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: AdministrationDepartment 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 inarticle8 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 befiled 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 officeand 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.