Demetra Sorvatzioti

The International Criminal Court appears to have adopted a sui generis legal framework which favours the oldest features of both the common law and the continental law. Historically, the common law and continental legal systems have conceived questions of evidence and proof differently. Therefore, modes of judicial thinking are also different. The continental approach in the Bemba case freely evaluated the evidence. The common law approach evaluated the evidence against the burden of proof. Even though free evaluation may assist the truth-seeking mission of the Court on admissibility, the decision at the end of the trial requires rigorous evaluation only against the burden of proof. The common law of evidence provides a judicial thinking process for evaluating evidence, but free evaluation does not. This paper addresses whether the icc should develop its own evidence law to provide a route of rigorous judicial thinking when weighing evidence at the deliberation phase.

Η ιστορική βάση της αρχής της ηθικής απόδειξης απορρέει από το αγγλοσαξονικό σύστημα των ενόρκων. Μετά τη Γαλλική Επανάσταση, η αρχή υιοθετήθηκε στον Kώδικα του Ναπολέοντα για την Ποινική Δικονομία και αφορούσε στην εκτίμηση των αποδείξεων τόσο από τους ενόρκους όσο και από τους δικαστές. Το τεκμήριο αθωότητας, δομικό στοιχείο της δίκαιης δίκης, ισχύει και στα δύο δικαιικά συστήματα. Στο μεν αγγλοσαξονικό σύστημα, το βάρος απόδειξης της ενοχής εναπόκειται στην Εισαγγελία, στο δεύτερο και δη στην Ελλάδα, δεν υφίσταται βάρος απόδειξης στην ποινική δίκη. Η αιτιολογία δε των αποφάσεων είναι συνταγματική επιταγή και στα δύο συστήματα. Σε αυτά τα πλαίσια ερευνάται ο ρόλος του Δικαστή της ουσίας στο ηπειρωτικό σύστημα, κυρίως όταν η «εσωτέρα πεποίθησή» του συγκρούεται με την αρχή in dubio pro reo και τους κανόνες απόδειξης του ΚΠΔ.

The historical basis of the principle of intime conviction of the continental system of law derives from the anglo-saxon system of jurors. After the French Revolution, the Napoleonic Code of Criminal Procedure adopted the principle for both the jury and judges. The presumption of innocence, a fundamental element of a fair trial applies to both systems of law. In the anglo-saxon system, the burden of proof lies with the prosecution. In the continental one and more particularly in Greece, there is no burden of proof in criminal proceedings. Therefore the justification of the court decisions is a constitutional imperative in both systems. In this context the author analyses the role of the trial judge in criminal cases in the continental system, especially when his "inner conviction" is contrary to the principle in dubio pro reo and the rules of evidence of the Code of Criminal Procedure.

Proof in continental criminal justice systems is controlled by the concept of l'intime conviction which means the free evaluation of evidence according to conscience. This article examines the effect of this concept by starting with its roots in the common law jury system as it operated in the late 18th century. Since then, common law systems have evolved to include the burden of proof on the prosecution beyond a reasonable doubt plus detailed rules of evidence which determine what is admissible according to standards of fairness and reliability. Yet l'intime conviction with no burden of proof on the prosecution continues today to dominate continental systems,. Taking note of rulings of the European Court of Human Rights under Article 6, there is now a European Directive requiring member states to adopt the burden of proof beyond a reasonable doubt by 2018.

The European countries are obliged to fulfill the provisions of the European Convention on human rights regarding the protection of the accused rights’ and ensuring the principle of fair trial. Nowadays, because of the economic crisis more people are affected by poverty and many immigrants enter Europe. Poor and immigrants who break the law cannot afford to pay for the services of a lawyer and for the most of them the states provide legal aid assistance. This chapter indicates that in order to safeguard the accused rights’ it is mandatory for the legal aid lawyer to defend the accused effectively, otherwise the protection is just formal and does not fulfill the substantive conventional obligation of the State for fair trial. It is proposed for the States to establish qualitative criteria for the legal aid lawyers. The voluntary character of the legal aid scheme imposes an imperative duty for the lawyers to ensure fair trial for the poor. Demetra F. Sorvatzioti University of Nicosia,...

The Clooney Foundation for Justice's TrialWatch initiative monitored the trial in Thailand of four individuals charged with sedition and 'membership in a secret society' for their alleged affiliation with the Organization for Thai Federation (OTF). OTF is a political movement that advocates for a republican-style government and which the Thai government considers anti-monarchist. The defendants were prosecuted for a range of expressive activity, such as distributing flyers and t-shirts, in violation of their right to freedom of expression. All four defendants were convicted, with two sentenced to three years and two sentenced to two years in prison. A Fairness Report released today finds that their trial was marred by numerous violations of their fair trial rights, including their rights to silence and to be presumed innocent.