The ICPC’s 98 articles, divided amongst 15 chapters, collectively prescribe procedural rules to govern all the stages of criminal procedure from the arrest and detention of individuals, the investigation and prosecution of criminal offences, 2 trials and the
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Interim Code of Criminal Procedure for Courts, Official Gazette No. 820, 25 February 2004
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117 implementation of decisions3 as well as the appeal stage, including appeals to the Supreme Court.4
The first 41 articles and 7 chapters are concerned with the provisional arrest and preliminary investigation stages of proceedings. The Code provides that following the arrest of a suspect, the police are entitled to search the individual and any relevant premises and seize evidence which they consider to be essential to prosecute a criminal offence.5 At the time of arrest, suspects are to be informed of their right to remain silent and their right to defence counsel.6 The police are able to interrogate arrested individuals within 24 hours of their arrest7 and they must report to the primary prosecutor within this preliminary period following arrest detailing the nature of any criminal offences and the outcome of their interrogations.8 In terms of the formalities of interviews, if the police decide to take the suspect to the police station for questioning, they should inform him or her of the reasons for their arrest,9 their right to remain silent10 and their right to be represented by defence counsel.11 Interviews are to be recorded in writing.12
The primary prosecutor is required to commence the preliminary investigation within 48 hours of receiving the case from the police.13 This investigative stage is stated to be concerned with ‘the establishment of the truth,’ an important indicator of inquisitoriality.14
The primary prosecutor is entitled to question the suspect and is empowered to ‘collect all relevant evidence’ in whatever way they deem fit15 and the suspect is entitled to
representation by a defence counsel,16 which may be free if they do not have the financial means to appoint one.17
3 chapter 8, article’s 42-62 4
chapters 9 and 10, articles 63-80
5 article 32 6 article 5(7) 7 article 31 8 article 21(1) 9 article 31 10 article 5 11 article 18 12 article 2(2) 13 article 34(1) 14 article 23(2) 15 article 37(1) 16 article 38(2) 17 article 19
118 Primary prosecutors can conduct investigations both on their own and in conjunction with the police, who they will instruct.18 Key investigative ‘tools’ include inspections, searches, seizures, expert examinations or interrogations19 but these are offered as suggestions rather than limitations and the law omits to provide any guidelines on procedure for collating evidence using these techniques.20
The Code provides that the primary prosecutor must decide within 15 days of the original arrest whether to release the suspect, indict them or apply to the Court to continue to detain them for a further 15 days.21 If the prosecutor determines that there is insufficient evidence to support a conviction at the conclusion of the investigation, they must dismiss the case and release the suspect.22 Alternatively, if the prosecutor decides to proceed with a prosecution, they must submit an act of indictment to the Court, requesting a trial to assess the liability of the suspect.23 The indictment should include an identification of the suspect and a description of the criminal offence alleged to have been committed.24 In addition to the act of indictment, the primary prosecutor is required to forward his or her file containing all documents gathered during the investigation to the Court,25 which should be made available to the accused26 and their defence counsel.27
After receiving the indictment the Court must immediately order ‘notification of the deed’ indicating the time and date set for the trial.28 This deed should name the accused, define the crime they are alleged to have committed and refer to any factual circumstances in support of the prosecution’s case.29 It should be served on the accused, any defence
counsel and the primary prosecutor at least 5 days before the trial date,30 which should be listed to take place no later than 2 months from the filing of the indictment.31
18 article 23 19 article 37(3) 20
See Appendix 4 for additional information regarding the use of confessions
21 article 36(1) 22 article 39 23 article 39 24 article 39 25 article 39(6) 26
at this stage the suspect is referred to as the accused; article 5
27 article 43 28 article 42(1) 29 article 42(2) 30 article 42(2) 31 article 6
119 Before the trial, both the prosecutor and the accused must file at Court a list of any witnesses and experts they wish to call to give evidence, explaining the relevance of their testimony.32 The Court examines the lists and may exclude any requested witnesses and order the appearance of any other witnesses or experts whose evidence it considers to be potentially relevant,33 following which the selected witnesses and experts are notified by the Court of their requirement to attend the trial.34
At the subsequent trial before a single Judge the indictment is read out and the legality of the accused’s arrest is assessed.35
The prosecutor then presents the case against the accused and explains the findings of the preliminary investigation.36 Police officers who conducted the investigations may give evidence, as well as witnesses and experts, including any victim and they may be cross-examined by the accused or their defence counsel. The accused may also give evidence. At any stage, the Court can question the accused or any witnesses and experts,37 although the accused can refuse to testify and answer the Court’s questions.38
At the end of the proceedings the prosecutor may give an indication to the Court of the kind and amount of punishment that he considers the accused should receive for the offence if found guilty,39 and the accused or their representative may make final submissions to rebut the accusations made by the prosecutor.40 The Judges presiding over the case then retire to chambers to consider the verdict and, in reaching a decision, they must not rely on any witness or expert evidence contained in the file of the preliminary investigation unless it was repeated during the trial or the accused or his legal representative were present and able to ask questions when the evidence was obtained.41
Decisions should be declared in Court and should identify the accused, detail the relevant facts of the case, and provide a verdict, citing reasons with reference to the facts of the
32 article 51 33 article 51 34 article 49 35 article 53 (3)(b) 36 article 53(3)(c) 37 article 53((4) 38 article 53(5) 39 article 58 (1) 40 article 58(2) 41 article 55 (1)
120 case and the law.42 Decisions reached in the primary Court are capable of appeal to the Provincial Court on application within 20 days.43 The grounds for appeal include erroneous application of the law by the judge at first instance, or incorrect definition of the crime, evaluation of the evidence or the imposition of an inappropriate penalty.44 There is a further route of appeal to the Supreme Court against the decision of the Court of Appeal on the basis that the law has been wrongly applied or interpreted or the evidence against the defendant was invalid.45
The Code also provides criminal justice due process protections and rights for defendants that conform with international expectations and standards and the 2004 Constitution. It establishes a presumption of innocence,46 and a right for the accused to remain silent.47 It also provides protection for the accused against intimidation and coercion to secure confessions,48 and entitles him or her to representation by a defence counsel,49 who may review the prosecution file submitted in support of the indictment50 and represent the accused during preliminary investigations by the judicial police,51 at any later interrogations by the prosecutor52 and at the trial,53 which the Code stipulates must be heard without undue delay.54 The Code also permits defendants to call their own witnesses and experts to give evidence at the trial in order to defeat or discredit prosecution evidence.55