cted in a manner inconsistent with an intention to bring the person concerned to justice
Under article 17(3), "Unable" means:
1. the State's national judicial system has substantially or totally collapsed;
2. the State's national judicial system is unable to obtain the accused or the necessary evidence or otherwise unable to carry out its proceedings
Although it was imperative that priority be given to States to prosecute and punish perpetrators of international crimes, it was equally necessary to have a mechanism ready in the event that a State would conduct sham proceedings or would not possess the technical means required for a proper investigation and trial. Without this mechanism, it would be too easy to defeat justice. A State who was unwilling to prosecute the perpetrator of a crime could manipulate the procedures to ensure a not-guilty verdict by engineering a stay of proceedings, buying off the jury, deliberately violating the fundamental rights of the defendant, or by creating unreasonable delays. More simply still, a State could deliberately omit to present critical evidence to the hearing.
Ne bis in idem
The jurisdiction of the ICC to try an individual who has been the object of sham proceedings in a national court is technically an exception to the principle of criminal law in which a person may not be prosecuted twice for the same crime (ne bis in idem). Article 20 allows the ICC to prosecute a person for a crime referred to in the Statute, even after being tried for the same act in a national court if:
a) the proceedings were aimed at shielding the person from criminal responsibility; or
b) the procedure was not independent or impartial in accordance with the norms of due process recognized by international law, and was conducted in a manner which, in the circumstances, was inconsistent with an intent to bring the person concerned to justice.
Criminal justice has been rendered then, only when it has been rendered in accordance with due process and other international standards. The first example concerns a situation such as a State charging a perpetrator of genocide with assault. Such a trial, although respecting all the safeguards concerning impartiality, would be aimed at shielding the person from responsibility for an extremely serious crime. The second example covers a larger spectrum of situations. It does not mean, however, that the ICC will have the power to intervene in every case where it judges that a procedural safeguard was violated in a trial conducted by a national authority. In order for the ICC to begin a new trial, the violation of procedural safeguards must have been committed with the aim of preventing the person concerned from being brought to justice.
The principle of ne bis in idem can be found in most national criminal codes, in some constitutions and in article 14 of the International Covenant on Civil and Political Rights. It would be preferable if the national law implementing the ICC Statute made mention of the exception to this principle provided by the Statute.
Ordinary offences versus ICC crimes
Article 22 states that a State may not prosecute someone for a crime listed under the Statute for which he or she has already been sentenced or acquitted by the ICC.
Under article 20 (1), if the judicial authorities of a State have properly prosecuted a person for an act under the ICC's jurisdiction, the ICC may not try that person again. Whether the person was genuinely prosecuted for a sufficiently serious crime under national law (for example, for the commission of multiple murder rather than genocide) or for an international crime, will determine whether the ICC can exercise its jurisdiction.
Sentences
When a national court prosecutes and sentences the perpetrator of an offen
> 1 2 3 ... 275 276 277 ... 303 304 305
Zaki.ru законы и право
поиск по сайту
каталог документов
добавить сайт Zaki.ru в избранное
Правовые акты международные
Правовые акты Российской Федерации
