28 May Revisiting the ‘No Case to Answer’ Procedure – the First Step in the Right Direction
[Ady Niv is a Legal Officer at the United Nations. The author has previously worked at the Chambers of the ICTR, ICTY and IRMCT and at the International Commission of Inquiry for Mali. The views expressed herein are those of the author alone and do not necessarily reflect the views of the United Nations.]
The purpose of this contribution is to discuss the manner in which international criminal tribunals have been applying the ‘No case to answer’ (NCA) test in recent judgements and the problems that such application creates. Specifically, the proceedings in the Karadžić Case that concluded in 2019 illustrate perfectly the incompatibility of the test, which was designed for jury-based trials, with international criminal trials, where the judge is also the trier of fact. Subsequently, the recent NCA acquittal in the ICC Gbagbo and Blé Case will be reviewed, as the need to adjust the NCA test to non-jury trials was recognised but not fully implemented.
Overview of the NCA Dilemma
A ‘no case to answer’ motion is a procedural juncture at the end of the prosecution’s case, where the judge assesses the sufficiency of the evidence and determines whether it could substantiate a conviction. It is a device that stems from adversarial legal systems with a jury and serves to give effect to the presumption of innocence while preventing the unnecessary continuation of a trial in which the Prosecution has failed to discharge its burden of proof. When this motion is made, the judge has to consider whether, presuming the evidence is credible and reliable (unless completely incapable of belief), a reasonable jury could convict.
This traditional jury-based test was adopted by the international criminal tribunals when confronted with NCA motions, requiring trial chambers to assess whether there is evidence upon which a reasonable tribunal of fact could be satisfied beyond reasonable doubt of the guilt of the accused. This formula was first analysed by the ICTY Appeals Chamber (Jelisić Case) and adopted by the ICTR, most SCSL Trial Chambers, the ICC Trial Chamber in the case of Ruto and Sang (Decision No. 5, paras. 23, 32) and, more recently, by the STL (Decision of 7 March 2018).
In 2016, I argued (here) that incorporating the traditional test for NCA motions, designed for jury-based trials, in international criminal adjudication is illogical at worst and confusing at most. The core of the problem is that it requires the specific Trial Chamber, who is both a trier of law and of fact, to speculate as to whether a reasonable trial chamber could convict. I proposed two options to solve the problem. According to the first option, the Trial Chamber can only examine the evidence as a trier of law in order to ascertain that the evidence supports the legal elements that are required for conviction. The other option is for the specific Trial Chamber to examine whether it could convict the accused based on the Prosecution’s evidence. In such cases, the Trial Chamber could either presume that the evidence is credible and reliable (unless incapable of belief) or may decide, already at this stage, to weigh the evidence.
As mentioned at the outset, the judgement of the IRMCT Appeals Chamber in the Karadžić Case, in March 2019 and the recent judgement in March 2021 of the ICC Appeals Chamber in the Gbagbo and Blé Case require us to reflect on the transposition of this jury-based test into international criminal adjudication. The Karadžić Case highlights the problems with the current NCA test, whereas the Gbagbo and Blé Case might provide a new approach that will change the way of tackling NCA motions in international trials.
Karadžić Case and the Unnecessary Double Acquittal
Radovan Karadžić, the former President of Republika Srpska, was charged at the ICTY with 11 counts, of which one concerned genocidal acts towards Bosnian Muslims and Bosnian Croats in certain municipalities within Bosnia and Herzegovina. Following a NCA motion, the Trial Chamber acquitted Karadžić of that specific count (Trial NCA Judgement). Surely, if the Trial Chamber was of the view that, taking the evidence at its highest, a reasonable trial chamber could not be satisfied beyond reasonable doubt of Karadžić’s guilt, the Trial Chamber itself was not convinced by the evidence in support of this count, even if given its full weight.
The ICTY Appeals Chamber, however, found that a reasonable trial chamber could have concluded that there was sufficient evidence upon which it could convict and overturned the mid-trial acquittal for the alleged genocide in the municipalities (Appeals NCA Judgement). As a result of reinstating the charges, the Trial Chamber had to provide the Defence with time to prepare for this count as well and granted an additional 25 hours for the presentation of the Defence’s case.
The unsurprising outcome was that, in its final judgement, the Trial Chamber acquitted Karadžić, yet again, of the charges of genocide in the municipalities (Trial Final Judgement, para. 2626). The IRMCT Appeals Chamber did not reverse the acquittal in the 2019 Appeal Judgment (Appeals Final Judgement, paras. 710, 737). This case exemplifies the absurdity in applying a jury-based test for NCA motions in international tribunals, requiring a Trial Chamber – that is already not convinced that the Prosecution has provided sufficient evidence to sustain a conviction – to proceed with the trial only because another reasonable trial chamber could theoretically find the accused guilty.
The situation could have been considerably worse, had the trial chamber been forced to continue with the trial after having acquitted the accused of all charges. This would have forced the Defence to present its case – putting the accused at risk of reinforcing the case against him – even though the Prosecution failed to prove its case. This scenario of full acquittal at the mid-trial stage materialised recently in the Gbagbo and Blé Case.
Looking for the Test of NCA in the Trial Judgement of Gbagbo and Blé
On 15 January 2019, following a NCA motion, the majority of Trial Chamber I – composed of Judges Tarfusser and Henderson – acquitted both accused of all charges, which concerned crimes committed during the post-electoral crisis in Ivory Coast. The reasons provided later by the majority for the acquittal caused considerable confusion as to the standard that was applied.
In a nutshell, Judge Tarfusser – who previously declined the Prosecution’s request to clarify the standard for assessing NCA motions – emphasised during a hearing on 16 January 2019 that the majority did not apply the standard of beyond a reasonable doubt, but rather stated that the majority assessed “whether the Prosecutor has met the onus of proof to the extent necessary for warranting the Defence to respond” (p. 4). To exacerbate this lack of clarity, Judge Tarfusser stated six months later in his written reasoning that the “only way to terminate trial proceedings” is with the standard of beyond reasonable doubt. He also questioned the appropriateness of NCA proceedings in the statutory framework of the ICC (para. 65; see also the discussion in Opinio Juris here).
Judge Henderson provided an interesting point of view regarding the possibility of conducting an in-depth examination of the evidence at the mid-trial stage (which was endorsed by Judge Tarfusser in this case and was mentioned, though not applied, in the Ruto and Sang judgement; see Judgement, pp. 54, 102-104). After recognising the traditional test for NCA motions, Judge Henderson opined that:
“…it makes little sense to completely prevent trial judges from assessing the quality of the evidence at the no case to answer stage. Indeed, such an artificial prohibition sits uncomfortably in the ICC’s procedural framework.” (Judge Henderson Reasons, para. 3)
Judge Henderson explained that it would be inconsistent to allow the Pre-Trial Chamber to evaluate the evidence while preventing the Trial Chamber from doing so after hearing the presentation of the Prosecutor’s evidence in full. As he believes that “it is possible to assess credibility and reliability for the purpose of ‘no case to answer’ proceedings”, he proceeded with the evaluation of the evidence submitted, where he found it necessary. Notwithstanding this new approach, Judge Henderson still used the traditional formula for NCA challenges, whether a reasonable trial chamber could convict, and found that the evidence did not support the charges. This approach will be discussed below.
The Appeals Judgment in Gbagbo and Blé and the Quest for Clarity
Unfortunately, the Appeals Chamber was also divided. The three-judge majority accepted Judge Henderson’s position that a “trial chamber is not precluded from sensibly weighing credibility and reliability of the evidence thus far presented” (Appeals Judgement, paras. 7, 111, 312, 339). However, it is not clear what is meant by “sensibly” or why this is even required in cases of acquittal. If a Trial Chamber decides to acquit the accused, there should not be any difference between acquittal at the mid-trial stage or at the end of the trial, as both are regulated by Article 74 of the ICC Statute. Article 74 requires the Trial Chamber’s decision to “be based on its evaluation of the evidence”. The majority’s explanations provide little clarity in this regard (see paras. 317, 330).
The position of the majority as to the actual test for NCA motions (or as they call it – “the standard of proof”) is even more cryptic. In one part of its judgment, the majority – very much aware of the difference between NCA motion in jury-based trials and within the ICC legal framework (paras. 313-314) – was “persuaded by the reasoning of Judge Pocar”, who dissented in the above-mentioned ICTY Jelisić case. He stated that “[t]here is no point in leaving open the possibility that another trier of fact could come to a different conclusion if the Trial Chamber itself is convinced of its own assessment of the case.” So, for a moment, it seemed that the Appeals Chamber was finally grappling with the inappropriateness of asking a judge to speculate ‘whether a reasonable trial chamber could convict’. Nevertheless, immediately after, the majority replicated the test used by Trial Chamber I – the traditional test in jury trials of whether ‘a reasonable chamber’ could convict (paras. 315, 324, 330, 337, 340).
The outcome is quite puzzling and counterintuitive. According to the Appeals Chamber, in addressing a NCA motion, a trial chamber can assess the evidence, but it is then required to decide whether – based on such subjective assessment – a reasonable chamber could convict. If a Trial Chamber can assess the evidence, what is the value in considering whether any other reasonable trial chamber could convict? If the judges at the ICC are both triers of fact and of law, why is the traditional test (that is dependent on the existence of a jury) applied? This legal fiction of “another reasonable chamber” has no place in trials without a jury. There is no benefit in speculating whether a reasonable chamber could convict, if the chamber that is actually seised of the case and which has analysed the evidence could not convict.
The result in Gbagbo and Blé would not have been different, had the majority assessed whether they could convict the accused. Since they were of the opinion that no reasonable chamber could convict based on the evidence, they would, of course, not convict either (even if a reasonable judge, such as dissenting Judge Herrera Carbuccia of Trial Chamber I, could have convicted). However, if the test remains unchanged, the scenario in the Karadžić case is bound to reoccur, and trial chambers will find themselves forced to continue with the Defence case even though, already at the end of the Prosecution’s case, they have not been convinced of the accused’s guilt beyond reasonable doubt.
The Chambers in Gbagbo and Blé case have started to detangle a web that national courts and international tribunals have been weaving for years by applying the traditional approach of NCA to non-jury trials. The ICC should be commended for questioning the manner in which this tool is applied and in recognising that the application of NCA needs to be revisited. In acknowledging the problem, they have stepped in the right direction. All that is left to do is to solve it.