ROME STATUTE OF THE INTERNATIONAL CRIMINAL COURT
PART 5. INVESTIGATION AND PROSECUTION
Article 53
Initiation of an investigation
1. The
Prosecutor shall, having evaluated the information made available to him
or her, initiate an investigation unless he or she determines that there
is no reasonable basis to proceed under this Statute. In deciding whether
to initiate an investigation, the Prosecutor shall consider whether:
(a) The information available
to the Prosecutor provides a reasonable basis to believe that a crime within
the jurisdiction of the Court has been or is being committed;
(b) The case is or would be admissible
under article 17; and
(c) Taking into account the gravity
of the crime and the interests of victims, there are nonetheless substantial
reasons to believe that an investigation would not serve the interests
of justice.
If the Prosecutor determines that there is no reasonable basis to proceed
and his or her determination is based solely on subparagraph (c) above,
he or she shall inform the Pre-Trial Chamber.
2. If,
upon investigation, the Prosecutor concludes that there is not a sufficient
basis for a prosecution because:
(a) There is not a sufficient
legal or factual basis to seek a warrant or summons under article 58;
(b) The case is inadmissible under
article 17; or
(c) A prosecution is not in the
interests of justice, taking into account all the circumstances, including
the gravity of the crime, the interests of victims and the age or infirmity
of the alleged perpetrator, and his or her role in the alleged crime;
the Prosecutor shall inform the Pre-Trial Chamber and the
State making a referral under article 14 or the Security Council in a case
under article 13, paragraph (b), of his or her conclusion and the reasons
for the conclusion.
3. (a)
At the request of the State making a referral under article 14 or the Security
Council under article 13, paragraph (b), the Pre-Trial Chamber may review
a decision of the Prosecutor under paragraph 1 or 2 not to proceed and
may request the Prosecutor to reconsider that decision.
(b) In addition, the Pre-Trial Chamber may, on
its own initiative, review a decision of the Prosecutor not to proceed
if it is based solely on paragraph 1 (c) or 2 (c). In such a case, the
decision of the Prosecutor shall be effective only if confirmed by the
Pre-Trial Chamber.
4. The
Prosecutor may, at any time, reconsider a decision whether to initiate
an investigation or prosecution based on new facts or information.
Article 54
Duties and powers of the Prosecutor with respect
to investigations
1. The
Prosecutor shall:
(a) In order to establish the
truth, extend the investigation to cover all facts and evidence relevant
to an assessment of whether there is criminal responsibility under this
Statute, and, in doing so, investigate incriminating and exonerating circumstances
equally;
(b) Take appropriate measures
to ensure the effective investigation and prosecution of crimes within
the jurisdiction of the Court, and in doing so, respect the interests and
personal circumstances of victims and witnesses, including age, gender
as defined in article 7, paragraph 3, and health, and take into account
the nature of the crime, in particular where it involves sexual violence,
gender violence or violence against children; and
(c) Fully respect the rights of
persons arising under this Statute.
2. The Prosecutor
may conduct investigations on the territory of a State:
(a) In accordance with the provisions
of Part 9; or
(b) As authorized by the Pre-Trial
Chamber under article 57, paragraph 3 (d).
3. The Prosecutor
may:
(a) Collect and examine evidence;
(b) Request the presence of and
question persons being investigated, victims and witnesses;
(c) Seek the cooperation of any
State or intergovernmental organization or arrangement in accordance with
its respective competence and/or mandate;
(d) Enter into such arrangements
or agreements, not inconsistent with this Statute, as may be necessary
to facilitate the cooperation of a State, intergovernmental organization
or person;
(e) Agree not to disclose, at
any stage of the proceedings, documents or information that the Prosecutor
obtains on the condition of confidentiality and solely for the purpose
of generating new evidence, unless the provider of the information consents;
and
(f) Take necessary measures, or
request that necessary measures be taken, to ensure the confidentiality
of information, the protection of any person or the preservation of evidence.
Article 55
Rights of persons during an investigation
1. In
respect of an investigation under this Statute, a person:
(a) Shall not be compelled to
incriminate himself or herself or to confess guilt;
(b) Shall not be subjected to
any form of coercion, duress or threat, to torture or to any other form
of cruel, inhuman or degrading treatment or punishment;
(c) Shall, if questioned in a
language other than a language the person fully understands and speaks,
have, free of any cost, the assistance of a competent interpreter and such
translations as are necessary to meet the requirements of fairness; and
(d) Shall not be subjected to
arbitrary arrest or detention, and shall not be deprived of his or her
liberty except on such grounds and in accordance with such procedures as
are established in this Statute.
2. Where
there are grounds to believe that a person has committed a crime within
the jurisdiction of the Court and that person is about to be questioned
either by the Prosecutor, or by national authorities pursuant to a request
made under Part 9, that person shall also have the following rights of
which he or she shall be informed prior to being questioned:
(a) To be informed, prior to
being questioned, that there are grounds to believe that he or she has
committed a crime within the jurisdiction of the Court;
(b) To remain silent, without
such silence being a consideration in the determination of guilt or innocence;
(c) To have legal assistance of
the person's choosing, or, if the person does not have legal assistance,
to have legal assistance assigned to him or her, in any case where the
interests of justice so require, and without payment by the person in any
such case if the person does not have sufficient means to pay for it; and
(d) To be questioned in the presence
of counsel unless the person has voluntarily waived his or her right to
counsel.
Article 56
Role of the Pre-Trial Chamber in relation
to a unique investigative opportunity
1.
(a) Where the Prosecutor considers an investigation
to present a unique opportunity to take testimony or a statement from a
witness or to examine, collect or test evidence, which may not be available
subsequently for the purposes of a trial, the Prosecutor shall so inform
the Pre-Trial Chamber.
(b) In that case, the Pre-Trial Chamber may, upon
request of the Prosecutor, take such measures as may be necessary to ensure
the efficiency and integrity of the proceedings and, in particular, to
protect the rights of the defence.
(c) Unless the Pre-Trial Chamber orders otherwise,
the Prosecutor shall provide the relevant information to the person who
has been arrested or appeared in response to a summons in connection with
the investigation referred to in subparagraph (a), in order that he or
she may be heard on the matter.
2. The
measures referred to in paragraph 1 (b) may include:
(a) Making recommendations or
orders regarding procedures to be followed;
(b) Directing that a record be
made of the proceedings;
(c) Appointing an expert to assist;
(d) Authorizing counsel for a
person who has been arrested, or appeared before the Court in response
to a summons, to participate, or where there has not yet been such an arrest
or appearance or counsel has not been designated, appointing another counsel
to attend and represent the interests of the defence;
(e) Naming one of its members
or, if necessary, another available judge of the Pre-Trial or Trial Division
to observe and make recommendations or orders regarding the collection
and preservation of evidence and the questioning of persons;
(f) Taking such other action as
may be necessary to collect or preserve evidence.
3. (a)
Where the Prosecutor has not sought measures pursuant to this article but
the Pre-Trial Chamber considers that such measures are required to preserve
evidence that it deems would be essential for the defence at trial, it
shall consult with the Prosecutor as to whether there is good reason for
the Prosecutor's failure to request the measures. If upon consultation,
the Pre-Trial Chamber concludes that the Prosecutor's failure to request
such measures is unjustified, the Pre-Trial Chamber may take such measures
on its own initiative.
(b) A decision of the Pre-Trial Chamber to act
on its own initiative under this paragraph may be appealed by the Prosecutor.
The appeal shall be heard on an expedited basis.
4. The
admissibility of evidence preserved or collected for trial pursuant to
this article, or the record thereof, shall be governed at trial by article
69, and given such weight as determined by the Trial Chamber.
Article 57
Functions and powers of the Pre-Trial Chamber
1. Unless
otherwise provided in this Statute, the Pre-Trial Chamber shall exercise
its functions in accordance with the provisions of this article.
2 . (a)
Orders or rulings of the Pre-Trial Chamber issued under articles 15, 18,
19, 54, paragraph 2, 61, paragraph 7, and 72 must be concurred in by a
majority of its judges.
(b) In all other cases, a single judge of the Pre-Trial
Chamber may exercise the functions provided for in this Statute, unless
otherwise provided for in the Rules of Procedure and Evidence or by a majority
of the Pre-Trial Chamber.
3. In
addition to its other functions under this Statute, the Pre-Trial Chamber
may:
(a) At the request of the Prosecutor,
issue such orders and warrants as may be required for the purposes of an
investigation;
(b) Upon the request of a person
who has been arrested or has appeared pursuant to a summons under article
58, issue such orders, including measures such as those described in article
56, or seek such cooperation pursuant to Part 9 as may be necessary to
assist the person in the preparation of his or her defence;
(c) Where necessary, provide for
the protection and privacy of victims and witnesses, the preservation of
evidence, the protection of persons who have been arrested or appeared
in response to a summons, and the protection of national security information;
(d) Authorize the Prosecutor to
take specific investigative steps within the territory of a State Party
without having secured the cooperation of that State under Part 9 if, whenever
possible having regard to the views of the State concerned, the Pre-Trial
Chamber has determined in that case that the State is clearly unable to
execute a request for cooperation due to the unavailability of any authority
or any component of its judicial system competent to execute the request
for cooperation under Part 9.
(e) Where a warrant of arrest
or a summons has been issued under article 58, and having due regard to
the strength of the evidence and the rights of the parties concerned, as
provided for in this Statute and the Rules of Procedure and Evidence, seek
the cooperation of States pursuant to article 93, paragraph 1 (k), to take
protective measures for the purpose of forfeiture, in particular for the
ultimate benefit of victims.
Article 58
Issuance by the Pre-Trial Chamber of a warrant
of arrest
or a summons to appear
1. At
any time after the initiation of an investigation, the Pre-Trial Chamber
shall, on the application of the Prosecutor, issue a warrant of arrest
of a person if, having examined the application and the evidence or other
information submitted by the Prosecutor, it is satisfied that:
(a) There are reasonable grounds
to believe that the person has committed a crime within the jurisdiction
of the Court; and
(b) The arrest of the person appears
necessary:
(i) To ensure the person's appearance
at trial,
(ii) To ensure that the person
does not obstruct or endanger the investigation or the court proceedings,
or
(iii) Where applicable, to prevent
the person from continuing with the commission of that crime or a related
crime which is within the jurisdiction of the Court and which arises out
of the same circumstances.
2. The application
of the Prosecutor shall contain:
(a) The name of the person and
any other relevant identifying information;
(b) A specific reference to the
crimes within the jurisdiction of the Court which the person is alleged
to have committed;
(c) A concise statement of the
facts which are alleged to constitute those crimes;
(d) A summary of the evidence
and any other information which establish reasonable grounds to believe
that the person committed those crimes; and
(e) The reason why the Prosecutor
believes that the arrest of the person is necessary.
3.
The warrant of arrest shall contain:
(a) The name of the person and
any other relevant identifying information;
(b) A specific reference to the
crimes within the jurisdiction of the Court for which the person's arrest
is sought; and
(c) A concise statement of the
facts which are alleged to constitute those crimes.
4. The warrant
of arrest shall remain in effect until otherwise ordered by the Court.
5. On
the basis of the warrant of arrest, the Court may request the provisional
arrest or the arrest and surrender of the person under Part 9.
6. The
Prosecutor may request the Pre-Trial Chamber to amend the warrant of arrest
by modifying or adding to the crimes specified therein. The Pre-Trial Chamber
shall so amend the warrant if it is satisfied that there are reasonable
grounds to believe that the person committed the modified or additional
crimes.
7. As
an alternative to seeking a warrant of arrest, the Prosecutor may submit
an application requesting that the Pre-Trial Chamber issue a summons for
the person to appear. If the Pre-Trial Chamber is satisfied that there
are reasonable grounds to believe that the person committed the crime alleged
and that a summons is sufficient to ensure the person's appearance, it
shall issue the summons, with or without conditions restricting liberty
(other than detention) if provided for by national law, for the person
to appear. The summons shall contain:
(a) The name of the person and
any other relevant identifying information;
(b) The specified date on which
the person is to appear;
(c) A specific reference to the
crimes within the jurisdiction of the Court which the person is alleged
to have committed; and
(d) A concise statement of the
facts which are alleged to constitute the crime.
The summons shall be served on the person.
Article 59
Arrest proceedings in the custodial State
1. A
State Party which has received a request for provisional arrest or for
arrest and surrender shall immediately take steps to arrest the person
in question in accordance with its laws and the provisions of Part 9.
2. A
person arrested shall be brought promptly before the competent judicial
authority in the custodial State which shall determine, in accordance with
the law of that State, that:
(a) The warrant applies to that
person;
(b) The person has been arrested
in accordance with the proper process; and
(c) The person's rights have been
respected.
3. The person
arrested shall have the right to apply to the competent authority in the
custodial State for interim release pending surrender.
4. In
reaching a decision on any such application, the competent authority in
the custodial State shall consider whether, given the gravity of the alleged
crimes, there are urgent and exceptional circumstances to justify interim
release and whether necessary safeguards exist to ensure that the custodial
State can fulfil its duty to surrender the person to the Court. It shall
not be open to the competent authority of the custodial State to consider
whether the warrant of arrest was properly issued in accordance with article
58, paragraph 1 (a) and (b).
5. The
Pre-Trial Chamber shall be notified of any request for interim release
and shall make recommendations to the competent authority in the custodial
State. The competent authority in the custodial State shall give full consideration
to such recommendations, including any recommendations on measures to prevent
the escape of the person, before rendering its decision.
6. If
the person is granted interim release, the Pre-Trial Chamber may request
periodic reports on the status of the interim release.
7. Once
ordered to be surrendered by the custodial State, the person shall be delivered
to the Court as soon as possible.
Article 60
Initial proceedings before the Court
1. Upon
the surrender of the person to the Court, or the person's appearance before
the Court voluntarily or pursuant to a summons, the Pre-Trial Chamber shall
satisfy itself that the person has been informed of the crimes which he
or she is alleged to have committed, and of his or her rights under this
Statute, including the right to apply for interim release pending trial.
2. A
person subject to a warrant of arrest may apply for interim release pending
trial. If the Pre-Trial Chamber is satisfied that the conditions set forth
in article 58, paragraph 1, are met, the person shall continue to be detained.
If it is not so satisfied, the Pre-Trial Chamber shall release the person,
with or without conditions.
3. The
Pre-Trial Chamber shall periodically review its ruling on the release or
detention of the person, and may do so at any time on the request of the
Prosecutor or the person. Upon such review, it may modify its ruling as
to detention, release or conditions of release, if it is satisfied that
changed circumstances so require.
4. The
Pre-Trial Chamber shall ensure that a person is not detained for an unreasonable
period prior to trial due to inexcusable delay by the Prosecutor. If such
delay occurs, the Court shall consider releasing the person, with or without
conditions.
5. If
necessary, the Pre-Trial Chamber may issue a warrant of arrest to secure
the presence of a person who has been released.
Article 61
Confirmation of the charges before trial
1. Subject
to the provisions of paragraph 2, within a reasonable time after the person's
surrender or voluntary appearance before the Court, the Pre-Trial Chamber
shall hold a hearing to confirm the charges on which the Prosecutor intends
to seek trial. The hearing shall be held in the presence of the Prosecutor
and the person charged, as well as his or her counsel.
2. The
Pre-Trial Chamber may, upon request of the Prosecutor or on its own motion,
hold a hearing in the absence of the person charged to confirm the charges
on which the Prosecutor intends to seek trial when the person has:
(a) Waived his or her right to
be present; or
(b) Fled or cannot be found and
all reasonable steps have been taken to secure his or her appearance before
the Court and to inform the person of the charges and that a hearing to
confirm those charges will be held.
In that case, the person shall be represented by counsel where the Pre-Trial
Chamber determines that it is in the interests of justice.
3. Within
a reasonable time before the hearing, the person shall:
(a) Be provided with a copy of
the document containing the charges on which the Prosecutor intends to
bring the person to trial; and
(b) Be informed of the evidence
on which the Prosecutor intends to rely at the hearing.
The Pre-Trial Chamber may issue orders regarding the disclosure of information
for the purposes of the hearing.
4. Before
the hearing, the Prosecutor may continue the investigation and may amend
or withdraw any charges. The person shall be given reasonable notice before
the hearing of any amendment to or withdrawal of charges. In case of a
withdrawal of charges, the Prosecutor shall notify the Pre-Trial Chamber
of the reasons for the withdrawal.
5. At
the hearing, the Prosecutor shall support each charge with sufficient evidence
to establish substantial grounds to believe that the person committed the
crime charged. The Prosecutor may rely on documentary or summary evidence
and need not call the witnesses expected to testify at the trial.
6. At
the hearing, the person may:
(a) Object to the charges;
(b) Challenge the evidence presented
by the Prosecutor; and
(c) Present evidence.
7. The Pre-Trial
Chamber shall, on the basis of the hearing, determine whether there is
sufficient evidence to establish substantial grounds to believe that the
person committed each of the crimes charged. Based on its determination,
the Pre-Trial Chamber shall:
(a) Confirm those charges in
relation to which it has determined that there is sufficient evidence,
and commit the person to a Trial Chamber for trial on the charges as confirmed;
(b) Decline to confirm those charges
in relation to which it has determined that there is insufficient evidence;
(c) Adjourn the hearing and request
the Prosecutor to consider:
(i) Providing further evidence
or conducting further investigation with respect to a particular charge;
or
(ii) Amending a charge because
the evidence submitted appears to establish a different crime within the
jurisdiction of the Court.
8. Where
the Pre-Trial Chamber declines to confirm a charge, the Prosecutor shall
not be precluded from subsequently requesting its confirmation if the request
is supported by additional evidence.
9. After
the charges are confirmed and before the trial has begun, the Prosecutor
may, with the permission of the Pre-Trial Chamber and after notice to the
accused, amend the charges. If the Prosecutor seeks to add additional charges
or to substitute more serious charges, a hearing under this article to
confirm those charges must be held. After commencement of the trial, the
Prosecutor may, with the permission of the Trial Chamber, withdraw the
charges.
10. Any
warrant previously issued shall cease to have effect with respect to any
charges which have not been confirmed by the Pre-Trial Chamber or which
have been withdrawn by the Prosecutor.
11. Once
the charges have been confirmed in accordance with this article, the Presidency
shall constitute a Trial Chamber which, subject to paragraph 9 and to article
64, paragraph 4, shall be responsible for the conduct of subsequent proceedings
and may exercise any function of the Pre-Trial Chamber that is relevant
and capable of application in those proceedings.
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