When consent is not enough: gangs, public policy and criminal law in Germany

A case comment on German Federal Court of Justice 1 StR 585/12

Prosecutorial Discretion at the International Criminal Court

This timely book provides a comprehensive guide to, and rigorous analysis of, prosecutorial discretion at the International Criminal Court. This is the first ever study that takes the reader through all the key stages of the Proscecutor's decision-making process. Starting from preliminary examinations and the decision to investigate, the book also explores case selection processes, plea agreements, culminating in the question of how to end engagement in specific country situations. The book serves as a guide to the Rome Statute through the lens of the Prosecutor's activities. With its unique combination of legal theory and specific policy analysis, it addresses broader questions that will be relevant to other international and hybrid criminal courts and tribunals. The book will be of interest to students, practitioners of law, academics, and the wider public concerned with international law, criminal justice and international relations

Discretion and the gravity of situations at the International Criminal Court

This article offers a new perspective on the gravity notion in Article 17(1)(d) of the Statute. It demonstrates that it is impossible to determine gravity to ‘exacting legal requirements’, as the Pre-Trial Chamber in the situation of the registered vessels of the Union of the Comoros, Greece and Cambodia found. Instead, the Prosecutor is equipped with some ‘interpretative discretion’ that allows adjustment to the factually diverse situations that the International Criminal Court (ICC) is confronted with. This form of discretion, however, is distinct from those procedural discretionary processes that have to be used to select which situations to investigate. Interpretative discretion nevertheless requires as much consistency as possible. As pathways to achieve that, this article challenges the concept of situational gravity. It further proposes to exclude any perpetrator-based element in the gravity assessment to harmonise the interpretation of gravity for potential and real cases before the ICC

A victim's right to a fair trial at the International Criminal Court? Reflections on Article 68(3) of the Rome Statute

This article offers critical reflection on the scope of the fair trial notion in Article 68(3) of the Statute of the International Criminal Court (ICC). The ICC Statute — perhaps more clearly than any other international procedural regime — is committed to the general idea of fairness, including for victims as an overarching principle of international criminal justice. However, the article challenges claims that the fair trial notion in Article 68(3) contains any fair trial guarantee for victims participating in proceedings before the ICC. The analysis of the relevant ICC jurisprudence shows that victims’ rights to participate are ultimately reducible to mere privileges, because their scope of participation is entirely dependent on discretionary judicial decisions. The Court’s response to the difficult task of making a criminal trial with thousands of participants work is common legal representation. This collective approach to participation might be pragmatic but leaves no scope for any claims regarding individual fair trial rights for victims. The general trend towards increasingly treating victims as a collective, rather than individuals, is also inconsistent with the idea of an overarching, general component of fairness for all parties and participants. To achieve such a general component of procedural fairness attached to the proceedings more widely speaking, it is argued that the ICC will need to rethink its approach to victim participation. Only a clear-cut, minimum set of participatory rights guaranteed in the legal framework of the Court, spelled out for example in the Rules of Procedure and Evidence, would allow the definition of a breach to any general component of fairness. Till then, the ‘right to a fair trial’ or a ‘fair trial guarantee’ continues to be reserved for the accused

The UN General Assembly as a security actor: appraising the Investigative Mechanism for Syria

No abstract available

Das Vorabentscheidungsverfahren zum EuGH in der strafrechtlichen Praxis

No abstract available

A grey zone under the spotlight - illegal GPS tracking by private investigators

A case comment on German Federal Court of Justice 1 StR 32/13

Das Vorabentscheidungsverfahren zum EuGH in der strafrechtlichen Praxis

No abstract available

Gruppenvertretung der Nebenklage im Strafprozess? Eine rechtsvergleichende Studie zum Umgang mit einer besonderen Verfahrenssituation

No abstract available

Towards the ‘Golden Hour’?: A critical exploration of the length of preliminary examinations

Over the years, the conduct of preliminary examinations has gained increasing importance at the International Criminal Court (ICC). One notable aspect in this area is the hugely diverging length of such examinations, ranging from one week for the situation in Libya to 12 years (and rising) for the situation in Colombia. This article critically interrogates the repeated claim of the Prosecutor that the absence of any provisions regulating the length of preliminary examinations was a deliberate decision of the drafters of the Rome Statute, leaving her with unfettered discretion in that area. Instead, it is suggested that the exercise of prosecutorial discretion in prioritizing preliminary examinations is legally limited through the obligation to ensure effective investigations, demanding reasonably swift responses because evidence vanishes over time — witnesses disappear, memories fade, and data gets lost (the ‘golden hour’ principle). Furthermore, the conduct of preliminary examinations is also limited through the legal and policy commitment to impartiality, including the appearance of impartiality. A robust debate about a structured and transparent process of prioritization at the preliminary examination stage is thus overdue. It is proposed that the Prosecutor should introduce a policy commitment to conclude preliminary examinations within a defined time limit. Such a policy would be an important step towards a more structured method of situation selection, and would reduce the possibility that decision-making processes in more contentious situations are postponed for obscure reasons