviction. This line of understanding appears to have been accepted by the ECtHR in the above-cited Grand Chamber case of Al-Khawaja and Tahery v. the United Kingdom, where the ECtHR responded to the doubts expressed by the United Kingdom Supreme Court in Horncastle and Others.111 The Al-Khawaja and Tahery judgment makes no mention of the principle of equality of arms, initially considered as an aspect underpinning Article 6 § 3 (d) ECHR. Instead, it associates the question of the “overall fairness of the proceedings” with the following central sets of considerations: the rights of the defense; the interests of the public and the victims that crime be properly prosecuted; and, where applicable, the rights of the witnesses.112 In practical terms, the method for achieving the “overall fairness of the proceedings” is construed as an inquiry into the following aspects of the case: (1) whether there was a good reason for the non-attendance of the witness and, consequently, for the admission of the absent witness’s untested statements in evidence; (2) whether the evidence of the absent witness was the sole or decisive basis for the defendant’s conviction; and (3) whether there were sufficient counterbalancing factors, including 110

See Damasˇka, supra n. 1, p. 103. Note that the case at issue was also examined by the ECtHR (Horncastle and Others v. the United Kingdom, no. 4184/10, 16 December 2014) and that it upheld the decision of the United Kingdom Supreme Court. 112 Al-Khawaja and Tahery v. the United Kingdom [GC], nos. 26766/05 and 22228/06, 15 December 2011, para. 118. Note that when making this assertion that judgment refers to the Grand Chamber case of Gäfgen v. Germany where, in the context of the most difficult test for a reactive conflict-solving model of judicial process (criminal prosecution for the abduction and murder of a child tainted by evidence obtained by inhuman treatment), the ECtHR recognized the highly legitimate interests of the public and the victims that the crime be effectively prosecuted but only to conclude that “there is also a vital public interest in preserving the integrity of the judicial process and thus the values of civilised societies founded upon the rule of law” (Gäfgen v. Germany [GC], no. 22978/05, 1 June 2010, para. 175). 111

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strong procedural safeguards, to compensate for the handicaps caused to the defense as a result of the admission of the untested evidence and to ensure that the trial, taken as a whole, was fair.113 In each particular case the assessment of these aspects needs to be a holistic one, taking into account all substantive and procedural circumstances of the case, before answering the question whether the trial “as a whole” was fair.114 This accordingly leads to the conclusion that the judicial process can no longer only be procedurally justified by securing the equality of the parties and the contest principle. Now the proceedings are fair to the extent to which they implement in particular the first two central perceived ends of the criminal process: recognition of the rights of the defense and effective prosecution of crime. Thus, for example, in Sievert v. Germany, based on the Al-Khawaja and Tahery case-law, the ECtHR upheld an argument whereby the interests of justice related to effective prosecution of crime favored admitting in evidence the statements of witnesses whom the defense could not directly examine, on the grounds that otherwise any further prosecution of the accused would have de facto been blocked.115 In such a state of affairs the “sole or decisive” test, as observed above, is not an inflexible requirement.116 It no longer operates so as to mitigate the risk that the decision-maker might arrive at a conclusion different from the one supported by the winner of the contest but to contribute to the sustainability of a conviction by permitting it, in some instances, to be based on untested witness evidence. Specifically, under the Al-Khawaja and Tahery test, this will be possible when sufficient counterbalancing factors, including measures for an assessment of the reliability of that evidence, are put in place so as to permit a conviction to be based on such evidence only if it is sufficiently reliable given its importance in the case.117 In other words, as explained in Schatschaschwili v. Germany, a subsequent Grand Chamber case aimed at clarifying the Al-Khawaja and Tahery principles, “[t]he extent of the counterbalanc113 See further: Schatschaschwili v. Germany [GC], no. 9154/10, 15 December 2015, para. 107. 114 Ibid., para. 118. 115 Sievert v. Germany, no. 29881/07, 19 July 2012, para. 62. 116 Al-Khawaja and Tahery v. the United Kingdom [GC], nos. 26766/05 and 22228/06, 15 December 2011, para. 146. 117 The Al-Khawaja and Tahery judgment devises the relevant test in the following manner: “[W]here a hearsay statement is the sole or decisive evidence against a defendant, its admission as evidence will not automatically result in a breach of Article 6 § 1. At the same time, where a conviction is based solely or decisively on the evidence of absent witnesses, the Court must subject the proceedings to the most searching scrutiny. Because of the dangers of the admission of such evidence, it would constitute a very important factor to balance in the scales … and one which would require sufficient counterbalancing factors, including the existence of strong procedural safeguards. The question in each case is whether there are sufficient counterbalancing factors in place, including measures that permit a fair and proper assessment of the reliability of that evidence to take place. This would permit a conviction to be based on such evidence only if it is sufficiently reliable given its importance in the case” (Al-Khawaja and Tahery v. the United Kingdom [GC], nos. 26766/05 and 22228/06, 15 December 2011, para. 147).

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ing factors necessary in order for a trial to be considered fair will depend on the weight of the evidence of the absent witness. The more important that evidence, the more weight the counterbalancing factors will have to carry in order for the proceedings as a whole to be considered fair.”118 The ECtHR in Schatschaschwili confirmed the Al-Khawaja test, albeit in a somewhat loosened form by taking the position that the considerations of the Al-Khawaja test were merely factors that could be counter-balanced as long as the trial as a whole was fair.119 The tendency introduced by the Al-Khawaja and Tahery approach, subsequently further relaxed by the Schatschaschwili judgment, should be, in our view, understood as an ample example of departure from the revered reactive, conflict-solving ideology of justice towards an activist, policy-implementing type of proceeding.120 Such departure, in the context of the generic premise of preference for a conflict-solving environment under the ECHR, appears as a necessary maneuver if the war against crime is to be successfully fought (ne crimina maneat impunita).121 In such a state of affairs, as Damasˇka explains, procedural rules and regulation occupy a less important and independent position since the procedure is merely a handmaiden of substantive law. Decisions are no longer justified in terms of procedural fairness but in terms of the correct outcomes that they represent. The procedural law follows the substantive law, which, in turn, follows the state policy (of criminal law enforcement).122 Naturally, however, a valid substantive outcome cannot justify any procedural breach. Thus, even the most activist systems recognize the dual nature of some procedural rules, in the sense that their infringement disrupts an internal procedural order and at the same time violates a substantive policy. Nevertheless, in the activist systems, when a breach of a procedural provision has been established it does not readily invalidate the decision stemming from the breach as it does in the conflict-solving process. The relevant question is always whether the impugned decision is substantively accurate. Accordingly, the undoing of a substantively accurate decision will be possible only on the basis of a serious substantiation, since an accurate

118

Schatschaschwili v. Germany [GC], no. 9154/10, 15 December 2015, para. 116. Schatschaschwili v. Germany, supra note 49. The approach was heavily criticized by minority judges in their dissenting opinion. 120 Damasˇka observes that the Anglo-American criminal procedure provides more contest forms that any other contemporary system of criminal justice and yet such procedure is a policy-implementing process. This is mandated by the fact that, in the modern states, criminal law enforcement cannot entirely be fitted into the conflict-solving mode (see Damasˇka, supra n. 1, p. 222). 121 See the discussion in Damasˇka, supra n. 1, p. 188. See further, for the crime control policy-implementing tendencies of the government incorporated in the judicial reasoning, I. Jones, “A political judgment? Reconciling hearsay and the right to challenge”, 14 The International Journal of Evidence & Proof (2010), pp. 232 – 252); and C. Ingoldsby, “Supergrass Testimony and Reasonable doubt: An Examination of DPP v. Ward”, 2 Trinity College Law Review (1999), p. 29. 122 Damasˇka, supra n. 1, p. 148. 119

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judgment cannot be sacrificed merely by reason of possible remote and speculative losses.123 A further characteristic of the policy-implementing ideal implied in the Al-Khawaja/ Schatschaschwili approach can be observed in the flexibility of procedural instructions. In the policy-implementing type of process, procedural rules must be flexible and departures from the rules should be permitted if rigid adherence to such rules threatens the realization of the substantive policy. Accordingly, disregard for procedural form is permissible whenever in the circumstances of a particular case the disadvantage of departing from the rule is outweighed by counterbalancing policy considerations. Nevertheless, even the most extreme activist states recognize that some procedural rules merit rigid protection and thus their breach requires automatic reversal. However, this merely reflects the reality that, just as pure procedural justice does not exist, the preference for substantive legitimation cannot be advanced solely in terms of accurate results.124 By observing the foregoing we are not qualifying the departure from the reactive, conflict-solving ideology towards an activist, policy-implementing ideology of justice as an acceptable or injurious occurrence for the position of an individual implicated in criminal proceedings. We rather see that trend as a devised reality in which the human rights element operates in the structure of the criminal process. We nevertheless find it prudent to express the following hesitation. The adherence to the policy-implementing ideal mirrors the acceptance of the primacy of state interests over the autonomy of private parties. In these circumstances, discussing individual rights – such as the right to a fair trial – can only be validly done if an individual can argue that the non-recognition of her “rights” is contrary to some state interest (that crime be properly prosecuted). She must thereby seek to use the weight of the state interest to protect her own by, for example, arguing that the crime must be properly prosecuted, where the term “properly” denotes, inter alia, recognition of her rights. Thus, as Damasˇka sums it up, to transpose procedural regulation of the policy-implementing process into a set of rights is to place the legal idiom of the reactive state into an alien environment in which, strictly speaking, there are no personal procedural rights.125 Our apprehension in the context of the ECtHR case-law concerning the application of the Al-Khawaja/Schatschaschwili approach is that the ECtHR is, somewhat injudiciously, doing exactly that: transposing the revered concept of private autonomy in the enjoyment of the particular aspects of the right to a fair trial into an alien environment of fervent policy-implementing procedural discourse. This does not, however, mean that we blatantly refuse any such possibility. However, a possible approximation of the two discourses should be a very prudent 123

Ibid., pp. 148 – 149. Ibid., pp. 150 – 152. In the context of the ECtHR case-law this is reflected in the absolute prohibition of reliance on evidence obtained by torture (Gäfgen v. Germany [GC], no. 22978/05, 1 June 2010, paras. 166 and 167). 125 See Damasˇka, supra n. 1, p. 152. 124

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exercise, which will recognize that there must be an obvious stopping point in the observance of minimum requirements of a fair trial under Article 6 ECHR. To conclude this discussion, it can be observed that the ECHR standards on the examination of witnesses, in the practical reasoning of human rights discourse, operate both in conflict-solving and policy-implementing environments. In fact, the ECtHR’s case-law well accommodates the policy-implementing tendencies in the European legal orders, even though the concept of fairness under the ECHR was initially developed on the basis of a preference for a conflict-solving procedural environment. This accommodation is, however, a very meticulous exercise which should be capable of recognizing and respecting the subtle differences between the two models of the administration of justice as luminously conceptualized by Damasˇka. For the ECtHR, this accommodation should have its limits in the human rights character of the right to a fair trial, which as an ultimate criterion of democracy and the rule of law should never be trumped as such. Thus the ECtHR must reinforce the necessary restraints which the domestic authorities ought to respect in striking a balance between public interests and fair trial guarantees.

IV. Conclusion There are not so many authors, nor so many writings, that are so universal and convincing as Damasˇka is, in his seminal book on the Faces of Justice and State Authority, in devising the designs of procedural systems and their actual workings in the administration of justice. Although Damasˇka’s structure of the systems of judicial process was devoid of human rights considerations, we have seen that it represents an important framework for the understanding of the particular considerations and tendencies in human rights law touching upon the issues surrounding the administration of criminal justice. In the above discussion we have conceived how one face of human rights, that of the ultimate criterion of democracy and the rule of law, operates in the context of two faces of criminal justice in the European legal orders: the policy-implementing and the conflict-solving ideals. It remains for the ECtHR and the national authorities to be attentive to the divergences in the two modes of the administration of justice and to duly observe the precepts of human rights law when upholding the dignitarian and instrumental guarantees of fairness of criminal process. Damasˇka’s teachings undoubtedly remain an indispensable source of inspiration and authority in this context.

Legal Transplant in the Criminal Procedure Law of China: Experiences and Reflections Zuo Weimin* and Fu Xin** There are heated discussions in the international academic community on whether the law of one jurisdiction can be transplanted into another.1 As far as the transplant of the criminal procedure law is concerned, most of the researches in China focus on a concrete system, lacking an overall and systematic study of such a branch of law; and very few writings addressed the issue from the macroscopic historical perspective.2 As a result, this paper attempts to explore these questions broadly from the historical perspective of legal transplant in China. Generally speaking, this paper reviews the reforms and changes of the criminal procedure law during the past thirty years and discusses the content transplanted in the criminal procedure law for the purpose of testing whether legal transplant can become acceptable in China. It consists of four parts: Part One is an overview of an American scholar, Mirjan R. Damasˇka’s statement on legal transplant, while Parts Two and Three mainly observe and analyze the legal transplant in the field of criminal procedure law in China, and in Part Four, the authors respond to Damasˇka’s statement on legal transplant in the Chinese context. * Professor Zuo Weimin is Professor of law and Supervisor for Ph.D. Candidates at Sichuan University Law School. He has also been selected as the Professor under the Cheung Kong Scholars Programme of the Ministry of Education of the P. R. of China and Vice President of China Association of Criminal Procedure Law. His research interests cover criminal justice, evidence, ADR, judicial and legal reforms in China. Email: [email protected]. ** Dr. Fu Xin is Lecturer at the Northwest University of Political Science and Law, whose research interests include criminal justice, legal and judicial reforms, legal and sociological research and human rights. Email: [email protected]. 1 We can find various writings on this topic. Among them, some argued that the law of one state can be transplanted into another regardless of the political, social and economic contexts. See Watson, Alan: Legal Transplant and Law Reform, Law Quarterly Review, vol. 92, 1976, p. 79. In the meanwhile, some scholars held a pessimistic view on legal transplant. See for example, Seidman Ann/Seidman, Robert B.: State and Law in the Development Process: Problem-Solving and Institutional Change in the Third World, Macmillan Press, 1994. 2 See, for example, Wang, Haiyan: Removal of Demons and Restructuring: Transplant and Localization of Criminal Procedure Law, Tribune of Political Science and Law (Zhengfa Luntan), No. 2, 2007, pp. 126 – 137; and Ai, Jiahui: The Institutional Transition and Theoretical Development of the Criminal Procedure Law: From the View of ‘the Chinese Pattern of the Criminal Procedure Law’, Science of Law (Falu Kexue), No. 5, 2011, pp. 143 – 153.

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I. Damasˇka’s Proposition on Legal Transplant in the Criminal Procedure Law: Subject to Further Test In the field of criminal procedure, it is a controversial topic on whether a system in different social contexts between the states with different legal systems can be borrowed from each other. An American scholar, Professor Mirjan R. Damasˇka attempted to provide us his own insights on this issue. In his view, the success or failure in the transplant of the procedural system of other states mainly depended on the compatibility between the new rules and the culture and system of a particular state in which the judicial administration pattern is rooted. Due to the divergence of legal systems, cultural and institutional backgrounds between different states, legal transplant is always more problematic and complicated, and thus we can find that there are very few instances of success. He also provided us a vivid analogy: Plotting one procedural reform (transplant of procedural system of another state) is just like planning a concert. The rules seem like a musical note, even though each of them may have its intrinsic artistic value, this does not necessarily guarantee the success of a concert. Perfect musical instruments, skilled performers and musical styles are also equally important prerequisites in attracting the audience.3 Take the fact-finding rules in the field of criminal procedure system on the transplant between two legal systems for example. Damasˇka believed that as for the imitation of the law – no matter it is in the civil law system, or in the common law system, the practical effects of the system transplanted is not always so satisfactory in operation, if compared with its original localized system.4 That is to say, if the musical instruments and performers have been changed, the legal music played will make also changes accordingly.5 Scholars of legal transplant often prefer to pick up the “goods” from the law “shops” of foreign proceedings, but it will definitely become an unrealistic fantasy, if they think they can buy these “goods” in the shops but not those “goods”.6 In our opinion, Damasˇka held a cautious view on legal transplant, but his position is different from that of Friedrich Carl Von Savigny, a German jurist, who argued for non-transplantable nature of the law in the 19th century.7 Damasˇka added

3 Damasˇka, Mirjan R.: The Faces of Justice and State Authority (Chinese version), Zheng Ge trans., University of Political Science and Law Press, Beijing, China 2004, p. 2. 4 Damasˇka discussed consequences of transplanting the British jury system into the civil law system and negative effect of referring to the Anglo-American legal system in the reform of Italian criminal procedure code to support his view in this regard. See Damasˇka, Mirjan R.: Evidence: A Comparative Study (Chinese version), Wu Hongyao/Wei Xiaona (Trans.), Beijing: People’s Public Security University of China Press, 2006, p. 232, fn. 3. 5 Damasˇka (2006), p. 232. 6 Damasˇka (2006), p. 246. 7 Savigny argued that the law was the product and central reflection of a nation’s spirit; therefore, it cannot be transplanted in essence. In his opinion, the law is unique to a nation, and accordingly, the law of one nation cannot be applicable to another nation. See Von Savigny, Friedrich Karl: Vom Beruf unserer Zeit für Gesetzgebung und Rechtswissenschaft (Chinese

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that he did not completely deny the possibility of transplanting the procedural rules due to the fact of unprecedentedly popularity in reference to various procedural systems of other states. His research sought to remind people of keeping a highly cautious attitude in the legal transplant. Specifically speaking, when considering some foreign procedural rules in one state, we must at first examine if there are prerequisites in its national institutional background where such foreign rules are likely to play an effective function in the system; whether the national system can accept the innovations newly proposed directly, or after adequate adjustment.8 The significance of Damasˇka’s profound doctrine lies in that he has been keenly aware of the special nature of legal transplant in the procedural law, particularly in the context of criminal procedure, which is different from that of other branches of laws. He pointed out that, compared with the private law, the significance and effect of the procedural law relies more on the external environment – especially directly on the institutional background in which the judicial system of a state shall operate.9 As a result, we should pay special attention to the external institutional background when transplanting the procedural rules. And among other things, Damasˇka placed the governmental structures and functions into key positions in this regard. In his view, legal procedure is a process of absorbing information from the political dimension of social life, while the basic design of a procedural system, in a large degree, is subject to the structure of the power, and government functions as well. Based on such diverse elements between the structure and the functions, Damasˇka argued that the practice of incorporating hastily the procedural system of another state with different political system into its native legal system could easily lead to an unsatisfactory result in operation.10 In light of these complex considerations, we can summarize Damasˇka’s three basic propositions on criminal procedure law: (1) Transplant is not absolutely impossible in the legal system of another state, but whether such transplant is successful or not, does not only depend on the perfectness and excellence of foreign laws,11 as what the jurists had envisaged; instead, it depends more on various domestic social conditions affecting the effective functioning of a new system, whether they are similar with those in foreign states. (2) Political element is the most decisive one in legal transplant among the various institutional backgrounds or prerequisites. (3) At least, such background factors as the political tradition and cultural environment version), Xu Zhangrun (Trans.), Legal System Publishing House, Beijing, China 2001, pp. 7 – 12. 8 Damasˇka (2004), p. 3. 9 Damasˇka also reminded readers that he did not mean to underestimate the impact of overall cultural environment on determining the meaning of certain rules. However, comparing with the impact of the system designed for judicial operation, such impact is not so significant as expected. See Damasˇka (2006), p. 232, fn. 2. 10 Damasˇka (2006), p. 1. 11 Damasˇka (2006), p. 231.

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are difficult to be changed, if not absolutely unchangeable. Therefore, it is quite difficult to achieve success in legal transplant of the procedural system between two states with different institutional backgrounds. However, in the context of the rise and development of information society and globalization, it is worthy of thinking if Damasˇka’s statement on legal transplant can be sustained or need further amendment when facing the impact of “external resources” and established reality of “native regime”. As a country going through the process of legal transplant, it is clear that China offers a case to respond to Damasˇka’s statement on legal transplant from the perspective of reforming the criminal procedure. In the next session, we are going to make a preliminary observation of the three versions of criminal procedure law in China in turn and attempt to find out what are the key features of the legal transplant in China.

II. Legal Transplant in China’s Criminal Procedure: A Preliminary Observation It is almost self-evident to say that there are legal transplants in China’s legislation on criminal procedure. If we look at the promulgation of the first criminal procedure code in 1979, which resumed a criminal justice system after a lawless order of the “Cultural Revolution” (1966 – 1976), or the 1996 CPL amendment, which aimed to advance the rule of law and to connect with the best international practice, or the 2012 CPL amendment, which revisited the domestic procedural practice and responded to partial regression and modest reforms of domestic political, economic and social changes, we will find a main thread of transplanting, absorbing and borrowing from the best practices of foreign criminal procedures, including the concept, systems and techniques has been running through in China’s legislation or reforms. Therefore, we can draw a preliminary picture of legal transplant through reviewing the legislation and reform history in the past 30 years. The 1979 Criminal Procedure Law (hereinafter “CPL”) was undoubtedly a product of transplanting the former Soviet model to a certain extent in China. On one hand, the legislation was generally characterized with the nature of large-scale borrowing and multidimensional learning, no matter whether it was on the procedural principles, or specific institutional framework, techniques and legal terminology, the law was engraved with the imprint of the Criminal Procedure Code of the Former Soviet Union. On the other hand, although the 1979 CPL transplanted a large number of provisions from the former Soviet criminal procedure law,12 it went through a process of localization: The law considered the bitter lessons learnt from the “Cultural Revolution” (1966 – 1976), incorporated the adjudicative experiences of the higher and intermediate courts from 1949 to 1966, and took considerations of the political, economic 12 For example, provisions of the procuratorial supervision over the investigation and trial supervision procedure in the 1979 CPL were in fact a full copy of the former soviet model.

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and social elements as well as the national situation of China. That is to say, the 1979 CPL did not adopt all the soviet procedures, such as the proceedings for juvenile cases and compulsory mediations. As for the content of legal transplant, the 1979 CPL also had its own feature, for example, establishing the principle of division of work, mutual coordination and check and balance between the police, prosecutors and judges in the criminal procedure, and putting the public prosecution in a separate chapter in the law. Overall, the transplant of the Soviet model into the 1979 CPL is of far-reaching historical significance in China. Even up to now, the whole Chinese criminal procedure system with heavy reference to the Soviet model is still seen as, in a certain degree, the “local resources” of legal transplant, which becomes the decisive “tradition and culture” affecting the operation and effects of the criminal procedure. By contrast, the 1996 CPL partially drew close to the adversarial system; however, such reforms were mostly reluctant owing to the pressures of entrenched judicial culture and rule by law in criminal justice, with a concern of bring the Chinese system in line with the good international practices.13 Therefore, most part of the content transplanted in the 1996 CPL was somewhat idealized but may not be so practical for implementation in practice. A typical example is that the ideological change of criminal procedure was affected by the advanced overseas countries on the rule of law. Among the other things, the concept of the adversarial system began to appear in the Chinese criminal proceedings, and even the evolution of some terms could reflect the traces of such transplant in the 1996 CPL: The term “criminal” at the pretrial stage in the 1979 CPL was changed to the “criminal suspect”.14 And correspondingly, institutional and technical aspects of the criminal procedure law also transplanted some elements of the Anglo-American criminal procedure. For example, the 1996 CPL removed the provisions of procuratorial transfer of all the case files to the people’s court as required in the 1979 CPL; instead, the prosecution was only required to transfer the list of evidence and witnesses and copies of major evidence or photographs, which in fact drew the doctrine of indictment transfer dominated in the Anglo-American system to a certain extent. Comparing with the past practice, the reform in 1996 on the pretrial transfer of case files may reduce the judge’s first impression being the strongest for the purpose of promoting judicial fairness.15 13 Zuo, Weimin: Progress or Go Backward: My Comments on the Draft Amendment to the Criminal Procedure Law of the People’s Republic of China, Tsinghua Law Science (Qinghua Faxue), No. 1, 2012, pp. 95 – 106. 14 The change of such wording reflected the imprint of legal transplant in the CPL. Directness and feasibility of the wording may help us understand the evolution of legal science from the genealogical perspective. See also Yu, Jiang: Legal and Academic in Modern China (Jindai Zhongguo de Falu yu Xueshu), Peking University Press, Beijing 2008, p. 24. 15 At the same time, we should note that although the notion of protecting human rights is the mainstream of the 1996 CPL reform, we cannot deny the fact that some part of the provisions, especially during the investigation stage, remained unchanged for the purpose of fighting against the crime effectively, such as the absence of right to silence and lawyer’s limited involvement at the pretrial stage. Argument favoring for such notion of human rights may conflict with the Chinese institutional background of giving priority to social stability and efficiency. In addition,

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Moreover, the 1996 CPL partially adopted the adversarial model to weaken the dominant role played by judges in the past, in particular, the power of questioning the defendant to investigate facts of the case, aiming to strengthen the status and roles of the prosecution and the defence in fact-finding in the criminal trial. In the 1979 CPL, the judge had the power to “question the defendant”,16 while the prosecution was in a stronger position than the defence, which led to the situation of going through a formality in the defence. Although the 1996 reform did not fully comply with the adversarial model, it is without doubt that the revised law reflected the positive intent and effort of the legislature through legal transplant in developing the criminal procedure in China. Likewise, although the 2012 CPL amendment indicated an overall moderate but somewhat conservative attitude of the legislators in China, it has also showed a continuing tendency of strengthening and expanding elements of the adversarial system, as there are many instances of promoting the due process through legal transplant in the CPL. In the meanwhile, because of the nature of internal demand-driven reform,17 the legislature’s considerations of legal transplant, reference or learning process is more prominent in the 2012 CPL amendment. First of all, there are a variety of elements in the content of legal transplant. For example, the law adopted the exclusionary rules of illegally obtained evidence, which highlighted strong sense of legal transplant of the adversarial system, and established the principle that “no one shall be compelled for self-incrimination”18 and the evidentiary standard of “comprehensively considering all the evidence of the case and having excluded all the reasonable doubts on the facts confirmed”.19 Similarly, the systems of court appearance of witnesses, pretrial meetings (evidence discovery), conditional non-prosecution, procedures of criminal reconciliation and property confiscation are all foreign elements transplanted in the Chinese criminal procedure. Furthermore, there are more prominent considerations of localization in the process of legal transplant in China, which is based on the reflection of past practice and response to practical needs. The revisions of the 2012 CPL did not start from the logic of what are the best western practices but the political, economic and social needs of China as well as the corrections of the problems occurred in its judicial practice. Take the transplant of exclusionary rules of illegally obtained evidence in the CPL for example. Before the amendment, most mainstream Chinese scholars strongly opposed extorted confession through torture and argued not to adopt the evidence illegally judges can still have chance to familiarize with the case information before trial, and thus cannot absolutely remove this predetermined prejudice against the defendant. 16 Article 114 of the 1979 CPL. 17 For detailed discussion, see also Zuo (2012). 18 Article 50 of the 2012 CPL. 19 Article 195 of the 2012 CPL.

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obtained, including testimonies of witnesses through torture; many defence lawyers put forward the concept of “procedural defence”, who started to defend the case pertinently on the basis of exclusionary rules in the criminal trial.20 Similarly, the legislature has realized the importance of restricting and removing the torture and collection of evidence through other illegal means in order to maintain judicial fairness and rights of the parties.21 In fact, shortly before the amendment of the criminal procedure law in 2012, the Chinese authorities – the Supreme People’s Court, the Supreme People’s Procuratorate, the Ministry of Public Security, the Ministry of State Security and the Ministry of Justice – produced a joint notice and started to implement the exclusionary rules on illegal evidence in 2010: Rules on Several Issues Involving Exclusion of Illegal Evidence in Handling Criminal Cases. Consequently, the 2012 CPL amendment absorbed experiences of the previous reforms and established a relatively improved version of exclusionary rules of evidence illegally obtained in the criminal procedure. On one side, the 2012 CPL amendment referred to, transplanted and imported a large scale of exclusionary rules of illegally obtained evidence in the criminal procedure; but on the other side, it has neither provided an absolute exclusion of illegal evidence nor introduced the system of “fruits of the poisonous tree”, after taking into account the practical need of the investigating organ in China.22 Nevertheless, it should also be noted that there are some parts of directly copying from the western practice without careful consideration in the 2012 reform, but it is difficult for us to make a judgment on the practical effects and operation of those idealized parts of the criminal procedure law at the moment. For instance, the revised criminal procedure law has redefined the standard of proof on “the evidence being reliable and sufficient”, and clarified the conditions of “comprehensively considering the overall evidence of the case, and having excluded the reasonable doubt on the facts of the case confirmed”.23 This, to some extent, can be seen a manifestation of directly transplanting the evidentiary standard of “beyond reasonable doubt” from the Anglo-American system. But as there was no such practice of “beyond reasonable doubt” in the past in 20

See, for example, Chen, Ruihua/Tian, Wenchang: The Chinese Experience in the Criminal Defence (Xingshi Bianhu de Zhongguo Jingyan), Peking University Press, Beijing 2012, p. 74 and thereafter. 21 Criminal Law Section of the Legislative Work Commission of the Standing Committee of the National People’s Congress, Interpretation and Application of the Decision of Amendment to the Criminal Procedure Law of the People’s Republic of China (Guanyu Xiugai Xingshi Susongfa de Jueding Jieshi yu Shiyong), People’s Court Press, Beijing 2012, p. 52. 22 The “fruit of the poisonous tree” rule is closely related to the exclusionary rules of illegally obtained evidence, particularly in the Chinese context, where the police sometimes converted the evidence illegally obtained into the one in lawful format so as to avoid the possibility of being excluded in the criminal trial. As a result, the transplant of the “fruit of the poisonous tree” rule in the criminal procedure law is of practical significance in China. See John W. Strong (Ed.): McCormick on Evidence (Chinese version), Tang Weijian (Trans.), China University of Political Science and Law Press, Beijing 2004, pp. 341 – 343. 23 See Article 53(2) of the 2012 CPL.

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China’s judicial practice, it may take us a while to judge the practical role and effects of this reform in practice. From the discussions above, we can find that, legal transplant in the reforms of criminal procedure law during the past 30 years obviously exhibited a changing pattern. In other words, we can fully understand the characteristics of a Chinese-style transplant in the criminal procedure law from the following aspects: 1. Tendency of “Filling in the Gap – Rupturing – Refilling in the Gap” between the System Transplanted and the Institutional Background in China Generally speaking, the system transplanted and the institutional background that may affect effective operation of the system over the past 30 years in China went through the changes of “filling in the gap, rupturing and refilling in the gap” in the process of legal transplant in the criminal procedure law, but overall, the rupture is still the main aspect between the system and the background. When transplanting the former Soviet Union model in the 1979 CPL, China and the former Soviet Union shared similar background on the political system and social environment. As a result, large-scale transplant of the Soviet model in China formed “local resources” of the criminal procedure law in China. When it comes to the 1996 amendment, there were ruptures between the system transplanted and the institutional background in the criminal procedure law. The transplant in the criminal procedure merely touched the transplant of and reference to the operation mechanism itself, which seldom involved adjustment of the judicial system and background factors affecting effective functioning of the law. For instance, the law introduced some rules on evidence and trial procedure, but failed to establish a court system of separating professional judges and non-professional jury as far as the organizational structure of the power is concerned as the institutional background. In fact, just as Damasˇka pointed out, there are strong correlations between such dichotomy trial court and many other criminal procedures, and a typical example is that those widely used evidentiary rules can be effective only when they are placed in the adversarial system against the background of a dichotomy trial court.24 When China amended its criminal procedure law in 2012, the rupture between the system transplanted and the institutional background was somewhat healed – Along with the in-depth political and social transition and restructuring, the legislature, judiciary, academics and the general public began to reach consensus on the rule of law, due process, and protection of human rights, which to a certain extent, can support or accept the legal transplant of foreign systems in China. 24 Damasˇka, Mirjan R.: Evidence Law Adrift (Chinese version), Li Xuejun et al. (Trans.), University of Political Science and Law Press, Beijing, China 2003, p. 35.

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2. Change from the “Overall Copying – Fragmented Transplant” as far as the Content is Concerned As for the legislative content of the criminal procedure, the transplant shows the feature of changing from an overall, systematic and substantively large-scale nature to the “fragmented”, partial and limited one, and such fragmented and partial transplant has become the key pattern of legal transplant in China’s criminal procedure. Therefore, the 1979 CPL was bound to be an outcome of large-scale legal transplant. The 1996 amendment was a fragmented transplant, when it referred to and partially adopted certain elements of the adversarial criminal procedure, rather than making an overall replication in content. Comparatively speaking, the 2012 reform further highlighted the fragmented nature of legal transplant in China, as there were few concepts or systems completely borrowed or transplanted from foreign criminal procedures. For example, many contents transplanted were limited and partial in nature, and even directly copied the words of foreign legal systems with the matching or supportive mechanism or system, such as introduction of the provision “No one shall be compelled for self-incrimination” and the notion of “beyond reasonable doubt” in the law. In the meanwhile, because of the fragmented and limited transplant, ineffective and inadequate coordination between the original and transplanted systems, just as the first author argued in another of his writings, the final outcome of such transplant in China’s current criminal procedure system is factually a complicated combination of “nondescripts”, which have been interactive and constantly changing.25 3. Coexistence of the Transformed and Copied Transplant Models in China The transformation model is the main method of legal transplant in China, having the strong sense of pragmatism, especially in the 2012 CPL amendment. In other words, the reform in the 2012 CPL emphasized the need of absorbing or integrating the overseas experiences mostly based on the premise of satisfying its own need, rather than directly copying foreign institutional designs. In fact, if we observe historical development of the criminal procedure law over the past 30 years, we will find that China has never pursued the method of “entire borrowings”, including the drafting process of the 1979 CPL. And the 1996 and 2012 amendments also reflected the feature of transformed transplant in the criminal procedure law, in particular in the 2012 CPL, in which various local factors have been preserved: A typical example is the Chinese-style trial system. Although the law maintained the wording of equality between the prosecution and the defence in the criminal trial, it gives the procuratorial organ strong prosecution power and the function of legal supervision. 25 Zuo, Weimin: Indigenous Construction of Chinese Criminal Procedure Model, Chinese Journal of Law (Faxue Yanjiu), No. 2, 2009, pp. 107 – 120.

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Likewise, the law actively introduced the Anglo-American adversarial trial system, but the judges still can take the initiative to investigate and verify the evidence under certain conditions,26 as they are assigned the task of making the judgment based on clear facts and reliable evidence of the case. What’s more, the law has stressed that some of the witnesses and expert appraisers can testify in court where there are some controversies in the criminal cases; however, it has not excluded the trial mode of judges’ “case file-centered practice”.27 Meanwhile, the pretrial meetings in China are limited to help the parties understand relevant case information, indicating that the construction of such procedure aims to avoid some embarrassment in some disputed cases before trial, instead of sorting out and identifying the disputes on evidence between the prosecution and the defence as in such countries as Germany and Japan. In addition, the 2012 CPL provides that exclusion of illegal evidence can be applicable at all the stages of criminal proceedings, implemented by the police, procurator and judge respectively, indicating the Chinese characteristics of equally sharing the powers in the operation mechanism of the criminal procedure. In judicial practice, the investigation organ is allowed to use “the explanation note” to justify the legality of its evidence collection, is another example of showing inclination to the investigation and considering specific Chinese situation. 4. A Relatively long Cycle of Acceptance of Legal Transplant in the Local Context To our limited knowledge, the transplant of one country’s legal system into another in the context of different political background, legal traditions and cultures seems to be a challenging task as well.28 If we observe carefully the three versions of the criminal procedure law in China respectively, we will note that it seems that an operational cycle is about 15 years. China spent a relative long period in the survey work and discussions before the 1996 and 2012 CPL amendments, during which there were a long process of game play between various stakeholders, such as the legislature, judiciary, academics and the general public, before they can reach a consensus. In the meanwhile, China conducted some limited pilots or experiments at the local

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Article 191 of the 2012 CPL. Articles 172 and 176 of the 2012 CPL. 28 For example, Japan, a country with the civil law tradition, imported the adversarial system into its criminal procedure after the Second World War. However, such transplant has been proved to be not so satisfactory in judicial practice. Similarly, Taiwan made some reforms in transplanting the adversarial system around ten years ago, which has not be fully merged into local institutional background yet. For example, see Malcolm M. Feeley/Setsuo Miyazawa (Eds.): The Japanese Adversary System in Context, Palgrave Macmillan, 2003; Lewis, Margaret K.: Taiwan’s New Adversarial System and the Overlooked Challenge of Efficiency-Driven Reforms, Virginia Journal of International Law, Vol. 49, Issue 3, 2009, p. 651. 27

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level,29 allowing exploration of some non-institutionalized practices before the amendment of criminal procedure law in 2012.

III. Analysis of and Comments on the Chinese-style Legal Transplant It is an unavoidable development trend of transplant, reference, exchange and integration between different legal systems in the global context. There is no exception in China. Along with the reform and opening policy, China accelerated its pace to merge into and connect with the international community. Accordingly, it possesses a “late-development advantage” in learning from and referring to the advanced overseas legal systems and concepts. Despite of the official saying that the criminal procedure law shall “stick to the Chinese national situation and advance step by step the improvement of the criminal procedure system”,30 we can still find the strategy of selective legal transplant of foreign legal systems in the legislation and practice, a driving force of promoting development of the criminal procedure law in China. When we analyze the reasons for the Chinese-style legal transplant, what we would like to ask is: Why does China choose to transplant the Anglo-American system and concept, since there is a obvious rupture between the system transplanted and the institutional background?

29 There are various pilot reforms in the Chinese judiciary and the justice and public security organ, such as the experiment initiated by Professor Fan Chongyi from China University of Political Science and Law, pilot on the sentencing procedure initiated by Professor Chen Weidong, experiment on the criminal reconciliation by Professor Song Yinghui from Beijing Normal University and witness court appearance programme led by the first author of this paper. For detailed discussion of such reforms, see Fan Chongyi/Gu Yongzhong (Eds.): Positive Research on Interrogation Procedure Reform (Zhencha Xunwen Chengxu Gaige Shizheng Yanjiu), People’s Public Security University of China Press, Beijing 2007; Song, Yinghui: Empirical Research on Criminal Mediation (Xingshi Hejie Shizheng Yanjiu), Peking University Press, Beijing 2010; Chen, Weidong /Cheng, Lei: An Experimental Report on Independent Sentencing Procedure: A Sample from the Wuhu Model, Social Sciences in China (Zhongguo Shehui Kexue), No. 9, 2012, pp. 120 – 141; Zuo, Weimin et al.: Empirical Study of Operating Mechanism of Criminal Procedure in China (II) (Zhongguo Xingshi Susong Yunxing Jizhi Shizheng Yanjiu [Er]), Law Press, Beijing 2009, esp. Chapter 13. In judicial practice, there are also some explorations of transplant of the adversarial trial system such as the plea bargaining in Harbin. See Yu, Baichun: The First Plea Bargaining Case in China, The Earth (Dadi), No. 12, 2002, available at http://www.people.com.cn/GB/paper81/6874/668713. html (Last visit: 8 January 2015). 30 Wang, Zhaoguo: Explanations on the Amendment to the Criminal Procedure Law of the People’s Republic of China (Draft), Xinhua News, 9 March 2012, available at http://www. court.gov.cn/xwzx/rdzt/2012qglh/lhjj/201203/t20120309_172709.html (Last visit: 5 January 2015).

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We think there are three main reasons to explain this situation. In the first place, such countries as the UK and the United States are the representatives of the most developed rule of law countries, as China learnt from those developed countries in the Europe and the America when it drafted its constitutional law more than 100 years ago. The reform of the criminal procedure law nowadays is a natural continuation of the logic “learning from the rule-of-law power”. In the second place, such countries as the United States and the United Kingdom have adopted national strategy of cultural export. In recent years, scholars from schools and research institutes from such countries with the most advanced legal education system as the UK and the United States visited China for academic exchange; many movies, TV dramas, literatures and academic writings on the adversarial system of Anglo-American criminal procedure have been translated into Chinese and introduced into China; and huge amount of Chinese scholars and students also visited overseas institutions especially in the countries with the common law traditions.31 This type of cultural export strategy makes the Chinese to take it for granted to a certain extent that the Anglo-American model is the best practice of the rule of law in the world, and therefore they prefer to make such legal transplant.32 In addition, the concept of due process predominated in the Anglo-American system can satisfy the demand of Chinese legislators and the general public, and among the other things, the emphasis of protecting human rights in the adversarial system has shown its advantage in the institutional legitimacy, which is quite appealing to China where there is a lack of due process element in the criminal procedure. In the meanwhile, it is worthy of inquiring why the effect of legal transplant appears limited in China. In another word, why did not the amendments of criminal procedure law in 1996 and 2012 follow the practice of borrowing and transplanting significantly from the Anglo-American system just as the one of transplanting the former Soviet Union model in 1979? We think that there are a number of reasons for the fragmented transplant in the criminal procedure law of China. In fact, the practice of transplanting in large scale the Soviet model reflected special features of the times when China drafted its CPL in 1979. Because of the similarity in political and social regimes, such an overall transplant from the former Soviet Union can be accepted by both the legislators and the general public in China. When it comes to the amendment of criminal procedure law in 1996 and 2012, we can find a gap between the institutional background and the system transplanted. For example, the 1996 amendment provided lawyers’ involvement at the investigation stage for the purpose of better protecting the rights and interests of the criminal suspect, but this 31 Southern Daily, The Number of Chinese Scholars and Students Studying or Going Abroad through Official Dispatch Mode Doubled, Southern Daily (Nanfang Ribao), 31 December 2013, available at http://news.sohu.com/20121031/n356224172.shtml (Last Visit: 8 January 2015). 32 The American law has the tendency of globalization. For detailed discussions, see, for example, Gao, Hongjun: The Globalization of American Law: Typical Examples and Jurisprudential Reflections, China Legal Science (Zhongguo Faxue), No. 1, 2011, pp. 5 – 45.

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provision faced unprecedented challenges in practice: Very few defence lawyers can be as lucky as the legislature designed during the reform. Most lawyers faced the difficulties in meeting with their clients, conducting evidence collection and access to the case files. Against the macroscopic environment of fighting against the crime in a timely and efficient manner, the police need to handle the case in an effective way, while the lawyers’ involvement increased the risk of the defendant’s withdrawal of confession and confession in collision, which hinder the process of investigation.33 On one hand, just as Professor Damasˇka said, there are various challenges and obstacles in making an overall learning and copying of the legal system of another jurisdiction with different institutional background, as the system imported cannot receive the recognition of local legislators because it failed to transplant the surrounding environment and culture background needed, and as a result, its effectiveness is also limited in practice. In addition, China’s legal system has its own historical background of self-development, which is a fait accompli that cannot be easily replaced or changed.34 Moreover, the Chinese academic circle doesn’t have in-depth understanding of the “imported goods” of the Anglo-American legal system. Despite of more and more publications translated or of comparative studies in recent years, there are few researches on the basis of adequately understanding the extraterritorial legal practice and catching up with the recent development.35 That is to say, those first or secondhand materials, failing to reflect the most updated extraterritorial development, cannot be applied in the Chinese context. On the other hand, British and American experts knew their own legal systems by heart, but do not know China’s reality in the rule of law as well as the political, economic and cultural backgrounds concerned, and thus it is difficult for them to come up with specific proposals fitting in the Chinese context. It is noted that political considerations undoubtedly play a decisive role in transplanting foreign legal systems in China. Partly because of the concerns of foreign ideological “pollution” affecting domestic stability in China, the key decision makers, including the Chinese legislature, often emphasize caution in judging the value of overseas legal civilization and transcendentalism and strongly oppose to import or copy western notion blindly, including the rule of law in the criminal procedure. While encouraging the transplant of human being’s excellent civilization on the 33 See for example, He, Qinhua: Reflections on the Legal Transplant of Western Countries in the Laws of New China during the New Era, Law Science (Faxue), No. 9, 2002, pp. 6 – 7. 34 Su, Li: Maybe It Is Taking Place: Law Science in Transitional China (Yexu Zhengzai Fasheng: Zhuanxing Zhongguo de Faxue), Law Press, Beijing 2004, p. 11. 35 Because of the language, knowledge and background constraints, mainstream Chinese scholars’ understanding of foreign practice is “occasional” instead of “routine”, failing to bridge the gap between the Chinese and foreigners, as most of the information introduced are not most updated. See Zuo, Weimin: Mode Transformation and Reform of China’s Criminal Litigation System, China Legal Science (Zhongguo Faxue), No. 2, 2009, p. 120.

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rule of law, the Chinese authority also emphasized the importance of considering the national situation.36 This in fact constitutes the difficulties and hindrance of largescale legal transplant in China.37 Similarly, we would like to argue that various legal systems on criminal procedure are closely interrelated, and a slight move in one part may affect the situation as a whole. Regretfully, what the legislature, judiciary and scholars can do is only part of the whole picture of the Chinese criminal procedure. On the other hand, the practical problems require swift and immediate “cure”, which has determined the fate of legal transplant in the criminal procedure which is necessarily “fragmented” in nature. Even scholars can provide the intellectual resources of full legal transplant, but they cannot achieve this goal due to the background of rule of law. Therefore, only the “fragmented” transplant mode becomes available in China. Third, the transformation mode of legal transplant has been increasingly influenced by the ideological consciousness in China. In the transplant course of China’s criminal procedure law, the guiding legal concept has undergone the transition from “the State-oriented legal concept – legal concept without the state – legal concept of regaining the state.” In 1979, China was characterized with the notion of totalitarianism and the theory of legal instrumentalism; therefore, the CPL drafted at that time reflected a strong replication of the former Soviet Union. Starting from late 1990 s, a legal concept without the state became popular in the academic circle. Although such mentality is quite different from the “state and society” theory in paradigm, they shared the same tactic understanding of the political value assumed in theory. Because of the concerns on the state’s infringement upon citizens’ legitimate rights, laws in most jurisdictions develop restrictions on public power; and consequently, transplant of judicial independence, judicial review, and the adversarial system became the mainstream thought in the amendment of the 1996 CPL.38 When it comes to the 21st century, scholars proposed the “Chinese model” and began to discuss the doctrine of “bringing back the state” in the academic study of legal transplant.39 Finally, the reason for a relatively long transplant cycle does not only lie in the fact that the stakeholders involved in the legal reform cannot reach a consensus so easily, but also in the reality that changes of the institutional background of the transplant may take a longer time before we can see the real effects clearly. In China, there are diverse stakeholders affecting the legal transplant. In fact, legal 36

We can find such expressions in various official documents issued recently. For example, see Wang (2012). 38 Qiang, Shigong: Towards a Jurisprudence of Law-makers: Rethinking Contemporary Jurisprudence in the Context of Legal Transplant, Social Sciences in China (Zhongguo Shehui Kexue), No. 1, 2005, pp. 114 – 115. 39 In fact, this also coincides with the emerging theory of bringing back the state in the research field of comparative social science in recent years. See, for example, Peter B. Evans/ Dietrich Rueschemeyer/Theda Skocpol: Bringing the State Back In (Chinese version), Fang Lishen (Trans.), SDX Joint Publishing Company, Shanghai 2009, pp. 2 – 38. 37

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transplant in the reform of China’s criminal procedure system have been affected by the game-play of diversified ideologies of scholars, legislators, judicial organs as well as the NGOs. However, they have incommensurable interest or insoluble conflicts, and thus it is difficult for them to reach a consensus in the short term. Therefore, they need more time to discuss and compromise on whether or not China needs transplant in legal reform; and what and how to make such transplant, if the answer is “yes”. In our opinion, both the pros and cons sides of legal transplant exist in the field of criminal procedure law in China. The negative side is the limitation of such transplant in effect, as the systems after the transplant are often not so well-coordinated, and sometimes even contradictory, especially between the law in books and law in action. Take the 1996 CPL for example. Although the law introduced some elements of the adversarial trial in an attempt to establish a partial cross-examination system, the facts that witnesses did not appear in the trial, judges possessed excessive powers and relied on the case files heavily and both the prosecution and the defence lacked adequate skills in questioning witnesses hindered full implementation of such adversarial system in the criminal trial.40 Similarly, the amended 2012 CPL expressly provided exclusionary rules of illegally obtained evidence in criminal case, but how to prove and verify such evidence? What kind of remedies will be available for the parties, civil compensation, acquittal or invalid prosecution? We cannot find clear answers to these questions in the law, and consequently, it is not a surprise for us to see ineffective operation of exclusionary rules in judicial practice. In recent years, although researchers in the field of the criminal procedural law have noticed the coordination between the legal transplant and native resources in theory and practice, we have reason to challenge whether or not such coordinated transplant model can be successful in China. Take the reform of sentencing procedure for example. Originally, its major purpose centered on regulating judges’ discretion in the criminal trial,41 nut the first author’s survey found that the reform in action was not so satisfactory as the law designed: There was neither an obvious increase of facts or evidence in the sentencing procedure, or any striking change in the outcomes of the sentencing, but reduction of judicial efficiency to a considerable extent. In another word, the reform did not achieve the result that the reformers expected.42 Apart 40 For the empirical study of witness court appearance in China, see Zuo, Weimin et al.: Empirical Study of Operation Mechanism of Criminal Procedure in China (Zhongguo Xingshi Susong Yunxing Jizhi Shizheng Yanjiu), Law Press, Beijing 2007, pp. 301 – 354. 41 See, for example, Chen, Ruihua: Theoretical Issues in the Sentencing Procedure (Liangxing Chengxuzhong de Lilun Wenti), Peking University Press, Beijing 2011, p. 9. See also Recommendations on Several Issues Involving Regulating the Sentencing Procedure (Guanyu Guifan Liangxing Chengxu Ruogan Wenti de Yijian [Shixing]), jointly issued by the Supreme People’s Court, the Supreme People’s Procuratorate, the Ministry of Public Security, the Ministry of National Security and the Ministry of Justice, 13 September 2010, available at http://www.lawxp.com/statute/s1045917.html (Last visit: 8 January 2015). 42 Zuo, Weimin: Sentencing Procedure Reform in China: Mistakes and Way Out, Chinese Journal of Law (Faxue Yanjiu), No. 4, 2010, pp. 149 – 158; and Chen /Cheng (2012).

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from the reasons from the perspective of substantive criminal law,43 another important factor affecting the success of such transplant in the Chinese criminal procedure is that, although there is a relatively independent sentencing procedure, the judicial system is characterized with civil law tradition in China, such as the same organization being responsible for the conviction and sentencing procedures, and singleness of evidentiary rules and unified source of case information in court.44 The tension between the system imported and local institutional background will of course restrict the function of taking root of such system in the Chinese current criminal procedure. Despite of this, there are a lot of legal transplants with limited effect like the reform of sentencing procedure in China, and therefore, we cannot completely deny the function and value of legal transplants, nor overlook the great achievements of legal transplant in the field of criminal procedure law over the past 30 years. The criminal law notion and value orientation embodied in such legal transplant has been exerting a subtle influence on China’s criminal justice system. For example, the ideology on protection of human rights and due process has been generally accepted theoretically and practically,45 as the danger of partial pursuit of substantive truth at the risk of neglecting procedural value and violating human rights is obvious. Discovery and correction of the representative miscarriage of justice in the Du Peiwu Case,46 She Xianglin Case47 and Zhao Zuohai Case48 further made the scholars, judiciary and legis43 This in fact is an outcome of the misunderstanding of the academic circle in China on the adversarial trial mode and independence of sentencing procedure in the Chinese context. In our view, the substantive problem lies in the rigidness and imbalance in the sentencing procedure. This also indicates that the Chinese scholars in the field of criminal procedure law are very likely to make a judgment on the “episode” reform based on their “partial understanding” of the overseas systems. 44 Chen (2011), pp. 34 – 35. 45 A typical reform in the 2012 CPL is that the provision of “respecting for and protecting human rights” has been incorporated in the task of the criminal procedure law (Article 2). 46 Case information is available at http://forejustice.org/db/Peiwu–Du-.html (Last visit: 5 January 2015). For detailed discussion of this case, see, for example, Daren, Wang: Begging for Justice: Comparison of the O.J. Simpson Case and the Du Peiwu Case (Zhengyi de Suqiu: Meiguo Xinpusen An yu Woguo Du Peiwu An de Bijiao), Peking university Press, Beijing 2012; Xiangde, Ji: An Authentic Interpretation of People’s Wrath: Reflection on Unjust Cases of Du Pei-wu, She Xiang-lin, etc., Modern Law Science (Xiandai Faxue), No. 1, 2006, pp. 153 – 157; Wang Chao/Zhou Jing: Evidential Thinking of Du Pei Wu’s Case, Journal of Shantou University (Shantou Daxue Xuebao), No. 1, 2003, pp. 54 – 61. 47 Case information is available at http://forejustice.org/db/Xianglin–Zaiyu—She-.html and http://www.danwei.org/ip_and_law/she_xianglin_after_six_months.php (Last visit: 5 January 2015). For detailed discussion of the case, see, for example, Ji (2006); Chen Weidong: “Problems of Procedural Law in Case of She Xianglin”, Peking University Law Journal (Zhongwai Faxue), No. 5, 2005, pp. 573 – 584; Zhao Haining/Shi Rongyong: “She Xianglin’s Case: Criminal Justice Needs Human Rights Protection”, Human Rights, No. 4, 2005, pp. 26 – 28. 48 Case information is available at http://www.victimsofthestate.org/Foreign/Zuohai.html and http://www.independent.co.uk/news/world/asia/zhao-zuohai-beaten-framed-and-jailed-fora-murder-that-never-happened-1973042.html (Last visit: 5 January 2015). For detailed discussion of the case, see Xiao Hong/Yang Qingqing: “Review of the Justice after the Legal

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lature to realize various defects in the criminal investigation and evidentiary rules, which in turn led to the production of exclusionary rules of illegally obtained evidence and formal establishment of the exclusionary rules in the 2012 CPL. In 2013, a number of cases involving miscarriage of justice in Zhejiang,49 Anhui50 and Inner Mongolia51 reported by the media further indicated the problems on evidence illegally obtained by the investigation organ. All these backgrounds will help put those rules in full effect in judicial practice.52 It is fair to say that, although the concept and system through legal transplant may be out of the shape in practice and theoretically misinterpreted in China, it is better to have a system rather than nothing there. We cannot expect the reform that may achieve the goal in one move; instead, we should have the patience to wait and convert the system in the book into the one in action gradually.

Discount – Comment on the Implication of ‘Zhao Zuohai’ Case”, Journal of Chongqing University of Technology (Social Sciences Edition) (Chongqing Ligong Daxue Xuebao), No. 12, 2010, pp. 78 – 81; Zhou Changjun: “Subject Precautions against Wrongful Conviction Cases in Post-Zhao Zuohai Era – A Legal-sociological Analysis”, Legal Forum (Faxue Luntan), No. 4, 2010, pp. 39 – 43. 49 See Zhou Xifeng: “One Man and His Nephew Serve for the ‘Rape’, and Were Found Innocent after 10 Years’ Service in Prison”, available at http://news.qq.com/a/20130327/ 000164_all.htm (Last visit: 8 January 2015). 50 See Bao Xiaojing, “The Whole Story of An Assistant District Head ‘Murdering His Wife’: Having the Wronged Conviction of Murdering the Wife for 17 Years and The Real Murderer’s Appearance Return His Name of Innocence”, Tonight News (Jin Wan Bao), 4 December 2013, available at http://epaper.jwb.com.cn/jwb/html/2013 – 12/04/content_ 1044960.htm (Last visit: 8 January 2015). 51 Luo Sha/Jia Lijun: “Inner Mongolia Higher People’s Court Made the Retrial Judgment on Huge Jiletu’s Case: Announcement of Innocence”, Xinhua News, 15 December 2014, available at http://www.js.xinhuanet.com/2014 – 12/15/c_1113641107.htm (Last visit: 8 January 2015). 52 For example, shortly after the acquittal of Zhang Gaoping and Zhang Hui’s case through the retrial procedure, the Zhejiang Department of Public Security decided to abolish its internal rules on detection rate and ranking in criminal cases, and strengthen its investigation mechanism against those police officers in the cases involving torture or illegal means, which will definitely reduce the incentive of the police to use illegal evidence or torture in the criminal investigation. See Fang Lie: “Head of the Zhejiang Department of Public Security: Responsibility of the Personnel Involved Be Investigated for Life, and Removal of the Practice of Detection Rate Ranking”, Xinhua News, 23 July 2013, available at http://news.xinhuanet.com/legal/2013 – 07/23/c_116656171.htm (Last visit: 8 January 2015). Similarly, the authority launched to investigate all the police offers, prosecutors and judges involved in the Huge Jiletu’s Case for the miscarriage of justice in Inner Mongolia. See Zhu Shunzhong: “The Department of Public Security in Inner Mongolia Started to Investigate all the Case-handling Officers Involved in the Huge Jiletu’s Case”, Beijing Evening Legal News (Fazhi Wanbao), 15 December 2014, available at http://www.fawan.com/Article/ztbd/hgazs/2014/12/15/ 092456269443.html (Last visit: 8 January 2015). In our view, the Huge Jiletu’s case occurred during the “Strike Hard” campaign in China, the political environment of quickly and effectively fighting against the crime and external pressure of detecting the case have offset some effect of the law transplanted.

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IV. Conclusion Through the discussions and observations of the criminal procedure law above, we attempt to test Damasˇka’s proposition on legal transplant in the Chinese context. In our view, Damasˇka’s proposition on legal transplant can be partially substantiated in China. Successful legal transplant is more than simple copying of a system, as the cultural, economic, political and other background factors as background of the transplant must also be suitable for the institutional designs transplanted. Fragmented legal transplant may have limited effects, but after all, it is just a superficial medicine that can cure the symptom but not the disease. The reform of the adversarial model in the criminal trial incorporated in the 1996 CPL and some pilot experiments on drawing on overseas experience before the amendment of the CPL in 2012 can be examples to confirm to some extent that it was the rupture between the system transplanted and the operational context that has led to the ineffectiveness of such transplanted system in practice. However, the reality of legal transplant in the criminal procedure law of China also proposed some amendment to the Damasˇka’s proposition to a certain extent, and even further developed such proposition. First of all, even though such systems as the exclusion of illegal evidence, institutional reform between the prosecution and the defence and the sentencing procedures with the nature of legal transplants and borrowing have not thoroughly changed the modality of China’s criminal justice in practice and achieved the desired effect of those idealistic reformers expected, these partial and limited successes in the legal transplant, which may partially conflict with the established system, have promoted the rule of law in small scale in China. In the long run, these small advances can fit in the institutional and social development and reform, resulting in the radical change in China. On the other hand, there are some contradictions between the transplanted and current systems, and it is such conflicts that made the researchers and the authorities to think about the gap between the practice and the theory. Damasˇka argued the transplant of institutional system was the prerequisite for the legal transplant, but the institutional background of the country of legal transplant does not necessarily remain unchanged or resist such changes. In the meanwhile, although some of the legal transplant was not successful at the beginning, it may promote people’s ideological changes, which could advance the reforms in the future; therefore, we cannot simply deny the values of legal transplant. It is worthwhile mentioning that, Damasˇka held a relatively pessimistic view on the legal transplant as he did not foresee great changes brought about by the emergence of the information technology. Nowadays, the world becomes smaller and closer along with the rising of modern information technology. Accordingly, exchange of the legal culture and system is quite common, in particular, with the help of such means as the network, microblog, and twitters, which have further broken such information blockade and exchange obstacles, and even the general public, can get access to the overseas information on the political, legal and social systems in a direct and convenient manner. This is why the revision of the 2012 CPL attracted much attention of

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the media and the public, who voiced to call for due process and protection of human rights one after another. It is in no doubt a revision and development of Damasˇka’s proposition on legal transplant in the Chinese context. Furthermore, the transformation style of partial legal transplant has its own real life. Damasˇka argued for a comprehensive, systematic and authentic transplant of law, however, it is very likely to be an overtly idealized idea, which may conflict with the political, cultural, economic and social realities of the country of legal transplant and thus lose its practical effect. The experience of legal transplant in the criminal procedure law of China confirmed that, when the practice of comprehensive and systematic transplant of the Anglo-American systems is not workable in China; however, the system transplanted after due transformation can still play an effective role. For instance, Although the judges in China, had more investigation power than the counterpart in the Anglo-American adversarial system during the trial under the 1996 CPL, the provisions of strengthening the status and guarantee of procedural rights of the accused and the defenders contributed to the evolution of the inquisitorial mode of criminal trials to the adversarial mode step by step, which has been implemented in practice to a certain extent in China. In our opinion, the vitality of legal transplant depends on how much the system can enter into force in the country, rather than how many systems have been transplanted into the legal texts. The pragmatism in China’s criminal procedure law might just be able to provide us some useful experience and exploration in legal transplant. Last but not the least, the political environment is becoming more and more favorable for the legal reform in China: In November 2014, the Chinese Communist Party raised the policy of overall promotion of the rule of law and deepening of the reform to promote justice and fairness in its recent meeting.53 As the consequences of implementing the spirit of the Party’s guidelines, the Supreme People’s Court announced its effort of conducting a pilot reform on the establishment of circuit court in some areas,54 which indicated the transplant of foreign legal systems and local need of combining the efficiency and justice in China. Will such legal transplant be successful? Will such practice can be further expanded and formalized by law in China in the future? All these requires us to make further observations on whether the content transplanted can fit in effectively or tactically with the institutional background in China. 53 See, Xinhua News, the Decision of the Communist Party of China Central Committee on Several Major Issues Involving Overall Promotion of the Rule of Law (Zhonggong Zhongyang Guanyu Quanmian Tuijin Yifa Zhiguo de Ruogan Zhongda Jueding), Xinhua News, 28 October 2014, available at http://cpc.people.com.cn/n/2014/1028/c64387 – 25926125.html (Last visit: 8 January, 2015). For detailed discussions of the Fourth Meeting of the 18th Session of the Communist Party of China Central Committee, see http://cpc.people.com.cn/GB/67481/ 389745/index.html (Last visit: 8 January 2015). 54 See, for example, Sun Wanming: “China to Set up Circuit Courts in Shenzhen, Shenyang”, 29 December 2014, available at http://english.cri.cn/12394/2014/12/29/3123s858859. htm (Last visit: 8 January 2015).

The Continuing Story of the International Criminal Court and Personal Immunities Harmen van der Wilt*

I. Introduction Immunities of state officials for international crimes are a highly controversial topic. As is well known, the International Criminal Court (hereafter: ICC) has issued a warrant for the arrest and surrender of the incumbent president of Sudan Al Bashir and has held that his current position of Head of a state – which is not a party to the Rome Statute – ‘has no effect on the Court’s jurisdiction over the present case’.1 After Chad and Malawi – both States Parties to the Rome Statute – had refused to surrender Al Bashir when he visited those countries, the Pre Trial Chamber – in a different composition – held these states liable for their failure to comply with the cooperation requests issued by the Court.2 This final decision in its turn spawned a fierce reaction from the African Union Commission which expressed its ‘deep regret’, arguing that the decision purported to change customary international law in relation to immunity ratione personae.3 In the meantime, the Protocol on the Statute of the African Court of Justice and Human Rights that seeks to expand the judicial powers of that court with criminal jurisdiction has preserved the personal jurisdiction of acting heads of states.4 * Professor of International Criminal Law, University of Amsterdam – Faculty of Law. 1 ICC, Situation in Darfur, Sudan, Prosecutor v. Omar Hassan Ahmad Al Bashir, Decision on the Prosecution’s Application for a Warrant of Arrest against Omar Hassan Ahmad Al Bashir, ICC-02/05 – 01/09 – 3, 4 March 2009, § 41. 2 ICC, Situation in Darfur, Sudan, Prosecutor v. Omar Hassan Ahmad Al Bashir, Decision Pursuant to Article 87(7) of the Rome Statute on the Failure by the Republic of Malawi to Comply with the Cooperation Requests Issued by the Court with Respect to the Arrest and Surrender of Omar Hassan Ahmad Al Bashir, No,: ICC-02/05 – 01/09, 12 December 2011. 3 Press Release of 9 January 2012 on the Decision of Pre-Trial Chamber I of the International Criminal Court pursuant to Article 87(7) of the Rome Statute on the Alleged Failure by the Republic of Chad and the Republic of Malawi to Comply with the Cooperative Requests Issued by the Court with respect to the Arrest and Surrender of President Omar Hassan Al Bashir of the Republic of the Sudan. 4 Protocol on Amendments to the Protocol on the Statute of the African Court of Justice and Human Rights, African Union, First Meeting of the Specialized technical Committee on Justice and Legal Affairs, 15 – 16 May 2014, Addis Abeba, Ethiopia, STC/Legal?Min7 (1) Rev. 1, Article 46Abis: “No charges shall be commenced or continued against any serving

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The ICC was not swayed by this vociferous resistance and reiterated its position that states-parties are under an obligation to cooperate with the Court and surrender Al-Bashir, when the Democratic Republic of Congo appeared reluctant to do so.5 However, while Pre Trial Chamber I in the Malawi/Chad cases predicated its decision on customary international law, Pre Trial Chamber II in the case against Congo referred to the Resolution of the Security Council that prompted Sudan to cooperate fully with the Court. The Chamber subsequently invoked Article 103 of the UN Charter, which gives precedence to obligations of and ensuing from the Charter over all contrary obligations.6 The itinerant President of Sudan has continued causing headaches to both African countries and the ICC, lastly at the occasion of his visit to South Africa, where the Executive flouted the injunction of a domestic court to arrest and detain Al Bashir, pending a formal request for his surrender from the ICC.7 The position of heads of states of non-states parties vis à vis the International Criminal Court and the issue of their immunity have triggered much scholarly debate.8 Most writers have been rather critical on the Malawi/Chad decisions of December 2011 and have favoured the ‘Security Council’ solution.9 In this contribution to the honour of Mirjan Damasˇka I will defend the – seemingly radical and by no means generally accepted opinion, expressed by the second decision of the PTC I (In re Malawi) that seeks to ground the entire abolition of personal immunities before the ICC African Union Head or State or Government, or anybody acting or entitled to act in such capacity, or other senior state officials based on their functions, during their tenure of office.” 5 ICC, Situation in Darfur, Sudan, Prosecutor v. Omar Hassan Ahmad Al Bashir, Decision on the Cooperation of the Democratic Republic of the Congo Regarding Omar Al Bashir’s Arrest and Surrender to the Court, ICC-02/05 – 01/09, 9 April 2014. 6 Decision on the Cooperation of the Democratic Republic of the Congo, n. 5, § 31. Compare the searching analysis by Boschiero, Nerina: The ICC Judicial Finding on Noncooperation Against the DRC and No Immunity for Al-Bashir Based on UNSC Resolution 1593, 13 Journal of International Criminal Justice, 2015, pp. 625 – 653. 7 See Southern African Litigation Centre v. the Minister of Justice and Constitutional Development and Others, High Court of South Africa, Gauteng Division, Pretoria, Case Number: 27740/2015, 24 June 2015, § 11, available at: http://www.southerna fricalitigationcentre.org/cases/ongoing-cases/south-africasudan-seeking-implementation-of-iccarrest-warrant-for-president-bashir/ (last visited 26 August 2015). For an excellent analysis, see de Wet, Erika, The implications of the visit of Al Bashir to South Africa for international and domestic law (on file with the author, forthcoming in Journal of International Criminal Justice). 8 See, amongst others, Akande, Dapo: International Law Immunities and the International Criminal Court, 98 American Journal of International Law, 2004, pp. 407; Gaeta, Paola: Does President Al Bashir Enjoy Immunity from Arrest?, 7 Journal of International Criminal Justice, 2009, p. 315; Kress, Claus: The International Criminal Court and Immunities under International Law for States Not Party to the Court’s Statute, in: Bergsmo, Morten/Ling Yan (Eds.), State Sovereignty and International Criminal Law, FICHL Publication Series, No. 15, 2012, p. 223; Tladi, Dire: The ICC Decisions on Chad and Malawi: On Cooperation, Immunities and Article 98, 11 Journal of International Criminal Justice, 2013, p. 199. 9 Compare the references to countless blogposts by Boschiero (2015), fn. 6 in fn 59 and 60. She expresses preference for this construction as well.

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(including those of heads of states that have not ratified the Rome Statute) on customary international law and not on a Resolution of the Security Council. Different from most of the analyses of my esteemed colleagues, I will not engage in a meticulous legal assessment. Nor will I inquire whether the non-immunity of heads of states before international courts has indeed solidified into a rule of customary international law. Such an investigation would exceed the scope of this contribution.10 I would rather follow a normative approach and sustain my support for the PTC decision with some reflections on the development of the concept of national sovereignty, against the backdrop of the burgeoning philosophy of international criminal law. Basically, I will argue that international criminal justice entails a partial erosion of state sovereignty. And because high ranking state officials, like heads of states, are identified with the state – a connection that is reflected in the concept of immunities itself – this encroachment will backfire on these state officials through their loss of immunities. The very concept of international criminal justice is incompatible with the preservation of immunities before international criminal courts. The article is structured as follows. Section 2 will briefly summarize the current state of international law in respect of immunities by addressing the distinction between functional and personal immunities and the difference between immunities within the horizontal (inter-state) and vertical context. Section 3 elaborates the core of the argument that immunities cannot be reconciled with international criminal justice. In section 4 I will discuss how the ‘Security Council solution’ and the ‘customary international law approach’ conceive the translation of the vertical relationship between the ICC and states to inter-state relations, a problem that is reflected in the contradiction between Article 27 and Article 98(1) of the Rome Statute. And finally, in section 5, I will summarize my main findings and ponder on the question whether our dear friend Mirjan Damasˇka would agree with my bold ideas.

II. Immunities: State of the Art in International Law In the context of prosecution for international crimes, courts and legal doctrine have distinguished between functional and personal immunities (immunity ratione materiae and immunity ratione personae, respectively).11 Functional immunities per10 In its ‘Malawi decision’, the PTC pointed at a number of developments, including ‘the increase in Head of State prosecutions by international courts in the last decade’ and concluded that ‘the international community’s commitment to rejecting immunity in circumstances where international courts seek to arrest for international crimes has reached a critical mass.’ PTC I, 12 December 2011, n. 2, § 42. Claus Kress who, like the present writer, supports the customary international law approach, seriously doubts that a ‘compelling defence is possible at this stage of the development of the law’ (Kress (2012), fn. 8, 263). 11 For a very lucid explanation, see Cryer, Robert/Friman, Håkan/Robinson, Darryl/ Wilmshurst, Elizabeth: An Introduction to International Criminal Law and Procedure, 3rd ed., Cambridge 2014, p. 542.

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tain to the ‘official’ conduct of state representatives that can be considered as actions of the state. It conveys the idea of sovereign equality and that no state should sit in judgment over the actions of another state (in line with the maxim Par in parem non habet imperium). Personal immunity attaches to certain representatives of the state while they are in office. It covers both official acts and private conduct but evaporates with the official leaving office. To a certain extent, both immunities are complementary. Whereas functional immunities potentially benefit a vast category of state officials and offer permanent protection, the conduct that is covered by the immunity is limited (only ‘official’ acts). On the other hand, personal immunities entail comprehensive shelter against criminal prosecution, but only for a restricted number of state officials (heads of states, ministers of foreign affairs, diplomats) and they are temporary in nature.12 The landmark decision of the House of Lords in the case of former dictator of Chile, Augusto Pinochet, is often advanced as proof that functional immunities for international crimes are on the wane.13 One should perhaps be cautious not to jump to conclusions, because the Lords all vented their separate (and slightly differing) opinions and the judgment arguably applied to the limited issue whether functional immunities for torture still prevailed.14 Indeed, Lord Millet referred to torture when he argued that: “the offence is one which could only be committed in circumstances which would normally give rise to the immunity. The international community had created an offence for which immunity ratione materiae could not possible be available. International law cannot be supposed to have established a crime having the character of ius cogens and at the same time to have provided immunity which is co-extensive with the obligation to impose.”15

However, the findings of Lord Browne-Wilkinson and Lord Hutton that ‘these acts could not rank for immunity purposes as performance of an official function’ suggest a wider bearing that is not restricted to torture, but covers all international crimes.16 While former heads of states and other high officials who have stepped down from office may have reason to fear prosecution for international crimes, personal immunity still persists and offers complete protection, at least in the context of inter-state relations. To be sure, the International Court of Justice (ICJ) in the Arrest Warrant case was ‘unable to deduce from State practice that there exists under customary international law any (…) exception (to personal immunity) for war crimes or crimes

12

Ibid. R v. Bow Street Metropolitan Stipendiary Magistrate ex parte Pinochet Ugarte (No. 3) [1999], 2 All ER 97, HL (hereafter: Pinochet-case). 14 Compare van Alebeek, R.: The Immunity of States and their Officials in the Light of International Criminal Law and International Human Rights Law, Oxford 2008, p. 237. 15 Pinochet-case, 179. 16 Pinochet-case, 114 (Browne-Wilkinson) and 166 (Hutton). 13

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against humanity’.17 However, in its famous obiter dictum the ICJ emphasized that immunity from jurisdiction did not necessarily imply impunity, adding that ‘immunity from criminal jurisdiction and individual criminal responsibility are quite separate concepts.’18 The ICJ identified four circumstances in which an incumbent or former state official – in this particular case the Minister of Foreign Affairs of the Democratic Republic of the Congo, Mr. Yerodia – might be subject to criminal proceedings. First, he would not enjoy any criminal immunity under international law before the domestic courts of his home country. Secondly, he would cease to enjoy immunity if the State which he represented decided to waive that immunity. Thirdly, he would be exposed to criminal prosecution in another State after he had left office, in respect of acts committed prior or subsequent to his period in office and in respect of acts committed during that period of office in a private capacity. And finally, an incumbent or former Minister of Foreign Affairs may be subject to criminal proceedings before ‘certain international criminal courts, where they have jurisdiction.’19 For the purpose of this article, the last situation is obviously the most relevant. The ICJ explicitly mentioned the ICC as an example of such international criminal courts.20 Article 27, section 2 of the Rome Statute unambiguously holds that ‘Immunities or special procedural rules which may attach to the official capacity of a person, whether under national or international law, shall not bar the Court from exercising its jurisdiction over such a person’. The provision espouses one of the famous Nuremberg Principles.21 As Article 27 of the Rome Statute does not distinguish between functional immunity and personal immunity and therefore stipulates that no state official enjoys immunity before the Court, the position of incumbent heads of states before the ICC clearly deviates from the one he still holds before foreign domestic courts. The question is why this should be so. It seems to be a good idea to start the discourse with some reflections on the rationales for immunities.

17

ICJ, 14 February 2002 General List No. 121, Case Concerning the Arrest Warrant of 11 April 2000 (Democratic Republic of the Congo v. Belgium), § 58. 18 Arrest Warrant case, § 60. 19 Arrest Warrant case, § 61. For a searching analysis of this important judgment, see Cassese, Antonio: When May Senior State Officials Be Tried for International Crimes? Some Comments on the Congo v. Belgium Case, 13 European Journal of International Law, 2002, p. 853. 20 Ibid. 21 Nuremberg Principle, Geneva, 29 July 1950, UNGA OR, 5th Session, Supp. No. 12, UN Doc. A/1316 (1950), Principle 3: “The fact that a person who committed an act which constitutes a crime under international law acted as Head of State or responsible government official does not relieve him from responsibility under international law.”

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III. On the Incompatibility of Immunities and International Criminal Justice Whereas functional immunities are usually understood against the backdrop of the high authority of the sovereign state which does not tolerate superior authority to sit in judgment of its acts, personal immunities derive from more practical considerations. Criminal prosecution of high state officials would seriously impede their traveling abroad and thus affect international relations. By and large that distinction is warranted and makes sense, but one should beware not to exaggerate it at the risk of simplifying matters. In case of personal immunities, the symbolic ‘perfection’ and inviolability of the state is also at stake. This similarity in the underlying rationales for functional and personal immunities comes in particular to the fore in the case of prosecution for international crimes before international criminal tribunals. In elaborating on the different contexts – international versus domestic – in which immunity issues had to be assessed, the Appeals Chamber of the Special Court for Sierra Leone in the Taylor case made an important observation: “A reason for the distinction, in this regard, between national courts and international courts, though not immediately evident, would appear due to the fact that the principle that one sovereign state does not adjudicate on the conduct of another state: the principle of state immunity derives from the equality of sovereign states and therefore has no relevance to international criminal tribunals which are not organs of a state but derive their mandate from the international community.”22

Cryer et al. have criticized this passage in the Taylor case as it would: “misidentify the rationale for personal immunity. The principle par in parem non habet iudicium is the basis for functional immunity, not personal immunity. Personal immunity exists to protect international relations by precluding any basis to interfere with high representatives without the consent of their sending State.”23

As indicated above, I find this proposition too rigid. The Taylor decision conveys that – apart from any practical considerations – personal immunities serve to protect states from embarrassing insults of their high representatives that will immediately backfire on themselves. The reference to ‘conduct’ in the decision may not be entirely apposite (as it indeed points in the direction of functional immunities and therefore confuses both specimen), but the Appeals Chamber in my view intentionally wished to emphasize that the rationales of both immunities are not very far apart. The Appeals Chamber’s finding in Taylor conveys the message that international criminal tribunals owe less deference to the state’s sovereignty than states do owe to each other on a mutual basis. That is a crucial observation, because international criminal law enforcement indeed, by definition, implies an incursion of the sovereignty of a state. After all, international criminal tribunals and the ICC intervene 22 Special Court for Sierra Leone, Prosecutor v. Taylor, Decision on Immunity from Jurisdiction, SCSL-2003 – 01-I, 31 May 2004, § 51. 23 Cryer et al. (2014), fn. 11, p. 563.

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in the domestic prerogatives of a state, by claiming the right to start criminal prosecutions, which exemplifies the state’s sovereign power.24 The discussion centers around the question when – in what situations – such intervention is warranted. Larry May has famously developed his two principles – the security principle and the international harm principle – in order to shed light on the issue.25 May starts from the premise that the State’s primary assignment is to seek and guarantee the freedom, security and well-being of its citizens. It can be considered as the State’s raison d’être. If a state defaults on this primordial obligation – either by suppressing its own citizens, or by failing to protect them against systematic violence by others – the state forfeits (part of) its sovereignty and it provides a good prima facie case for intervention by the international community, through the appropriation of criminal law enforcement. Such an intervention, however, implies – next to the incursion of a state’s sovereignty – deprivation of fundamental rights of the accused and therefore May postulates the fulfillment of another principle: the humanitarian crisis must involve the interests of the entire international community (international harm principle).26 According to May, crimes against humanity would in particular qualify.Now one might discuss the relative weight and relevance of these principles and question whether they need both be triggered.27 But that is not our major concern here. The great merit of May’s analysis is that he has provided justificatory reasons for infringement of sovereignty by international criminal law enforcement. If we accept that international criminal courts are authorized to make incursions on a state’s sovereignty, it requires only a small step to understand that this must have repercussions for – personal and functional – immunities. After all, both functional and personal immunities connote the identification of the state and its representatives, as was obviously suggested in the Taylor decision. For sure, this relationship has developed overtime and is less ‘intimate’ than in the past. We are far removed from mediaeval times when the king embodied the state.28 But remnants of this identification persist until this very day and certainly are displayed in the positivist conception of the legal system in which states are the sole subjects of international law. That conception dovetailed with the ‘act of state’ doctrine which shielded the indi24 Whether these international tribunals enjoy ‘primacy’ (as in the case of the ad hoc tribunals) or act on the basis of complementarity (the ICC) is of secondary importance. The point is that they have the authority to overrule territorial jurisdiction. 25 May, Larry: Crimes against Humanity: A Normative Account, Oxford 2005. 26 May (2005), fn. 25, 82/83. 27 In a general positive appraisal of May’s work, I have criticized the international harm principle which I consider redundant, see van der Wilt, Harmen: Crimes against humanity: a category hors concours in (international) criminal law? in: van Beers, B./Corrias, L./Werner, W. (Eds.), Humanity across International Law and Biolaw, Cambridge 2014, pp. 25 – 42. 28 The medieval political theology postulates a similarity between the eternal corporation (universitas) and the Dignity that never dies (Dignitas quae non moritur). The latter is epitomized in the King whose eternal body is preserved by the dynasty. For a profound and beautiful analysis, see Kantorowicz, Ernst H.: The Kings Two Bodies; A Study in Medieval Political Theology, Princeton 1957, especially pp. 383 – 450.

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vidual, acting de jure on behalf of or in fact authorized by the state, from responsibility. The severance between the state and its ‘representatives’ came about after the Second World War when the Nuremberg Tribunal acknowledged that individuals could incur criminal responsibility under international law, without the necessary implication of the state.29 But until this very day the rather close connection between the state and its representatives is demonstrated by the frequent coincidence of state responsibility and individual responsibility.30 Moreover, it is still reflected, as I contended before, in the very institute of immunity. The erosion of the state’s sovereignty as the result of the proliferation of international criminal justice has an interesting and perhaps surprising effect on immunities. Whereas the identification of the state with its officials has previously served as the major argument for their preservation, it is now instrumental to their demolition. It is now possible to combine the elements briefly exposed above in order to sustain my main point. The close connection between the state and its representatives in the face of international criminal law enforcement has two consequences. For one thing, representatives of the state cannot hide behind the shield of the sovereign state because the very fabric of sovereignty has been eroded. Secondly, the (implied) assault on state sovereignty – the assault is not accidental, but intentional, because international criminal law enforcement requires piercing the cuirass of sovereignty – must have repercussions for the state representatives, because the state itself cannot be criminally prosecuted. After all, corporate criminal responsibility is unknown under the Rome Statute.31 Obviously, any decision to intervene by the ICC does not automatically involve the guilt of state representatives. Their individual responsibility must be assessed by a court of law. It does, however entail that their liability cannot be excluded systematically and on principle. This argument can be sustained by other considerations. For one thing, international criminal law enforcement is all-inclusive. The nature of the crimes does not allow that some individual suspects get off scot free.32 That

29 For a concise but clear exposition of the developments in international law, see Cerone, John P.: Much Ado about Non-state Actors: The vanishing Relevance of State Affiliation in International Criminal Law, pp. 1 – 12. 30 See for reflections on the relationship between state responsibility and individual responsibility: Spinedi, M.: State Responsibility v. Individual Responsibility for International Crimes: Tertium Non Datur?’, 13 European Journal of International Law, 2002, p. 895 and Nollkaemper, A.: Concurrence between Individual Responsibility and State Responsibility in International Law, 52 International and Comparative Law Quarterly, 2003, p. 615. 31 Article 25 (1) of the Rome Statute explicitly states that the Court shall have jurisdiction over natural persons. For an investigations of the possibilities to introduce corporate criminal responsibility in the Statute de lege ferenda, see van der Wilt, Harmen: Corporate Criminal Responsibility for International Crimes: exploring the Possibilities, 12 Chinese Journal of International Law, 2013, p. 43. 32 The Preamble of the Rome Statute in general terms affirms that ‘the most serious crimes of concern to the international community as a whole must not go unpunished’ without mak-

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principle has been accepted in the context of functional immunity, but the same applies in respect of personal immunities. Secondly, international criminal law enforcement focuses on those bearing the greatest responsibility.33 That intention cannot be reconciled with an axiomatic preclusion from criminal responsibility of those who plan, organize and initiate systematic repression of people. It follows that personal immunities cannot be reconciled with the ambition of international criminal justice to intervene and mete out justice, whenever states appear to be incapable of doing so.

IV. The ICC, States Parties and States Not Parties to the Statute: A Complex Triangle The previous section has revealed that incumbent heads of states and other officials do not enjoy personal immunities before international criminal tribunals, including the ICC. Whereas this conclusion is of paramount importance from a principled point of view, its practical relevance is slight, because states, while under an obligation to do so, would usually not be inclined to surrender their highest representatives and expose them to the Court. The latter must therefore often rely on other states that might seize the opportunity to apprehend the state official, suspected of international crime, whenever he visits their country and subsequently surrender him to the Court. However, it is not axiomatic that other states can similarly ignore the personal immunities of state officials in their horizontal relations with other states. In other words: the issue of immunities is not restricted to the (vertical) relation between a state and the Court; it has horizontal ramifications. This complexity has been widely acknowledged in legal literature. Dire Tladi, for instance, argues that ‘(…) even if the assertion that customary international law excludes immunities in proceedings before international courts were correct (…) this would apply only as between the state official appearing before the court and the international court or tribunal concerned and would not, by itself, affect the relationship between states ing any exception for any perpetrator. In respect of the actor, it emphasizes the need ‘to put an end to impunity for the perpetrators of these crimes’, again without any distinction. 33 Article 1 of the Statute of the Special Court for Sierra Leone (Freetown, 16 January 2002) explicitly provides that ‘The Special Court shall (…) have the power to prosecute persons who bear the greatest responsibility for international humanitarian law and Sierra Leonean law committed in the territory of Sierra Leone since 30 November 1996, including those leaders who, in committing such crimes, have threatened the establishment of an implementation of the peace process in Sierra Leone’. The Rome Statute does not have an equivalent provision but the ICC Prosecutor has indicated that, in the selection of cases, he would in particular pay attention to the circumstance that the individual belonged to those “who bear the greatest responsibility for the most serious crimes’. Prosecutorial Strategy, 2009 – 2012, 1 February 2010, The Hague, § 19; available at http://www.icc-cpi.int/NR/rdon lyres/66A8DCDC-3650 - 4514-AA62-D229D1128F65/281506/OTPProsecutorial Strategy20092013.pdf. (last visited on 2 September 2015).

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inter se’.34 Article 98 (1) of the Rome Statute refers to this horizontal (inter-state) dimension. It provides that ‘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 co-operation of that third State for the waiver of the immunity.’ It is generally acknowledged that this article applies only to third states that are not a party to the Rome Statute, because States Parties have already waived any claims to immunity by ratifying the Rome Statute and such a waiver ‘must extend to the triangular relationship between the Court, the requested State Party and the “third” State Party’.35 The real problems in the realm of lasting immunities occur therefore in the relations between the ICC and states not party to the Statute, as already emerged in the frequent collisions in respect of the requested surrender of Al Bashir. The issue boils down to two questions: (1) Do international law immunities preclude the ICC from exercising jurisdiction over an incumbent head of State (etc.) that is not a party to the Statute? (The onedimensional, vertical connection); (2) Would States Parties violate their obligations under international law by complying with an ICC-request to surrender the incumbent head of state, not party to the Rome Statute? (the ‘triangular connection). Kress correctly holds that these two questions should be distinguished and that the former logically precedes the latter.36 However, although these questions are legally separate, both Pre Trial Chambers, preferring the Security Council solution and favouring the ‘customary international law- approach’ respectively, have been inclined to connect them and lump them together. The Pre Trial Chamber in the Congo case started from the assumption that the lifting of immunities – as provided in Article 27 (2) Statute – only applied to States Parties.37 The only way to remedy this inconvenience was to secure a waiver of the non-party State (Sudan) under pressure of the Security Council and this waiver had already been implicitly obtained. After all, Res34

Tladi, Dire: The Immunity Provision in the AU Amendment Protocol; Separating the (Doctrinal) Wheat from the (Normative) Chaff, 13 Journal of International Criminal Justice, 2015, pp. 14/15. 35 Kress (2012), fn. 8, p. 239. For a similar point of view, Akande (2004), fn. 8, pp. 423 – 425. See also ICC, Prosecutor v. Al Bashir, 12 December 2011, n. 2, § 18: ‘(…) acceptance of article 27(2) of the Statute, implies waiver of immunities for the purposes of article 98(1) of the Statute with respect to proceedings conducted by the Court.’ 36 Kress (2012), fn. 8, pp. 225/226. 37 ICC, Prosecutor v. Al Bashir, 9 April 2014 (n. 5), § 26: ‘(…) the exception to the exercise of the Court’s jurisdiction provided in article 27(2) of the Statute should, in principle, be confined to those States Parties who have accepted it.’ For a similar point of view, see Schabas, William A.: The International Criminal Court; A Commentary on the Rome Statute, Oxford 2010, p. 450: ‘(…) article 27(2) cannot apply to Heads of State of non-party States who retain their immunity under customary international law.’

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olution 1593(2005) stipulated that the “Government of Sudan […] shall cooperate fully with and provide any necessary assistance to the Court and the Prosecutor pursuant to this resolution”. That order to cooperate included the lifting of immunities, because ‘any other interpretation would render the SC decision requiring that Sudan “cooperate fully” and “provide necessary assistance to the Court” senseless’.38 The implied waiver simultaneously resolved all problems in the inter-state context, because the ICC, by obtaining the waiver, had complied with the requirements under Article 98(1) Statute and could now proceed with requesting surrender from the Congo. The Pre Trial Chamber in the Malawi/ Chad cases reached the same outcome but followed a different track. The connection between the vertical dimension and the horizontal relations between states, however, was equally clear. The PTC argued that (personal) immunities no longer prevail before international criminal courts and that states parties would therefore not act inconsistently with their obligations under international law by surrendering incumbent heads of states to the ICC (regardless of a SC Resolution). The Chamber explained its position by emphasizing that a state party that receives a request for surrender from the Court and to that purpose arrests a foreign head of state acts as a fiduciary of the Court. The arrest does not serve its own criminal law enforcement.39 Claus Kress concurs with the finding of the PTC, commenting that ‘Pre Trial Chamber I was therefore justified to believe that the principles underlying the customary law exception to the international immunity ratione personae cover the triangular relationship in question’.40 Both decisions reveal some common ground by forging a link between the abolition of immunities before international criminal courts and the concomitant obligation of states to sidestep immunities as well. From the perspective of effective international criminal law enforcement that makes sense. States are not likely to voluntarily expose their incumbent heads of states or other high officials to the Court. Article 27 Rome Statute would remain a dead letter if states parties were estopped from acting as the Court’s instruments. In my opinion, the reasoning of the PTC in the Malawi-case is superior from a legal perspective. The ‘Security Council solution’ is somewhat contrived. For one thing, the PTC in the Congo decision seems to forget that immunities are an asset of the state. States may be forced to waive an immunity, but it is far-fetched to speak of an ‘implicit waiver by the Security Council’.41 Sec38

ICC, Prosecutor v. Al Bashir, 9 April 2014 (n. 5), § 29. ICC, Prosecutor v. Al Bashir, 12 December 2011 (footnote 2), § 46: ‘when cooperating with this Court and therefore acting on its behalf, States Parties are instruments for the enforcement of the jus puniendi of the international community whose exercise has been entrusted to this Court when States have failed to prosecute those responsible for the crimes within this jurisdiction.’ 40 Kress (2012), fn 8, p. 257. 41 ICC, Prosecutor v. Al Bashir, 9 April 2014 (n. 5), § 29: ‘By virtue of (paragraph 2 of SC Resolution 1593 (2005)), the SC implicitly waived the immunities granted to Omar Al Bashir (…).’ 39

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ondly, the ‘power-play’ of the Security Council governs the horizontal dimension as well. The Court is satisfied having obtained the ‘waiver’ and ignores the real predicaments of states facing conflicting obligations. The Pre Trial Chamber in the Malawi/ Chad decision, on the other hand, acknowledges that waivers are irrelevant in the vertical relationship between the international criminal tribunals and states.42 Next, it explicitly addresses the inter-state context, by emphasizing that the states do not act out of self-interest, but as trustees of the Court. It yields a coherent picture of international criminal justice as a concerted affair.

V. Some Final Reflections In this contribution to a ‘Festschrift’ for Mirjan Damasˇka I have argued that (personal) immunities are fundamentally incompatible with international criminal justice. This implies that no head of state – irrespective of whether that state is a party to the Rome Statute or not – enjoys immunity before the ICC. Moreover, all states parties to the Rome Statute are under an obligation to arrest and surrender heads of states that are accused of ‘core crimes’, on the request of the ICC. And finally I am of the opinion that such an obligation is not dependent on a resolution by the Security Council, but emanates from customary international law. I have tried to sustain my position by addressing the rationales for personal and functional immunity. Different from what is often contended, they do not diverge very much. Both reflect the intimate relationship between states and their representatives in that the infringement of immunity is considered as an affront to the sovereign power of the state. As international criminal justice by definition entails a partial erosion of the sovereignty of the state, the immunity of heads of states and other high officials cannot be left untouched. The International Criminal Court and the scholarly community acknowledge that incumbent heads of states – even if the state is not a party to the Statute – do not enjoy immunity before the Court and that states parties should follow suit by surrendering these persons on request. However, this conclusion is reached by different tracks that I have dubbed colloquially as the ‘Security Council solution’ and the ‘customary international law approach’. My preference for the latter approach glimmers through the theoretical considerations in section 3. However, I have attempted to demonstrate in section 4 that the Malawi/Chad decisions, while vehemently criticized, also offer a more elegant and convincing solution for the question how to translate the abolition of personal immunities before the ICC to the horizontal dimension.43 42

It should be recalled that the ICJ in the Arrest Warrant case identified the waiver by the state and the prosecution by international courts and tribunals as two separate exceptions to personal immunities. 43 For all I know, the only academic writer who also favours this position is Claus Kress (fn. 8). I feel indebted to him, as his acute observations have partially inspired me to write this article.

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The ‘customary international law approach’ has a number of additional advantages. For one thing, it offers release from political bondage. The ICC is not dependent on a Resolution of the Security Council for the prosecution of the head of a state not party to the Statute. If the ICC already has jurisdiction on the basis of territoriality – because the effects of the conduct of the head of state have materialized on the territory of a State Part – a Resolution of the Security Council is redundant. In this context it may be noted that Paola Gaeta has correctly observed that a Resolution of the Security Council, within the legal framework of the Statute, ‘merely’ creates jurisdiction for the Court, beyond the system of state consent; it does not change or adapt the obligations of states.44 But apart from these benefits, I prefer the ‘customary international law’ approach out of principle. At the end of my contribution, I am tempted to ask myself whether Mirjan Damasˇka would agree with my analysis and point of view. In his searching article on the goals of international criminal justice Damasˇka addresses the problem of selectivity.45 He somewhat laconically observes that ‘to wait for the global community to supersede states as the dominant actor in the international arena would be to succumb to self-subversion, or worse, to surrender to the blackmail of perfection.’ And he adds that ‘it is better to bring some human rights abusers to justice than none at all: the best should not be the enemy of the good’.46 It is a call to realism and pragmatism and I presume that Damasˇka could live with a decision of the Court not to pursue the prosecution of an incumbent head of state because it not (yet) politically feasible. On the other hand, Damasˇka has often advocated the expressive and didactic function of international criminal justice.47 International criminal law serves mainly to instill the general public with minimal notions of morality and the assurance that the most serious trespassers will be punished. Any categorical exclusion of state officials defies such a didactic objective and will breed cynicism. From that perspective, I am sure that Damasˇka will agree that the prosecution and trial of heads of states who are suspected of the worst imaginable crimes should at least be possible.

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Gaeta (2009), fn. 8, p. 322. Damasˇka, Mirjan R.: What is the Point of International Criminal Justice?, 83 Chicago Kent Law Review, 2008, p. 329. 46 Ibid., p. 362. 47 Ibid., pp. 343 – 347 and M. Damasˇka: ‘The Shadow Side of Command Responsibility’, 49 American Journal of Comparative Law, 2001, p. 455. 45