The Kosovo Specialist Chambers’ Rules of Procedure and Evidence

The Kosovo Specialist Chambers (KSC) and the Specialist Prosecutor’s Office (SPO) are the latest addition to a multi-layered and broad spectrum of international institutions dedicated to the investigation and prosecution of international crimes. In March 2017, the Judges of the KSC adopted the Rules of Procedure and Evidence (RPE), which are now finally available on the Tribunal’s website. In the following, I will provide a first analysis of the RPE and evaluate them against existing procedural laws of International(ized) Criminal Tribunals (ICTs). It goes without saying that, in the face of the sheer number of rules (211), this analysis can only be cursory.

The biggest achievement of the Judges certainly is that they translated the institutional uniqueness of the KSC – an internationalized tribunal with a Constitutional Chamber (‘Specialist Chamber of the Constitutional Court’) and the European Union as the primary sponsor – into the rules. This especially becomes apparent through the incorporation of an interpretation rule (Rule 4) into the RPE, which refers – inter alia – to ‘the framework as set out in Article 3 [KSC-Law]’. This Article 3 (its length makes it impractical to reproduce it here) is not only a modern version of Article 21 of the ICC-Statute. It also determines that the KSC shall adjudicate and function in accordance with the European Convention on Human Rights and Fundamental Freedoms (ECHR) and the Constitution of Kosovo. This is remarkable in many regards: the preference to refer to the ECHR rather than ‘internationally recognized human rights’ (Article 21(3) ICC-Statute) has the potential of strengthening the rights of the defendant. The vagueness of the term ‘internationally recognized human rights’ has led to the assumption that it denotes something less than universal acceptance. The European human rights jurisprudence, by contrast, is one of the most developed and most discussed in secondary source material (Young, ICLQ 60 (2011), 204). Moreover, through its Article 22, the Constitution of Kosovo gives the ECHR constitutional value. Of course, one could think that this does not make any practical difference, since the ECHR is mentioned as a source of the KSC anyway. However, recall that Kosovo is not a party to the ECHR and therefore not internationally liable for its implementation. The reference to the ECHR in Kosovo’s Constitution makes these human rights justiciable because both the accused and the victim are entitled to make referrals to the Constitutional Chamber in relation to alleged violations by the KSC of their human rights guaranteed by the Constitution (Article 113(7) Kosovo Constitution). Thus, in questions of the KSC’s activity and subject-matter jurisdiction, it is the Constitutional Chamber – not an appellate body – that serves as the final authority for the interpretation of the Constitution (Article 49 KSC-Law). This turns the rights enshrined in the ECHR into basic rights and contributes to a constitutionalization.

Of course, the strengthened judicial review at the KSC through the establishment of a Constitutional Chamber comes at a price, and it does not take much to predict a governance problem. More concretely, as praiseworthy as a constitutionalized ECHR may be in theory, in practice it will not make it any easier for the Judges to face the daily task of running an ICT. Take, for instance, the first Constitutional Chamber judgment about the constitutionality of the KSC RPE, Rule 19 in particular: in the version that was first referred to the Constitutional Chamber on 27 March 2017, Rule 19 contained a paragraph 3 where a hearing could continue for no more than five working days in the presence of just two instead of three Judges, in case one Judge was absent due to circumstances such as illness. Such a rule has great practical importance and is modelled after Rule 16(A) of the Special Court for Sierra Leone (SCSL) RPE and Rule 15bis ICTY RPE. Nevertheless, the Constitutional Chamber declared Rule 19(3) KSC RPE unconstitutional, because Article 25(1) KSC-Law prescribes that the Trial Panels, Court of Appeal Panels and Supreme Court Panels are comprised of ‘three’ Judges, and the KSC-Law is silent on whether hearings may be conducted before a ‘Panel’ of two Judges (Specialist Chamber of the Constitutional Court, para. 39).

An example where the Judges took a rather progressive, human rights based approach is Rule 45 that deals with out of court confessions, a topic of highest relevance in practice. Here, the Judges shifted the burden to show that the accused was subjected to threats or promised of unlawful action to render the confession inadmissible from the defendant (as some courts tend to decide, Alschuler, UCLR 47 (1975), 59 with reference to US case law) to the Prosecution:

‘An out of court confession by a suspect or accused given during questioning by the Specialist Prosecutor shall be considered free and voluntary if the Specialist Prosecutor shows that the requirements of Rule 43 and Rule 44 [rights of the accused/ recording of questioning] have been complied with strictly.’

The Rule draws a veil over the degree of proof, though. It will be interesting to see whether the Judges opt for the (rather heavy) requirement of proof beyond reasonable doubt or something less.

The most promising and progressive example of liberal procedural legislation is Rule 110 ‘Non-Compliance with Disclosure Obligations’. For over 20 years now the procedural regimes of ICTs have been turning a blind eye to concrete disclosure sanctions. The exclusion of evidence as a result of non-disclosure, as it is the law in England (s. 78 of the Police and Criminal Evidence Act 1984), was never even an option and the ‘drastic’ and ‘exceptional’ stay of the proceedings turned into the hot potato of (Lubanga) case law. The Judges at the KSC finally put an end to this and created a provision that has the potential of being a role model for future generations of disclosure rules:

‘The Panel may decide, upon request by a Party or proprio motu, on measures to be taken as a result of the non-compliance with disclosure obligations pursuant to the Rules, including a stay of proceedings and the exclusion of evidence, except for exculpatory evidence.’

To dampen the euphoria a little, the rules on disclosure and evidence transmission show that the KSC Judges too could not escape the temptation of falling back into the old procedural routine of the ICTs. This first and foremost starts with the Janus-faced record of the proceedings, the genealogy of which has been a matter of dispute on the floors of ICTs ever since. To be sure, this is not about the normative question whether ICTs should follow the dossier-approach known to the Civil Law tradition. I doubt that this question will ever be answered, considering the – somewhat unfair – demonization of the dossier as turning the trial into an inquest without orality, immediacy and rights of the defence. Instead, it is about the descriptive question: whether or not they follow it. In short, the difference between a dossier (case file) and a record of the proceedings is that the material in the dossier allows the judge to be properly informed about the background of the case and has a probative value of minor significance. In France and Belgium, for instance, ‘evidence’ tends to mean a piece of information that receives attention by the dossier, whereas in English law, nothing really counts as ‘evidence’ until it has been heard orally at trial (Spencer, in: Delmas-Marty/Spencer (eds.), European Criminal Procedures, 2002, p. 22). There are therefore two ways a court can regulate the transmission of information: through a case file and with no or weak disclosure rules or through extensive disclosure rules with no or a weak case file (which would eventually be a record of the proceedings). Procedural legislators have been showing an astonishing reluctance to decide between those two and this has created all sorts of misnomers: Records that were treated case files and vice versa. The latter applies to the KSC RPE: Throughout the RPE, the Judges opted for the term ‘the case file’ without filling it with meaning. On the contrary, Rule 24 refers to ‘case file’ but is headlined ‘Record of Proceedings’. Rule 98 provides for the transmission of the ‘case file’ to the Trial Panel but does not seem to assign the material in the file particular probative value. At face value, it seems that the Judges sometimes merely replaced the term ‘record’ in rules of other ICTs with ‘case file’, such as in Rule 98(1)(e)(iv) KSC RPE, which has similarities with Rules 121(10) and 131 ICC RPE, and Rule 72(3) KSC RPE resembling Rule 116bis (A) ICTY RPE. Thus, falsa demonstratio non nocet: the KSC ‘case file’ seems to be a record in disguise.

This inevitably shifts the attention towards the disclosure rules. Without going into too many details of disclosure technicalities: some disclosure rules fall short of the modern disclosure law that has been developed by ICTs, while others broaden the Prosecution’s disclosure obligation considerably.

Rule 102(1)(b)(i) KSC RPE requires the disclosure of witness statements but not their identity, which is unparalleled at the ICC (Rule 76(1) ICC RPE) or ICTY (Rule 69(C) ICTY RPE). The disclosure of the identity of the witness does not seem to be the norm, even though Rule 105 provides for the exception of ‘Non-Disclosure of Identity’. Since the Judges seem to be very conscious of expedited trials (see, e.g., Rule 72 ‘Expedited Proceedings’), they have missed the opportunity to be the first to codify the case law on rolling disclosure, i.e. disclosure of statements and witness-identifying data on a rolling basis (ICC, Katanga, para. 34; ICTR, Bagosora et al., para. 24 and passim). The defence has the right to access material and inspect objects in the ‘custody or control’ of the Prosecutor, which are helpful for their case. This right can only be triggered by a ‘request’ (Rule 102(2) KSC RPE), which means that the defence must identify that material and cannot generally ask for helpful evidence. This may be modelled after Rule 66(B) ICTY RPE, but ignores the fact that already during the negotiations of the ICC RPE a strong view emerged that it was inappropriate to require such a request (consequently, Rule 77 ICC RPE dispenses with it altogether).

This, however, does not mean that the KSC disclosure rules – once put to the test – will fail to meet modern disclosure standards. Rule 103, for instance, extends the existing law on disclosure of exculpatory evidence considerably. First, the exculpatory material is to be disclosed ‘immediately’, not ‘as soon as practicable’, as the RPE of ICTs usually requires (see, e.g., Article 67(2) ICC-Statute; Rule 68 ICTY RPE). Since the ICC Pre-Trial Chamber II identified ‘immediately’ as one of the elements that concretise ‘as soon as practicable’ (‘shall disclose such evidence immediately after having identified any such evidence’, e.g. Ongwen, para. 18), the disclosure deadline of exculpatory material before the KSC is much stricter compared to other ICTs. Second, the Judges dropped any formulation that turned the classification of the material as incriminating or exculpatory into a discretionary Prosecution decision (as Article 67(2) ICC-Statute does: ‘which [the Prosecutor] believes shows or tends to show’).

Furthermore, by incorporating interpretation Rule 4 with an indirect reference to the ECHR and case law of other ICTs, the KSC Judges made sure that the disclosure law will eventually comply with the very strict standards of the ECHR. There is good reason to believe that the Judges are experienced enough to anticipate that most of the rules will be guarded by a modern institutional and normative system. The RPE, taken together with the modern Constitution of Kosovo, does indeed look promising as the latest addition to the book series of International Criminal Procedure.