Iraqi Special Tribunal Rules of Procedure and Evidence-2003

REVISED VERSION OF IRAQI SPECIAL TRIBUNAL RULES OF PROCEDURE AND EVIDENCE

TABLE OF CONTENTS

Part I – GENERAL PROVISIONS AND DEFINITIONS

Rule 1: Definitions
Rule2: Proceedings away from the Seat of the Special Tribunal
Rule 3: Non-compliance with the Rules
Rule 4: Amendment of the Rules
Rule 5: Time Limits

Part II – COOPERATION AND JUDICIAL ASSISTANCE

Rule 6: Requests and Orders
Rule 7: Application for Deferral
Rule 8: Order for Deferral
Rule 9: Non-compliance with an Order for Deferral

Part III – ORGANIZATION OF THE SPECIAL TRIBUNAL

Section 1: The oath
Rule 10: The forms of the oath
First: the judges
Second: public prosecutors
Third: the administrator
Four: judicial investigators
Five : preserve the record of the oath

Section 2: judges
Rule11 :
Rule12:
Rule13:
Rule 14: Absence and Termination of Service of Judges
Rule 15: Use of Alternate Judges
Rule 16: Seniority

Section 3: The Presidency
Rule 17: Election of the President
Rule 18: Functions of the President
Rule 19: The Vice-Presidency
Rule 20: Functions of the Vice-President
Rule 21: Replacements

Section 4: Internal Functioning of the Special Tribunal
Rule 22: Consultations
Rule 23: Plenary Meetings of the Special Tribunal
Rule 24: Dates of Plenary Meetings
Rule 25: Quorum and Vote

Section 5: The Chambers
Rule 26: Trial Judges
Rule 27: Designated Judges

Section 6: The Director of the Administration Department
Rule 28: the Director of the Administration Department
Rule 29: Administration Department Staff
Rule 30: Functions of the Director of the Administration Department
Rule 31: Victims and Witnesses Unit
Rule 32: Minutes of the Plenary Meetings
Rule 33: Cause Book

Section 7: The Chief Prosecutor
Rule 34: Selection of the Chief Prosecutor
Rule 35: Functions of the Chief Prosecutor

Section 8: The Investigative Judges
Rule 36: Selection of the Chief Investigative Judge and his deputy
Rule 37: Functions of the Chief Investigative Judge
Rule 38: Functions of the Deputy Chief Investigative Judge

Part IV: Non-Iraqi Advisors/Observers
Rule 39: Functions of the Non-Iraqi Advisors/Observers

PART V – INVESTIGATIONS, RIGHTS OF SUSPECTS AND ACCUSED

Section 40: Initiation of an Investigation
Rule 40: Initiation of Complaints
Rule 41: Action on Complaints

Section 2: Investigations
Rule 42: Conduct of Investigations
Rule 43: Provisional Measures
Rule 44: Provisional Detention Orders
Rule 45: Preservation of Information and Evidence
Rule 46: Rights of Suspects during Questioning by an Investigative Judge
Rule 47: Recording Questioning of Suspects by an Investigative Judge

Section 3: Defense Counsel
Rule 48: Appointment of Defense Counsel
Rule 49: Defense Office
Rule 50: Misconduct of Counsel

PART V – PRE-TRIAL PROCEEDINGS

Section 1: Indictments and investigation procedures
Rule 51: The Join of Crimes
Rule 52: Non-Disclosure of Indictment

Section 2: Orders and Warrants
Rule 53: General Provisions
Rule 54: Execution of Arrest Warrants
Rule 55: Failure to Execute a Warrant of Arrest or Order for Deferral
Rule 56: Trial in the Absence of the Accused
Rule 57: Procedure upon Guilty Plea
Rule 58: Plea Agreements
Rule 59: Detention
Rule 60: Bail

Section 3: Production of Evidence
Rule 61: Disclosure of Materials by the Prosecutor
Rule 62: Reciprocal Disclosure of Evidence
Rule 63: Disclosure of Exculpatory Evidence
Rule 64: Matters not Subject to Disclosure

Section 4: Depositions
Rule 65: Depositions

Section 5: Preliminary Motions
Rule 66: Preliminary Motions

PART VII – PROCEEDINGS BEFORE TRIAL CHAMBERS

Section 1: General Provisions
Rule 67: Procedures before trail chambers
Rule 68: Pre-Trial Conference
Rule 69: Pre-Defense Conference
Rule 70: Interveners
Rule 71: Medical Examination of the Accused
Rule 72: Measures for the Protection of Victims and Witnesses
Rule 73: Solemn Declaration by Interpreters and Translators
Rule 74: Open Sessions
Rule 75: Closed Sessions
Rule 76: Control of Proceedings
Rule 77: Records of Proceedings and Preservation of Evidence

Section 2: Case Presentation
Rule 78: Joint and Separate Trials
Rule 79: Instruments of Restraint
Rule 80: Commencement of Trial
Rule 81: Presentation of Evidence
Rule 82: Judgement

Section 3: Rules of Evidence
Rule 83: General Provisions
Rule 84: Testimony of Witnesses
Rule 85: False Testimony
Rule 86: Testimony of Expert Witnesses
Rule 87: Rules of Evidence in Cases of Sexual Assault

Section 4: Sentencing Procedure
Rule 111: Status of the Acquitted Person

Rule 88: Penalties
Rule 89: Status of the Convicted Person
Rule 90: The Implementation of the Judgment
Rule 91: Forfeiture of Property

PART VIII – APPELLATE PROCEEDINGS

Rule92: The Appeal

PART VIII – REVIEW The Trial

Rule 93: Review The Trial

IRAQI SPECIAL TRIBUNAL
RULES OF PROCDURES AND EVIDENCE

Pursuant to the provisions of article 16 ,statute No.1 of 2003,which was approved by article 48 ,transitional administrative law(TAL) , it was decided to promulgate the following rules of procedures and evidence :

Rule 1: Definitions

(A) In these Rules, unless the context otherwise requires, the following terms shall have the meanings ascribed to them below:

1) Statute: The Statute No.1, 2003 of the Iraqi Special Tribunal

2) Judge: An Investigative Judge, Trial Judge, Designated Judge, or Appellate Judge.

3) President: The President of the Tribunal as referred to in Article 4(c)(ii) of the Statute.

4) Appellate Judge: Any judge of the Appeals Chamber as referred to in Articles 4 and 5 of the Statute.

5) Presiding Judge: The Presiding Judge of a Trial Chamber as referred to in Article 5 of the Statute.
6)Chief investigative judge: the chief investigative judge as referrer to in article 7(4) of the statute.

7) Investigative Judge: Any judge as referred to in Article 7 of the Statute.

8)Prosecutions Department: The Prosecutions Department as referred to in Article 8 of the Statute.

9)Chief Prosecutor: The Chief Prosecutor as referred to in Article 8 of the Statute.

10) Public prosecutor : any prosecutor as referred to in article 8 of the statute.

11) Director: The Director of the Administration Department as referred to in Article 9 of the Statute.

12) Non-Iraqi Judges: Those Judges referred to in Article 4(d) of the Statute.

13)Advisors/Observers: Those non-Iraqi nationals referred to in Articles 6(b), 7(n), and 8(j) of the Statute.

14) Victim: A person against whom a crime over which the Special Tribunal has jurisdiction has allegedly or has been found to have been committed.

15) Suspect: A person concerning whom the Investigative Judge possesses reliable information which tends to show that he may have committed a crime over which the Special Tribunal has jurisdiction in accordance with Article 10 of the Statute.

16) Transaction: A number of acts or omissions, whether occurring as one event or a number of events, at the same or different locations, and being part of a common scheme, strategy or plan.

(A) 17) Investigation: All activities undertaken under the Statute and these Rules for the collection of information and evidence, whether before or after confirmation of an indictment under Article 18 and 19 of the Statute.

Rule 2: Proceedings away from the Seat of the Special Tribunal

A Chamber or an investigative Judge may exercise its function outside Iraq, if so authorized by the President and necessary. In so doing, audio or video-link technology, email or other available electronic instruments may be used .

Rule 3: Non-compliance with the Rules

(A) Objections on the ground of non-compliance with the Statute or these Rules should be raised by a party at the earliest opportunity. The Trial Chamber may grant relief if it finds that the alleged non-compliance is proven.
(B) The relief granted under this Rule shall be such remedy as the Special Tribunal considers appropriate to ensure consistency with the fundamental principles of fairness.

Rule 4: Amendment of the Rules

These Rules may be amended by a decision of the permanent Judges of IST. A majority should take this decision. In the event of an equality of votes, the President shall cast the deciding vote.

Rule 8: Time Limits

(A) Unless otherwise mentioned in the statute or these rules that time shall run to take any step, a normal rules set forth in Iraqi laws should be adopted.

(B) Unless otherwise ordered by a trails Chamber, any response to a motion shall be filed within 14 days of the date of service of such motion on the responding party. Any reply to the response shall be filed within 7 days of the date of service of the response.

PART II – COOPERATION AND JUDICIAL ASSISTANCE

Rule 6: Requests and Orders

(A) Except in a case to which Rule 9 or Rule 55 applies, where an Investigative Judge is satisfied that a government official or other individual has failed to comply with a request made in accordance with Article 18, he may refer the matter to a Presiding Judge.

(B) If a Presiding Judge is so satisfied in relation to any proceedings before that Chamber, or on a referral under Rule 6(A) above, the Presiding Judge may refer the matter to the President to take appropriate action.

Rule 7: Application for Deferral

Where it appears to an Investigative Judge in IST that crimes which are the subject of investigations or proceedings instituted in any other Iraqi court:

(i) Are the subject of an investigation by an Investigative Judge;

(ii) Are already the subject of an indictment in the Special Tribunal; or

(iii) Should be the subject of an investigation by an Investigative Judge considering among other factors:

(a) The seriousness and the gravity of the offence or offences;

(b) The status of the suspect or accused at the time of the alleged offences;

(c) The general importance of the legal questions involved in the case; or

(d) The circumstances related to the investigations or proceeding in the other court,

he may apply to a Presiding Judge for an order for deferral under Rule 8 and Article 29 of the Statute.

Rule 8: Order for Deferral

(A) On receipt of an application under Rule 7, the Presiding Judge may order to bring the file of the case and check it out.

(B) If the Presiding Judge determines that an Application for Deferral is warranted under Rule 7 of these Rules, the Presiding Judge shall issue his decision under rule 29 of the statute.

Rule 9: Non-compliance with an Order for Deferral

If, within 21 days after an order for deferral has been notified by the Director to the relevant court under whose jurisdiction the investigations or proceedings have been instituted, the court fails to satisfy the Presiding Judge that it has taken or is taking adequate steps to comply with the order, the Presiding Judge may refer the matter to the President for appropriate action.

PART III – ORGANIZATION OF THE SPECIAL TRIBUNAL

Section 1: the oath
Rule10:Forms of the oath

First: the judges

All the judges should take the oath before the president of the republic or his designee as following:
“ I swear by God to judge among the people with justice and to apply the law honestly”

Second: public prosecutors
“Before starting their duties, all public prosecutors should take the following oath before the president of the republic:” I swear by God to perform the functions of my office and to apply the law honestly and loyalty “

Third: the general director
The general director should take the following oath before the president:
“ I swear by God to perform the functions of my office and to apply the law frankly and honestly”

Four: judicial investigators
Before starting their duties, judicial investigators should take the following oath before the president:
“ I swear by God to perform the functions of my office with justice and to apply the law honestly”

Five: preserve the report of the oath

The report of taking the oath should be kept in the records of the tribunal.

Section 2: The Judges

Rule 11:

First: Each Judge shall act independently and he shall not be submitted to or response to the instructions or the directions issued by the presidency of the republic or the cabinet or from any Governmental Department, or from any other source .

Second: During an investigation, trial or appeal, Judges must perform their duties with impartiality.
Third: A Judge may not sit in any case in which he has a personal interest or concerning which he has or has had any personal association which might affect his impartiality.
Four: A Judge must withdraw from any case in which their impartiality or independence might reasonably be doubted.
Five: The President may assign another Trial Judge to sit in place of the withdrawn Trial Judge as necessary. The Chief Investigative Judge may assign another Investigative Judge to sit in place of the withdrawn Investigative Judge as necessary.

Rule12:
The grounds for disqualification contained above in Article 5(6) and Article 7(13) of the Statute of the Special Tribunal. Any party may apply to the President for the disqualification of a Judge upon the grounds contained in the Statute. The President should notify the concerned judge with a copy of the application and its documents. The judge subject to disqualification should submit his comments on the matter within 7 days. In a meeting, The president and the permanent Judges of the Special Tribunal shall decide the matter by a majority vote. In the event of an equality of votes, the President or the Judge who acts in his place shall cast the deciding vote. The Judge subject to disqualification may attend the meeting, but he may not vote in the decision. If the grounds for disqualification from the Statute of the Special Tribunal are applicable, a Judge is disqualified from acting in any judicial capacity for the Tribunal.

Rule 13:
First: If the grounds for disqualification contained above in article 11 are applicable, a Judge shall be disqualified from sitting on that particular case. Any party may apply to the Chief Investigative Judge for the disqualification of an Investigative Judge upon the grounds for disqualification contained in aforementioned article. Any party may apply to the President for the disqualification of the Chief Investigative Judge or a Trial Judge upon the grounds for disqualification contained in article 11. The President or Chief Investigative Judge must consult with the Judge in question, before deciding the matter. The President may assign another Trial Judge to sit in place of the disqualified Trial Judge as necessary. The Chief Investigative Judge may assign another Investigative Judge to sit in place of the disqualified Investigative Judge as necessary.

Second: If the grounds for disqualification contained above in this article are applicable, an Appellate Judge shall be disqualified from sitting on that particular case. Any party may apply to the Appeals Chamber for the disqualification of an Appellate Judge upon these grounds. The Appellate Judges of the Special Tribunal shall decide the matter by a majority vote. The Judge subject to disqualification shall be entitled to present his comments on the matter but he may not vote in the decision. In the event of an equality of votes, the President or the Judge who acts in his place shall cast the deciding vote.

Third Whenever the absence of a Trial Judge causes the membership of the Trial Chamber to fall below five judges, the President may assign another judge from a pool of reserve judges to sit in place of any missing judges.

Four: A Designated Judge or a Pre-Hearing Judge who is involved with any pre-trial or interlocutory matter against a suspect or accused shall not for that reason be disqualified from sitting as a member of a Chamber for the trial or appeal of that suspect or accused.

Five: An Investigative Judge who is subsequently appointed as a Trial or Appellate Judge may not act as a Trial or Appellate Judge on cases that he also acted on as an Investigative Judge. A Trial Judge who is subsequently appointed as an Appellate Judge may not hear appeals of cases that he acted on as a Trial Judge.

Rule 14: Absence and Termination of Service of Judges

(A) Judges of the Special Tribunal shall discharge their duties from the time they make their oath until such time as they are disqualified from holding office at the Special Tribunal or replaced by another Judge due to an expiration of the judge’s term of office.

(B) A Judge who decides to resign shall give notice of his resignation in writing to the President, who shall transmit it to the Cabinet.

(C) If a Trial Judge, for any reason, is unable to continue sitting in a part-heard case, the President may, as appropriate, designate a reserve judge to hear the case as provided in Article 5 of the Statute. In such instance, the reserve judge must review recordings of the trial proceedings regarding the case.

(D) If an Investigative Judge is unable to act in a case for whatever reason the Chief Investigative Judge may re-assign the case to another Investigative Judge, whether permanent or reserve.

Rule 15: Use of Alternate Judges

(A) The President may appoint one or more judges from a pool of reserve judges to serve as Alternate Judges for a specific proceeding in a Trial Chamber.

(B) An Alternate Judge serves in addition to the other five permanent Trial Judges assigned to the Trial Chamber in which the specific proceeding will occur. An Alternate Judge will observe every aspect of the proceeding with the other five Trial Judges. However, the Alternate Judge will not vote as to a judgment or sentence in the specific proceeding; unless one of the five permanent Trial Judges is unable to continue sitting in a part-heard case.

Rule 16: Seniority

(A) Judges appointed on different dates shall take precedence according to the dates of their appointment. Judges appointed on the same date shall take precedence according to age.

(B) In case of re-appointment, the total period of service as a Judge of the Special Tribunal shall be taken into account.

(C) All Judges are equal in the exercise of their judicial functions, regardless of dates of appointment, age or period of service, or nationality.

Section 3: The Presidency

Rule 17: Election of the President

(A) The President shall be elected by a majority of the votes of the nine Appellate Judges in accordance with Article 16 of the Statute. In the event that an equal number of votes are cast for the leading candidates, the candidate who has seniority among the leading candidates under Rule 16 will become the President.

(B) The President shall be elected for a term of one year, The President may be re-elected once.

(C) If the President ceases to be a member of the Special Tribunal or resigns his office before the expiration of his term, the remaining eight Appellate Judges shall elect from among their number a successor for the remainder of the term. In the event that an equal number of votes are cast for the leading candidates, the candidate who has seniority among the leading candidates under Rule 16 will become the President.

Rule 18: Functions of the President

(A) The President shall preside at all plenary meetings of the Special Tribunal, co-ordinate the work of the Chambers and supervise the activities of the Administration Department as well as exercise all other functions conferred on him by the Statute and these Rules.

(B) The President may, after consultation with the other Judges, the Chief Prosecutor, the Director, issue Practice Directions, consistent with the Statute and these Rules, addressing detailed aspects of the conduct of proceedings before the Special Tribunal.

(C) The President shall appoint one or more Non-Iraqi Advisors/Observers to serve with each of the Trial Chambers after consultation with its chief, and to serve with the Appeals Chamber after consultation with its members.

Rule 19: The Vice-Presidency

The Vice-Presidency shall be held by the senior Judge among the other members of the Appeals Chamber, as determined in accordance with Rule 16.

Rule 20: Functions of the Vice-President

The Vice-President shall exercise the functions of the President when the President is absent or is unable to act.

Rule 21: Replacements

If neither the President nor the Vice-President can carry out the functions of the Presidency, they shall be assumed by the next senior Judge, determined in accordance with Rule 16 until such time as the President or Vice-President are able to resume their duties or a replacement President can be elected.

Section 4: Internal Functioning of the Special Tribunal

Rule 23: Consultations

The President, members of appeals Chamber, the Chief of trail judges, the Chief Investigative Judge, and the Chief of prosecutors shall consult on major matters of concern relating to the functioning of the Special Tribunal when necessary.

Rule 23: Plenary Meetings of the Special Tribunal

The president, other Judges, public prosecutors, may meet in plenary to the purposes mentioned below, these meetings should be headed by the president and consistent with provisions of Rules 24,25 :

(i) Amend these Rules;

(ii) Adopt the Annual Report pursuant to Article 36 of the Statute;

(iii) Decide upon matters relating to the internal functioning of the Chambers and the Special Tribunal;

(iv) Exercise any other functions provided for in the Statute or these Rules.
(v) Limit the financial and administrative authorities of the president and general director
according to annual approved budget of the tribunal.

Rule 24: Dates of Plenary Meetings

Plenary Meetings shall be convened by the President when so requested by at least 9 permanent Judges and the prosecutors, and whenever the exercise of his functions under the Statute or these Rules so requires.

Rule 25: Quorum and Vote

The quorum for each Plenary Meeting of the Special Tribunal shall be a majority of the permanent Judges and public prosecutors, including at least one Judge from a Trial Chamber. The majority should take the decisions. In the event of an equality of votes, the President or the Judge who acts in his place shall cast the deciding vote.

Section 5: The Chambers

Rule 26: Trial Judges

(A) Judges may rotate on a regular basis between the Trial Chambers. Rotation shall take into account the efficient disposal of cases.

(B) The Judges shall take their places in their assigned Chamber as soon as the President thinks it convenient, having regard to the disposal of pending cases.

(C) The President may at any time, temporarily assign a member of one Trial Chamber to another Trial Chamber.

(D) The Presiding Judge shall be elected by a majority of the votes of the five permanent Trial Judges assigned to the Chamber in accordance with Article 5 of the Statute. In the event that an equal number of votes are cast for the leading candidates, the candidate who has seniority among the leading candidates under Rule 16 will become the Presiding Judge of that Chamber.

Rule 27: Designated Judges

After consultation with the Chief of Chambers, the President shall designate for a given period one or more of the Trial Judges as necessary to deal with indictments, warrants and other pre-trial matters. Designated Judges may act on pre-trial matters regardless of whether the specific case has been assigned to a specific Trial Chamber. Such Judges may be designated to handle specific cases or to handle specific issues that recur in multiple cases. In the event that no permanent Trial Judge is reasonably able to serve as a Designated Judge, the President may select one or more judges from a pool of reserve Trial Judges.

Section 6: The Director of the Administration Department

Rule 28: Appointment of the Director of the Administration Department

A- After consultation with the president, The Director shall be appointed by a decision from the Cabinet in accordance with Article 9(3) of the Statute, take into account the provisions of rule10(3) .

B- Aafter conducting an appropriate investigation and with recommendation made by plenary body, the Cabinet may remove the Director for good cause.

Rule 29: Appointment of the Department Staff

The Director shall appoint annual staff as may be required for the efficient functioning of the Administration Department, such staff is a subject to the discussion and approval of plenary body.

Rule 30: Functions of the Director of the Administration Department

(A) The Director shall assist the Chambers, the Plenary Meetings of the Special Tribunal, the Judges, the Chief Prosecutor, and the Defense Office in the performance of their functions. Under the authority of the President, he shall be responsible for the administration and servicing of the Special Tribunal .

(B) The Director, in the execution of his functions, may make oral or written representations to Chambers on any issue arising in the context of a specific case which affects or may affect the discharge of such functions, including that of implementing judicial decisions, with notice to the parties where necessary.

(C) The Director is responsible for the conditions of detention for suspects and accused. The Director, mindful of the need to ensure respect for human rights and fundamental freedoms (particularly the presumption of innocence), shall in consultation with the President adopt and amend rules necessary to govern the detention of persons awaiting trial or appeal or otherwise detained in relation to proceedings before the Special Tribunal.

(D) The Director may, after consultation with the President, issue appropriate Practice Directions addressing particular aspects of the practice and procedure in the Administration Department .

Rule 31: Victims and Witnesses Unit

(A) The Director shall set up a Victims and Witnesses Unit which, in accordance with the Statute and these Rules, and in consultation with the Prosecutions Department (for prosecution witnesses) and the Defense Office (for Defense witnesses) .This unit performs the following functions with respect to all witnesses and victims who appear before the Special Tribunal and others who are at risk on account of testimony given by such witnesses, in accordance with their particular needs and circumstances:

(i) Recommend to the Special Tribunal the adoption of protection and security measures for them;

(ii) Provide them with adequate protective measures and security arrangements and develop long and short term plans for their protection and support;

(iii) Ensure that they receive relevant support, counselling and other appropriate assistance including medical assistance, physical and psychological rehabilitation, especially in cases of rape and sexual assault.

(B) The Unit personnel shall include experts in trauma, including trauma related to crimes of sexual violence. Where appropriate, the Unit shall cooperate with non-governmental and intergovernmental organizations.

Rule 32: Minutes of the Plenary Meetings

The Director or his staff shall take minutes of the Plenary Meetings of the Special Tribunal.

Rule 33: Cause Book

The Director shall maintain a Cause Book which shall list, subject to Rule 32, all the particulars of each case including the index of the contents of the case file.

Section 7: The Chief Prosecutor

Rule 34: Selection of the Chief Prosecutor and his deputy

(A) Subject to Rule 8(5), the Chief Prosecutor and his deputy shall be selected for a term of one year. The Chief Prosecutor and his deputy may be re-selected for a subsequent term.

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(B) If the Chief Prosecutor ceases to be a Prosecutor, resigns, or is removed from his office before the expiration of his term, other appointed prosecutors shall select a replacement from among their number In accordance with Article 8 (4) of the for the remainder of the term.

Rule 35: Functions of the Chief Prosecutor

(A) In accordance with Article 8 of the Statute, the Chief Prosecutor shall perform all the functions conferred on him by the Statute in accordance with these Rules and with such Regulations, consistent with the Statute and these Rules, as may be framed by him.

(B) The Chief Prosecutor’s powers under Parts III to VIII of these Rules may be exercised by any prosecutor, or staff member, of the Prosecutions Department authorized by him and acting under his direction.

(C) The Chief Prosecutor shall appoint Non-Iraqi Advisors/Observers to assist the Prosecutors at necessary.

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Section 8: The Investigative Judges

Rule 36: Selection of the Chief Investigative Judge and his deputy

(A) The Chief Investigative Judge shall be elected by a majority of the votes of the permanent Investigative Judges. In the event that an equal number of votes are cast for the leading candidates, the candidate who has seniority among the leading candidates under Rule 16 will become the Chief Investigative Judge.

(B) The Chief Investigative Judge shall be elected for a term of one year, The Chief Investigative Judge may be re-elected for a subsequent term.

(C) If the Chief Investigative Judge ceases to be an Investigative Judge, resigns, or is removed from his office before the expiration of his term, the permanent Investigative Judges appointed to the Special Tribunal shall elect from among their number a successor for the remainder of the term.

Rule 37: Functions of the Chief Investigative Judge

(A) The Chief Investigative Judge shall coordinate the work of the Investigative Judges and exercise all the other functions conferred on him by the Statute and these Rules.

(B) The Chief Investigative Judge may after consultation with other Investigative Judges issue Practice Directions, consistent with the Statute and these Rules, addressing detailed aspects of the conduct of cases by Investigative Judges.

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Rule 38: Functions of the Deputy Chief Investigative Judge

The Deputy Chief Investigative Judge shall exercise the functions of the Chief Investigative Judge in case the latter is absent or is unable to act.

Part 4 : Non-Iraqi Advisors/Observers

Rule 39: Functions of the Non-Iraqi Advisors/Observers

(A) Non-Iraqi Advisors/Observers, appointed in accordance with the Statute, will be assigned to the Prosecutions Department, Investigative Judges, the Trial Chambers and the Appeals Chamber. Each is a separate functional area. Anyone who is assigned as a Non-Iraqi Advisor/Observer to one functional area of the Special Tribunal may not concurrently act as an advisor to another functional area of the Special Tribunal. A Non-Iraqi Advisor/Observer may be reassigned from one functional area into another with the consent of the President. In the event of reassignment, the Non-Iraqi Advisor/Observer may not take any part in providing advice in relation to a case in which that person was previously associated prior to reassignment.

(B) with the consent of the president, The Director shall take appropriate action to provide the Non-Iraqi Advisors/Observers with all such access and facilities as are required for them to fulfil their functions.

(C) Non-Iraqi Advisors/Observers appointed to the Defense Office under Rule 49 shall assist in the overall administration of the Defense Office, including providing advice on any proposed amendments to these Rules or to any code of Professional Conduct . They may not take any action that would involve them in any form of attorney-client relationship with a suspect or accused. This would include their representation any suspect or accused in any proceedings before the Tribunal.

(D) Any Non-Iraqi Advisor/Observer who is assigned to the Investigative Judges, a Trial Chamber or the Appeals Chamber will provide non-partisan, confidential, non-binding expert advice and recommendations. Any Non-Iraqi Advisor/Observer assigned to the Prosecutions Department or Defence Office will provide confidential, non-binding expert advice and recommendations.

PART V – INVESTIGATIONS, RIGHTS OF SUSPECTS AND ACCUSED

Section 1: Initiation of an Investigation

Rule 40: Initiation of Complaints

A- Criminal proceedings under article 18 of this Statute are initiated by oral or written complaint referred to the Chief Investigative Judge.
B- Such complaints may be referred to investigative judge of the Special Tribunal by Iraqi Ministries, government offices, investigative officers, or, international organizations, or any other appropriate agency or organization.

Rule 41: Action on Complaints

(A) The Chief Investigative Judge shall evaluate the information made available to him under Rule 3.

(B) In deciding whether or not to initiate an investigation, the Chief Investigative Judge shall consider:

(i) Whether the information available to him provides sufficient evidence to believe that a crime within the jurisdiction of the Special Tribunal has been committed;

(ii) The extent to which the interests of justice would be served by proceedings in the Special Tribunal rather than in any other forum.

(C) Prior to making his decision, the Chief Investigative Judge may request information and assistance from any Iraqi Ministry or government office, international organization, or other third party with relevant information or evidence pertaining to the complaint. Additionally, the Chief Investigative Judge may also request the Chief Prosecutor to make a non-binding recommendation concerning whether the complaint should be investigated. If the Chief Investigative Judge decides that a complaint should be investigated, the Chief Investigative Judge will allocate the complaint to an Investigative Judge or a panel of three Investigative Judges and advise the Chief Prosecutor of such determination. Subject to Rules 40, 57, and 60, if a complaint is allocated to a panel of three Investigative Judges, any member of that panel may individually exercise the powers of an Investigative Judge. For each complaint that is investigated, the Chief Prosecutor will assign a prosecutor to consult with the Investigative Judge or panel of Investigative Judges during the investigation.

(D) In the event the Chief Investigative Judge decides not to allocate a complaint, he shall inform the complainant of such decision. If the Chief Investigative Judge considers that there are grounds for proceeding in any other forum, he may transfer the complaint to the appropriate court in accordance with Article 131 of the Iraqi Law of Criminal Procedure, as amended.

(E) The Chief Investigative Judge may, at any time, reconsider a decision not to initiate an investigation under the Statute, based on new facts or information.

(B) Upon being informed of a determination to allocate a complaint under Sub-Rule (C), the Chief Prosecutor shall assign a prosecutor to assist with the investigation and any subsequent prosecution.

Section 2: Investigations

Rule 42: Conduct of Investigations

(A) In the conduct of an investigation, an Investigative Judge may:

(i) Review witness statements, summon and question suspects, interview victims and witnesses and record their statements, collect evidence and conduct on-site investigations;

(ii) Take all measures deemed necessary for the investigation, including special measures to provide for the safety of potential witnesses and sources;

(iii) Seek, with the concurrence of the Chief Investigative Judge, the assistance of any State authority or relevant international body including the International Criminal Police Organization (INTERPOL); and

(iv) Initiate an application for deferral in accordance with Rule 7.

(B) An Investigative Judge will gather both incriminating and exculpatory evidence. The prosecution may views all the evidences gathered by the Judge during his/her investigation.

(C) Investigative Judges interviews witness and victim separated from public, putting in consideration the regulations of the Penal Prosecutions Code No. 23 for the year 1971 and its regulations. This Rule does not prohibit a suspect’s Defence counsel from independently interviewing potential witnesses and victims. A suspect or Defence counsel may provide evidence to an Investigative Judge. A suspect or Defence counsel may request an Investigative Judge to conduct any relevant and material witness interviews.

Rule 43: Provisional Measures

(A) If appropriate, an Investigative Judge may upon the approval of the Chief Investigative Judge order any authority:

(i) To arrest a suspect and place him in provisional detention in accordance with the IST Statute and these Rules and such other provisions of Iraqi law as may be relevant;

(ii) To seize all physical evidence; and/or

(iii) To take measures to prevent the escape of a suspect or an accused, injury to or intimidation of a victim or witness, or the destruction of evidence.

This written order shall indicate the grounds upon which it is based and, unless the Investigative Judge wishes only to question the suspect, shall include a provisional count and a summary of the material upon which the Investigative Judge relies. The order shall also specify the initial time limit for the provisional detention of the suspect and when served on the suspect be accompanied by a statement of his rights, as specified in this Rule and in Rules 46. As soon as practicable, copies of the order and of the request by the Investigative Judge shall be served upon the suspect.

(B) In deciding whether to issue such an order, the Investigative Judge shall consider:

(i) Whether there is a reliable body of evidence that tends to show that the suspect may have committed a crime within the jurisdiction of the Special Tribunal;

(ii) Whether provisional detention is a necessary measure to prevent the escape of the suspect, injury to or intimidation of a victim or witness or the destruction of evidence; and

(iii) Whether the provisional detention is otherwise necessary for the effective conduct of the investigation.

(C) The suspect shall be released if:

(i) A subsequent order of the Investigative Judge or Chief Investigative Judge so requires that in accordance with Rule 60.

Rule 44: Provisional Detention Orders

(A)
(1) The provisional detention of the suspect may be ordered for a period not exceeding 90 days. The 90-day period will start from the day after the suspect is in the custody of any detention unit of the Special Tribunal. This period of detention may be extended, by further order of a Designated Judge, for additional 30 day periods but may not exceed 180 days in total.
(2) This 180-day period may only be extended by the Designed Judge after getting the consent of the President.

(3) the decisions mentioned in A and B above are appeal able.

(B) The provisions in Rules 54 and 55, shall apply to the execution of the provisional detention of the suspect.

(C) After his provisional detention, the suspect shall be brought, without delay, before the Investigative Judge who made the initial order, or another Investigative Judge designated by the Chief Investigative Judge. The Investigative Judge shall satisfy himself that the right of the accused to counsel is respected. The accused has the right to be represented at his own expense by any Defense Counsel who is qualified under Rule 48. If the accused wants the Principal Defender to provide him with a Defense Counsel, the Investigative Judge shall inquire into the accused’s ability to pay for legal services and instruct the Defense Office to provide a Defense Counsel to the accused. The Defense Office shall charge the accused for any legal services provided; unless, a Trial Judge finds that the accused is indigent.

(D) Subject to Rules 59 and 60, an accused may be detained until the conclusion of his trial if necessary to ensure the accused’s appearance at trial, or to protect any victim or witness, or to prevent the destruction of any evidence.

Rule 45: Preservation of Information and Evidence

(A) Each Investigative Judge shall be responsible for the preservation, storage and security of information and physical evidence obtained in the course of his investigation.

(B) The Investigative Judge shall draw up an inventory of all materials seized, including documents, books, papers, and other objects, and shall serve a copy thereof on the individual from whom the materials were seized. Materials that are of no evidentiary value shall be inventoried and safeguarded until such time as they can be returned.

Rule 46: Rights of Suspects during Questioning by an Investigative Judge

(A) A suspect who is questioned by an Investigative Judge shall have the following rights of which he shall be informed by the Investigative Judge prior to questioning in a language he speaks and understands:

(i) The right to legal assistance of his own choosing, including the right to have legal assistance provided by the Defense Office if he does not have sufficient means to pay for it;

(ii) The right to have the free assistance of an interpreter if he cannot understand or speak the language to be used for questioning;

(iii) The right to remain silent. In this regard, the suspect or accused shall be cautioned that any statement he makes may be recorded and may be used in evidence;

(B) A suspect may voluntarily waive his right to have legal assistance during questioning if the Investigative Judge determines that the waiver is voluntarily and intelligently made.

(C) If a suspect has exercised his right to legal assistance, questioning by an Investigative Judge of a suspect shall not proceed without the presence of counsel, in a case of the waiver ,then the suspect expresses his will to have legal assistance, accordingly the questioning should be stopped and never resume again until the defence be present.

Rule 47: Recording Questioning of Suspects by an Investigative Judge

Whenever an Investigative Judge questions a suspect, the questioning shall be recorded by audio, video, court reporter or by other means. The suspect shall be informed that the questioning is being recorded. At the conclusion of the questioning the suspect or accused shall be offered the opportunity to clarify anything he has said, and to add anything he may wish, and the time of conclusion shall be recorded. The content of the recording shall then be transcribed (if done by audio or video) as soon as practicable after the conclusion of questioning and a copy of the transcript supplied to the suspect.

Section 3: Defense Counsel

Rule 48: Appointment defence Counsel

(A) Counsel engaged by a suspect or accused shall file his power of attorney with the Judge concerned at the earliest opportunity. Subject to verification by the Judge, a counsel shall be considered qualified in accordance with the Iraqi law of lawyers.
(B) Subject to Articles 18(c) and 20(d)(2) of the Statute, an accused may engage one or more foreign counsel.

(C) In the performance of their duties counsel shall be subject to the relevant provisions of the Statute, these Rules and any other rules or regulations adopted by the Special Tribunal. In addition, they shall be subject to any codes of practice and ethics governing their profession and, if applicable, any Code of Professional Conduct established by the president under Rule 50.

Rule 49: Defense Office

(A) The Director shall establish a Defense Office for the purpose of ensuring the rights of suspects and accused. The Defense Office shall be headed by the Special Tribunal Principal Defender. The Principal Defender shall be hired by the Director for a term of three years and may be re-hired for a subsequent term. After conducting an appropriate investigation, getting the approval of the president, the Director may remove the Principal Defender for good cause.

(B) The Defense Office shall, in accordance with the Statute and these Rules, provide advice, assistance and representation to:

(i) Suspects placed into provisional detention in accordance with Rule 40;

(ii) Suspects being questioned by an Investigative Judge in accordance with Rule 46, including non-custodial questioning; and

(iii) Accused persons before the Special Tribunal in accordance with Rule 57.

(C) The Defense Office shall fulfil its functions by providing, amongst other things:

(i) Legal assistance for any accused who does not have sufficient means to pay for it, or as ordered by the Special Tribunal;

(ii) Duty counsel situated within a reasonable proximity to any detention unit and the seat of the Special Tribunal, to attend the detention unit in the event of being summoned to provide legal assistance to a suspect or accused; and

(iii) Adequate facilities for counsel to use in the preparation of the Defense.

(D) The Principal Defender shall, in providing for an effective Defense, maintain a highly qualified criminal Defense counsel whom he believes appropriate to act as duty counsel or to lead the Defense or appeal of an accused. Such counsel (who may include members of the Defense Office) shall:

(i) Speak fluent Arabic;

(ii) Be admitted to practice law in Iraq and in good standing;

(iii) Have at least 7 years of legal experience and have competence in criminal law, and
has the power provided in Article 2(c ) of Iraqi law of lawyers No. 67 of 1963 .

(iv) Have indicated a willingness and availability to be assigned by the Special Tribunal to advise and represent the interests of suspects or accused.

(E) The Principal Defender shall assign counsel to provide legal assistance in specific cases as appropriate. Any request for replacement of an assigned counsel shall be made to the Principal Defender. Under exceptional circumstances, the request may be made to a Chamber upon good cause being shown and after having been satisfied that the request is not designed to delay the proceedings.

(F) Defense Counsel will zealously represent the accused. Failure to do so, absent just cause approved by a Trial Chamber, may result in forfeiture of fees in whole or in part. In such circumstances, the Chamber may make an order accordingly. Counsel shall only be permitted to withdraw from the case to which he has been assigned in the most exceptional circumstances. In the event of such withdrawal, the Principal Defender shall assign another Counsel, to the indigent suspect or accused.

(G)
(1) Subject to Rule 39(c), after nominating being made by the Principal Defender, the Director may contract with Non-Iraqi Advisors/Observers to provide expert assistance to the Defense Office.
(2) Non-Iraqi Advisors/Observers shall be selected based upon their criminal law experience in their respective countries, and should have extensive knowledge and/or experience with international war crimes trials. Such Advisors/Observers must be of high moral character and integrity.

Rule 50: Misconduct of Counsel

(A) A Judge or a Chamber may, after a warning, impose sanctions against counsel if, in its opinion, his conduct remains offensive or abusive, demeans the dignity of the Special Tribunal, obstructs the proceedings.

(B) A Judge or a Chamber may also, with the approval of the President, communicate any misconduct of counsel to the professional body regulating the conduct of counsel in his State of admission.

PART VI – PRE-TRIAL PROCEEDINGS

Section 1: Indictments and investigation procedures

Rule 51: The join of the crimes.

The provisions of the article 132 of Iraqi criminal proceedings law No. 23 of 1971 should be applied in case of accused being alleged of committing multiple crimes.

Rule 52: Non-Disclosure of Indictment

(A) In exceptional circumstances and in the interests of justice, a Designated Judge may order the non-disclosure to the public of any documents or information until further order.

(B) A Trial Chamber or Designated Judge may order that there be no disclosure of an indictment, or part thereof, or of all or any part of any particular document or information, if satisfied that the making of such an order is required to give effect to a provision of these Rules, to protect confidential information obtained by the Investigative Judge or the Chief Investigative Judge, or is otherwise in the interests of justice.

Section 2: Orders and Warrants

Rule 53: General Provisions

(A) At the request of either party , an Investigative Judge may make such orders, summonses, subpoenas, and warrants as may be necessary in the interests of justice for the purposes of an investigation.

(B) At the request of either party , a Designated Judge or a Trial Chamber may make such orders, summonses, subpoenas and warrants as may be necessary for the purposes of the preparation or conduct of the trial.

Rule 54: Execution of Arrest Warrants

(A) Subject to Rule 43, a warrant of arrest shall be signed by an Investigative Judge and shall bear the seal of the Special Tribunal. It shall be accompanied by a copy of the provisional count or the indictment, and a statement of the rights of the suspect or the accused. The Director shall transmit to the relevant authorities of Iraq three sets of certified copies of these documents.

(B) Subject to Rule 43 The Director shall request the said authorities to:

(i) Arrange for the arrest of the suspect or the accused and his transfer to the Special Tribunal;

(ii) Serve a set of the aforementioned documents upon the suspect or the accused and Cause the documents to be read to the accused in a language understood by him and to caution him as to his rights in that language; and

(iii) Return one set of the documents together with proof of service to the Special Tribunal.

Rule 55: Failure to Execute a Warrant of Arrest or Order for Deferral

(A) Where the appropriate Iraqi authorities, to whom a warrant of arrest or orders under Rule 43 or others, are unable to execute the warrant of arrest or order for deferral, they shall report forthwith their inability to the Director, and the reasons therefore.

(B) If within a reasonable time after the warrant of arrest or other orders to the appropriate Iraqi authorities, no report is made on action taken, this shall be deemed a failure to execute the warrant of arrest or other orders, upon his own initiative or at the request of an Investigative Judge, the Presiding Judge of a Trial Chamber may refer the failure to the President for appropriate action.

Rule 56: Trial in the Absence of the Accused

A trail in the absence or the presence of the accused and other trial procedures should be in accordance with Iraqi criminal proceedings law No.23 of 1971..

Rule 57: Procedure upon Guilty Plea

(A) If an accused pleads guilty or requests to change his plea to guilty, the Trial Chamber shall satisfy itself that:

(i) The plea is made freely and voluntarily;

(ii) The plea is an informed plea;

(iii) The plea is unequivocal; and There is a sufficient factual basis to establish the accused’s culpability for the crime.

(B) Thereafter in the absence of contested counts mentioned in (A) above and when the Chamber is satisfied to criminate the accused regarding the action to which he actually pled guilty , the Trial Chamber may enter a finding of guilt and set a date for the sentencing hearing.

(C)
(1) If the Chamber is not satisfied as to any of the factors in subparagraph (A) above, or if, under applicable law, the offence is punishable by death, then the Chamber shall enter a plea of not guilty and the case shall proceed to trial.
(2) However, an accused may be permitted by the Trial Chamber to enter a guilty plea to an offence punishable by death, if the accused’s guilty plea is pursuant to Rule 58 and the Chief Prosecutor is recommending a specific sentence that is less severe than the death penalty.

Rule 58: Plea Agreements

(A) After an accused’s initial appearance under Rule 68, the Chief Prosecutor may enter into a plea agreement with the accused. A plea agreement must be in writing and signed by the accused, the accused’s Defense Counsel, and the Chief Prosecutor.

(B) If a plea agreement has been reached, the Trial Chamber shall require full disclosure of the terms of the agreement before the plea is accepted. The Trial Chamber shall ensure that the accused understands and agrees to the terms of the agreement and that the accused’s plea complies with the requirements of Rule 57.

(C) In a plea agreement, an accused may make certain promises to include any of the following:

(i) To plead guilty to some or all of the counts against him;

(ii) To enter into a stipulation of fact;

(iii) To agree to testify as a witness in the trial of another person; or

(iv) To provide restitution.

(D) In a plea agreement, an accused may not promise to waive his right to counsel, right to due process, right to challenge the jurisdiction of the court, right to complete sentencing proceedings or the right to exercise his appellate rights.

(E) In a plea agreement, the Chief Prosecutor may promise to do any of the following:

(i) To recommend to the Trial Chamber that some of the counts against the accused be dismissed without prejudice;

(ii) To recommend that the accused be sentenced to a specific sentence for each of the counts to which the accused pleads guilty; or

(iii) To recommend whether confinement on multiple counts should be served consecutively or concurrently.

(F)
(i) The Trial Chamber may refuse to accept a plea agreement if the Trial Chamber finds that the terms of the agreement would be contrary to the law. The Trial Chamber shall instruct the accused to decide whether to plead not guilty or whether to plead guilty without the benefit of any of the terms of the proposed plea agreement. The Trial Chamber’s decision to refuse to accept a plea agreement on legal grounds may not be appealed .

(ii) If a Trial Chamber accepts the terms of an offered plea agreement then the Chamber will be bound by the Chief Prosecutor’s recommendations to dismiss any count. If a Trial Chamber accepts the terms of the plea agreement, the Trial Chamber may still impose any lawful sentence for each count that the accused pled guilty to. The Trial Chamber may also direct whether multiple sentences are served consecutively or concurrently. However, the Trial Chamber shall postpone the execution of any portion of the adjudged sentence that would be in excess of any recommendations of the Chief Prosecutor. If the Chief Prosecutor recommends that confinement on multiple counts be served concurrently, for all those counts, the Trial Chamber shall carry out the longest period of adjudged confinement.

(G) The accused may withdraw from a plea agreement and enter a plea of not guilty at any time before the announcement of the accused’s sentence. Either before or after the announcement of the accused’s sentence, the Chief Prosecutor may request the Trial Chamber to void an accepted plea agreement. If a Trial Chamber voids a plea agreement before the announcement of the accused’s sentence, the accused will be permitted to withdraw his guilty plea. If a Trial Chamber voids a plea agreement after the accused’s sentence has been announced then any sentence imposed by the Trial Chamber, except for the death penalty, may be fully enforced against the accused even if a portion of the imposed sentence is in excess of the recommendations by the Chief Prosecutor in the terms of the plea agreement. If a Trial Chamber voids a plea agreement where a death penalty was adjudged, for each count for which a death penalty was adjudged, the Trial Chamber may either impose a sentence of life imprisonment or shall enter a plea of not guilty and the case shall proceed to trial.

Rule 59: Detention

Upon his transfer to the Special Tribunal, the accused shall be detained in the facilities of the Special Tribunal, or facilities otherwise designated by the Director for the purpose. The President may, on application of a party or the Director, order special measures of detention for an accused.

Rule 60: Bail

(A) Once detained, an accused may not be granted bail except upon an order of a Trial Chamber or Designated Judge, this decision, which an accused being granted bail, is obligatory a subject to appeal and should not be implemented until being approved.

(B) An accused may make only one application for bail, unless there has been a material change in circumstances.

(C) The Designated Judge or Trial Chamber may impose such conditions upon the granting of bail to the accused as it may determine appropriate, including the execution of a bail bond and the observance of such conditions as are necessary to ensure the presence of the accused at trial and the protection of others.

(D) If necessary, the Trial Chamber may issue a warrant of arrest to secure the presence of an accused who has been granted bail or is for any other reason at large. The provisions of Part V, Section 2 – Orders and Warrants shall apply.

(E) The Chief Prosecutor may appeal a decision to grant bail. In the event of such an appeal, the accused shall remain in custody until the appeal is heard and determined.

(F) Appeals from bail decisions shall be heard by a bench of at least three Appellate Judges.

Section 3: Production of Evidence

Rule 61: Disclosure of Materials by the Prosecutor

(A) Subject to the provisions of Rule 52 and Rule 71, the Prosecutor shall:

(i) At least 45 days prior to the commencement of trial, disclose to the Defense copies of the statements of all witnesses and all evidence . For purposes of this Sub-Rule, a “statement” of a witness is a written statement signed , adopted, and approved by him, or a substantially verbatim recital of an oral statement made by the witness that was recorded contemporaneously with the making of the oral statement. The Trial Chamber may order that additional copies of the statements of witnesses be made available to the Defence within a prescribed time.

(ii) At the request of the Defence, subject to Rule 62, permit the Defence to inspect any books, documents, photographs and acquire these things , which are material to the preparation of the Defence, in addition to, inspect any books, categories of, or specific documents, photographs and tangible objects in his custody or control which are intended for use as evidence at trial .

(B) Where information or materials are in the possession of the Prosecutor, the disclosure of which may prejudice further or ongoing investigations, or for any other reason may be contrary to the public interest or affect the security interests of any State, the Prosecutor may apply to a Designated Judge sitting ex parte in private to be relieved from the obligation to disclose pursuant to Sub-Rule (A). When making such an application the Prosecutor shall provide the information or materials that are sought to be kept confidential.

Rule 62: Reciprocal Disclosure of Evidence

(A) Regarding reciprocal disclosure of evidence , the following matters should be done:

(i) (i) At least 45 days prior to the commencement of trial, the Prosecutor shall notify the Defense of the names of the witnesses that he intends to call to establish the guilt of the accused.

(ii) Prior to the commencement of the Defence case, the Prosecutor shall be notified by the Defence of the names of the witnesses that the defence intends to call in rebuttal of any guilt of which the Prosecutor has received notice in accordance with Sub-Rule A (i) above, or any guilt in the Case Statement duration served under Sub-Rule A (iii)below;

(iii) At least 15 days prior to the commencement of the trial, the Defense shall notify the Prosecutor of its intent to enter:

(a) A defense of alibi, in which case the notification shall specify the place or places at which the accused claims to have been present at the time of the alleged crime and the names and addresses of witnesses and any other evidence upon which the accused intends to rely to establish the alibi;

(b) Any special defense, including that of diminished or lack of mental responsibility, in which case the notification shall specify the names and addresses of witnesses and any other evidence upon which the accused intends to rely to establish the special defense;

(c) In cases of sexual assault, a defense that the victim consented to the alleged acts committed by the accused;

(d) Any books, documents, photographs, or tangible objects, to be introduced at trial, in which case the defense shall permit the Prosecutor to inspect or copy such items.

(iv) At least 15 days prior to the commencement of the trial, the Defense shall notify the Prosecutor of the names of the defense witnesses that he intends to call.

(B) Failure of the Defense to provide such notice under this Rule shall not preclude the accused from relying on the above defenses, at the discretion of the Special Tribunal.

(C) To assist the Prosecutor with his disclosure obligations pursuant to Rule 56, the Defense shall, at least 15 days prior to trial, provide the Prosecutor with a Defense Case Statement. The Defense Case Statement should:

(i) Set out in general terms the nature of the accused’s Defense;

(ii) indicate the matters on which he takes issue with the prosecution; and

(iii) set out, in the case of each such matter, the reason why he takes issue with the prosecution.

(D) If either party discovers additional evidence or information or materials which should have been produced earlier pursuant to these Rules, that party shall promptly notify the other party and the Trial Chamber of the existence of the additional evidence or information or materials.

Rule 63: Disclosure of Exculpatory Evidence

(A) The Prosecutor shall, within 14 days of receipt of the Defense Case Statement, disclose to the Defense the existence of evidence known to the Prosecutor which may be relevant to issues raised in the Defense Case Statement.

(B) As early as reasonably practicable, the Prosecutor shall disclose to the Defense the existence of evidence known to the Prosecutor which in any way tends to suggest the innocence or mitigate the guilt of the accused or may affect the credibility of a prosecution witness or the authenticity of prosecution evidence. The Prosecutor shall be under a continuingly disclose the grounds of the penalties .

Rule 64: Matters not Subject to Disclosure

(A) withstanding the provisions of Rules 60 and 61, reports, memoranda, or other internal documents prepared by a party, its assistants or representatives in connection with the investigation or preparation of the case, are not subject to disclosure or notification under the aforementioned provisions.

(B) If the Prosecutor is in possession of information which was provided to him, and accepted by him, on a confidential basis and which has been used solely for the purpose of generating new evidence, that initial information and its origin – notwithstanding Rule 62 – shall not be disclosed by the Prosecutor without the consent of the person or entity providing the initial information and the Trial Chamber.

(C) If, after obtaining the written consent of the person or entity providing information under this Sub-Rule (B), the Prosecutor elects to present as evidence any testimony, document or other material so provided, the accused shall receive prior disclosure consistent with Rule 76. The Trial Chamber may not order either party to produce additional evidence received from the person or entity providing the initial information, nor may the Trial Chamber for the purpose of obtaining such additional evidence itself summon that person or a representative of that entity as a witness or order their attendance.

(D) If the person providing or a representative of the entity providing information under Sub-Rule (B) is called as a witness, the Trial Chamber may not compel the witness to answer any question the witness declines to answer on grounds of confidentiality.

(E) The right of the accused to challenge the evidence presented in the case shall remain unaffected subject only to the limitations contained in Sub-Rules (C) and (D) above.

(F) Nothing in Sub-Rule (C) or (D) above shall affect a Trial Chamber’s power under Rule 85 to exclude evidence if its probative value is substantially outweighed by the need to ensure a fair trial.

Section 4: Depositions

Rule 65: Depositions

(A) At the request of either party, a Trial Chamber may, in exceptional circumstances and in the interests of justice, order that a deposition be taken outside the court.. The Trial Chamber shall appoint a Designated Judge, an Investigative Judge to preside over the deposition, to write down aforementioned deposition, and organize a record about that.

(B) The motion for the taking of a deposition shall be in writing and shall indicate the name and whereabouts of the witness whose deposition is sought, the date and place at which the deposition is to be taken, the charges against the accused, and of the interests of justice justifying the taking of the deposition.

(C) If the motion is granted, the party at whose request the deposition is to be taken shall give reasonable notice to the other party, who shall have the right to attend the taking of the deposition and cross-examine the witness.

(D) The deposition may also be taken by means of a video-conference, the legal and technical instructions should be taken in account .

(E) A Designated Judge or An Investigative Judge shall transmit the record to the Trial Chamber.

Section 5: Preliminary Motions

Rule 66: Preliminary Motions

(A) Preliminary motions by either party shall be brought within 21 days following disclosure by the Prosecutor to the Defense of all the material envisaged by Rule 60(A)and (B).

(B) Preliminary motions by the accused include:

(i) Objections based on lack of jurisdiction;

(ii) Objections based on defect in the form of the indictment;

(iii) Application for not separate the crimes and refer these crimes jointly in one indictment under Rule 51 and the law for criminal proceedings No. 23 of 1971.

(iv) Objections based on the denial of request for assignment of counsel; or

(v) Objections based on abuse of process . Abuse of process occurs when a Prosecutor or Investigative Judge exercised his authority without reasonable justification and with intentional malice to the prejudice of the rights of the suspect or accused.

(C) The Trial Chamber shall, as provided by Sub-Rules (D) and (E) of this rule, accept preliminary motions before trial, and such decisions shall not be subject to interlocutory appeal.

(D) Any preliminary or other motions made in the Trial Chamber prior to the commencement of trial, may be referred to the Appeals Chamber, if:

(i) The Trial Chamber certifies that the issue raises (a) a substantial issue relating to jurisdiction; or (b) an issue that would significantly affect the fair and expeditious conduct of the proceedings or the outcome of a trial, and for which an immediate resolution by the Appeals Chamber may materially advance the proceedings; and

(ii) Any party files notice of appeal within 7 days of such certification. Such notice shall not operate as a stay of the trial proceedings unless the Trial Chamber so orders.

(E) In the case of an interlocutory appeal under Sub-Rule (D) above, the Appeals Chamber shall proceed to a determination as soon as practicable.

(F) Failure to comply with the time limits prescribed in this Rule shall constitute a waiver of the rights affected by the Trial Chamber’s ruling on the motion. The Trial Chamber may, however, grant relief from the waiver upon showing of good cause.

Part VI – PROCEEDINGS BEFORE TRIAL CHAMBERS

Section 1: General Provisions

Rule 67: PROCEEDINGS BEFORE TRIAL CHAMBERS

The proceedings before trail chambers should comply with provisions set forth in the law of criminal proceedings No.23 of 1971 as well as these rules.

Rule 68: pre-trail conference

(A) The Trial Chamber may hold a Pre-Trial Conference prior to the commencement of the trial.

(B) At the Pre-Trial Conference, the Trial Chamber, or a Designated Judge, may order the Prosecutor, within a set time limit and before the date set for trial, to file:

(i) A pre-trial brief addressing the factual and legal issues;

(ii) Admissions by the parties and a statement of other matters not in dispute;

(iii) A statement of contested matters of fact and law;

(iv) A list of witnesses the Prosecutor intends to call with;

(a) The name and the role of each witness;

(b) A summary of the facts on which each witness will testify;

(c) The points on the indictment on which each witness will testify; and

(d) The estimated length of time required for each witness;

(v) A list of exhibits the Prosecutor intends to offer stating, where possible,
whether or not the Defense has any objection as to authenticity.

(C) The Trial Chamber or a Designated Judge may order the Prosecutor to limit the amount of time allotted for the examination-in-chief of any witness, or to reduce the number of witnesses, in order to preclude the introduction of irrelevant or needless cumulative evidence.

(iv) After commencement of the trial, the Prosecutor may, if he considers it to be in the interests of justice, seek leave from the Trial Chamber to reinstate or vary the list of witnesses.

(v) At the Pre-Trial Conference, the Trial Chamber or a Designated Judge may order the Defense to file a statement of admitted facts and law and a pre-trial brief addressing the factual and legal issues, not later than ten days prior to the date set for trial.

Rule 69: Pre-Defense Conference

(A) The Trial Chamber may hold a Pre-Defense Conference prior to the commencement of the trial.

(B) At that Conference, the Trial Chamber, or a Designated Judge, may order that the Defense, before the commencement of its case but after the close of the case for the prosecution, file the following:

(i) Admissions by the parties and a statement of other matters not in dispute;

(ii) A statement of contested matters of fact and law;

(iii) A list of witnesses the Defense intends to call with;

(a) The name of each witness;

(b) A summary of the facts on which each witness will testify;

(c) The points on the indictment on which each witness will testify; and

(d) The estimated length of time required for each witness;

(iv) A list of exhibits the Defense intends to offer.

(C) The Trial Chamber or a Designated Judge may order the Defense to limit the amount of time allotted for the examination-in-chief of any witness, or to reduce the number of witnesses, in order to preclude the introduction of irrelevant or needless cumulative evidence.

(D) After commencement of the Defense case, the Defense may, if it considers it to be in the interests of justice, seek leave from the Trial Chamber to reinstate or vary the list of witnesses.

Rule 70: Interveners

A Chamber may, if it considers it desirable for the proper determination of the case, invite or grant leave to any organization or person to make submissions on any issue specified by the Chamber.

Rule 71: Medical Examination of the Accused

A Trial Chamber or Designated Judge may, or at the request of a party, order a medical, including psychiatric or psychological examination of the accused.

Rule 72: Measures for the Protection of Victims and Witnesses

(A) A Chamber may, on its own motion, or at the request of either party, the victim or witness concerned, or the Victims and Witnesses Unit, order appropriate measures to safeguard the privacy and security of a victim or a witness, provided that those measures are consistent with the rights of the accused. A Chamber may order measures to protect a victim or witness before any indictment is confirmed or at any other time.

(B) A Chamber may hold proceedings in private to determine whether to order:

(i) Measures to prevent disclosure to the public or the media of the identity or whereabouts of a victim or a witness, or of persons related to or associated with a victim or witness by such means as:

(a) Expunging names and identifying information from the Special Tribunal’s public records;

(b) Non-disclosure to the public of any records identifying the victim or witness;

(c) Giving of testimony through image- or voice-altering devices or closed circuit television, video link or other similar technologies; and

(d) Assignment of a pseudonym;

(ii) Closed sessions in accordance with Rule 75;

(C) A Chamber shall control the manner of questioning a witness to avoid any harassment or intimidation.

(D) The Victims and Witnesses Unit shall ensure that, before giving evidence, a witness protected under Sub-Rule (A) has been informed that his or her testimony and identity may be disclosed at a later date in another case, pursuant to Sub-Rule (G).

(E) When making an order under Sub-Rule (A), a Chamber shall wherever appropriate state whether the transcript of those proceedings relating to the witness shall be made available for use in other proceedings before the Special Tribunal.

(F) Once protective measures have been ordered in any proceedings before the Special Tribunal, such protective measures shall continue to have effect mutatis mutandis in any subsequent proceedings before the Special Tribunal (the “subsequent proceedings”) unless and until they are rescinded, varied or augmented in accordance with the procedure set out in Sub-Rule (G).

(G) A party to a subsequent proceeding seeking to rescind, vary or augment protective measures ordered in an earlier proceeding must apply:

(i) To any Chamber, however constituted, remaining seized of the earlier proceeding; or

(ii) If no Chamber remains seized of the earlier proceeding, to the Chamber seized of the subsequent proceeding.

(H) Before determining an application under Sub-Rule (G), the Chamber seized of the subsequent proceeding shall obtain all relevant information from the earlier proceeding, and may consult with any Judge who ordered the protective measures in the earlier proceeding.

(I) References in this Rule to a “Chamber” shall include “a Judge of that Chamber or a Designated Judge”.

Rule 73: Solemn Declaration by Interpreters and Translators

Before performing any duties, an interpreter or a translator or an expert shall solemnly declare to do so faithfully, independently, impartially and with full respect for the duty of confidentiality.
for proceedings in accordance with Sub-Rules (C) to (I).

Rule 74: Open Sessions

All proceedings before a Trial Chamber shall be held in public, unless otherwise provided. Photography, video, or audio broadcasting or recording of public proceedings shall be prohibited, except when authorized by the Trial Chamber and for recordings made by the Special Tribunal pursuant to Rule 77. All deliberations of the Chamber shall be private(closed).

Rule 89: Closed Sessions

(A) A Trial Chamber may order that the press and the public be excluded from all or part of a proceeding when:

(i) Information prejudicial to national security of Iraq may be disclosed; or

(ii) It is necessary to the security of the Special Tribunal; or

(iii) It is necessary to protect the privacy of persons, as in cases of sexual offences or cases involving children; or

(iv) Publicity would prejudice the interests of justice.

(B) Unless otherwise ordered by the Chamber, no person may disclose information related to a closed session.

(C) If in the opinion of another sovereign State, disclosure of information would prejudice its national security, reasonable steps, including closed sessions, will be taken by the Chamber to ensure that legitimate national security interests of the State are not prejudiced. If a State remains concerned about its national security interests after the decision of the Chamber, the State may appeal to the Appeals Chamber . Any such appeal must be produced within 7 days of the date of its issue. If a State files an appeal, the proceedings of the Trial Chamber will be stayed until the appeal is decided.

Rule 76: Control of Proceedings

(A) The Trial Chamber may exclude a person from the proceedings in order to protect the right of the accused to a fair and public trial, or to maintain the dignity and decorum of the proceedings.

(B) The Trial Chamber may order an accused to be removed from the proceedings and continue the proceedings in his absence if he persists in disruptive conduct . In the event of removal, where possible, provision should be made for the accused to follow the proceedings that he missed.

Rule 77: Records of Proceedings and Preservation of Evidence

(A) The Director shall cause to be made and preserve a full and accurate record of all proceedings, including audio recordings, transcripts and, when deemed necessary by the Trial Chamber, video recordings.

(B) The Trial Chamber may order the disclosure of all or part of the record of closed proceedings when the reasons for ordering the non-disclosure no longer exist.

(C) The Director shall retain and preserve all physical evidence offered during the proceedings.

Section 2: Case Presentation

Rule 78: Joint and Separate Trials

The provisions of the law of criminal proceedings No.23 of 1971 should be applied regarding
Joint and Separate Trials.

Rule 79: Instruments of Restraint

Instruments of restraint shall be removed when the accused appears before a Chamber unless otherwise ordered by the Chamber.

Rule 80: Commencement of Trial

(A) Except where expressly required by the Statute or these Rules, the trial will generally be conducted in accordance with the procedures in Article 167 of the Criminal Proceedings law No.23 of 1971 of Iraq.

Rule 81: Presentation of Evidence

(A) Take in account the provisions of article168 Iraqi criminal proceeding law , Examination-in-chief, cross-examination and re-examination shall be allowed for each case. The party calling a witness shall conduct the examination-in-chief. The party who did not call a witness shall conduct the cross-examination. After cross-examination, the party calling a witness shall conduct the re-examination. A Judge may at any stage put any question to the witness. The accused may not directly question any witness.

(B) Evidence may be given directly in court, or via such communications media (including video or closed circuit television) as the Trial Chamber may order.

Rule 82: Judgement

(A) The judgement shall be pronounced in public, on a date of which notice shall have been given to the parties and counsel and at which they shall be entitled to be present.

(B) If the Trial Chamber finds the accused guilty of a crime, the Trial Chamber may order the forfeiture of any property, proceeds or other assets acquired unlawfully or by criminal conduct as provided for in Rule 116 – Forfeiture of Property, or in accordance with Article 183 of the Criminal Procedure Code of Iraq.

(C) The judgement shall be rendered by a majority of the five Trial Judges assigned to the Trial Chamber that heard the case. It shall be accompanied by a reasoned opinion in writing. Separate or dissenting opinions may be appended with the file of the case.

Section 3: Rules of Evidence

Rule 83: General Provisions

(A) A Chamber shall apply the rules of evidence set forth in these Rules as well as the rules set forth in criminal procedure law No.23 of 1971, and shall not be bound by rules of evidence used in any other forum.

(B) In cases not otherwise provided for in other laws , a Chamber shall apply rules of evidence which will best favor a fair determination of the matter before it and are consonant with the spirit of the Statute and general principles of law.

(C) A Chamber may admit any relevant evidence which it deems to have probative value.

(D) A Chamber may exclude evidence if its probative value is substantially outweighed by the potential for unfair prejudice, considerations of undue delay, waste of time, or needless presentation of cumulative evidence.
(E) The following factors should be considered when determining the admissibility of evidence under this rule:

(i) The authenticity of evidence obtained out of court;

(ii) The voluntariness of any statement and any circumstances that might verify or impugn the statement;

(iii) The extent to which evidence involves hearsay regarding a material issue before the Chamber and, with respect to such hearsay, the extent to which the declarant could be made available to testify and the extent to which the hearsay is attended by circumstantial guarantees of trustworthiness; and

(iv) Whether the means by which the evidence obtained casts substantial doubt on its reliability.

Rule 84: Testimony of Witnesses

(A) Witnesses may give evidence directly, or as described in Rules 64 and 80. A Chamber may consistent with Rule 83(D), permit the testimony of witnesses by telephone, audiovisual means, or other means; however, the Chamber shall consider the ability to test the veracity of that testimony in evaluating the weight to be given to the witness’s testimony.

(B) Adult witnesses shall, before giving evidence, make the following solemn declaration:

“I swear by God that I will speak the truth, the whole truth and nothing but the truth.”

The Chamber may use another formulation that appeals to the conscience of the witness and binds the witness to speak the truth. The Chamber may still hear a witness who refuses to make a solemn declaration, but it shall consider the refusal when evaluating the weight to be given to the witness’s testimony. A witness who falsely testifies after refusing to make a solemn declaration is still subject to the penalties .

(C) A child shall be permitted to testify if the Chamber finds that he is sufficiently mature to be able to report the facts of which he has knowledge, that he understands the duty to tell the truth, and that he is not subject to undue influence.

(D) A witness may refuse to make any statement which might tend to incriminate him. However, if the Chief Prosecutor provides a written grant of testimonial immunity to a witness then that witness may not decline to answer any question. Additionally, the Trial Chamber may compel a witness to answer incriminating questions. Witness testimony compelled by the Chief Prosecutor or by the Trial Chamber shall not be used as evidence in a subsequent prosecution against the witness in any Iraqi court for any offence including false testimony.

(E) If the accused elects to testify during the presentation of the Defense case then the accused can not refuse to answer any relevant question by either party or the Trial Chamber.

(F) The Trial Chamber shall exercise control over the mode and order of interrogating witnesses and presenting evidence so as to encourage the ascertainment of the truth, and to discourage the wasting of time.

Rule 85: False Testimony

(A) A Chamber, on its own initiative or at the request of a party, may warn a witness of the duty to tell the truth and the consequences that may result from a failure to do so.

(B) If a Chamber has strong grounds for believing that a witness may have knowingly and wilfully given false testimony, the Chamber may request the investigations Chambers to take the legal procedures against him.

(C) Sub-Rules (A) to (C) shall apply to a person who knowingly and wilfully makes a false statement in a written statement which the person knows, or has reason to know, may be used in evidence in proceedings before the Special Tribunal.
(B)

Rule 86: Testimony of Expert Witnesses

(A) Testimony may be received from a witness qualified as an expert by knowledge, skill, experience, training, or education, who has scientific, technical, or other specialized knowledge that will assist the Trial Chamber to understand the evidence.

If any party wishes to provide a written statement of an expert witness in lieu of oral testimony, the full statement of the witness shall be disclosed to the opposing party as early as practicable .
(B)
(C) After the filing of the statement of the expert witness, the opposing party shall file a notice to the Trial Chamber within 7 days indicating whether it accepts the expert witness statement or
it wishes to cross-examine the expert witness.

(D) If the opposing party accepts the statement of the expert witness, the statement should be admitted into evidence by the Trial Chamber without calling the witness to testify in person.

Rule 87: Rules of Evidence in Cases of Sexual Assault

(A) In cases of sexual assault and if there is reasonable cause, no corroboration of the victim’s testimony shall be required.

(B) Consent shall not be allowed as a defense if the victim

(i) has been subjected to or threatened with or has had reason to fear violence, duress, detention or psychological oppression, or reasonably believed that if the victim did not submit, another might be so subjected, threatened or put in fear.

(C) Before evidence of the victim’s consent is admitted, the accused shall satisfy the Trial Chamber that the evidence is relevant and credible.

Section 4: Sentencing Procedure

Rule 88: Status of the Acquitted Person

(A) If, at the time the judgement of acquittal is pronounced, the Prosecutor advises the Trial Chamber in open court of his intention to file notice of appeal within the legal duration from the date on which the full judgement and sentence are rendered , the Trial Chamber may issue an order for the continued detention of the accused, pending the determination of the appeal.

(B) In case of acquittal, when the prosecutor has no intention to appeal pursuant to sub-Rule (A) above ,and there is no other case against the accused, the Special Tribunal shall order the release of the accused

Rule 89: Penalties

(A) In determining a sentence, the Trial Chamber shall take into account the factors mentioned in Article 24 of the Statute, as well as such factors as:

(i) Any aggravating circumstances;

(ii) Any mitigating circumstances including the substantial cooperation with the Chief Prosecutor or an Investigative Judge by the convicted person before or after conviction; and

(iii) Apply provisions of Article 30 (c) of the statute.

(B) The Trial Chamber shall indicate whether multiple sentences of imprisonment shall be served consecutively or concurrently.

(C) Credit shall be given to the convicted person for the period, if any, during which the convicted person was detained in the custody of Iraqi government officials pending his surrender to the Special Tribunal or pending trial or appeal. Such credit shall not be given for the period, if any, during which the accused was detained pursuant to the detention authority of another sovereign unless that sovereign was acting solely at the bequest of the Iraqi council of minisres or the successor government,take in account the date of resuming the sovereign in July 1,2004 .

Rule 90: The Implementation of the judgment

(A) the judgement shall be implemented in accordance with these rules and the provisions of Iraqi criminal proceedings law No.23 of 1971.

(B) If, by a previous decision of the Trial Chamber, the convicted person has been provisionally released, or is otherwise at liberty, and he is not present when the judgement is pronounced, the Trial Chamber shall issue a warrant for his arrest. On arrest, he shall be notified of the conviction and sentence, and the procedure provided in Rule 88 shall be followed.

Rule 91: Forfeiture of Property

(A) After a judgement of conviction containing a specific finding as provided in Rule 82(B), the Trial Chamber, at the request of the Prosecutor or at its own initiative, may hold a special hearing to determine the matter of property forfeiture .

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PART VIII – APPELLATE PROCEEDINGS
Rule 92: The Apeal

The appellate proceedings and the time limit for the appeal should be consistent with the statute of Iraqi special Tribunal and criminal proceedings law No.23 of 1971

PART VIIII – REVIEW THE TRIAL

Rule 93:REVIEW THE TRIAL

The procedures of reviewing a trial should be consistent with the statute of Iraqi special tribunal and criminal proceedings law No.23 of 1971.


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