Practice Relating to Rule 100. Fair Trial Guarantees
Section E. Necessary rights and means of defence
The Military Manual (1993) of the Netherlands provides, with regard to non-international armed conflicts, that a suspect “must be given the necessary rights and means of defence”.
The Military Manual (2005) of the Netherlands states: “A prisoner of war may not … renounce the right of defence by authorized counsel if he is subject to criminal prosecution.”
In its chapter on the protection of prisoners of war, the manual states: “A prisoner of war may not be convicted without having had an opportunity to present his defence … The prisoner of war is entitled to defence by an authorized counsel of his own choice, and to the calling of witnesses”.
In its chapter on the protection of the civilian population, the manual states: “The occupying power may institute courts martial in the occupied territory. No judgment may be delivered without prior, due process in which the accused is entitled to the assistance of legal counsel.”
In its judgment in the Hesammudin case in 2005, the Hague District Court of the Netherlands stated:
The right to fair trial, as laid down in Article 6 ECHR [1950 European Convention on Human Rights], implies that in criminal cases each party is given reasonable opportunity to state its view without falling substantially behind. Both parties must be given the possibility to bring forward items of evidence to support their own point of view and they must be able to learn about and to take a position concerning everything presented as items of evidence, in order to be able to influence the judgment of the Court.
In its judgment in the Van Anraat case in 2005, the Hague District Court of the Netherlands stated:
In general, with respect to the “equality of arms” principle the court has the following considerations. The equality between prosecution and defense basically has a procedural character and implies that counsel for the defense should not find itself in an unreasonably unequal position as opposed to the prosecuting authorities. Equality of arms is also protected in international administration of criminal justice (ICTY, Tadic, case number IT-94-1-A, sentence of appeal proceedings, 15 July 1999, paragraph 52). Just like the Tadic case, the court recognizes the problems facing the defense in criminal cases of such complexity and international magnitude. However it should be considered that in comparison with Dutch criminal procedures, international criminal procedures are of a totally different nature.
Just like the legal practice of common law, international criminal lawsuits focus on the collection of evidence by the suit litigants, largely or exclusively in support of their own point of view. The fact that in Dutch criminal proceedings the litigants really occupy different positions in respect of each other and that this positioning by the prosecution as well as by the judicial authorities should lead to the gathering of evidence, also taking into consideration the interest of the defense, undeniably has its consequences for the contents and the meaning of the “equality of arms” principle. In as far as the defense asserts that the efforts of the prosecuting and judicial authorities have not met their own investigation requirements, the Code of Criminal Procedure allows for sufficient possibilities for additional inquiries (see Article 36a C.C.P.). Moreover the court has demonstrated the willingness, also from a practical point of view, to satisfy reasonable requests made by the defense, like the assignment of more than one lawyer and the allowance of an amount of money to the defense lawyers in order to seek specialist advice.
During the court hearing counsel pleaded a violation of the equality of arms principle, because the defense allegedly has not been able to access certain sources or source collections in the same way as the public prosecution service. The defense has not been able to exert an influence on the selection of documents obtained from Human Rights Watch and the United Nations and therefore counsel has not been able to establish whether disculpatory sources were excluded from the case file.
The court refuses this plea, arguing that is has not become evident that those documents could be of any interest to the decision to be taken by the court.
Finally the defense pleaded a violation of the equality of arms principle, because counsel was allegedly not able to carry out its own investigations abroad, including countries in the Middle East, because the defense counsel assists the accused on an assignment basis and consequently does not have sufficient financial means to order/carry out such an inquiry. Furthermore the defense asserts that it has not been able to carry out its own fact finding nor any investigation into the finding of possible disculpatory witnesses.
The court cannot see why the defense should not have been able to carry out independent investigations. After all the defense itself can make trips to that end and can also request the examining magistrate and the public prosecutor to institute a similar inquiry. Moreover the defense had the opportunity to hire its own expert. For lack of funds, the defense could have applied for an advance payment pursuant to the Tariffs in Criminal Proceedings Act. Furthermore the defense was provided with an advance payment to find its own expertise.