Chapter 15. Judicial Review Of Prosecutorial Discretion: Five Years On

2009 ◽  
pp. 247-279 ◽  
Keyword(s):  
Judicial Review ◽  
Prosecutorial Discretion

Truth v justice

2014 ◽  
Vol 78 (6) ◽  
pp. 511-522
Author(s):  
Avi Zamir
Keyword(s):  
Judicial Review ◽  
Prosecutorial Discretion ◽  
Unwritten Rule

Under British law, the court has the inherent authority to set aside an indictment which, under the circumstances of the case, constitutes ‘abuse’ of the defendant. This unwritten rule had been accepted also by Israeli courts, and then came a completely new, not to say surprising, Act in 2007. The Israeli Parliament (the Knesset) has thereby recognised a preliminary argument which exploits concepts of ‘justice’ and ‘legal fairness’, and the granting of pro-discretion to the court, which may decide whether or not it is fitting and proper to conduct the trial against the defendant. How has the court reacted to that? As I will try to emphasise, judicial review upon prosecutorial discretion is rare, just a drop in the bucket, and the court is quite reluctant to implement the new tool.

Judicial Control over Prosecutorial Discretion at the International Criminal Court

2019 ◽  
Vol 19 (6) ◽  
pp. 979-1013
Author(s):  
Triestino Mariniello
Keyword(s):  
Judicial Review ◽  
International Criminal Court ◽  
International Criminal ◽  
Trial Chamber ◽  
Criminal Court ◽  
Prosecutorial Discretion ◽  
Judicial Control

This article places into question the scope of judicial control over the Prosecutor’s decision whether or not to investigate a situation. It addresses the on-going tensions between the Pre-Trial Chambers and the Prosecutor for the control of the procedure which will determine the stage of the initiation of an investigation. It commences with an examination of the Chambers’ approach to the authorisation of the Prosecutor’s request to commence a proprio motu investigation. Then, it critically analyses the lack of judicial mechanisms of control over the Prosecutor’s decision not to commence an investigation under Article 15. The second part investigates the judicial oversight of the Prosecutor’s decision not investigate referred situation. It analyses whether the Pre-Trial Chamber may reassess the factual allegations used by the Prosecutor not to start the investigation, and whether the Prosecutor has to comply with (strict) instructions provided by the judicial review.

Judicial Review under Article 15 of the Rome Statute and the ‘Interests of Justice’

2021 ◽  
Author(s):  
Parv Kaushik
Keyword(s):  
Criminal Justice ◽  
Judicial Review ◽  
Rome Statute ◽  
International Criminal ◽  
Trial Chamber ◽  
International Criminal Justice ◽  
Prosecutorial Discretion ◽  
Preliminary Examination ◽  
First Time ◽  
Judicial Role

Abstract The Office of the Prosecutor’s preliminary examination into the Situation in Afghanistan came to an end with the Appeals Chamber approving its request for authorization of an investigation. In doing so it overturned the decision of the Pre-Trial Chamber, which for the first time in the International Criminal Court’s history had invoked the criterion of ‘interests of justice’ to deny the request. Both decisions raised questions as to the scope of review of the Pre-Trial Chamber under Article 15 and its relationship with Article 53 of the Rome Statute. This article delves into some of these questions. First, it looks into whether the Appeals Chamber was correct to hold that the Pre-Trial Chamber is not supposed to review the factors under Article 53(1). It answers this question in the negative, arguing that the Appeals Chamber’s decision goes against the text of the Rome Statute, and the International Criminal Court’s past practice. Secondly, it analyses whether the Pre-Trial Chamber can assess whether or not an investigation serves the ‘interests of justice’, even if the Prosecutor has not made an explicit finding in this regard. It argues that the context and purpose of Article 15 envisages a genuine and meaningful examination of the Prosecutor’s request, which includes the ability to evaluate, suo motu, the applicability of the ‘interests of justice’ criterion. Lastly, the article addresses whether the factors that were considered by the Pre-Trial Chamber in its Afghanistan Article 15 Decision were suited to its judicial role. It proposes a methodology for the Pre-Trial Chambers to adopt while exercising their powers under Article 15, which allows for both prosecutorial discretion and a meaningful judicial review. The article attempts to put forth a renewed understanding of the Rome Statute and argues that the Pre-Trial Chamber has a wider power of review under Article 15 than has been hitherto exercised, which, if exercised reasonably, can further the cause of international criminal justice.

The Flotilla Case before the icc: The Need to Do Justice While Keeping Heaven Intact

2015 ◽  
Vol 15 (6) ◽  
pp. 1069-1097 ◽  
Author(s):  
Geert-Jan Alexander Knoops ◽  
Tom Zwart
Keyword(s):  
Judicial Review ◽  
Humanitarian Aid ◽  
Trial Chamber ◽  
Prosecutorial Discretion ◽  
Union Of The Comoros

This article analyses the decision of the icc Pre-Trial Chamber of 16 July 2015 in which it requested the Prosecutor to reconsider its decision not to initiate an investigation into the situation of the registered vessels of the Union of the Comoros, Greece and Cambodia. In 2010, the Israeli Defense Forces (idf) had intercepted a humanitarian aid flotilla that was trying to breach one of its naval blockades. The Prosecutor deemed the case of insufficient gravity to initiate an investigation. By requesting the Prosecutor to reconsider its decision, the Pre-Trial Chamber created a precedent vis-à-vis the boundaries of prosecutorial discretion. This article addresses the test of Article 53(1) icc Statute and inquires whether the Pre-Trial Chamber applied a correct standard of review. Whilst concluding that the Chamber erred in this standard, the authors introduce a standard of review that anticipates the interrelationship between prosecutorial discretion and judicial review.

Judicial Review of Prosecutorial Discretion in the Initiation of Investigations into Situations of ‘Sufficient Gravity’

2020 ◽  
Author(s):  
Priya Urs
Keyword(s):  
Judicial Review ◽  
Rome Statute ◽  
Trial Chamber ◽  
Prosecutorial Discretion

Abstract In the admissibility framework of the Rome Statute, the Prosecutor’s discretion as to whether to initiate an investigation into a situation includes the application of the open-textured requirement of ‘sufficient gravity’ specified in Article 17(1)(d). Pre-Trial Chamber oversight is designed to discipline the exercise of this discretion, but, in the absence of statutory guidance, the Pre-Trial Chambers are left themselves to articulate the standards of review of the Prosecutor’s admissibility assessments under relevant provisions, namely Articles 53(3)(a) and 15(4) of the Statute. The confused body of Pre-Trial Chamber practice to date poses the question as to what ought to be the standard of review of the Prosecutor’s admissibility assessment under each provision. This article teases apart and scrutinizes the standards of review that the Pre-Trial Chambers have applied in practice. By disaggregating the procedural contexts in which the Prosecutor’s admissibility assessments are made and analysing in each context the underlying interests at stake, it seeks to arrive at the appropriate standard of judicial review of the Prosecutor’s gravity assessment under each provision.

The Death of the Tunney Act at the Hands of an Activist D.C. Circuit

2018 ◽  
Vol 63 (1) ◽  
pp. 113-136
Author(s):  
Darren Bush
Keyword(s):  
Judicial Review ◽  
Separation Of Powers ◽  
Case Law ◽  
District Courts ◽  
Prosecutorial Discretion ◽  
Legislative History ◽  
Original Intent ◽  
The Public ◽  
Consent Decrees ◽  
History Of

The Tunney Act and its 2004 Amendment have sought to eliminate judicial rubber-stamping of antitrust consent decrees. Congress sought to assure meaningful judicial review of consent decrees to assure they were in the public interest. The caselaw in the D.C. Circuit undermines the purpose, intent, and plain meaning of the Tunney Act by arguing that such review would present separation of powers issues, an argument at best disingenuous in light of other settlements readily rejected within the Circuit. The Article commences with a review of the legislative history of the original Tunney Act. The article next examines the D.C. Circuit cases against that the drafters of the Amendment to the Tunney Act are rebelling. This legislative history is highlighted and extended in the legislative history of the 2004 TunneyAct Amendment. The article next describes how D.C. district courts uniformly ignore and dismiss the Congressional intent behind the 2004 Amendment under the auspices of prosecutorial discretion. Finally, the Article tackles the (false) problem of separation of powers the D.C. Circuit case law presents and proposes a solution to this deadlock that is true to the original intent of the Tunney Act.

Part 5 Investigation and Prosecution: Enquête Et Poursuites, Art.53 Initiation of an investigation/Ouverture d’une enquête

2016 ◽  
Author(s):  
Schabas William A
Keyword(s):  
Security Council ◽  
Judicial Review ◽  
International Criminal Court ◽  
Rome Statute ◽  
International Criminal ◽  
Criminal Court ◽  
State Party ◽  
Prosecutorial Discretion ◽  
Exercise Of Discretion ◽  
Selection Of

This chapter comments on Article 53 of the Rome Statute of the International Criminal Court. Article 53 takes effect once a ‘situation’ has been triggered, whether it be the result of a Security Council referral, a State Party referral, or exercise of the proprio motu authority of the Prosecutor. It requires the Prosecutor to initiate an investigation, unless he determines that there is no ‘reasonable basis’ to proceed. It sits at the junction between prosecutorial discretion and judicial review, governing, but in only a partial manner, the selection of cases before the Court by the Prosecutor. Article 53 is closely related to article 15. Together, these two provisions define the exercise of discretion by the Prosecutor. They are the key to his independent role in the selection of situations for prosecution by the International Criminal Court.

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