FUNDAMENTOS TEÓRICOS CIENTÍFICOS

As the burden of proof rests on those who apply for participation, victims are requested to submit convincing pieces of evidence in order to prove their victimisation. Various Chambers addressed in their decisions the evidentiary standard to be complied with in the pre-trial and trial phase of the proceedings.

Pre-Trial Chamber I elaborated in the earlier addressed decision of 17 January 2006,

‘that there are grounds to believe that the harm suffered is the result of the commission of crimes falling within the jurisdiction of the Court.345

At trial stage, a higher standard was chosen. Victims were requested to establish

reasonable grounds to believe that they have become victims of a crime charged.346 With regard to the standard at trial stage, Pre-Trial Chamber I held in its decision of 29 June 2006 that the evidentiary standard is stricter. The Chamber ruled that,

‘the [a]pplicants must demonstrate that a sufficient causal link exists between the harm they have suffered and the crimes for which there are reasonable grounds to

Congo since 1 July 2002, entail the proceedings envisaged in the Statute to determine whether a particular situation should give rise to a criminal investigation as well as the investigation as such. Cases, which comprise specific incidents during which one or more crimes within the jurisdiction of the Court seem to have been committed by one or more identified suspects, entail proceedings that take place after the issuance of a warrant of arrest or a summons to appear.’

342

ICC-02/04-101, paras. 12-15. See also, ICC-01/05-01/08-320, para. 31.

343

ICC-01/04-01/06-1432, para. 65; ICC-01/04-01/06-60, at 10; ICC-01/04-01/06-172, at 6-8.

344

ICC-01/05-01/08-1091; ICC-01/05-01/08-1017.

345

Ibid., para. 94 ; No. ICC-01/04-423-Corr, para. 4; ICC-01/04-01/06-601, at 9.

346

The Child Victim

89

believe that Thomas Lubanga Dyilo bears criminal responsibility and for which the Chamber has issued an arrest warrant’ (emphasis added).347

The grounds to believe and reasonable grounds to believe standards of proof have been introduced in very early decisions and were similarly – though not necessarily with the same terminology – applied by other Chambers.348

Pre-trial Chamber I ruled in the Germain Katanga and Mathieu Ngudjolo Chui

case that prima facie evidence is sufficient in order to establish that those who applied for participation in the criminal proceedings, including children, are victims. The standard of prima facie permits a presumption in favour of the victim who applies for participation if convincing evidence is submitted.349 It is for this reason that Pre-Trial Chamber I pointed out that an assessment of the credibility of the victim statement is not made at this early stage. Why this conclusion is particularly relevant for the child is addressed in more detail in turn. The Chamber held that,

‘[c]onsidering further that the applicants are only required to demonstrate that the four requirements established by rule 85 of the Rules are met prima facie and that therefore the Single Judge’s analysis of the Applications “will not consist in assessing the credibility of the [applicants’] statement[s] or engaging in a process of corroboration strictu sensu”, but will assess the applicants’ statements first and

foremost on the merits of their intrinsic coherence, as well as on the basis of the information otherwise available to the Single Judge […].’350

In the same tenor. Pre-Trial Chamber II, whose practice has also been followed by Pre-Trial Chamber III, underlined that,

‘[a]s regards the method of examination and the required standard of proof, the Statute does not set forth general rules on the basis of which the reliability of relevant elements is to be assessed […]. Accordingly, in the absence of any such rules, the Chamber has broad discretion in assessing the soundness of a given statement or other piece of evidence. Such an assessment has to comply with the general principle of law that the burden of proof of elements supporting a claim lies on the party making the claim. […].’351

347

ICC-01/04-01/06-601, at 10; ICC-01/04-01/06-172, at 6-8. The standard set by the Pre-Trial Chamber for applications to a situation are ‘grounds to believe’, which is a relatively low threshold, see also, de Hemptinne & Rindi 2006, 342, at 345. The determination of the stage of participation depends on the moment of submission. At an early stage of submission, the investigation phase might still be ongoing. Victims would then apply to participate at the investigation phase. If, however, the charges against the alleged accused were confirmed and trial proceedings had commenced, victims may still seek to participate during a case.

348

For an overview of the first decisions on victim participation and a comparison of the Chamber’s practice see, Chung 2008, at 459-542.

349

Herlitz 1994, 391, at 397.

350

ICC-01/04-01/07-357, at 8-9. Applicant a/0333/07 was still a minor at the moment of decision taking, at 7. See also, ICC-01/04-01/07-579, para. 67. Applicant a/0110/08 was the only minor applicant in the decision at issue.

351

Accordingly, the credibility of the child is assessed at the pre-trial phase of the proceedings, but alongside criteria which are not set forth in the statutory rules. Instead, the Chamber is of the view that it has a broad discretion in this regard. As regards the evidentiary standard at trial stage, Trial Chamber I also adopted a pragmatic approach based on the prima facie standard at trial stage. It was found that this standard was met despite the fact that inconsistencies existed concerning the birth date of some victims as set out in the application form and the submitted documents. The decision of Trial Chamber I stipulated furthermore, that the credibility of the victim is assumed as long as the provided documents do not indicate another conclusion. The assessment of the Chamber is of a nature which is also known in civil proceedings, as it assumed compliance with the criteria of Rule 85 RPE unless it is disproved. Trial Chamber I underlined that,

‘[t]he Chamber has carefully weighed the inconsistencies in each case, but in all the circumstances the differences do not, ipso facto, undermine the credibility of the applicants’ assertion as to his or her age in the application form, supported by documents that have been provided such as student identity card, election cards and birth certificates. In the view of the Chamber, the material when considered overall, proves, prima facie, the identity and age of the applicants in accordance with the Trial Chamber’s Decision on victims’ participation.’352

Hence, Trial Chamber I underlined that generally speaking, a prima facie standard of evidence is adopted in order to determine victim status.353

Following the practice at pre-trial stage, Trial Chamber I did not examine the credibility of the victim’s statement. The same Chamber underlined that this assessment must be distinguished from a higher evidence test. It held that,

‘[it] needs to be stressed that this is a prima facie conclusion, rather than one that is reached on the basis of a higher test, such as beyond reasonable doubt.’354

Also noteworthy in this regard is that the Appeals Chamber held in the case of the

Prosecutor v. Joseph Kony, Vincent Otti, Okot Odhiambo and Dominic Ongwen on

352

ICC-01/04-01/06-1556, para. 89.

353

Ibid.; ICC-01/04-01/06-1556, paras. 73, 101-102, 111. The Chamber ruled that, ‘the applicants have given sufficient evidence to establish, prima facie, that they are victims under Rule 85(a) of the Rules.’ ICC-01/04-01/06-1724-Anx3, at 2-3.

354

ICC-01/04-01/06-1556, para. 120. Pre-Trial Chamber I stated, ‘[c]onsidering that the Chamber considers that the causal link required by rule 85 of the Rules at the case stage, is substantiated when the victim, and where applicable close family or dependents provides sufficient evidence to allow it be established.’ The Chamber does not agree with defense request that there must be ‘reasonable grounds to believe that there is a causal link between the harm suffered and the crimes […].’ ICC-01/04-01/06-172, at 7-8.

The Child Victim

91 23 February 2009 that, a case-by-case analysis is necessary in order to determine whether the victim status criteria as set out in Rule 85(a) RPE are met.355