ICC IPO : INVESTIGATIONS AND PROSECUTION : OR : DECISION NOT TO PROCEED

ICC - IPO

PART 5. INVESTIGATION AND PROSECUTION

Article 53 Initiation of an investigation

  1. 1.The Prosecutor shall, having evaluated the information made available to him or her, initiate an investigation unless he or she determines that there is no reasonable basis to proceed under this Statute. In deciding whether to initiate an investigation, the Prosecutor shall consider whether:
    1. (a)The information available to the Prosecutor provides a reasonable basis to believe that a crime within the jurisdiction of the Court has been or is being committed;
    2. (b)The case is or would be admissible under article 17; and
    3. (c)Taking into account the gravity of the crime and the interests of victims, there are nonetheless substantial reasons to believe that an investigation would not serve the interests of justice.
    If the Prosecutor determines that there is no reasonable basis to proceed and his or her determination is based solely on subparagraph (c) above, he or she shall inform the Pre-Trial Chamber.
  2. 2.If, upon investigation, the Prosecutor concludes that there is not a sufficient basis for a prosecution because:
    1. (a)There is not a sufficient legal or factual basis to seek a warrant or summons under article 58;
    2. (b)The case is inadmissible under article 17; or
    3. (c)A prosecution is not in the interests of justice, taking into account all the circumstances, including the gravity of the crime, the interests of victims and the age or infirmity of the alleged perpetrator, and his or her role in the alleged crime; the Prosecutor shall inform the Pre-Trial Chamber and the State making a referral under article 14 or the Security Council in a case under article 13, paragraph (b), of his or her conclusion and the reasons for the conclusion.
  3. 3.
    1. (a)At the request of the State making a referral under article 14 or the Security Council under article 13, paragraph (b), the Pre-Trial Chamber may review a decision of the Prosecutor under paragraph 1 or 2 not to proceed and may request the Prosecutor to reconsider that decision.
    2. (b)In addition, the Pre-Trial Chamber may, on its own initiative, review a decision of the Prosecutor not to proceed if it is based solely on paragraph 1 (c) or 2 (c). In such a case, the decision of the Prosecutor shall be effective only if confirmed by the Pre-Trial Chamber.
  4. 4.The Prosecutor may, at any time, reconsider a decision whether to initiate an investigation or prosecution based on new facts or information.

Article 54 Duties and powers of the Prosecutor with respect to investigations

  1. 1.The Prosecutor shall:
    1. (a)In order to establish the truth, extend the investigation to cover all facts and evidence relevant to an assessment of whether there is criminal responsibility under this Statute, and, in doing so, investigate incriminating and exonerating circumstances equally;
    2. (b)Take appropriate measures to ensure the effective investigation and prosecution of crimes within the jurisdiction of the Court, and in doing so, respect the interests and personal circumstances of victims and witnesses, including age, gender as defined in article 7, paragraph 3, and health, and take into account the nature of the crime, in particular where it involves sexual violence, gender violence or violence against children; and
    3. (c)Fully respect the rights of persons arising under this Statute.
  2. 2.The Prosecutor may conduct investigations on the territory of a State:
    1. (a)In accordance with the provisions of Part 9; or
    2. (b)As authorized by the Pre-Trial Chamber under article 57, paragraph 3 (d).
  3. 3.The Prosecutor may:
    1. (a)Collect and examine evidence;
    2. (b)Request the presence of and question persons being investigated, victims and witnesses;
    3. (c)Seek the cooperation of any State or intergovernmental organization or arrangement in accordance with its respective competence and/or mandate;
    4. (d)Enter into such arrangements or agreements, not inconsistent with this Statute, as may be necessary to facilitate the cooperation of a State, intergovernmental organization or person;
    5. (e)Agree not to disclose, at any stage of the proceedings, documents or information that the Prosecutor obtains on the condition of confidentiality and solely for the purpose of generating new evidence, unless the provider of the information consents; and
    6. (f)Take necessary measures, or request that necessary measures be taken, to ensure the confidentiality of information, the protection of any person or the preservation of evidence.

Article 55 Rights of persons during an investigation

  1. 1.In respect of an investigation under this Statute, a person:
    1. (a)Shall not be compelled to incriminate himself or herself or to confess guilt;
    2. (b)Shall not be subjected to any form of coercion, duress or threat, to torture or to any other form of cruel, inhuman or degrading treatment or punishment;
    3. (c)Shall, if questioned in a language other than a language the person fully understands and speaks, have, free of any cost, the assistance of a competent interpreter and such translations as are necessary to meet the requirements of fairness; and
    4. (d)Shall not be subjected to arbitrary arrest or detention, and shall not be deprived of his or her liberty except on such grounds and in accordance with such procedures as are established in this Statute.
  2. 2.Where there are grounds to believe that a person has committed a crime within the jurisdiction of the Court and that person is about to be questioned either by the Prosecutor, or by national authorities pursuant to a request made under Part 9, that person shall also have the following rights of which he or she shall be informed prior to being questioned:
    1. (a)To be informed, prior to being questioned, that there are grounds to believe that he or she has committed a crime within the jurisdiction of the Court;
    2. (b)To remain silent, without such silence being a consideration in the determination of guilt or innocence;
    3. (c)To have legal assistance of the person’s choosing, or, if the person does not have legal assistance, to have legal assistance assigned to him or her, in any case where the interests of justice so require, and without payment by the person in any such case if the person does not have sufficient means to pay for it; and
    4. (d)To be questioned in the presence of counsel unless the person has voluntarily waived his or her right to counsel.
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