Disclosure

Notion(s) Filing Case
Decision on Disclosure - 17.04.2007 ŠEŠELJ Vojislav
(IT-03-67-AR73.5)

14. It is well established in the jurisprudence of the Tribunal that Trial Chambers exercise discretion in many different situations, including “when deciding points of practice or procedure”.[1] The Impugned Decision, which ruled on the form of materials to be disclosed by the Prosecution under Rules 66 and 68 of the Rules, was such a discretionary decision to which the Appeals Chamber must accord deference. Such deference is based on the recognition by the Appeals Chamber of “the Trial Chamber’s organic familiarity with the day-to-day conduct of the parties and practical demands of the case.”[2] As previously held by the Appeals Chamber, “[w]here an appeal is brought from a discretionary decision of a Trial Chamber, the issue in that appeal is not whether the decision was correct, in the sense that the Appeals Chamber agrees with that decision, but rather whether the Trial Chamber has correctly exercised its discretion in reaching that decision”.[3] Thus, when challenging a discretionary decision, the moving party must establish that the Trial Chamber committed a “discernible” error resulting in prejudice to that party.[4] The Appeals Chamber will only overturn a Trial Chamber’s exercise of its discretion where it is found to be “(1) based on an incorrect interpretation of governing law; (2) based on a patently incorrect conclusion of fact; or (3) so unfair or unreasonable as to constitute an abuse of the Trial Chamber’s discretion.”[5]

[1] Prosecutor v. Slobodan Milošević, Case Nos. IT-99-37-AR73, IT-01-50-AR73, IT-01-51-AR73, Reasons for Decision on Prosecution Interlocutory Appeal From Refusal to Order Joinder, 18 April 2002 (“Milošević Decision on Joinder”), para. 3; see also Prosecutor v. Jadranko Prlić et al., Case No. IT-04-74-AR73.4, Decision on Prosecution Appeal Concerning the Trial Chamber’s Ruling Reducing Time for the Prosecution Case, 6 February 2007, para. 8; Prosecutor v. Jadranko Prlić et al., Case No. IT-04-74-AR73.2, Decision on Joint Defence Interlocutory Appeal against the Trial Chamber’s Oral Decision of 8 May 2006 Relating to Cross-Examination By Defence and on Association of Defence Counsel’s Request for Leave to File an Amicus Curiae Brief, 4 July 2006 (“Prlić Decision on Cross-Examination”), p. 3; Prosecutor v. Zdravko Tolimir et al., Case No. IT-04-80-AR73.1, Decision on Radivoje Miletić’s Interlocutory Appeal Against the Trial Chamber’s Decision on Joinder of Accused, 27 January 2006 (“Decision on Radivoje Miletić’s Interlocutory Appeal”), para. 4; Prosecutor v. Slobodan Milošević, Case No. IT-02-54-AR73.7, Decision on Interlocutory Appeal of the Trial Chamber’s Decision on the Assignment of Defence Counsel, 1 November 2004 (“Milošević Decision on the Assignment of Defence Counsel”), para. 9.

[2] Decision on Radivoje Miletić’s Interlocutory Appeal, para. 4; Milošević Decision on Defense Counsel, para. 9.

[3] Milošević Decision on Joinder, para. 4.

[4] Appeals Chamber’s Decision of 8 December 2006, para. 16; see also Prlić Decision on Cross-Examination, p. 3 citing Milošević Decision on Joinder, para. 4. See also ibid., paras. 5-6; see also Milošević Decision on the Assignment of Defence Counsel, para. 10; Decision on Radivoje Miletić’s Interlocutory Appeal, para. 6 citing Prosecutor v. Mićo Stanišić, Case No. IT-04-79-AR65.1, Decision on Prosecution’s Interlocutory Appeal of Mićo Stanišić’s Provisional Release, 17 October 2005 (“Stanišić Provisional Release Decision”), para. 6.

[5] Decision on Radivoje Miletić’s Interlocutory Appeal, para. 6 & n. 17 citing Stanišić Provisional Release Decision, para. 6 & n. 10. The Appeals Chamber will also consider whether the Trial Chamber “has given weight to extraneous or irrelevant considerations or that it has failed to give weight or sufficient weight to relevant considerations . . . .” Milošević Decision on Joinder, para. 5.

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Notion(s) Filing Case
Decision on Disclosure - 17.04.2007 ŠEŠELJ Vojislav
(IT-03-67-AR73.5)

19. […] The Trial Chamber considered the “particular circumstances” of Mr. Šešelj’s representation including the fact that he is “not officially assisted by persons fluent in one of the official languages of the Tribunal”,[1] and whether disclosure of Rule 66 (A) and (B) and Rule 68 (i) and (ii) materials in English and in electronic format would affect Mr. Šešelj’s rights under Article 21 of the Statute. It held that electronic disclosure of Rule 66 (A) and (B) and Rule 68(i) materials did not breach the fair hearing principle stipulated under Article 21 of the Statute so long as reasonable and necessary assistance in the circumstances is given to an accused and noted that Mr. Šešelj would be “entitled to receive from the Registry the basic equipment and training necessary to make effective use of material disclosed in electronic format”.[2] It also ruled that in addition to Rule 66(A) material, which expressly provides for disclosure in a language the accused understands, Rule 68(i) material should also be subject to the same language requirement, because of the crucial impact of such material on the accused’s guilt or innocence.[3] Mr. Šešelj does not provide any references to the jurisprudence that the Trial Chamber allegedly disregarded in reaching the Impugned Decision. Neither does Mr. Šešelj demonstrate in what way the Impugned Decision violated his rights under Article 21 of the Statute.

[1] Impugned Decision, para. 7.

[2] Ibid., paras 12-13.

[3] Ibid., para. 15.

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Notion(s) Filing Case
Decision on EDS Disclosure - 28.11.2013 MLADIĆ Ratko
(IT-09-92-AR73.2)

26. […] However, while Rule 68(ii) of the Rules clearly requires disclosure in electronic form, it neither designates a particular electronic form as an official disclosure method, nor does it or any other provision in the Rules stipulate that the Prosecutor must use a particular type of electronic disclosure to the exclusion of other electronic forms.

27. Similarly, the jurisprudence does not designate the EDS or any other form of electronic disclosure as the official method, nor does it support a conclusion that one method of electronic disclosure is to be used to the exclusion of other methods. On the contrary, the Appeals Chambers of the Tribunal and the International Criminal Tribunal for Rwanda as well as various trial chambers have found that the provision of non-EDS resources, such as descriptive indices and written notices of disclosed material, are precisely the types of assistance that make EDS materials reasonably available and accessible to the Defence […]. 

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ICTR Rule Rule 68(B) ICTY Rule Rule 68(ii)
Notion(s) Filing Case
Appeal Judgement - 04.02.2013 MUGENZI AND MUGIRANEZA (Government II)
(ICTR-99-50-A)

63.       Based on the foregoing, the Appeals Chamber finds that the Prosecution violated its disclosure obligations under Rule 68 of the Rules to disclose exculpatory material from the Hategekimana, Ntagerura et al., and Ngirabatware cases as soon as practicable. However, having considered the exculpatory evidence against the evidence on the record, the Appeals Chamber is not persuaded that the disclosure violations materially impacted the cases of Mugenzi and Mugiraneza. In these circumstances, where any possible prejudice from the violation was minimal, no relief is warranted. However, both the Trial Chamber and the Appeals Chamber have found that the Prosecution violated its Rule 68 obligations in this case on previous occasions.[1] The Trial Chamber decided that the accused had been materially prejudiced by the Prosecution’s violation of its Rule 68 obligations to disclose exculpatory material as soon as practicable and accordingly decided to draw a reasonable inference in favour of the accused from the exculpatory material as a remedy.[2] The Appeals Chamber further recalls that the Trial Chamber qualified as “inexcusable” the Prosecution’s conduct vis-à-vis its Rule 68 disclosure obligations.[3] In light of those observations, it is clear that the Prosecution’s repeated violations of its obligations under Rule 68 of the Rules in this case negatively impacted the conduct of the proceedings and prejudiced the interests of justice. The Appeals Chamber therefore firmly reminds the Prosecution of the fundamental importance of its positive and continuous obligation to disclose exculpatory material under Rule 68 of the Rules.

[1] See, e.g., Decision on Motions for Relief for Rule 68 Violations, 24 September 2012, paras. 39, 44; Trial Judgement, paras. 175, 176.

[2] Trial Judgement, paras. 169, 174.

[3] Trial Judgement, para. 175.

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ICTR Rule Rule 68
Notion(s) Filing Case
Public Decision on Rule 70 - 23.10.2002 MILOŠEVIĆ Slobodan
(IT-02-54-AR108bis & AR73.3)

18. […] [Paragraph (B) of Rule 70] prevents the disclosure of information provided to the Prosecutor on a confidential basis where that information has been used solely for the purposes of generating new evidence, without the consent of the provider. It was designed to encourage States and others (such as humanitarian organisations operating in the relevant territory) to assist the Prosecution (or, under paragraph (F) of the Rule, the Defence). The provider must consent before this information may be disclosed any further – by being presented in evidence or otherwise. If the information is to be disclosed in evidence, it must be disclosed to the accused in accordance with Rule 66, as paragraph (B) provides.[1] […]

19. The purpose of Rule 70(B) to (G) is to encourage States, organisations, and individuals to share sensitive information with the Tribunal. The Rule creates an incentive for such cooperation by permitting the sharing of information on a confidential basis and by guaranteeing information providers that the confidentiality of the information they offer and of the information’s sources will be protected.[2] As Trial Chamber I explained several years ago, “the exceptions to disclosure in Sub-rules 70(B) to (E) were introduced into the rules to permit the use, as and when appropriate, of certain information which, in the absence of explicit provisions, would either not have been provided to the Prosecutor or have been unusable on account of its confidential nature or its origin.”[3] As another Trial Chamber has observed, without such guarantees of confidentiality, it is “almost impossible to envisage this Tribunal, of which the Prosecution is an integral organ, being able to fulfil its functions.”[4]

20. The phrases “information under this Rule” and “testimony, document or other material so provided” in paragraph (C),[5] and “information provided under this Rule” in paragraph (D),[6] are intended to relate back to the “information which has been provided” referred to in paragraph (B).[7] […] Paragraphs (C) and (D) deal with the situation where the provider has already given its consent to the information being disclosed further, by being presented in evidence in one form or another. By definition, the information is by this stage no longer being “used solely for the purpose of generating new evidence”. It becomes a matter of necessary textual interpretation, therefore, that the information referred to in paragraphs (C) and (D) must be that which was provided to the Prosecutor on a confidential basis […], and not that which was so provided and which has been used solely for the purpose of generating new evidence […]. […]

21. The Trial Chamber […] impermissibly introduced a requirement into Rule 70 that the sole purpose of providing the information was to generate new evidence, whereas paragraph (B) speaks only of the material having been used solely for that purpose. No doubt the purpose of providing information on a confidential basis will in many cases include a purpose (sole or otherwise) that new evidence will thereby be generated, but the limitations imposed by Rule 70(B) are not based upon the existence of such state of mind on the part of the provider.

[…]

23. The fact that information is provided in the form of testimony does not exclude it from being “information” or “initial information” provided under the Rule. Indeed, paragraph (C) of the Rule expressly refers to the “testimony, document, or other material so provided.” (emphasis added). […] When a person possessing important knowledge is made available to the Prosecutor on a confidential basis, not only the informant’s identity and the general subject of his knowledge constitute the “information” shielded by Rule 70, but also the substance of the information shared by the person – often, as in this case, presented in summary form in a witness statement.

[…]

25. All that Rule 70 requires is that the information “was provided to the Prosecutor on a confidential basis.” As mentioned in paragraph 20 supra, for purposes of paragraph (B), the information must also be “used solely for the purpose of generating new evidence,” but for paragraphs (C) and (D) that requirement necessarily drops out, for once the information is introduced as evidence at trial, it by definition is no longer “used solely for the purpose of generating new evidence.”

26. […] The Appeals Chamber observes that two safeguards exist to ensure that any misuse does not deprive accused persons of their rights to challenge the evidence against them and to receive a fair trial.[8] First, as explained more fully below in section D.2, the Trial Chambers do possess a limited authority to police the application of Rule 70 in order to prevent its misapplication. Second, paragraph (G) of Rule 70 expressly empowers the Trial Chambers to “exclude evidence if its probative value is substantially outweighed by the need to ensure a fair trial.” Designed to ensure that the restrictions in paragraphs (C) and (D) do not undermine the bedrock requirement of fair trial when the Rule is properly invoked, paragraph (G) also gives Trial Chambers a tool to protect that requirement if the Rule has been misused.

[…]

29. […] Chambers of the Tribunal do indeed have the authority to assess whether information has been provided in accordance with Rule 70(B) and so benefits from the protections afforded by that Rule. However, such enquiry must be of a very limited nature: it only extends to an examination of whether the information was in fact provided on a confidential basis, bearing in mind that the providing of information may not be confined to a single act, but may consist of a process involving several acts. This is an objective test. The Chambers may be satisfied of this simply by a consideration of the information itself, or by the mere assertion of the Prosecutor, or they may require confirmation from the information provider or, where the information is in the form of a document, for example, there may be something on the face of the document which indicates that it was indeed provided on a confidential basis.

[…]

31. […] Where […] there is any doubt upon the face of the material placed before a Trial Chamber when the protections of Rule 70 are sought, the Trial Chamber should invite the party which provided the information and the Prosecutor to supply evidence upon these issues before ruling upon the application of Rule 70 to the information in question. The Trial Chamber should give the information provider an opportunity to be heard on the question by filing written submissions, but need not allow additional oral submissions by the information provider unless the Trial Chamber determines that the interests of justice so require.

[1] “[…] and shall in any event not be given in evidence without prior disclosure to the accused.”

[2]  In general terms, the Trial Chamber appears to have recognised this basic purpose.  See Impugned Decision, §5.

[3]  Prosecutor v. Blaškić, IT-95-14-T, “Decision of Trial Chamber I on the Prosecutor’s Motion for Video Deposition and Protective Measures”, 13 November 1997, §10 (“Blaškić Decision”); see also Prosecutor v. Brđanin & Talić, IT-99-36-T, “Public Version of the Confidential Decision on the Alleged Illegality of Rule 70, 6 May 2002”, §17 (“Brđanin & Talić Decision”).

[4]  Brđanin & Talić Decision, §18.

[5] “[…] after obtaining the consent of the person or entity providing information under this Rule, the Prosecutor elects to present as evidence any testimony, document or other material so provided […].”

[6] “[…] introduce in evidence any information provided under this Rule, […].”

[7] “[…] the Prosecutor is in possession of information which has been provided […].”

[8]  See Statute Article 21(2), (4)(e).

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ICTR Rule Rule 70 ICTY Rule Rule 70
Notion(s) Filing Case
Decision on Exhibit P105 - 12.09.2006 NAHIMANA et al. (Media case)
(ICTR-99-52-A)

The Appeals Chamber specified that the Prosecution’s obligation under Rule 68 only covers the exculpatory material which is in its possession. In the present case, the Prosecution was found to have acted in compliance with this provision.

12. Il ressort clairement de l’article 68 B) du Règlement que l’obligation du Procureur de communiquer des éléments de preuve à décharge est subordonnée à sa possession de tels éléments[1]. Or, à la lumière de ce qui précède, la Chambre d’appel constate que le Procureur s’est suffisamment expliqué sur la manière dont l’enregistrement de l’interview a été recueilli ainsi que sur son caractère incomplet, en précisant qu’il s’agissait de la seule version en sa possession. La demande de l’Appelant tendant à ce que la Chambre d’appel ordonne au Procureur de s’expliquer sur le caractère incomplet de l’enregistrement de l’interview et de le verser au dossier ne peut donc prospérer.

[1] Voir, e.g., Juvénal Kajelijeli v. The Prosecutor, Case. No. ICTR-98-44-A, Judgement, 23 May 2005, para. 262; Le Procureur c/ Tihomir Blaškić, affaire n°IT-95-14-A, Arrêt, 29 juillet 2004, par. 268; Le Procureur c/ Tihomir Blaškić, affaire n°IT-95-14-A, Arrêt relatif aux requêtes de l'Appelant aux fins de production de documents, de suspension ou de prorogation du délai de dépôt du mémoire et autres, 26 septembre 2000, par. 31, 40.

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ICTR Rule Rule 68 ICTY Rule Rule 68
Notion(s) Filing Case
Decision on Further Investigations - 08.12.2006 NAHIMANA et al. (Media case)
(ICTR-99-52-A)

The Appeals Chamber reiterated that Rule 66(B) applies to appellate proceedings and that, consequently, the Prosecution, on request of the Defence, has to permit the inspection of any material which is capable of being admitted on appeal or which may lead to the discovery of material which is capable of being admitted on appeal. It also noted that purely inculpatory material is not necessarily immaterial for the preparation of the Defence.

9. La Chambre d’appel rappelle que l’article 66(B) du Règlement s’applique en appel à la condition que les éléments de preuve visés par la demande d’examen de la Défense aient été indisponibles lors du procès[1]. L’applicabilité de l’article 66(B) à la procédure d’appel implique que le Procureur doive permettre à la Défense de prendre connaissance des éléments qui « soit sont nécessaires à la préparation de la défense de l’accusé, soit seront utilisés par le Procureur comme moyens de preuve au procès, soit ont été obtenus de l’accusé ou lui appartiennent »[2]. A cet égard, la Chambre d’appel rappelle que les pièces exclusivement à charge ne sont pas nécessairement inutiles à la préparation de la défense de l’accusé et que le Procureur devrait déterminer si « les questions auxquelles se rapportent les pièces en question sont […] l’objet d’un motif d’appel » ou si « les pièces en question peuvent raisonnablement permettre à la Défense de faire de nouvelles investigations et donner lieu à la découverte de moyens supplémentaires admissibles en vertu de l’article 115 du Règlement »[3]. Par conséquent, il appartient au Procureur de permettre à l’Appelant de prendre connaissance de « tout élément susceptible d’être admis en appel ou qui pourrait donner lieu à la découverte d’éléments de preuve susceptibles de l’être »[4].

[1] Georges Anderson Nderumbumwe Rutaganda c/ Le Procureur, affaire n°ICTR-96-3-A, Décision, sur “Prosecution’s Urgent Request for Clarification in Relation to the Applicability of Rule 66(B) to Appellate Proceedings and Request for Extension of the Page Limit Applicable to Motions”, 28 juin 2002, p. 3.

[2] Le Procureur c/ Radislav Krstić, affaire n°IT-98-33-A, Décision [confidentielle] relative à la Requête de l’Accusation aux fins d’être dispensée de son obligation de communiquer des informations sensibles en application de l’article 66(C) du Règlement, 27 mars 2003, p. 4.

[3] Ibid., p. 5, [Le Procureur c/ Radislav Krstić, affaire n°IT-98-33-A, Décision [confidentielle] relative à la Requête de l’Accusation aux fins d’être dispensée de son obligation de communiquer des informations sensibles en application de l’article 66(C) du Règlement, 27 mars 2003].

[4] Id., [Le Procureur c/ Radislav Krstić, affaire n°IT-98-33-A, Décision [confidentielle] relative à la Requête de l’Accusation aux fins d’être dispensée de son obligation de communiquer des informations sensibles en application de l’article 66(C) du Règlement, 27 mars 2003].

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ICTR Rule Rule 66 ICTY Rule Rule 66
Notion(s) Filing Case
Decision on Further Investigations - 08.12.2006 NAHIMANA et al. (Media case)
(ICTR-99-52-A)

The Appeals Chamber found that, in the circumstances of the case, the Prosecution was not in breach of its Rule 66(B) disclosure obligation since the material at stake was available via EDS.

10. La Chambre d’appel prend note du fait que le Procureur a informé la Défense de la disponibilité des dossiers MINALOC et MRND et des déclarations de Joseph Serugendo après le dépôt de la Requête de l’Appelant alors qu’il aurait pu le faire plus tôt[1]. Cependant, l’Appelant n’a pas fait état, jusqu’à ce jour, de difficultés dans l’obtention des documents via EDS.[2] En conséquence, la Chambre d’appel considère que la demande de communication sur la base de l’article 66 du Règlement relative à ces documents est sans objet.

[1] [footnote omitted].

[2] En même temps et vu que le Procureur semble se référer aux articles 66 et 68 du Règlement en invoquant le fait que les documents en question sont disponibles sur EDS (Réponse à la Requête du 10 octobre 2006, par. 17-19), la Chambre d’appel tient à rappeler que le simple fait pour le Procureur d’introduire une pièce dans EDS ne revient pas nécessairement à s’acquitter de ses obligations au titre de l’article 68 du Règlement et à donner à un accusé la possibilité d’y « avoir aisément accès » (The Prosecutor v. Édouard Karemera et al., Case No. ICTR-98-44-AR73.7, Decision on Interlocutory Appeal Regarding the Role of the Prosecutor’s Electronic Disclosure Suite in Discharging Disclosure Obligations, 30 juin 2006 (« Décision Karemera du 30 juin 2006 »), par. 15 ; Décision Bralo du 30 août 2006, par. 35).

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ICTR Rule Rule 66 ICTY Rule Rule 66
Notion(s) Filing Case
Decision on Further Investigations - 08.12.2006 NAHIMANA et al. (Media case)
(ICTR-99-52-A)

The Appeals Chamber further specified that the burden of proving an alleged breach of the disclosure obligations lies on the Defence who must identify specifically the materials sought, and prove the Prosecutor's custody or control of the materials requested. Finally, before ordering any remedy for a proven breach of such obligations, the Appeals Chamber will still examine whether the Defence has actually been prejudiced. In the present case, the Appeals Chamber found that the Prosecution correctly exercised its discretion and that the Appellant failed to show that the material at stake could fall under Rule 68 of the Rules.

7. […] Lorsque la Défense estime qu’une violation de l’article 68 du Règlement a été commise, il lui appartient de soumettre à la Chambre tout commencement de preuve de nature à rendre vraisemblable le caractère disculpatoire des éléments de preuve en question ainsi que leur détention par le Procureur[1]. Même si un appelant démontre que sa demande a été suffisamment précise et que le Procureur ne s’est pas acquitté de ses obligations, la Chambre d’appel n’envisagera d’émettre une ordonnance de communication que s’il est démontré que ces manquements ont porté préjudice à l’appelant[2].

8. […] La Chambre d’appel relève que le Procureur a déterminé que les documents demandés ne répondaient pas aux critères énoncés par l’article 68 du Règlement[3] et que l’Appelant n’a pas démontré en quoi le jugement du Procureur, selon lequel ces documents ne contiennent pas de moyens de preuve disculpatoires, est abusif en l’espèce. A cet égard, la Chambre d’appel relève notamment que l’Appelant se réfère lui-même à ces documents comme étant « pertinents » à son affaire et « nécessaires à la défense » et se contente d’affirmer qu’ils « contiennent des éléments à décharge » [4] sans expliquer davantage en quoi ils peuvent le « mettre hors de cause »[5] ou atténuer sa responsabilité individuelle.

[1] Décision Barayagwiza du 8 décembre 2006, par. 34 ; Décision Brđanin du 7 décembre 2004, p. 3 ;  Décision Bralo du 30 août 2006, par. 31; Juvénal Kajelijeli v. The Prosecutor, Case No. ICTR-98-44A-A, Judgement, 23 mai 2005 (« Arrêt Kajelijeli »), par. 262.

[2] Décision Barayagwiza du 8 décembre 2006, par. 34 ; Décision Bralo du 30 août 2006, para. 31; Arrêt Kajelijeli, para. 262; Arrêt Krstić, par. 153.

[3] Ibid., par. 11, [Réponse du Procureur à la « Requête aux fins de divulgation d’éléments en possession du Procureur et nécessaires à la Défense de l’Appelant », 20 juillet 2006].

[4] Requête du 10 juillet 2006, par. 18, [Requête aux fins de divulgation d’éléments en possession du Procureur et nécessaires à la Défense de l’Appelant, 10 juillet 2006].

[5] Requête du 10 juillet 2006, par. 14.

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ICTY Rule Rule 68 bis
Notion(s) Filing Case
Decision on Further Investigations - 08.12.2006 NAHIMANA et al. (Media case)
(ICTR-99-52-A)

The Appeals Chamber recalled that the Prosecution’s disclosure obligations under Rule 68 of the Rules are positive and continuous and consist of its duty to, as soon as practicable, disclose to the Defence any material which in its actual knowledge may suggest the innocence or mitigate the guilt of the accused or affect the credibility of Prosecution evidence. The Appeals Chamber also noted that the assessment of such material lies with the Prosecution’s discretion which is presumed to be exercised bona fide, unless proven to be abusive.

7. La Chambre d’appel rappelle que les éléments de preuve relevant de l’article 68 du Règlement sont ceux de nature à disculper en tout ou en partie l’accusé ou à porter atteinte aux éléments de preuve du Procureur[1] et que l’obligation de communiquer ces éléments est une obligation permanente qui subsiste après le procès en première instance, y compris durant la procédure d’appel[2]. Etant donné que c’est au Procureur qu’il appartient de déterminer quels sont les documents qui répondent aux critères énoncés par l’article 68 du Règlement, la Chambre d’appel présume que le Procureur agit de bonne foi et elle n’intervient pas dans l’exercice de cette appréciation discrétionnaire à moins qu’il ne soit démontré que le jugement du Procureur en la matière est abusif[3]. […]

[1] Le Procureur c/ Radislav Krstić, affaire n° IT-98-33-A, Arrêt, 19 avril 2004 (ci-après « Arrêt Krstić »), par. 178. See also Decision on Appellant Jean-Bosco Barayagwiza’s Motions for Leave to Present Additional Evidence Pursuant to Rule 115 of the Rules of Procedure and Evidence, 8 décembre 2006 (« Décision Barayagwiza du 8 décembre 2006 »), par. 34.

[2] Decision on Appellant Jean-Bosco Barayagwiza’s Motion Requesting that the Prosecution Disclosure of the Interview of Michel Bagaragaza Be Expunged from the Record, 30 octobre 2006, (ci-après “Décision Barayagwiza du 30 octobre 2006”), par. 6; Decision on Motions Relating to the Appellant Hassan Ngeze’s and Prosecution’s Requests for Leave to Present Additional Evidence of Witnesses ABC1 and EB, 27 novembre 2006 (« Décision Ngeze du 27 novembre 2006 »), par. 11; Le Procureur c/ Radoslav Brdjanin, affaire n°IT-99-36-A, Décision relative aux requêtes par lesquelles l’Appelant demande que l’Accusation s’acquitte de ses obligations de communication en application de l’article 68 du Règlement et qu’une ordonnance impose au Greffier de communiquer certains documents, 7 décembre 2004 (ci-après « Décision Brđanin du 7 décembre 2004 »), p. 3 ; Prosecutor v. Miroslav Bralo, Case No. IT-95-17-A, Decision on Motions for Access to Ex Parte Portions of the Record on Appeal and for Disclosure of Mitigating Material, 30 août 2006 (ci-après “Décision Bralo du 30 août 2006”), par. 29;

[3] Décision Barayagwiza du 8 décembre 2006, par. 34 ; Décision Barayagwiza du 30 octobre 2006, par. 6 ; Georges Rutaganda v. The Prosecutor, Case No. ICTR-96-3-A, Decision on Urgent Defence Motion for Disclosure and Admission of Additional Evidence and Scheduling Order, 12 décembre 2002, pp 4-5 ; Alfred Musema v. The Prosecutor, Case No. ICTR-96-13-A, Decision on the Appellant’s Motions for the Production of Material, Suspension of Extension of the Briefing Schedule, and Additional Filings, 18 mai 2001, p. 4; Décision Brđanin du 7 décembre 2004, p. 3 ; Décision Bralo du 30 août 2006, par. 30-31 ; Prosecutor v. Edouard Karemera et al., Case No. ICTR-98-44-AR73.6, Decision on Joseph Nzirorera’s Interlocutory Appeal, 28 avril 2006, par. 16; Décision Brđanin du 7 décembre 2004 , p. 3-4; Le Procureur c/ Tihomir Blaškić, affaire n° 95-14-A, Arrêt, 29 juillet 2004 (“Arrêt Blaškić”), par. 264 ; Prosecutor v. Tihomir Blaškić, Case No IT-95-14-A, Decision on Prosecution’s Application to Seek Guidance from the Appeals Chamber regarding Redaction of the Statement of “Witness Two” for the purposes of Disclosure to Dario Kordić under Rule 68, 4 mars 2004, (« Décision Blaškić du 4 mars 2004 »), par. 44 ; Prosecutor v. Tihomir Blaškić, Case No IT-95-14-A, [Confidential] Decision on Prosecution’s Application to Seek Guidance from the Appeals Chamber regarding Redaction of the Statement of “Witness Two” for the purposes of Disclosure to Paško Ljubičić under Rule 68, 30 mars 2004 (« Décision Blaškić du 30 mars 2004 »), par. 31-32 ; Prosecutor v. Tihomir Blaškić, Case No. IT-95-14-A, Decision on the Appellant’s Motions for the Production of Material, Suspension or Extension of the Briefing Schedule, and Additional Filings, 26 septembre 2000 (« Décision Blaškić du 26 septembre 2000 »), par. 38, 39 et 45 ; Prosecutor v. Miroslav Kvočka et al., Case No. IT-98-30/1-A, Decision, 22 mars 2004, p. 3. 

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ICTR Rule Rule 68 ICTY Rule Rule 68
Notion(s) Filing Case
Decision on Rebuttal Material - 13.12.2006 NAHIMANA et al. (Media case)
(ICTR-99-52-A)

14. The Appeals Chamber reiterates that Rule 66(B) applies to appellate proceedings and that, consequently, the Prosecution, on request of the Defence, “has to permit the inspection of any material which is capable of being admitted on appeal or which may lead to the discovery of material which is capable of being admitted on appeal”.[1] In this respect, the Appeals Chamber recalls that “purely inculpatory material is not necessarily immaterial for the preparation of the Defence”[2] and that the Prosecution shall provide the Defence with access to any documents that are material to the preparation of the Defence, with the exception of Rule 70 material and, if necessary, request from the Appeals Chamber permission to withhold any information provided by these sources under Rule 66(C) of the Rules.[3] […]

[1] Decision of 27 November 2006, para. 16; Prosecutor v. Radislav Krstić, Case No. IT-98-33-A, Confidential Decision on the Prosecution’s Motion to Be Relieved of Obligation to Disclose Sensitive Information Pursuant to Rule 66(C), 27 March 2003, p. 4.

[2] Id.

[3] Decision of 27 November 2006, para. 16.

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Notion(s) Filing Case
Decision on Rebuttal Material - 13.12.2006 NAHIMANA et al. (Media case)
(ICTR-99-52-A)

14. […] The Appeals Chamber considers that the statements attached to the Investigation Report fall within the scope of Rule 66(B) and are not protected by Rule 70[1] and therefore, should have been communicated to the Appellant upon his request for them. The report also mentions two interviews with Witness EB conducted by the Prosecution’s Investigators in March 2006;[2] however, no information in this respect was communicated to the Appellant prior to the present Motion.[3]

15. In light of the above, the Appeals Chamber concludes that the Prosecution acted in violation of its obligations under Rule 66(B) in this case. […]

16. […] the Appeals Chamber has already considered that these documents are irrelevant to the preparation for the appeals hearing on 16 January 2007[4] and therefore finds that the question as to whether the Prosecution acted in violation of Rule 66(B) with respect to these documents needs not be considered.

[1] See Decision of 27 November 2006, para. 14.

[2] Motion, Annex 6, p. 3 of the Rapport d’enquête and annex 2 thereto (e-mail from Mr. Aaron Musonda to Mr. James Stewart on the results of the interview with Witness EB on 7 March 2006).

[3] The Appeals Chamber notes the “Prosecutor’s Disclosure of Relevant Pages of the Gacaca Records Book Pertinent to Prosecution Witness EB’s Testimony before the Gacaca, [REDACTED]” filed confidentially on 20 June 2006. However, this document only mentions the fact that it was obtained by the Prosecution’s Investigators “from the Gacaca President of Dukore, on 5 May 2006” and does not refer to any contact with Witness EB in March 2006, as described in the Investigation Report, p. 3 [REDACTED].

[4] See supra, para. 12.

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Rule 68 bis
Notion(s) Filing Case
Appeal Judgement - 15.07.1999 TADIĆ Duško
(IT-94-1-A)

321. The mandate of the International Tribunal, as set out in Article 1 of the Statute, is to prosecute persons responsible for serious violations of international humanitarian law committed in the former Yugoslavia. To fulfil its mandate, a Trial Chamber has to ascertain the credibility of all the evidence brought before it. A Trial Chamber must also take account of the following provisions of the Statute: Article 20(1), concerning the need to ensure a fair and expeditious trial, Article 21 dealing with the rights of the accused, and Article 22, dealing with the protection of victims and witnesses. Further guidance may be taken from Article 14 of the International Covenant on Civil and Political Rights[1] and Article 6 of the European Convention on Human Rights,[2] which are similar to Article 21 of the Statute.

322. With regard to the present case, once a Defence witness has testified, it is for a Trial Chamber to ascertain the credibility of his or her testimony.  If he or she has made a prior statement, a Trial Chamber must be able to evaluate the testimony in the light of this statement, in its quest for the truth and for the purpose of ensuring a fair trial.  Rather than deriving from the sweeping provisions of Sub-rule 89(B), this power is inherent in the jurisdiction of the International Tribunal, as it is within the jurisdiction of any criminal court, national or international.  In other words, this is one of those powers mentioned by the Appeals Chamber in the Blaškić (Subpoena) decision which accrue to a judicial body even if not explicitly or implicitly provided for in the statute or rules of procedure of such a body, because they are essential for the carrying out of judicial functions and ensuring the fair administration of justice.[3]

323. It would be erroneous to consider that such disclosure amounts to having the Defence assist the Prosecution in trying the accused.  Nor does such disclosure undermine the essentially adversarial nature of the proceedings before the International Tribunal, including the basic notion that the Prosecution has to prove its case against the accused.  Although this provision was not in force at the time relevant to the present enquiry, it is worth noting that Sub-rule 73ter(B) provides that should a Pre-Defence Conference be held:

[…] the Trial Chamber may order that the defence, before the commencement of its case but after the close of the case for the prosecution, file the following:

[…];

(iii)        a list of witnesses the defence intends to call with:

(a)        the name or pseudonym of each witness;

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

[…][4]

This Sub-rule does not require that the Defence file its witness statements.  But the substance is not far removed: the provision has been designed to assist a Trial Chamber in preparing for hearing the Defence case, and the Prosecution in preparing for cross-examination of the witnesses.

324. As stated above, once the Defence has called a witness to testify, it is for a Trial Chamber to ascertain his or her credibility.  If there is a witness statement, in the sense referred to above, it would be subject to disclosure only if so requested by the Prosecution and if the Trial Chamber considers it right in the circumstances to order disclosure.  The provisions of Rule 68 are limited to the Prosecution and do not extend to the Defence.  Disclosure would follow only once the Prosecution’s case has been closed.  Even then, Sub-rules 89(C),[5] (D)[6] and (E)[7] would still apply to such a disclosed witness statement, with the consequence that a Trial Chamber might still exclude it.  Furthermore, the provisions of Sub-rule 90(F)[8] relating to self-incrimination would of course apply.

325. The Appeals Chamber is also of opinion that no reliance can be placed on a claim to privilege.  Rule 97[9] relates to lawyer-client privilege; it does not cover prior Defence witness statements.

It concluded:

326. For the reasons set out above, it is the opinion of the Appeals Chamber that a Trial Chamber may order, depending on the circumstances of the case at hand, the disclosure of Defence witness statements after examination-in-chief of the witness. [10]

[1] Article 14 provides in part:

“(1)  All persons shall be equal before the courts and tribunals.  In the determination of any criminal charge against him, or of his rights and obligations in a suit at law, everyone shall be entitled to a fair and public hearing by a competent, independent and impartial tribunal established by law. […].

(2)  Everyone charged with a criminal offence shall have the right to be presumed innocent until proved guilty according to law.

(3)  In the determination of any criminal charge against him, everyone shall be entitled to the following minimum guarantees, in full equality:  (a) to be informed promptly and in detail in a language which he understands of the nature and cause of the charge against him;  […];  (c) to be tried without undue delay;  (d) to be tried in his presence, and to defend himself in person or through legal assistance […];  (e) to examine, or have examined, the witnesses against him and to obtain the attendance and examination of witnesses on his behalf under the same conditions as witnesses against him;  […];  (g) not to be compelled to testify against himself or to confess guilt.  […].”

[2] Article 6 provides in part:

“(1)  In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law. […].

(2)  Everyone charged with a criminal offence shall be presumed innocent until proved guilty according to law.

(3)  Everyone charged with a criminal offence has the following minimum rights: (a)  to be informed promptly, in a language which he understands and in detail, of the nature and cause of the accusation against him;  […];  (d) to examine or have examined witnesses against him and to obtain the attendance and examination of witnesses on his behalf under the same conditions as witnesses against him;  […].”

[3] See “Judgement on the Request of the Republic of Croatia for Review of the Decision of Trial Chamber II of 18 July 1997”, The Prosecutor v. Tihomir Blaškić, Case No.: IT-95-14-AR108bis, Appeals Chamber, 29 October 1997, para. 25.

[4] NOTE: RULE 73TER (B) WAS AMENDED ON 12 APRIL 2001. SINCE 12 APRIL 2001 RULE 65TER (G) HAS PROVIDED, INTER ALIA:

After the close of the Prosecutor’s case and before the commencement of the defence case, the pre-trial Judge shall order the defence to file the following:

(i) a list of witnesses the defence intends to call with:

(a) the name or pseudonym of each witness;

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

[…]

[5] Sub-rule 89(C) provides:  “A Chamber may admit any relevant evidence which it deems to have probative value.”

[6] Sub-rule 89(D) provides:  “A Chamber may exclude evidence if its probative value is substantially outweighed by the need to ensure a fair trial.”

[7] Sub-rule 89(E) provides:  “A Chamber may request verification of the authenticity of evidence obtained out of court.”

[8] NOTE: AS A RESULT THE AMENDMENTS TO THE RULES OF PROCEDURE AND EVIDENCE OF 1 AND 10 DECEMBER 2000, RULE 90(E) AND NOT RULE 90(F) RELATES TO SELF-INCRIMINATION.

[9] Rule 97 provides in part:  “All communications between lawyer and client shall be regarded as privileged, and consequently not subject to disclosure at trial […].”

[10] NOTE: On 28 February 2008, Rule 67 of the ICTY Rules was amended. Rule 67(A)(ii) states that the Defence shall provide the Prosecutor copies of statements, if any, of all witnesses whom the Defence intends to call to testify at trial, and copies of all written statements taken in accordance with Rule 92 bis, Rule 92 ter, or Rule 92 quater, which the Defence intends to present at trial. 

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ICTR Rule Rule 65 ter(G) ICTY Rule Rule 65 ter(G)
Notion(s) Filing Case
Appeal Judgement - 23.05.2005 KAJELIJELI Juvénal
(ICTR-98-44A-A)

262. The Appeals Chamber recalls that the ICTY Appeals Chamber has affirmed that the Prosecution has the obligation to determine whether evidence is exculpatory under Rule 68.[1] This Appeals Chamber follows that position and considers that in order to allege a breach of Rule 68, the Defence must first establish that the evidence was in the possession of the Prosecution, and then must present a prima facie case which would make probable the exculpatory nature of the materials sought.[2] If the Defence satisfies the Tribunal that the Prosecution has failed to comply with its Rule 68 obligations, then the Tribunal must examine whether the Defence has been prejudiced by that failure before considering whether a remedy is appropriate.[3]

263. The Appeals Chamber finds that in the present case, the Appellant has failed to demonstrate that the Trial Chamber erred in finding that the Prosecution was not in possession of any prior statements the detained witnesses may have given to the Rwandan authorities. The Appellant rather appears to argue that since the detained witnesses were called by the Prosecution, it was the Prosecution’s duty to obtain the statements. The Appeals Chamber does not accept such an extension of the scope of Rule 68.

[1] Blaškić Appeal Judgment, para. 268.

[2] See Blaškić Appeal Judgment, para. 268.

[3] See Krstić Appeal Judgement, para. 153.

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Appeal Judgement - 27.02.2014 NDINDILYIMANA et al. (Military II)
(ICTR-00-56-A)

22. The Appeals Chamber recalls that, at trial, determining the appropriate remedy in light of a violation of Rule 68 of the Rules falls within the broad discretion of the trial chamber.[1] A trial chamber’s exercise of discretion will be reversed only if the challenged decision was based on an incorrect interpretation of governing law, was based on a patently incorrect conclusion of fact, or was so unfair or unreasonable as to constitute an abuse of the trial chamber’s discretion.

23. In the view of the Appeals Chamber, Ndindiliyimana does not demonstrate that the Trial Chamber abused its discretion in fashioning the remedies for the Prosecution’s disclosure violations. Recalling witnesses[3] and admitting new evidence[4] are appropriate remedies where disclosure violations have resulted in prejudice to an accused.[5] Where an accused’s fair trial rights have been violated, a reduction of the sentence may be an appropriate remedy if the accused was convicted at trial.[6] However, the relief requested by Ndindiliyimana at trial and on appeal – dismissal of the charges against him – is not necessarily appropriate even where prejudice to the accused has been demonstrated.[7]

[1] See The Prosecutor v. Édouard Karemera et al., Case No. ICTR-98-44-AR73.6, Decision on Joseph Nzirorera’s Interlocutory Appeal, 28 April 2006 (“Karemera et al. Appeal Decision of 28 April 2006”), para. 7 (“If a Rule 68 disclosure is extensive, parties are entitled to request an adjournment in order to properly prepare themselves. The authority best placed to determine what time is sufficient for an accused to prepare his defence is the Trial Chamber conducting the case”.)(internal citations omitted).

[2] Kalimanzira Appeal Judgement, para. 14; The Prosecutor v. Théoneste Bagosora et al., Case No. ICTR-98-41-AR73, Decision on Interlocutory Appeal Relating to Disclosure Under Rule 66(B) of the Tribunal’s Rules of Procedure and Evidence, 26 September 2006 (“Bagosora et al. Appeal Decision of 26 September 2006”), para. 6.

[3] Karemera et al. Appeal Decision of 28 April 2006, para. 8.

[4] Prosecutor v. Tihomir Blaškić, Case No. IT-95-14-A, Decision on the Appellant’s Motions for the Production of Material, Suspension or Extension of the Briefing Schedule, and Additional Filings, 26 September 2000, para. 31. Cf. Ephrem Setako v. The Prosecutor, Case No. ICTR-04-81-A, Decision on Ephrem Setako’s Motion to Amend his Notice of Appeal and Motion to Admit Evidence, filed confidentially on 23 March 2011, public redacted version filed on 9 November 2011 (“Setako Appeal Decision of 23 March 2011”), para. 16.

[5] Where a violation of Rule 68 of the Rules has occurred, a chamber must examine whether the Defence has been prejudiced by the violation before considering whether a remedy is appropriate. Setako Appeal Decision of 23 March 2011, para. 14; Kalimanzira Appeal Judgement, para. 18.

[6] Kajelijeli Appeal Judgement, para. 255. Cf. Setako Appeal Judgement, para. 297.

[7] See Justin Mugenzi and Prosper Mugiraneza v. The Prosecutor, Case No. ICTR-99-50-A, Decision on Motions for Relief for Rule 68 Violations, 24 September 2012 (“Mugenzi and Mugiraneza Decision of 24 September 2012”), paras. 17, 22, 27, 28, 33, 38. 

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Decision on Additional Evidence - 01.12.2006 NAHIMANA et al. (Media case)
(ICTR-99-52-A)

At para. 16, the Appeals Chamber sets clearly the criteria of determination of the documents which are material to the preparation of the defence:

16. In addition, while the parties do not refer to Rule 66(B) of the Rules, the Appeals Chamber notes that the Appellant’s request appears to fall under this provision since he is seeking access to documents that would be material to the preparation of his defence with respect to the cross-examination of Witness EB at the evidentiary hearing or might be intended for use by the Prosecution as evidence on that occasion. It has already been clarified that Rule 66(B) applies to appellate proceedings and that, consequently, the Prosecution, on request of the Defence, “has to permit the inspection of any material which is capable of being admitted on appeal or which may lead to the discovery of material which is capable of being admitted on appeal”.[1] In this respect, the Appeals Chamber recalls that “purely inculpatory material is not necessarily immaterial for the preparation of the Defence” and that the Prosecution should instead consider “(a) whether the issues to which the material relates are subject of a ground of appeal” or “(b) whether the material could reasonably lead to further investigation by the Defence and the discovery of additional evidence admissible under Rule 115 of the Rules”.[2] Therefore, the Appeals Chamber proprio motu directs the Prosecution to apply the above-mentioned criteria in order to determine whether it is in possession of any documents that are material to the preparation of the Defence, with the exception of Rule 70 material as discussed above, and then return, if necessary, to the Appeals Chamber for permission to withhold any information provided by these sources under Rule 66(C) of the Rules.

 

[1] Prosecutor v. Radislav Krstić, Case No. IT-98-33-A, Confidential Decision on the Prosecution’s Motion to Be Relieved of Obligation to Disclose Sensitive Information Pursuant to Rule 66(C), 27 March 2003, p. 4.

[2] Id.

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Decision Regarding Disclosure and Additional Evidence - 21.11.2014 NGIRABATWARE Augustin
(MICT-12-29-A)

15.     Under Rule 73(A) of the Rules, the Prosecution has a positive and continuous obligation to, “as soon as practicable, disclose to the Defence any material that in [its] actual knowledge […] may suggest the innocence or mitigate the guilt of the accused or affect the credibility of Prosecution evidence”.[1] The determination as to which material is subject to disclosure under this provision is a fact-based enquiry made by the Prosecution.[2] Therefore, the Appeals Chamber will not intervene in the exercise of the Prosecution’s discretion unless it is shown that the Prosecution abused it and, where there is no evidence to the contrary, will assume that the Prosecution is acting in good faith.[3] The Appeals Chamber recalls that the Prosecution’s obligation to disclose exculpatory material is essential to a fair trial, and notes that this obligation has always been interpreted broadly.[4]

16.     In order to establish that the Prosecution is in breach of its disclosure obligations, the applicant must: (i) identify specifically the material sought; (ii) present a prima facie showing of its probable exculpatory nature; and (iii) prove that the material requested is in the custody or under the control of the Prosecution.[5] If the Appeals Chamber determines that the Prosecution is in breach of its disclosure obligations, the Appeals Chamber must examine whether the defence has been prejudiced by that failure before considering whether a remedy is appropriate.[6]

[1] See also Rule 68(A) of the ICTR Rules.

[2] See, e.g., Decision on Augustin Ngirabatware’s Motion for Sanctions for the Prosecution and for an Order for Disclosure, 15 April 2014 (“Appeal Decision of 15 April 2014”), para. 12, referring to Justin Mugenzi and Prosper Mugiraneza v. The Prosecutor, Case No. ICTR-99-50-A, Decision on Motions for Relief for Rule 68 Violations, 24 September 2012 (“Mugenzi Appeal Decision of 24 September 2012”), para. 7, Ephrem Setako v. The Prosecutor, Case No. ICTR-04-81-A, Decision on Ephrem Setako’s Motion to Amend his Notice of Appeal and Motion to Admit Evidence, filed confidentially on 23 March 2011, public redacted version filed on 9 November 2011 (“Setako Appeal Decision of 9 November 2011”), para. 13, Jean de Dieu Kamuhanda v. The Prosecutor, Case No. ICTR-99-54A-R68, Decision on Motion for Disclosure, 4 March 2010 (“Kamuhanda Appeal Decision of 4 March 2010”), para. 14, Prosecutor v. Dario Kordić and Mario Čerkez, Case No. IT-95-14/2-A, Judgment, 17 December 2004, para. 183.

[3] See, e.g., Appeal Decision of 15 April 2014, para. 12, referring to Mugenzi Appeal Decision of 24 September 2012, para. 7, Kamuhanda Appeal Decision of 4 March 2010, para. 14; Ferdinand Nahimana et al. v. The Prosecutor, Case No. ICTR-99-52-A, Decision on Appellant Jean-Bosco Barayagwiza’s Motions for Leave to Present Additional Evidence Pursuant to Rule 115 of the Rules of Procedure and Evidence, 8 December 2006 (“Barayagwiza Appeal Decision of 8 December 2006”) para. 34.

[4] See, e.g., Appeal Decision of 15 April 2014, para. 12, referring to Mugenzi Appeal Decision of 24 September 2012, para. 7; Setako Appeal Decision of 9 November 2011, para. 12; Callixte Kalimanzira v. The Prosecutor, Case No. ICTR-05-88-A, Judgement, 20 October 2010 (“Kalimanzira Appeal Judgement”), para. 18.

[5] See, e.g., Appeal Decision of 15 April 2014, para. 13, referring to Justin Mugenzi and Prosper Mugiraneza v. The Prosecutor, Case No. ICTR-99-50-A, Judgement, 4 February 2013 (“Mugenzi and Mugiraneza Appeal Judgement”), para. 39; Théoneste Bagosora et al. v. The Prosecutor, Case No. ICTR-98-41-A, Decision on Aloys Ntabakuze’s Motions for Disclosure, 18 January 2011, para. 7; Kamuhanda Appeal Decision of 4 March 2010, para. 14.

[6]See, e.g., Appeal Decision of 15 April 2014, para. 13, referring to Mugenzi and Mugiraneza Appeal Judgement, para. 39; Setako Appeal Decision of 9 November 2011, para. 14; Kalimanzira Appeal Judgement, para. 18.

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Notion(s) Filing Case
Appeal Judgement - 09.07.2004 NIYITEGEKA Eliézer
(ICTR-96-14-A)

30. Pursuant to Rule 66(A)(ii) of the Rules, the Prosecutor has a duty, inter alia, to make available to the Defence copies of the statements of all witnesses whom the Prosecutor intends to call to testify at trial. The Appeals Chamber notes that neither the ICTR nor ICTY has provided a clear definition of the term “statement.” In particular, the jurisprudence has not made a clear distinction between “statements” and “internal documents prepared by a party [which] are not subject to disclosure or notification”[1] under Rules 66 and 67 of the Rules.[2]

31. A record of a witness interview, ideally, is composed of all the questions that were put to a witness and of all the answers given by the witness. The time of the beginning and the end of an interview, specific events such as requests for breaks, offering and accepting of cigarettes, coffee and other events that could have an impact on the statement or its assessment should be recorded as well.

32. Such an interview must be recorded in a language the witness understands. As soon as possible after the interview has been given, the witness must have the chance to read the record or to have it read out to him or her and to make the corrections he or she deems necessary and then the witness must sign the record to attest to the truthfulness and correctness of its content to the best of his or her knowledge and belief. A co-signature by the investigator and interpreter, if any, concludes such a record.

33. Records of questions put to witnesses by the Prosecution and of the answers given constitute witness statements pursuant to Rule 66(A)(ii) of the Rules. It is necessary to disclose the questions put to the witness in order to make the statement intelligible. This obligation also follows from the fair trial guarantees stipulated in Articles 19 and 20 of the Statute. Furthermore, an accused must have access to the questions put to the witness in order to be able to prepare for cross-examination properly. At times, it may be impossible to assess the probative value of the witness’s answer without juxtaposing it with the relevant question. This may also affect a Chamber’s assessment of the credibility of the witness and the reliability of a testimony in its development. The record of the first interview with a witness is of the highest value because it is most likely to capture the witness’s recollection accurately, being closest in time to the events and less vulnerable to any subsequent influence.

34. Questions that were put to a witness – thus being part of the witness statement – have to be distinguished from “internal documents prepared by a party”,[3] which are not subject to disclosure under Rule 70(A) of the Rules, as an exception to the general disclosure obligation pursuant to Rule 66(A)(ii) of the Rules. A question once put to a witness is not an internal note any more; it does not fall within the ambit and thereby under the protection of Rule 70(A) of the Rules. If, however, counsel or another staff member of the Prosecution notes down a question prior to the interrogation, without putting this question to the witness, such a question is not subject to disclosure. Similarly, any note made by counsel or another staff member of the Prosecution in relation to the questioning of the witness is not subject to disclosure, unless it has been put to the witness.

35. The fact that a particular witness statement does not correspond to the standard set out above does not free a party from its obligation to disclose it to the other party pursuant to Rule 66(A)(ii) of the Rules. Furthermore, a witness statement which does not correspond to the standard set out above does not necessarily render the proceedings unfair. The Prosecution is obliged to make the witness statement available to the Defence in the form in which it has been recorded. However, something which is not in the possession of or accessible to the Prosecution cannot be subject to disclosure: nemo tenetur ad impossibile (no one is bound to an impossibility).[4]

36. Also, a statement not fulfilling the ideal standard set out above is not inadmissible as such. Pursuant to Rule 89(C) of the Rules, a Chamber may admit any relevant evidence which it deems to have probative value. However, any inconsistency of a witness statement with the standard set out above may be taken into consideration when assessing the probative value of the statement, if necessary.

[1] See Rule 70(A) of the Rules.

[2] This does not of course affect the Prosecution’s obligation to disclose exculpatory material under Rule 68 of the Rules.

[3] Emphasis added.

[4] Black’s Law Dictionary, 7th Edition (St. Paul, West Group, 1999), Legal Maxims, p. 1662.

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Notion(s) Filing Case
Review Decision - 30.06.2006 NIYITEGEKA Eliézer
(ICTR-96-14-R)

Para. 61: the Appeals Chamber recalled that Rule 68(B) requires the Prosecution to make available to the Appellant, “in electronic form, collections of relevant material held by the Prosecution, together with appropriate computer software with which the Defence can search such collections electronically” and as such the Prosecution cannot rely upon its failure to diligently update electronic records to justify a disclosure failure.

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Decision on Disclosure - 19.02.2010 KANYARUKIGA Gaspard
(ICTR-02-78-AR73)

16. The Appeals Chamber recalls that, in order to show that the Prosecution is in breach of its disclosure obligation pursuant to Rule 68(A) of the Rules, the Defence must identify specifically the materials sought, present a prima facie showing of their probable exculpatory nature, and prove the Prosecutor’s custody or control of the materials requested.[1] Thus, contrary to the Appellant’s submission,[2] his burden of proof could not be met by merely showing a prima facie case of custody or advancing a “presumption of possession”.

[1] See, e.g., Karemera Decision [The Prosecutor v. Édouard Karemera et al., Case No. ICTR-98-44-AR73.13, Decision on “Joseph Nzirorera’s Appeal From Decision on Tenth Rule 68 Motion”, 14 May 2008], para. 9; Prosecutor v. Miroslav Bralo, Case No. IT-95-17-A, Decision on Motions for Access to Ex Parte Portions of the Record on Appeal and For Disclosure of Mitigating Material, 30 August 2006, para. 31; Juvénal Kajelijeli v. The Prosecutor, Case No. ICTR-98-44A-A, Judgement, 23 May 2005, para. 262.

[2] Appeal [Appeal of the 30 October 2009 Trial Chamber II[’s] ‘Decision on Defence Motion for Disclosure and Return of Exculpatory Documents Seised from the Accused’, 27 November 2009], paras. 70, 73, 74; Reply [Reply to Respondent’s Response to Appeal of the 30 October 2009 Trial Chamber II[’s] ‘Decision on Defence Motion for Disclosure and Return of Exculpatory Documents Seised from the Accused’, 7 December 2009], paras. 12, 13. Referring to paragraph 17 of the Response, the Appellant notes that the Prosecution acknowledges that custody and control need only be shown on a prima facie basis (see Reply, para. 12). It is nevertheless clear from paragraphs 16, 18, and 19 of the Response [Respondent’s Response to Appeal of the 30 October 2009 Trial Chamber II’s ‘Decision on Defence Motion for Disclosure and Return of Exculpatory Documents Seised from the Appellant’, 1 December 2009] that the Prosecution has made a technical error. 

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ICTR Rule Rule 68 ICTY Rule Rule 68
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Decision on Disclosure - 14.05.2008 KAREMERA et al.
(ICTR-98-44-AR73.13)

The Appeals Chamber ruled that the Trial Chamber applied an incorrect legal standard when it held that where a document contains both exculpatory and incriminating information on the same issue, all the information on that particular issue “must be read in context” and “only information, that, when read in its entirety tends to be exculpatory, must [it] be disclosed under Rule 68(A) [of the Rules]” (paras 12-13):

12. The Appeals Chamber agrees with the Appellant’s contention that Rule 68 of the Rules, as a rule of disclosure rather than admissibility of evidence, imposes a categorical obligation to disclose any document or witness statement that contains exculpatory material. Consequently, this obligation is not subject to a balancing test. Because the Trial Chamber applied an incorrect legal standard, it by definition committed a discernible error. The Appeals Chamber notes that the Trial Chamber earlier considered alleged violations of Rule 68(A) of the Rules,[1] and adopted the reasoning from a decision in the Bagosora et al. case.[2] In that case, the Trial Chamber, when considering whether certain witnesses’ statements contained excuplatory material, ruled that:

whether [the] information “may suggest the innocence or mitigate the guilt of the accused” must depend on an evaluation of whether there is any possibility, in light of the submissions of the parties, that the information could be relevant to the defence of the accused.[3]

The Appeals Chamber considers this to be the correct standard for assessing whether certain material is to be considered as exculpatory within the meaning of Rule 68(A) of the Rules. In this case, the Trial Chamber, by reasoning that exculpatory material in a document could be rendered nugatory by the existence of inculpatory material, applied an incorrect legal standard resulting in an abuse of its discretion.

[1] See The Prosecutor v. Édouard Karemera et al., Case No. ICTR-98-44-T, Decision on Joseph Nzirorera’s Notice of Rule 68 Violations and Motions for Remedial and Punitive Measures, 25 October 2007 (“Karemera et al. Decision of 25 October 2007”).

[2] Karemera et al. Decision of 25 October 2007, para. 6, referring to The Prosecutor v. Bagosora et al., Case No. ICTR-98-41-T, Decision on Disclosure of Defence Witness Statements in the Possession of the Prosecution Pursuant to Rule 68(A), 8 March 2006 (“Bagosora et al. Decision”) para. 5.

[3] Bagosora et al. Decision, para. 5.

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Decision on Interlocutory Appeal on EDS - 30.06.2006 KAREMERA et al.
(ICTR-98-44-AR73.7)

In the present case, the Prosecution argued that it could discharge its Rule 68 disclosure obligations through the EDS. The Appeals Chamber dismissed the Prosecution’s appeal, holding that the EDS does not discharge the Prosecution of its positive obligation to disclose exculpatory material in its possession. The full reasoning is provided below (paras 8-16):

 

8. The Prosecution argues that the Trial Chamber erred as a matter of law in finding that it cannot discharge its disclosure obligations under Rule 68 by making the Prosecution evidence collection and other relevant materials accessible to the Defence through the EDS.[1] In identifying the Trial Chamber’s alleged legal error, the Prosecution contends that the Trial Chamber failed to appreciate the searchable format of the EDS.[2] However, in the very same passage upon which the Prosecution relies in support of this proposition, the Trial Chamber clearly expressed that the EDS, “allows the Defence to do its searches for exculpatory material.”[3] Consequently, the Appeals Chamber cannot agree that the Trial Chamber failed to appreciate this aspect of the EDS. Rather, in the view of the Appeals Chamber, the Prosecution appears to take issue with the Trial Chamber’s finding that the Prosecution has a “positive obligation” to disclose Rule 68 material “in its possession” to individual accused.[4] The Appeals Chamber, however, can identify no legal error on the part of the Trial Chamber in holding that the Prosecution has a positive obligation to disclose exculpatory material in its possession.

9. The Prosecution’s obligation to disclose exculpatory material is essential to a fair trial.[5] The Appeals Chamber has always interpreted this obligation broadly.[6] The positive nature of this obligation and its significance stem from the Prosecution’s duty to investigate, which the Appeals Chamber has explained runs conterminously with its duty to prosecute.[7] In particular, the Appeals Chamber recalls that one of the purposes of the Prosecution’s investigative function is “to assist the Tribunal to arrive at the truth and to do justice for the international community, victims, and the accused.”[8] The responsibility for disclosing exculpatory material rests on the Prosecution alone, and the determination of what material meets Rule 68 disclosure requirements is primarily a fact-based judgement, falling within the Prosecution’s responsibility.[9] In other words, the Prosecution has a distinct obligation to participate in the process of administering justice by disclosing to the Defence, as required by Rule 68(A), material which it actually knows “may suggest the innocence or mitigate the guilt of the accused or affect the credibility of the Prosecution evidence”. This responsibility is crucial to the analysis.

10. Bearing these principles in mind, the Prosecution must actively review the material in its possession for exculpatory material[10] and, at the very least, inform the accused of its existence.[11] In the view of the Appeals Chamber, the Prosecution’s Rule 68 obligation to disclose extends beyond simply making available its entire evidence collection in a searchable format. A search engine cannot serve as a surrogate for the Prosecution’s individualized consideration of the material in its possession. As such, the Appeals Chamber can identify no legal error on the part of the Trial Chamber in finding that the EDS, as described by the Prosecution, fails to fulfill these important and expansive obligations.

11. The Prosecution’s reasoning includes the following two steps. First, it argues that paragraphs (A) and (B) of Rule 68 establish two distinct disclosure obligations covering different categories of materials: paragraph (A) applies to materials that the Prosecution actually knows may be exculpatory, while paragraph (B) applies more broadly to all “collections of relevant material”, whether or not the Prosecution knows that they may be exculpatory. Second, it argues that when the Prosecution provides the defence with an electronic collection of relevant materials in satisfaction of its obligation under paragraph (B), that also satisfies its obligations under paragraph (A) with respect to any materials governed by paragraph (A) that may be found somewhere within the collection. The Appeals Chamber notes that while the first step of the Prosecution’s argument appears to embrace a rather broad interpretation of the Prosecution’s disclosure obligations, the second step would have the effect of curtailing them by making it unnecessary for the Prosecution to draw the attention of the Defence to the particular material that it actually knows may be exculpatory.

12. The Appeals Chamber observes several flaws in the Prosecution’s reasoning. The Prosecution’s obligation to disclose to the defence material that may suggest the innocence or mitigate the guilt of the accused or affect the credibility of Prosecution evidence is set forth in Rule 68(A).[12] It is only Rule 68(A) that articulates which material is subject to disclosure under this rule and which obliges the Prosecution to disclose it. Rule 68(B) does not establish a distinct disclosure obligation.[13] Rather, it simply provides for a possible modality of conveying exculpatory material to the defence, in an electronic format, after the Prosecution identifies it as “relevant material” which is subject to disclosure under Rule 68. This is supported by the plain language of sub-paragraph B of Rule 68 and by its drafting history, which focused on the technical feasibility of providing to the defence electronic versions of documents subject to Rule 68 disclosure.[14]

13. Thus, disclosure under Rule 68(B) is merely the digital equivalent of disclosure under Rule 68(A), consisting of the same material in searchable electronic form. For these reasons, for the Prosecution to seek to satisfy its Rule 68 obligations merely by granting the Defence access to an electronic database containing tens of thousands of documents, only a few of which it knows to be potentially exculpatory, is the equivalent of the Prosecution seeking to satisfy those obligations by giving the Defence a key to a storage closet containing the same tens of thousands of documents in paper form. In both cases, the Prosecution has for all intents and purposes buried the exculpatory materials, at least unless it notifies the Defence of the existence of such materials and provides a means by which the Defence can be reasonably expected to find them. Rule 68(B) was not intended to facilitate this kind of evasion of the Prosecution’s disclosure obligations. Indeed, its text makes clear that it is in no way intended to dilute or circumvent Rule 68(A)’s requirements: it states that it is “without prejudice to paragraph (A)”.[15]

14. The Prosecution’s second principal argument on appeal is that, by creating the EDS and by making it searchable, its collection is now “reasonably accessible” to the defence, which is a recognized exception to its obligation to disclose.[16] By way of illustration, the Prosecution refers to Appeals Chamber jurisprudence indicating that transcripts of open session testimony are not subject to disclosure as they are “reasonably accessible”.[17] Mr. Nzirorera disputes this claim, emphasizing the difficulty of identifying exculpatory material given the redacted nature of the documents on the EDS.[18] The Prosecution counters that Mr. Nzirorera’s complaints are belied by his possession of material, which it surmises came from the EDS, thereby demonstrating its proper functioning.[19] The Appeals Chamber observes that it is not clear from the record how Mr. Nzirorera obtained the material he used to demonstrate that the Prosecution was in breach of its disclosure obligations.

15. The Appeals Chamber agrees that the Prosecution may be relieved of its Rule 68 obligation if the existence of the relevant exculpatory material is known to the Defence and if it is reasonably accessible through the exercise of due diligence.[20] On the basis of the record before it, however, the Appeals Chamber cannot find that the EDS makes documents reasonably accessible as a general matter, nor that the Defence can be assumed to know about all materials included in it. The determination whether given exculpatory information is reasonably accessible, and whether its existence is known to the Defence requires a careful examination of the relevant circumstances.[21] This is true for material on the EDS – especially given that, as Mr. Nzirorera notes, it may be difficult to recognize material as exculpatory if it is only available in redacted form – just as it is true for material not found on this system. The Appeals Chamber has not been asked to decide here whether the Prosecution satisfied its disclosure obligation with respect to any particular piece of information. The Appeals Chamber cautions the Prosecution, however, that just because it has placed a particular piece of material on the EDS, it has not necessarily made that piece of material “reasonably accessible” to any given accused. It might be helpful if the Prosecution either separates a special file for Rule 68 material or draws the attention of the Defence to such material in writing and permanently updates the special file or the written notice.

 

[1] Prosecution Appeal, paras. 2, 16, 18.

[2] Prosecution Appeal, para. 25.

[3] Impugned Decision, p. 5; Prosecution Appeal, para. 25.

[4] Prosecution Appeal, para. 34 (“The Trial Chamber incorrectly formulated the Prosecutor’s obligation, stating that the Prosecution has a ‘positive obligation to disclose all Rule 68 material in the possession of the Prosecution’”) (emphasis in original); Prosecution Reply and Response, para. 7 (“The objectionable language used by the Trial Chamber in the impugned Decision was that the EDS ‘does not relieve the Prosecution from its positive obligation to disclose all Rule 68 material in the possession of the Prosecution’”) (emphasis in original).

[5] Nzirorera Appeal Decision, para. 7 [The Prosecutor v. Édouard Karemera et al., Case No. 98-44-AR73.6, Decision on Joseph Nzirorera’s Interlocutory Appeal, 28 April 2006). See also The Prosecutor v. Théoneste Bagosora et al., Case Nos. ICTR-98-41-AR73, ICTR-98-41-AR73(B), Decision on Interlocutory Appeals on Witness Protection Orders, 6 October 2005, para. 44 (“Bagosora Appeal Decision”); The Prosecutor v. Dario Kordić and Mario Čerkez, Case No. IT-95-14/2-A, Appeal Judgement, 17 December 2004, paras. 183, 242 (“Kordić and Čerkez Appeal Judgement”); The Prosecutor v. Tihomir Blaškić, Case No. IT-95-14-A, Judgement, 20 July 2004, para. 264 (“Blaškić Appeal Judgement”); The Prosecutor v. Radislav Krstić, Case No. IT-98-33-A, Judgement, 19 April 2004, para. 180 (“Krstić Appeal Judgement”); The Prosecutor v. Radoslav Brđanin, Case No. IT-99-36-A, Decision on Appellant’s Motion for Disclosure Pursuant to Rule 68 and Motion for an Order to the Registrar to Disclose Certain Materials, 7 December 2004, p. 3 (“Brđanin Appeal Decision”).

[6] Blaškić Appeal Judgement, paras. 265, 266; Krstić Appeal Judgement, para. 180.

[7] Bagosora Appeal Decision, para. 44. See also Brđanin Appeal Decision, p. 3; Kordić and Čerkez Appeal Judgement, para. 183; Blaškić Appeal Judgement, para. 264.

[8] Prosecution Regulation No. 2, para. 2(h). As a result, the Appeals Chamber finds disconcerting the Prosecution’s suggestion before the Trial Chamber that it is somehow not obliged to search for material impacting on the credibility of its own witnesses. See T. 13 February 2006 p. 11 (“we cannot exhaustively search the entire OTP database simply to prosecute witnesses that we’re bringing to this Court as part of our Prosecution case … our job here is to prosecute the three men … sitting on the other side of the courtroom. We do not prosecute our other witnesses. When we find material that is relevant to this case and relevant to – and within the parameters of Rule 68, we disclose it, but we can only do the best that we can do, and that’s what we’ve done.”).

[9] Nzirorera Appeal Decision, paras. 16, 22; Bagosora Appeal Decision, para. 43 (“… the [disclosure] obligations rest on the Prosecutor alone …”). See also Kordić and Čerkez Appeal Judgement, para. 183; Brđanin Appeal Decision, p. 3.

[10] See, e.g., Blaškić Appeal Judgement, para. 302; The Prosecutor v. Juvénal Kajelijeli, Case No. ICTR-98-44A-A, Judgement, 23 May 2005, para. 262. The Appeals Chamber has recognized that the voluminous nature of materials “in the possession” of Prosecutor may give rise to delays in disclosure. It does not however excuse the Prosecution from reviewing it and assessing it in light of Rule 68. See, e.g., Blaskić Appeal Judgement, para. 300 (“… the voluminous nature of the materials in the possession of the Prosecution may result in delayed disclosure, since the material in question may be identified only after the trial proceedings have concluded.”); Krstić Appeal Judgement, para. 197 (“The Appeals Chamber is sympathetic to the argument of the Prosecution that in most instances material requires processing, translation, analysis and identification as exculpatory material. The Prosecution cannot be expected to disclose material which – despite its best efforts - it has not been able to review and assess. Nevertheless, the Prosecution did take an inordinate amount of time before disclosing material in this case, and has failed to provide a satisfactory explanation for the delay.”) (internal citation omitted). Moreover, the Appeals Chamber has explained the unity of the Office of the Prosecutor in discharging disclosure. See Bagosora Appeal Decision, paras. 42-46.

[11] See Krstić Appeal Judgement paras. 190, 195.

[12] Rule 68 (A) provides: “The Prosecutor shall, as soon as practicable, disclose to the Defence any material, which in the actual knowledge of the Prosecutor may suggest the innocence or mitigate the guilt of the accused or affect the credibility of Prosecution evidence.”

[13] Rule 68 (B) provides: “Where possible, and with the agreement of the Defence, and without prejudice to Paragraph (A), the Prosecutor shall make available to the Defence, in electronic form, collections of relevant material held by the Prosecutor, together with appropriate computer software with which the Defence can search such collections electronically.”

[14] Minutes of the Fourteenth Plenary Session (confidential), paras. 87-100.

[15] Indeed, this proviso makes it clear that even if the Prosecution were correct that Rule 68(B) refers to a different category of materials than does Rule 68(A), it would not follow that granting access to the EDS satisfies all of its disclosure obligations.  Instead, it would simply mean that the Prosecution could use electronic disclosure to satisfy its obligation under Rule 68(B) with respect to one category of materials, but would still be obligated to follow the traditional method of disclosure for the narrower category of materials subject to Rule 68(A).  Thus, the second step of the Prosecution’s argument does not follow logically from the first. 

[16] Prosecution Appeal, paras. 2, 43-47. The Prosecution also raises a related argument, submitting that the EDS addresses the underlying rationale for the Prosecution’s disclosure obligation by eliminating its superior access to the material. Prosecution Appeal, paras. 38-42.

[17] Prosecution Appeal, para. 46, citing Blaškić Appeal Judgement and Brđanin Appeal Decision.

[18] Nzirorera Response and Motion, paras. 14-26.

[19] Prosecution Appeal, para. 26.

[20] Brđanin Appeal Decision, p. 4; Blaškić Appeal Judgement, para. 296.

[21] See, e.g., Blaškić Appeal Judgement, paras. 286-303.

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(ICTR-98-44-AR73.13)

9. The Appeals Chamber notes that Rule 68(A) of the Rules imposes an obligation on the Prosecution to disclose to the Defence, as soon as practicable, any material which, in the actual knowledge of the Prosecution, may suggest the innocence or mitigate the guilt of an accused or affect the credibility of the evidence led by the Prosecution in that particular case. The determination of which materials are subject to disclosure under this provision, is a fact-based enquiry made by the Prosecution.[1] If an appellant wishes to show that the Prosecution is in breach of its disclosure obligation, he or she must (1) identify specifically the material sought; (2) present a prima facie showing of its probable exculpatory nature; and (3) prove that the material requested is in the custody or under the control of the Prosecution. [2]

[1] Ferdinand Nahimana et al. v. The Prosecutor, Case No. ICTR-99-52-A, Decision on Appellant Jean-Bosco Barayagwiza’s Motions for Leave to Present Additional Evidence pursuant to Rule 115 of the Rules of Procedure and Evidence, 8 December 2006 (“Nahimana et al. Decision of 8 December 2006”), para. 34, referring to inter alia Ferdinand Nahimana et al. v. The Prosecutor, Case No. ICTR-99-52-A, Decision on Appellant Jean-Bosco Barayagwiza’s Motion Requesting that the Prosecution Disclosure of the Interview of Michel Bagaragaza Be Expunged from the Record, 30 October 2006, para. 6; The Prosecutor v. Édouard Karemera et al., Case No. ICTR-98-44-AR73.6, Decision on Joseph Nzirorera’s Interlocutory Appeal, 28 April 2006, para. 16.

[2] Nahimana et al. Decision of 8 December 2006, para. 34.

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Appeal Judgement - 14.12.2011 BAGOSORA et al. (Military I)
(ICTR-98-41-A)

79. The Appeals Chamber recalls that the conduct of trial proceedings, including decisions on protective measures and disclosure, is a matter which falls within the discretion of Trial Chambers. This discretion encompasses the ability of a Trial Chamber to revisit its previous decisions. In this regard, it recalls that Rule 69(A) of the Rules explicitly provides that the Trial Chamber may order the non-disclosure of the identity of a victim or witness “until the Chamber decides otherwise”. Accordingly, the fact that there was already an existing protective measures order in Nsengiyumva’s case which the Trial Chamber replaced does not in itself amount to an error. Nonetheless, the Appeals Chamber will now consider whether the Decision on Protective Measures of 7 December 2001[[2]] was in conformity with the Rules.

81. In its Decision on Protective Measures of 7 December 2001, the Trial Chamber acknowledged that the plain language of Rule 69(C) of the Rules required the Prosecution to disclose all protected witnesses’ identifying data prior to the commencement of trial.[3] Nevertheless, it concluded that a departure from the plain language of the Rule was justified by the objective of providing meaningful protection for victims and witnesses.[4] Following consultation with the Witnesses and Victims Support Section of the Prosecution (“WVSS-P”), it found that this unit was unable to place under its protection all the witnesses in the case at the same time.[5] It considered that neither the mandate of witness protection nor the necessity of ensuring that the accused had sufficient time to prepare his defence could be sacrificed and reasoned that “a proper balance must be struck to determine what amount of advance disclosure is strictly necessary to serve the twin aims of Rule 69”.[6] The Trial Chamber concluded that to require the Prosecution to disclose unredacted witness statements and protected witnesses’ identifying data prior to the commencement of trial was “ill advised because it would unnecessarily tax any real notion of witness protection without advancing the Accused’s right to effective cross-examination in any meaningful way”.[7]

82. Although the disclosure requirements under Rule 66 of the Rules are subject to Rule 69, the Appeals Chamber recalls that while a Trial Chamber may order the non-disclosure of the identity of a victim or witness who may be in danger or at risk pursuant to Rule 69(A) of the Rules, it must first establish the existence of exceptional circumstances. In the Decision on Protective Measures of 7 December 2001, the Trial Chamber referred to “the existence of the exceptional circumstance”,[8] without elaborating on what it considered to amount to the exceptional circumstance justifying the non-disclosure of the victims’ and witnesses’ identity. The Appeals Chamber notes, however, that the Trial Chamber recalled that it had consulted with WVSS-P[9] and considered that WVSS-P had informed the Trial Chamber that it lacked the capacity and resources to place all the witnesses under protection at the same time.[10] The Appeals Chamber understands that the Trial Chamber considered that this inability to provide protection to all the witnesses at the same time amounted to an exceptional circumstance warranting the delayed disclosure of the identity of the witnesses. The Appeals Chamber does not find error in this approach.

83. Nevertheless, the Appeals Chamber considers that the Trial Chamber erred in ordering the Prosecution to disclose the identity of protected victims and witnesses and their unredacted statements no later than 35 days before the expected date of their testimony. While a Trial Chamber has discretion pursuant to Rule 69(A) of the Rules regarding the ordering of protective measures where it has established the existence of exceptional circumstances, the Appeals Chamber recalls that this discretion is still constrained by the scope of the Rules. In this regard, it notes that at the time of the decision, Rule 69(C) of the Rules provided that “the identity of the victim or witness shall be disclosed in sufficient time prior to the trial to allow adequate time for preparation of the prosecution and the defence”.[11]

84. Furthermore, the Appeals Chamber does not consider that, as stated by the Trial Chamber, such disregard for the explicit provision of the Rules was necessary for the protection of witnesses.[12] It notes that in the previous witness protection decision in the Nsengiyumva case prior to the joinder, the Trial Chamber had ordered the temporary redaction of identifying information until witnesses were brought under the protection of the Tribunal, but had nonetheless required that the Defence be provided with unredacted witnesses statements “within sufficient time prior to the trial in order to allow the Defence a sufficient amount of time to prepare itself”.[13] At no point did the Trial Chamber indicate that any problems had arisen from this previous arrangement justifying a more restrictive disclosure schedule.

85. In light of the foregoing, the Appeals Chamber considers that the Trial Chamber erred in ordering the Prosecution to disclose the identity of protected victims and witnesses and their unredacted statements no later than 35 days before the expected date of their testimony, rather than prior to the trial, as then provided by the Rules. […]

See also para. 80.

[1] See, e.g., The Prosecutor v. Théoneste Bagosora et al., Case No. ICTR-98-41-AR73, Decision on Interlocutory Appeal Relating to Disclosure Under Rule 66(B) of the Tribunal’s Rules of Procedure and Evidence, dated 25 September 2006 and filed 26 September 2006, para. 6; The Prosecutor v. Théoneste Bagosora et al., Cases Nos. ICTR-98-41-AR73 & ICTR-98-41-AR73(B), Decision on Interlocutory Appeals of Decision on Witness Protection Orders, 6 October 2005, para. 3.

[2] [The Prosecutor v. Théoneste Bagosora et al., Case No. ICTR-98-41-I, Decision and Scheduling Order on the Prosecution Motion for Harmonisation and Modification of Protective Measures for Witnesses, dated 5 December 2001, filed 7 December 2001].

[3] The Prosecutor v. Théoneste Bagosora et al., Case No. ICTR-98-41-I, Decision and Scheduling Order on the Prosecution Motion for Harmonisation and Modification of Protective Measures for Witnesses, dated 5 December 2001, filed 7 December 2001 (“Decision on Protective Measures of 7 December 2001”), paras. 4, 6.

[4] Decision on Protective Measures of 7 December 2001, para. 25. See also ibid., paras. 6, 9.

[5] Decision on Protective Measures of 7 December 2001, paras. 18, 19.

[6] Decision on Protective Measures of 7 December 2001, para. 6.

[7] Decision on Protective Measures of 7 December 2001, para. 9.

[8] Decision on Protective Measures of 7 December 2001, para. 9.

[9] Decision on Protective Measures of 7 December 2001, p. 2.

[10] Decision on Protective Measures of 7 December 2001, para. 18.

[11] Emphasis added.

[12] See Decision on Protective Measures of 7 December 2001, para. 20. See also ibid., para. 21.

[13] The Prosecutor v. Anatole Nsengiyumva, Case No. ICTR-96-12-I, Decision on the Prosecutor’s Motion for the Protection of Victims and Witnesses, delivered orally 26 June 1997, signed 17 November 1997, filed 3 December 1997 (“Nsengiyumva Decision on Protective Measures of 26 June 1997”), p. 4. See also ibid., p. 3. See also The Prosecutor v. Théoneste Bagosora, Case No. ICTR-96-7-I, Decision on the Prosecutor’s Motion for the Protection of Victims and Witnesses, delivered orally 31 October 1997, dated 26 November 1997, filed 3 December 1997, pp. 3, 4. The Appeals Chamber notes that the Kabiligi and Ntabakuze Decision on Protective Measures of 19 May 2000 contained more restrictive disclosure requirements, requiring “the Prosecutor to make such a disclosure, including of any material provided earlier to the Defence in a redacted form, not later than twenty-one (21) days before the protected witness is to testify at trial”. See The Prosecutor v. Gratien Kabiligi and Aloys Ntabakuze, Case No. ICTR-97-34-I, Decision on Motion by the Office of the Prosecutor for Orders for Protective Measures for Victims and Witnesses, 19 May 2000 (“Kabiligi and Ntabakuze Decision on Protective Measures of 19 May 2000”), p. 4.

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Decision on Expunging Disclosure - 30.10.2006 NAHIMANA et al. (Media case)
(ICTR-99-52-A)

6. The Appeals Chamber recalls that the Prosecution’s obligation under Rule 68 of the Rules is positive and continuous,[1] and that the determination of what material meets Rule 68 disclosure requirements is primarily a fact-based judgement made by and under the responsibility of the Prosecution.[2] The Prosecution “is under no legal obligation to consult with an accused to reach a decision on what material suggests the innocence or mitigates the guilt of an accused or affects the credibility of the Prosecution’s evidence”.[3] Therefore, the Appeals Chamber would not intervene in the exercise of the Prosecution’s discretion, unless it is shown that the Prosecution abused it and, where there is no evidence to the contrary, will assume that the Prosecution is acting in good faith.[4]

[1] Prosecutor v. Miroslav Bralo, Case No. IT-95-17-A, Decision on Motions for Access to Ex Parte Portions of the Record on Appeal and for Disclosure of Mitigating Material, 30 August 2006 (“Bralo Decision”), para. 29; Prosecutor v. Théoneste Bagosora et al., Case Nos ICTR-98-41-AR73, ITCR-98-41-AR73(B), Decision on Interlocutory Appeals on Witness Protection Orders, 6 October 2005, para. 44; Prosecutor v. Tihomir Blaškić, Case No IT-95-14-A, [confidential] Decision on Prosecution’s Application to Seek Guidance from the Appeals Chamber regarding Redaction of the Statement of “Witness Two” for the purposes of Disclosure to Paško Ljubičić under Rule 68, 30 March 2004 (“Blaškić 30 March 2004 Decision”), para. 32; Prosecutor v. Tihomir Blaškić, Case No. IT-95-14-A, Decision on the Appellant’s Motions for the Production of Material, Suspension or Extension of the Briefing Schedule, and Additional Filings, 26 September 2000 (“Blaškić26 September 2000 Decision”), paras 29-32.

[2] Prosecutor v. Edouard Karemera et al., Case No. ICTR-98-44-AR73.6, Decision on Joseph Nzirorera’s Interlocutory Appeal, 28 April 2006, para. 16; Prosecutor v. Radoslav Brđanin, Case No. IT-99-36-A, Decision on Appellant’s Motion for Disclosure Pursuant to Rule 68 and Motion for an Order to the Registrar to Disclose Certain Materials, 7 December 2004 (“Brđanin 7 December 2004 Decision”), p. 3; Prosecutor v. Tihomir Blaškić, Case No. IT-95-14-A, Appeal Judgement, 29 July 2004 (“Blaškić Appeals Judgement”), para. 264; Prosecutor v. Tihomir Blaškić, Case No IT-95-14-A, Decision on Prosecution’s Application to Seek Guidance from the Appeals Chamber regarding Redaction of the Statement of “Witness Two” for the purposes of Disclosure to Dario Kordić under Rule 68, 4 March 2004, (“Blaškić 4 March 2004 Decision”), para. 44; Blaškić 30 March 2004 Decision, paras 31-32; Blaškić26 September 2000 Decision, paras 38, 45.

[3] Kordić and Čerkez, Case No. IT-95-14/2-A, Judgement, 17 December 2004, para. 183; Blaškić Appeals Judgement, para. 264; Blaškić 4 March 2004 Decision, para. 44.

[4] Bralo Decision, para. 31; Brđanin 7 December 2004 Decision, p. 3; Prosecutor v. Miroslav Kvočka et al., Case No. IT-98-30/1-A, Decision, 22 March 2004, p. 3; Georges Rutaganda v. Prosecutor, Case No. ICTR-96-3-A, Decision on Urgent Defence Motion for Disclosure and Admission of Additional Evidence and Scheduling Order, 12 December 2002, pp 4-5; Alfred Musema v. Prosecutor, Case No. ICTR-96-13-A, Decision on the Appellant’s Motions for the Production of Material, Suspension of Extension of the Briefing Schedule, and Additional Filings, 18 May 2001, p. 4; Blaškić 26 September 2000 Decision, para. 39.

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ICTR Rule Rule 68 ICTY Rule Rule 68
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Decision on Expunging Disclosure - 30.10.2006 NAHIMANA et al. (Media case)
(ICTR-99-52-A)

8. […] The appropriate procedure for disclosure of materials under Rule 68 of the Rules when a case is before the Appeals Chamber is to serve the Defence with such material.[1] Where the Prosecution files its disclosure with the Registry for purposes of keeping it in the Registry archives, the Prosecution shall do so without copying the Appeals Chamber. Where the Prosecution considers it necessary to advise the Appeals Chamber of its further disclosures of Rule 68 material to the Defence, it may file a status report before the Appeals Chamber informing them of the fact and date but not the nature of that disclosure or the communicated material.

12. The Appeals Chamber hereby INSTRUCTS the Prosecution to follow the procedure described in paragraph eight above for its future disclosures under Rule 68 of the Rules. The Appeals Chamber also INSTRUCTS the Registry to ensure that any copies of disclosures filed with it by the Prosecution are to be kept in its records without communicating the disclosed material to the Appeals Chamber.

[1] In this respect, the Appeals Chamber recalls its recent decision, in which it held that the Prosecution’s obligation under Rule 68(A) of the Rules “extends beyond simply making available its entire evidence collection in a searchable format”, since it “cannot serve as a surrogate for the Prosecution’s individualized consideration of the material in its possession”. (Prosecutor v. Édouard Karemera et al., Case No. ICTR-98-44-AR73.7, Decision on Interlocutory Appeal Regarding the Role of the Prosecutor’s Electronic Disclosure Suite in Discharging Disclosure Obligations, 30 June 2006, para. 10). The Appeals Chamber also found that the EDS does not make documents “reasonably accessible as a general matter”, nor does it allow to assume that the Defence knows about all material included therein, to the extent that the Prosecution could be relieved of its Rule 68 obligation. (Ibid., para. 15). In this sense, it has been suggested that the Prosecution should either “separate[] a special file for Rule 68 material or draw[] the attention of the Defence to such material in writing and permanently update[] the special file or the written notice”. (Id.) See also Bralo Decision, para. 35.

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9. [T]he Appeals Chamber recalls that under Rule 75(F)(ii), the Prosecution, in discharge of its disclosure obligations, should notify the Defence to whom the disclosure is being made of the nature of the applicable protective measures. The Appeals Chamber notes that such notification was included by the Prosecution in the Impugned Disclosure.[1] Consequently, the Appeals Chamber finds the Appellant’s contention that the Prosecution failed to meet its Rule 75(F) obligation irrelevant and in any case moot in light of Michel Bagaragaza’s open session testimony in the Zigiranyirazo case on 13 June 2006.

[1] Impugned Disclosure, para. 3: “Mr. Jean-Bosco Barayagwiza is therefore reminded of his obligation to maintain the strict confidentiality of the disclosed statements. Mr. Michel Bagaragaza is a protected witness as exemplified in the attached Trial Chamber decisions in The Prosecutor v. Protais Zigiranyirazo”.

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Decision on Additional Evidence - 08.12.2006 NAHIMANA et al. (Media case)
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33. […] The Appeals Chamber […] observes “that the Prosecution may be relieved of its Rule 68 obligation if the existence of the relevant exculpatory material is known to the Defence and if it is reasonably accessible through the exercise of due diligence”.[1] As noted above, the document was known to the Appellant, and he has not demonstrated that the document was not reasonably accessible to him.

[1] Prosecutor v. Edouard Karemera et al., Case No. ICTR-98-44-AR73.7, Decision on Interlocutory Appeal Regarding the Role of the Prosecutor’s Electronic Disclosure Suite in Discharging Disclosure Obligations, 30 June 2006, para. 15; Prosecutor v. Tihomir Blaškic, Case No. IT-95-14-A, Appeal Judgement, 29 July 2004 (“Blaškić Appeals Judgement”), para. 296.

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Decision on Additional Evidence - 08.12.2006 NAHIMANA et al. (Media case)
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34. [T]he Appeals Chamber recalls that “material will fall within the ambit of Rule 68 if it tends to suggest the innocence or mitigate the guilt of the accused, or affects the credibility of Prosecution evidence”.[1] The determination of what material meets Rule 68 disclosure requirements is primarily a fact-based judgement made by and under the responsibility of the Prosecution.[2] Therefore, as noted previously, the Appeals Chamber will not intervene in the exercise of the Prosecution’s discretion, unless it is shown that the Prosecution abused it and, where there is no evidence to the contrary, will assume that the Prosecution is acting in good faith.[3] […]

[1] Prosecutor v. Krstić, Case No. IT-98-33-A, Appeal Judgement, 19 April 2004, para. 178.

[2] Decision on Appellant Jean-Bosco Barayagwiza’s Motion Requesting that the Prosecution Disclosure of the Interview of Michel Bagaragaza Be Expunged from the Record, 30 October 2006, (“Barayagwiza Decision on Disclosure”) para. 6; Prosecutor v. Edouard Karemera et al., Case No. ICTR-98-44-AR73.6, Decision on Joseph Nzirorera’s Interlocutory Appeal, 28 April 2006, para. 16; Prosecutor v. Radoslav Brđanin, Case No. IT-99-36-A, Decision on Appellant’s Motion for Disclosure Pursuant to Rule 68 and Motion for an Order to the Registrar to Disclose Certain Materials, 7 December 2004 (“Brđanin 7 December 2004 Decision”), p. 3; Blaškić Appeals Judgement, para. 264; Prosecutor v. Tihomir Blaškić, Case No IT-95-14-A, Decision on Prosecution’s Application to Seek Guidance from the Appeals Chamber regarding Redaction of the Statement of “Witness Two” for the purposes of Disclosure to Dario Kordić under Rule 68, 4 March 2004, (“Blaškić 4 March 2004 Decision”), para. 44; Prosecutor v. Tihomir Blaškić, Case No IT-95-14-A, [confidential] Decision on Prosecution’s Application to Seek Guidance from the Appeals Chamber regarding Redaction of the Statement of “Witness Two” for the purposes of Disclosure to Paško Ljubičić under Rule 68, 30 March 2004 (“Blaškić 30 March 2004 Decision”), paras 31-32; Prosecutor v. Tihomir Blaškić, Case No. IT-95-14-A, Decision on the Appellant’s Motions for the Production of Material, Suspension or Extension of the Briefing Schedule, and Additional Filings, 26 September 2000 (“Blaškić 26 September 2000 Decision”), paras 38, 45.

[3] Barayagwiza Decision on Disclosure, para. 6; Prosecutor v. Miroslav Bralo, Case No. IT-95-17-A, Decision on Motions for Access to Ex Parte Portions of the Record on Appeal and for Disclosure of Mitigating Material, 30 August 2006 (“Bralo Decision”), para. 31; Brđanin 7 December 2004 Decision, p. 3; Prosecutor v. Miroslav Kvočka et al., Case No. IT-98-30/1-A, Decision, 22 March 2004, p. 3; Georges Rutaganda v. Prosecutor, Case No. ICTR-96-3-A, Decision on Urgent Defence Motion for Disclosure and Admission of Additional Evidence and Scheduling Order, 12 December 2002, pp 4-5; Alfred Musema v. Prosecutor, Case No. ICTR-96-13-A, Decision on the Appellant’s Motions for the Production of Material, Suspension of Extension of the Briefing Schedule, and Additional Filings, 18 May 2001, p. 4; Blaškić 26 September 2000 Decision, para. 39.

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Decision on Additional Evidence - 08.12.2006 NAHIMANA et al. (Media case)
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34. […] In this respect, the Appeals Chamber notes that, if an appellant wishes to show that the Prosecution is in breach of these obligations, he/she must identify specifically the materials sought, present a prima facie showing of its probable exculpatory nature, and prove the Prosecutor's custody or control of the materials requested.[1] Finally, even when the Defence satisfies the Chamber that the Prosecution has failed to comply with its Rule 68 obligations, the Chamber will still examine whether the Defence has actually been prejudiced by such failure before considering whether a remedy is appropriate.[2] The Appeals Chamber is neither satisfied that the document is of prima facie exculpatory nature, nor that the alleged Prosecution’s failure to communicate it to the Appellant would have caused him any prejudice.[3]

[1] Bralo Decision, para. 31; Kajelijeli Appeal Judgement, para. 262; Brđanin7 December 2004 Decision, p. 3.

[2] Bralo Decision, para. 31; Kajelijeli Appeal Judgement, para. 262; Krstić Appeal Judgement, para. 153.

[3] See also supra at para. 29.

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Decision on Clarification - 26.05.2003 BLAŠKIĆ Tihomir
(IT-95-14-A)

9.       […] The Appeals Chamber considers that there is no indication in Rule 70 that the rule applies only to the pre-appeal stage in a case.  By its nature, the material envisaged in Rule 70 (C), and therefore necessarily in Rule 70, may arise at the pre-trial, trial, or appeal stage.  The Appeals Chamber considers, therefore, that the expression of “non-public material which falls under Rule 70 (C)” applies to material falling under Rule 70 and introduced into the proceedings at all stages of the case, including the appeal.

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15. Before considering what the Prosecution’s duty of disclosure is under sub-Rule 66 (A) (ii) of the Rules, it is necessary to consider whether the testimony given by a witness in a case can constitute a “witness statement” within the meaning of the sub-Rule. The Rules do not define what constitutes a witness statement.  The usual meaning of a witness statement in trial proceedings is an account of a person’s knowledge of a crime, which is recorded through due procedure in the course of an investigation into the crime.  The Appeals Chamber is of the view that when a witness testifies during the course of a trial before the Tribunal, the witness’s verbal assertions recorded by the Registry’s technical staff through contemporaneous transcription, are capable of constituting a witness statement within the meaning of sub-Rule 66 (A) (ii).  The testimony will constitute such a witness statement and therefore be subject to disclosure, only if the witness is intended to be called, in accordance with the sub-Rule, to testify in subsequent proceedings in relation to the subject-matter of the testimony.  In other words, the testimony is a witness statement for the subsequent proceedings.

16. It follows that the Prosecution does have a duty to disclose such witness statements to the Defence under certain conditions.  Whether or not they should be “made available” pursuant to sub-Rule 66 (A) (ii) depends upon the stage of the proceedings that a case has reached.  […] [T]he sub-Rule should be given its plain meaning that, once a witness has given evidence in court, the Prosecution can no longer intend to call that witness to testify, and that there is therefore no obligation to make available any subsequent statements from the witness, unless the witness will be recalled as an additional Prosecution witness in the sense of the sub-Rule. […]

17. The Appeals Chamber is also of the view that sub-Rule 66 (A) (ii) can be applied, mutatis mutandis, in appeals, pursuant to Rule 107. Additional evidence may be admitted on appeal by way of Rule 115, and prior to the presentation of such evidence through witnesses under the rule, the presenting party shall follow the procedure of sub-Rule 66 (A) (ii) to disclose witness statements to the other party.

[RULE 66(A)(II) WAS AMENDED ON 1 DECEMBER 2000, 13 DECEMBER 2000, AND 13 SEPTEMBER 2006.]

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66(A)(ii)
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Decision on Access to Ex Parte Materials and Disclosure of Mitigating Materials - 30.08.2006 BRALO Miroslav
(IT-95-17-A)

31. In case of failure to comply with disclosure obligations, the Appeals Chamber may decide proprio motu, or at the request of either party, to impose sanctions under Rule 68bis. In this respect, the Appeals Chamber notes that, if an accused wishes to show that the Prosecution is in breach of these obligations, he/she must identify specifically the materials sought, present a prima facie showing of its probable exculpatory nature, and prove the Prosecutor's custody or control of the materials requested.[1] However, the Appeals Chamber reiterates that the “general practice of the […] Tribunal is to respect the Prosecution’s function in the administration of justice, and the Prosecution’s execution of that function in good faith”.[2] Indeed, “[o]nly where the Defence can satisfy a Chamber that the Prosecution has failed to discharge its obligations should an order of the type sought to be contemplated”.[3] Finally, even when the Defence satisfies the Chamber that the Prosecution has failed to comply with its Rule 68 obligations, the Chamber will still examine whether the Defence has actually been prejudiced by such failure before considering whether a remedy is appropriate.[4]

34. […] Moreover, the Appeals Chamber recalls that “[t]his type of order is one that should only be made by a Chamber in very rare instances”.[5] In the present case, the Appellant has provided no indication of any alleged failure of the Prosecution to comply with its obligations. In light of its present submissions, the Prosecution is aware of its continuing obligation under Rule 68 and, for lack of evidence to the contrary, the Appeals Chamber must assume that the Prosecution is acting in good faith.[6] Therefore, his request for a general order from the Appeals Chamber compelling the Prosecution to comply with its obligations under Rules 66 and 68 and to make a declaration under Rule 112(B) should be dismissed.

[1] Kajelijeli Appeal Judgement, para. 262; Brđanin7 December 2004 Decision, p. 3.

[2] Kordić Appeal Judgement, para. 183 (footnotes omitted); Blaškić26 September 2000 Decision, paras 32, 45.

[3] Blaškić26 September 2000 Decision, para. 45.

[4] Kajelijeli Appeal Judgement, para. 262; Krstić Appeal Judgement, para. 153.

[5] Blaškić 26 September 2000 Decision, para. 45.

[6] Brđanin 7 December 2004, para. 45. See supra, para. 31 [reproduced below].

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Decision on Access to Ex Parte Materials and Disclosure of Mitigating Materials - 30.08.2006 BRALO Miroslav
(IT-95-17-A)

35. Finally, with respect to the issue of placing documents on the EDS, the Appeals Chamber recalls that Rule 68(ii) allows the Prosecution to do so “without prejudice to paragraph (i)”. In this sense, the Practice Direction Establishing Restrictions on Dissemination of Material Disclosed to the Defence by the Prosecutor on the “Electronic Disclosure System”, provides that the EDS is a system created “[i]n connection with the discharge of disclosure obligations” but “does not affect the Prosecutions obligations to disclose material under the Rules”.[1] The Appeals Chamber of the International Criminal Tribunal for Rwanda has recently specified that the Prosecution’s obligation under this provision “extends beyond simply making available its entire evidence collection in a searchable format”, since it “cannot serve as a surrogate for the Prosecution’s individualized consideration of the material in its possession”.[2] The Appeals Chamber also found that the EDS does not make documents “reasonably accessible as a general matter”, nor does it allow to assume that the Defence knows about all material included therein, to the extent that the Prosecution could be relieved of its Rule 68 obligation.[3] The Appeals Chamber also notes that the EDS database does not allow an accused on one case to access materials disclosed by the Prosecution to an accused in another case.[4] It has thus been suggested that the Prosecution should either “separate[] a special file for Rule 68 material or draw[] the attention of the Defence to such material in writing and permanently update[] the special file or the written notice”.[5]

[1] IT/219/Rev.1, 6 November 2003, p. 2.

[2] Karemera 30 June 2006 Decision, para. 10.

[3] Ibid., para. 15; see para. 30 supra [reproduced above].

[4] Prosecutor v. Tihomir Blaškić, Case No. IT-95-14-R, Confidential Decision on Motion for Extension of Time, 9 November 2005, p. 4.

[5] Karemera 30 June 2006 Decision, para. 15. The Appeals Chamber also recalls that there already exists a practice on putting the Defence on notice of disclosure through the EDS – see, e.g., Prosecutor v. Vujadin Popović, Case No IT-02-57-PT, Partly Confidential Prosecution’s Notice of Filing Witness List, Exhibit List and Disclosure of Witness Statements and Exhibits, 19 August 2005; Prosecutor v. Ljubiša Beara, Case No. IT-02-58-PT, Partly Confidential Prosecution’s Notice of Filing Witness List, Exhibit List and Disclosure of Witness Statements and Exhibits, 15 July 2005.

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Decision on Access to Ex Parte Materials and Disclosure of Mitigating Materials - 30.08.2006 BRALO Miroslav
(IT-95-17-A)

34. The Appeals Chamber finds that, while the Prosecution’s general declaration in its Respondent’s Brief is deficient in the sense of Rule 112(B), since the Prosecution admits that it is not certain whether all material available to him has been reviewed and/or disclosed, this defect has been cured by its subsequent declaration above. Consequently, there is no need to order the Prosecution to make another “positive declaration” to this extent. 

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Decision on Access to Ex Parte Materials and Disclosure of Mitigating Materials - 30.08.2006 BRALO Miroslav
(IT-95-17-A)

29. The Appeals Chamber recalls that the Prosecution has a positive and continuous obligation[1] under Rule 68 of the Rules to, “as soon as practicable, disclose to the Defence any material which in [its] actual knowledge […] may suggest the innocence or mitigate the guilt of the accused or affect the credibility of Prosecution evidence”. The application of this provision is not confined to the trial process and continues throughout the proceedings on the relevant case before the Tribunal.[2]

30. Determining what material meets Rule 68 disclosure requirements falls within the Prosecution’s discretion and its initial assessment of such exculpatory material must be done in good faith.[3] However, Rule 68(i) does not impose an obligation on the Prosecution to search for materials which he does not have knowledge of, nor does it entitle the Defence to embark on a fishing expedition to obtain exculpatory material.[4] It does not confer on the Accused a general right of access to the Prosecution’s files.[5] Indeed, when an accused asks a Chamber to order the production of material, the accused’s request “has to be sufficiently specific as to the nature of the evidence sought and its being in the possession of the addressee of the request”.[6] At the same time, such request is not required to be “as specific as to precisely identify which documents should be disclosed”.[7] The Appeals Chamber also notes that the Prosecution may be relieved of the obligations under Rule 68, “if the existence of the relevant exculpatory evidence is known and the evidence is accessible to the appellant, as the appellant would not be prejudiced materially by this violation”.[8]

[1] Prosecutor v. Édouard Karemera et al., Case No. ICTR-98-44-AR73.7, Decision on Interlocutory Appeal Regarding the Role of the Prosecutor’s Electronic Disclosure Suite in Discharging Disclosure Obligations, 30 June 2006 (“Karemera 30 June 2006 Decision”), para. 9; Prosecutor v. Théoneste Bagosora et al., Case No. ICTR-98-41-AR73 & ICTR-98-41-AR73(B), Decision on Interlocutory Appeals of Decision on Witness Protection Orders, 6 October 2005 (“Bagosora 6 October 2005 Decision”), para. 44; Prosecutor v. Tihomir Blaškić, Case No IT-95-14-A, [confidential] Decision on Prosecution’s Application to Seek Guidance from the Appeals Chamber regarding Redaction of the Statement of “Witness Two” for the purposes of Disclosure to Paško Ljubičić under Rule 68, 30 March 2004 (“Blaškić 30 March 2004 Decision”), para. 32; Prosecutor v. Tihomir Blaškić, Case No. IT-95-14-A, Decision on the Appellant’s Motions for the Production of Material, Suspension or Extension of the Briefing Schedule, and Additional Filings, 26 September 2000 (“Blaškić26 September 2000 Decision”), paras 29-32.

[2] Bagosora 6 October 2005 Decision, para. 44; Prosecutor v. Tihomir Blaškić, Case No IT-95-14-A, [confidential] Decision on Prosecution’s Application to Seek Guidance from the Appeals Chamber regarding Redaction of the Statement of “Witness Two” for the Purposes of Disclosure to Dario Kordić under Rule 68, 4 March 2004 (“Blaškić 4 March 2004 Decision”), para. 45; Blaškić26 September 2000 Decision, para. 32.

[3] Prosecutor v. Juvénal Kajelijeli, Case No. ICTR-98-44A-A, Judgement, 23 May 2005 (“Kajelijeli Appeal Judgement”), para. 262; Prosecutor v. Dario Kordić and Mario Čerkez, Case No. IT-95-14/2-A, Appeal Judgement, 17 December 2004 (“Kordić Appeal Judgement”), para. 183; Prosecutor v. Radoslav Brđanin, Case No. IT-99-36-A, Decision on Appellant’s Motion for Disclosure Pursuant to Rule 68 and Motion for an Order to the Registrar to Disclose Certain Materials, 7 December 2004 (“Brđanin 7 December 2004 Decision”), p. 3; Prosecutor v. Tihomir Blaškić, Case No. IT-95-14-A, Appeal Judgement, 29 July 2004, para. 264; Prosecutor v. Radislac Krstić, Case No IT-98-33-A, Judgement, 19 April 2004 (“Krstić Appeal Judgement”), para. 190; Blaškić 4 March 2004 Decision, para. 44; Blaškić 30 March 2004 Decision, paras 31-32; Blaškić26 September 2000 Decision, para. 45.

[4] Cf. Kajelijeli Appeal Judgement, paras 262-263; Blaškić Appeal Judgement, para. 268; Prosecutor v. Enver Hadžihasanović et al., Case No. IT-01-47-AR73, Decision on Appeal from Refusal to Grant Access to Confidential Material in Another Case, 23 April 2002 (“Hadžihasanović 23 April 2002 Decision”), p. 3. See also Prosecutor v. Casimir Bizimungu et al., Case No. ICTR-99-50-T, Decision on Bicamumpaka’s Motion for Disclosure of Exculpatory Evidence (MDR Files), 17 November 2004, paras 11-14; Prosecutor v. Casimir Bizimungu et al., Case No. ICTR-99-50-T, Decision on Prosper Mugiraneza’s Motion Pursuant to Rule 68 for Exculpatory Evidence Related to Witness GKI (TC), 14 September 2004, paras 8-12.

[5] Cf. Blaškić 29 October 1997 Decision, paras 48-49; Prosecutor v. Casimir Bizimungu et al., Case No. ICTR-99-50-T, Decision on Bicamumpaka’s Request Pursuant to Rule 73 for Certification to Appeal the 1 December 2004 “Decision on the Motion of Bicamumpaka and Mugenzi for Disclosure of Relevant Material”, 4 February 2005, para. 30; Le Procureur c. André Rwamakuba et consorts, Affaire No. ICTR-98-44-T, Décision relative à la Requête de la Défense aux fins d’une Ordonnance obligeant le Procureur à divulguer certains éléments de preuve, Article 66(B) du Règlement de procédure et de preuve, 15 janvier 2004, para. 13.

[6] Blaškić 26 September 2000 Decision, para. 40 ; Blaškić 29 October 1997 Decision, para. 32.

[7] Blaškić26 September 2000 Decision, para. 40.

[8] Eliézer Niyitegeka v. Prosecutor, Case No ICTR-96-14-R, Decision on Request for Review, 30 June 2006, para. 51.

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Decision on Disclosure - 18.05.2010 KAREMERA et al.
(ICTR-98-44-AR73.18)

 12. Pursuant to Rule 66(B) of the Rules, the Prosecutor shall permit the Defence, upon request, to inspect documents and other records in his custody or control if these records (i) are material to the preparation of the Defence case; (ii) are intended for use by the Prosecution as evidence at trial; or (iii) were obtained from or belonged to the accused. If the Defence is not satisfied with the Prosecution’s response to a request pursuant to Rule 66(B), it may request the Trial Chamber to order the inspection. 

13. However, the Defence bears the burden of proving an alleged breach of the Prosecution’s obligations pursuant to a request under Rule 66(B) of the Rules. It must therefore (i) demonstrate that the material sought is in the custody or control of the Prosecution; (ii) establish prima facie the materiality of the document sought to the preparation of the defence case; and (iii) specifically identify the requested material.[1]

[1] Jean de Dieu Kamuhanda v. The Prosecutor, Case No. ICTR-99-54A-R68, Decision on Motion for Disclosure, 4 March 2010 (“Kamuhanda Disclosure Decision”), para. 14; The Prosecutor v. Édouard Karemera et al., Case No. ICTR-98-44-AR73.11, Decision on the Prosecution’s Interlocutory Appeal Concerning Disclosure Obligations, 23 January 2008 (“First Karemera Decision”), para 12. See also The Prosecutor v. Théoneste Bagosora et al., Case No. ICTR-98-41-AR73, Decision on Interlocutory Appeal Relating to Disclosure Under Rule 66(B) of the Tribunal’s Rules of Procedure and Evidence, 25 September 2006 (“Bagosora Decision”), paras. 10, 11.

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Decision on Disclosure - 18.05.2010 KAREMERA et al.
(ICTR-98-44-AR73.18)

12. Pursuant to Rule 66(B) of the Rules, the Prosecutor shall permit the Defence, upon request, to inspect documents and other records in his custody or control if these records (i) are material to the preparation of the Defence case; (ii) are intended for use by the Prosecution as evidence at trial; or (iii) were obtained from or belonged to the accused. If the Defence is not satisfied with the Prosecution’s response to a request pursuant to Rule 66(B), it may request the Trial Chamber to order the inspection. 

24. The Appeals Chamber notes that Rule 67(D) of the Rules provides that

[i]f either party discovers additional evidence or information or materials which should have been produced earlier pursuant to the Rules, that party shall promptly notify the other party and the Trial Chamber of the existence of the additional evidence or information or materials.

The Appeals Chamber considers that Rule 67(D) of the Rules also applies to materials subject to an inspection request pursuant to Rule 66(B) of the Rules.[10] Once the Defence files an inspection request pursuant to Rule 66(B) of the Rules, the Prosecution is under an obligation to permit inspection of the requested materials, provided that the requisite standards for such a request are met. This puts the requested records into the category of material “which should have been produced earlier” within the meaning of Rule 67(D) of the Rules. Accordingly, where such materials come into the Prosecution’s possession subsequent to an inspection request from the Defence, the Prosecution is under a continuous obligation to promptly notify the Defence of their existence.

25. However, the Appeals Chamber reiterates that a continuous obligation to notify a party of inspection material pursuant to Rule 67(D) of the Rules can only arise where the underlying request reaches a degree of specificity that allows a direct and unambiguous identification of the sought material as squarely falling into the ambit of that request. This requires, as a minimum, the specificity described below.

[1] Jean de Dieu Kamuhanda v. The Prosecutor, Case No. ICTR-99-54A-R68, Decision on Motion for Disclosure, 4 March 2010 (“Kamuhanda Disclosure Decision”), para. 14; The Prosecutor v. Édouard Karemera et al., Case No. ICTR-98-44-AR73.11, Decision on the Prosecution’s Interlocutory Appeal Concerning Disclosure Obligations, 23 January 2008 (“First Karemera Decision”), para 12. See also The Prosecutor v. Théoneste Bagosora et al., Case No. ICTR-98-41-AR73, Decision on Interlocutory Appeal Relating to Disclosure Under Rule 66(B) of the Tribunal’s Rules of Procedure and Evidence, 25 September 2006 (“Bagosora Decision”), paras. 10, 11.

[2] First Karemera Decision, para. 12; Bagosora Decision, paras. 10, 11. See also supra, para. 15.

[3] Bagosora Decision, para. 10.

[4] See ibid.

[5] Ibid.

[6] Ibid.

[7] First Karemera Decision, paras. 14, 16.

[8] Appeal [The Prosecutor v. Édouard Karemera et al., Case No. ICTR-98-44-AR73.18, Joseph Nzirorera’s Appeal from Decision on 27th Rule 66 Violation, 15 February 2010], Annex “B”, p. 2, para. 64(D).

[9] The Prosecution has not contested Nzirorera’s contention that he is “alleged to be responsible for all crimes of the ‘Interahamwe’ within Rwanda” (Appeal, para. 36). See also The Prosecutor v. Édouard Karemera et al., Case No. ICTR-98-44-T, Amended Indictment, 3 April 2008 (“Indictment”), paras. 22-80.

[10] The Appeals Chamber notes that Rule 67(D) of the Rules explicitly refers to material that “should have been produced earlier” (emphasis added), thus encompassing both an inspection of records pursuant to Rule 66(B) as well as the disclosure regime pursuant to Rules 66(A), 68, and 70 of the Rules. The Appeals Chamber further notes that in contrast, Rule 67(D) of the Rules of Procedure and Evidence of the ICTY uses the term “disclosed”, which would, on its face, exclude the applicability of Rule 67(D) to Rule 66(B) of the Rules of Procedure and Evidence of the ICTY.

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ICTR Rule Rule 66(B);
Rule 67(D)
ICTY Rule Rule 66(B);
Rule 67(D)
Notion(s) Filing Case
Decision on Disclosure - 18.05.2010 KAREMERA et al.
(ICTR-98-44-AR73.18)

12. Pursuant to Rule 66(B) of the Rules, the Prosecutor shall permit the Defence, upon request, to inspect documents and other records in his custody or control if these records (i) are material to the preparation of the Defence case; (ii) are intended for use by the Prosecution as evidence at trial; or (iii) were obtained from or belonged to the accused. If the Defence is not satisfied with the Prosecution’s response to a request pursuant to Rule 66(B), it may request the Trial Chamber to order the inspection. 

32. The Appeals Chamber recalls that to trigger the Prosecution’s obligation under Rule 66(B) of the Rules, the Defence must, inter alia, specifically identify the requested material.[2] “Rule 66(B) of the Rules does not create a broad affirmative obligation on the Prosecution to disclose any and all documents which may be relevant to its cross-examination”.[3] The Defence may not rely on a mere general description of the requested information but is required to define the parameters of its inspection request with sufficient detail. Suitable parameters for such specification may be an indication of a specific event or group of witnesses which the request focuses on, a time period and/or geographic location which the material refers to, or any other features defining the requested items with sufficient precision.[4] A request may also refer to a category of documents[5] defined by criteria which apply to a distinct group of individuals. The scope of what constitutes a “discrete group of individuals” for the purpose of an inspection request, as well as the determination whether the required level of specificity has been met, is considered in light of the specific framework of the case. The Appeals Chamber has previously found the specificity requirements to be satisfied inter alia in cases where the defence has sought access to a precise category of documents, such as immigration-related material of certain Defence witnesses,[6] or witness statements of a specific witness.[7]

33. […] [The Appeals Chamber] finds that sub-section (D) of the June 2002 Inspection Request delineated a category of documents linking acts of Interahamwe with Nzirorera; it also specified the quality of that link, namely whether he “planned, ordered, or otherwise aided and abetted those acts, or was responsible for them under Article 6(3)” of the Statute.[8] The Appeals Chamber considers that these indications define the request parameters with sufficient detail, particularly considering the broad nature of the charges against Nzirorera.[9]

[1] Jean de Dieu Kamuhanda v. The Prosecutor, Case No. ICTR-99-54A-R68, Decision on Motion for Disclosure, 4 March 2010 (“Kamuhanda Disclosure Decision”), para. 14; The Prosecutor v. Édouard Karemera et al., Case No. ICTR-98-44-AR73.11, Decision on the Prosecution’s Interlocutory Appeal Concerning Disclosure Obligations, 23 January 2008 (“First Karemera Decision”), para 12. See also The Prosecutor v. Théoneste Bagosora et al., Case No. ICTR-98-41-AR73, Decision on Interlocutory Appeal Relating to Disclosure Under Rule 66(B) of the Tribunal’s Rules of Procedure and Evidence, 25 September 2006 (“Bagosora Decision”), paras. 10, 11.

[2] First Karemera Decision, para. 12; Bagosora Decision, paras. 10, 11. See also supra, para. 15.

[3] Bagosora Decision, para. 10.

[4] See ibid.

[5] Ibid.

[6] Ibid.

[7] First Karemera Decision, paras. 14, 16.

[8] Appeal [The Prosecutor v. Édouard Karemera et al., Case No. ICTR-98-44-AR73.18, Joseph Nzirorera’s Appeal from Decision on 27th Rule 66 Violation, 15 February 2010], Annex “B”, p. 2, para. 64(D).

[9] The Prosecution has not contested Nzirorera’s contention that he is “alleged to be responsible for all crimes of the ‘Interahamwe’ within Rwanda” (Appeal, para. 36). See also The Prosecutor v. Édouard Karemera et al., Case No. ICTR-98-44-T, Amended Indictment, 3 April 2008 (“Indictment”), paras. 22-80.

[10] The Appeals Chamber notes that Rule 67(D) of the Rules explicitly refers to material that “should have been produced earlier” (emphasis added), thus encompassing both an inspection of records pursuant to Rule 66(B) as well as the disclosure regime pursuant to Rules 66(A), 68, and 70 of the Rules. The Appeals Chamber further notes that in contrast, Rule 67(D) of the Rules of Procedure and Evidence of the ICTY uses the term “disclosed”, which would, on its face, exclude the applicability of Rule 67(D) to Rule 66(B) of the Rules of Procedure and Evidence of the ICTY.

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Decision Concerning Rule 70 - 26.03.2004 ORIĆ Naser
(IT-03-68-AR73)

6. If Rule 70(F), however, is read in the context of Rule 70 as a whole it becomes apparent that the Trial Chamber erred in adopting such a strict interpretation of Rule 70(F). Under Rule 70(B), information obtained by the Prosecution on a confidential basis is automatically subject to the confidentiality protection of Rule 70. Thus, when requesting a third party to provide it with confidential information the Prosecution can, at that time, guarantee to the provider that the confidentiality of the information will be protected. Rule 70(F) provides that, upon application by the Defence, the provisions of Rule 70 that apply to the Prosecution shall apply mutatis mutandis to “specific information in the possession of the accused”. If the protection accorded to the Prosecution is to apply mutatis mutandis to the Defence, Rule 70(F) falls to be interpreted as enabling the Defence to request a Trial Chamber that it be permitted to give the same undertaking as the Prosecution to a prospective provider of confidential material that that material will be protected if disclosed to the Defence. The purpose of Rule 70(F) is to encourage third parties to provide confidential information to the Defence in the same way as Rule 70(B) encourages parties to do the same for the Prosecution[1], regardless of any further disclosure of that confidential information.

7. Read within the context of the Rule therefore, and with its purpose in mind, the reference of Rule 70(F) to “specific information in the possession of an accused” is not a condition of the making of an order that the Rule applies; it is a reference to what the Rule will apply to after the making of an order that it is to apply. The circumstance that the accused is not now in possession of such information is therefore not pertinent.

[1] See generally Prosecutor v Slobodan Milošević, Case No IT-02-54-AR108bis & AR73.3, Public Version of the Confidential Decision on the Interpretation and Application of Rule 70, 23 October 2003, para 19.

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ICTR Rule Rule 70 ICTY Rule Rule 70
Notion(s) Filing Case
Decision on Access to Confidential Materials - 21.02.2007 KRAJIŠNIK Momčilo
(IT-00-39-A)

Pp. 5-6: CONSIDERING that “material provided under Rule 70 shall not be released to the Accused in another case unless the provider consents to such disclosure”;[1]

CONSIDERING that “[t]he purpose of Rule 70(B) to (G) is to encourage States, organizations, and individuals to share sensitive information with the Tribunal […] by permitting the sharing of information on a confidential basis and by guaranteeing information providers that the confidentiality of the information they offer and of the information’s sources will be protected”[2] and that, “[w]hen a person possessing important knowledge is made available […] on a confidential basis, not only the informant’s identity and the general subject of his knowledge constitute the ‘information’ shielded by Rule 70, but also the substance of the information shared by the person”;[3]

FINDING therefore that neither the material provided under Rule 70 to either the Prosecution or the Defence in a case nor its sources may be released to the accused in another case prior to obtaining consent from the provider of that information and that this holding does not depend upon whether or not that material was used as evidence in a previous case;

[1] Blaškić 2006 Decision, p. 11; Prosecutor v. Tihomir Blaškić, Case No. IT-95-14-A, Decision on Prosecution’s Motion for Clarification of the Appeals Chamber’s Decision Dated 4 December 2002 on Paško Ljubičić’s Motion for Access to Confidential Material, Transcripts and Exhibits in the Blaškić Case, 8 March 2004, para. 35; Prosecutor v. Tihomir Blaškić, Case No. IT-95-14-A, Order on Protective Measures and Prosecution’s Submissions on Disclosure of Rule 70 Material and Ex Parte Filings from the Trial in Prosecutor v. Blaškić to Paško Ljubičić, 20 April 2004, p. 4.

[2] Blaškić 2006 Decision, p. 12; Prosecutor v. Slobodan Milošević, Case No. IT-02-54-AR108bis & AR73.3, Public Version of the Confidential Decision on the Interpretation and Application of Rule 70, 23 October 2002 (“Milošević Decision”), para. 19.

[3] Milošević Decision, para. 23.

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ICTR Rule Rule 70 ICTY Rule Rule 70
Notion(s) Filing Case
Decision on Access to Confidential Materials - 21.02.2007 KRAJIŠNIK Momčilo
(IT-00-39-A)

The Krajišnik Appeals Chamber was seized of a motion by Stanišić, asking for access to all confidential material in the Krajišnik case for the purposes of his defence. The Prosecution responded that it would not oppose access to all inter partes material subject to material relating to certain witnesses (specified in an ex parte annex) whose identities had been protected from Krajišnik pursuant to Rule 69 orders and who the Prosecution intended to call in the Stanišić trial as well. The question therefore arose whether Rule 75(F), which stipulates that once protective measures are ordered in one trial they are also in effect with regard to other proceedings before the Tribunal, also applies to measures ordered pursuant to Rule 69. The Appeals Chamber answered this question in the affirmative:

P. 7: CONSIDERING that “delayed disclosure” orders are protective measures to which Rule 75(F) of the Rules applies;[1]

CONSIDERING that even though such orders given in the first proceedings could be considered moot once disclosure is made, “the meaning of the expression ‘mutatis mutandis’ itself requires a flexible application of the principle enshrined in [Rule 75] and suggests that the same kinds of protection given to a witness in one case should be automatically extended to this witness in a later case, regardless of whether this is literally ‘continuation’”;[2]

FINDING that the sensitive witnesses in the Krajišnik case, as listed in the Prosecution Annex, were protected by delayed disclosure orders and that, if they are going to testify in another case, the information from the Krajišnik case should similarly be subject to delayed disclosure to the defendants in that other case (unless an order pursuant to Rule 75(G) is made);[3]

[1] Prosecutor v. Radoslav Brðanin, Case No. IT-99-36-A, Decision on Mićo Stanišić’s Motion for Access to All Confidential Materials in the Brðanin Case, 24 January 2007 (“Brðanin Decision”), para. 17.

[2] Ibid.

[3] Ibid.

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ICTR Rule Rule 75(F) ICTY Rule Rule 75(F)
Notion(s) Filing Case
Appeal Judgement - 19.04.2004 KRSTIĆ Radislav
(IT-98-33-A)

Two witnesses were called by the Trial Chamber proprio motu pursuant to its powers under Rule 98. Both of these witnesses were at the time the subject of separate Prosecution investigations. Upon appeal, the Defence argued that the Prosecution’s failure to disclose information relating to the investigations of these witnesses constituted a breach of Rule 68 of the Rules in that the information may have affected their credibility. (See paras 201-203.)

The Appeals Chamber considered:

204. While the Prosecution did disclose to the Trial Chamber the fact that the two witnesses were under investigation, it has not been established that the Prosecution also disclosed to the Trial Chamber any other evidence that may have been of relevance to the credibility of those same witnesses. The Appeals Chamber does not accept that evidence called proprio motu by a Trial Chamber can relieve the Prosecution of its obligation under Rule 68 in relation to that evidence. The scope of Rule 68 is clear: It applies to any material known to the Prosecution that either suggests the innocence or mitigates the guilt of the accused, or evidence that may affect the credibility of Prosecution evidence.

[…]

206. […] The Prosecution’s obligation to disclose under Rule 68 is a continuing obligation,[1] precisely because the relevance to the case of certain material held by the Prosecution may not be immediately clear. Rule 68 prima facie obliges the Prosecution to monitor the testimony of witnesses, and to disclose material relevant to the impeachment of the witness, during or after testimony. If the amount of material is extensive, the parties are entitled to request an adjournment in order to properly prepare themselves.

[1] Kordić & Čerkez Order on Motion to Compel Compliance by the Prosecution with Rules 66 (A) and 68 [Prosecutor v. Dario Kordić and Mario Čerkez, Order on Motion to Compel Compliance by the Prosecution with Rules 66 (A) and 68, Case No. IT-95-14/2, Trial Chamber, 26 February 1999].

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ICTR Rule Rule 68 ICTY Rule Rule 68
Notion(s) Filing Case
Appeal Judgement - 19.04.2004 KRSTIĆ Radislav
(IT-98-33-A)

189. The Defence submits that the Rule 68 disclosures of 25 June 2000 and 5 March 2001 made during trial were buried beneath other material provided at the time, and that the failure of the Prosecution to identify the disclosed material as being disclosed under Rule 68 breached the spirit and letter of that Rule.[1] In response, the Prosecution argues that there is no specific requirement obliging it to indicate the provision in accordance with which a disclosure of documents occurs, or to identify the specific material disclosed as exculpatory.[2]

190. The Appeals Chamber agrees with the Prosecution that Rule 68 does not require the Prosecution to identify the material being disclosed to the Defence as exculpatory. The jurisprudence of the Tribunal shows that while some Trial Chambers have recognised that it would be fairer for the Prosecution to do so,[3] there is no prima facie requirement, absent an order of the Trial Chamber to that effect, that it must do so.

191. However, the fact that there is no prima facie obligation on the Prosecution to identify the disclosed Rule 68 material as exculpatory does not prevent the accused from arguing, as a ground of appeal, that he suffered prejudice as a result of the Prosecution’s failure to do so.

[1] Defence Appeal Brief, para. 128.

[2] Prosecution Response [Prosecution Response to the Defence Appeal Brief, 8 May 2002], para. 3.53.

[3] Krajišnik & Plavšić Decision on Motion from Momcilo Krajisnik to Compel Disclosure of Exculpatory Evidence Pursuant to Rule 68 [Prosecutor v. Momčilo Krajišnik & Biljana Plavšić, Case No. IT-00-39&40-PT, Decision on Motion from Momčilo Krajišnik to Compel Disclosure of Exculpatory Evidence Pursuant to Rule 68, 19 July 2001], p. 2: “as a matter of practice and in order to secure a fair and expeditious trial, the Prosecution should normally indicate which material it is disclosing under the Rule and it is no answer to say that the Defence are in a better position to identify it.”

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ICTR Rule Rule 68 ICTY Rule Rule 68
Notion(s) Filing Case
Appeal Judgement - 20.10.2010 KALIMANZIRA Callixte
(ICTR-05-88-A)

18. Rule 68 of the Rules provides, inter alia, that the Prosecution “shall, as soon as practicable, disclose to the Defence any material, which in the actual knowledge of the Prosecutor may suggest the innocence or mitigate the guilt of the accused or affect the credibility of Prosecution evidence.”[1] The Appeals Chamber recalls that the Prosecution’s obligation to disclose exculpatory material is essential to a fair trial.[2] The Appeals Chamber has always interpreted this obligation broadly.[3] To establish a violation of the Rule 68 disclosure obligation, the defence must establish that additional material is in the possession of the Prosecution and present a prima facie case that the material is exculpatory.[4] If the defence satisfies the trial chamber that the Prosecution has failed to comply with its Rule 68 obligations, then the trial chamber must examine whether the defence has been prejudiced by that failure before considering whether a remedy is appropriate.[5]

19. The Trial Chamber determined that the material at issue was in the possession of the Prosecution, but that Kalimanzira did not demonstrate that it was exculpatory.[6] Although the Trial Chamber correctly articulated the test for assessing disclosure violations,[7] the Appeals Chamber finds that it inappropriately applied an elevated standard in assessing whether the material was exculpatory within the meaning of Rule 68 of the Rules. Specifically, the Trial Chamber noted that the witnesses in the Nyiramasuhuko et al. case did not mention seeing Kalimanzira at Kabuye hill.[8] It observed that no questions were asked about him, and the transcripts, thus, “[did] not contradict the evidence adduced in the Kalimanzira trial,”[9] asserting that the failure “to make mention of Kalimanzira’s presence at Kabuye hill during the period at issue does not mean that Kalimanzira could not have been there.”[10]

20. The Trial Chamber’s analysis appears to focus on the potentially low probative value of the Nyiramasuhuko et al. evidence. While that is certainly a relevant consideration in assessing whether an accused was prejudiced by late or non-disclosure of Rule 68 material, the Appeals Chamber recalls that the defence does not bear the burden of “contradict[ing]]” the Prosecution’s evidence.[11] It need only raise a reasonable doubt as to the accused’s participation in a crime.[12] In addition, in order to establish a violation of disclosure obligations under Rule 68 of the Rules, the defence need only show that the material is prima facie or “potentially” exculpatory.[13] The Appeals Chamber considers that Kalimanzira did demonstrate that the absence of any reference to him in the relevant Nyiramasuhuko et al. testimony is potentially exculpatory. Accordingly, the Appeals Chamber finds that the Trial Chamber erred in law in assessing whether the transcripts were in fact exculpatory in order to determine if a breach of the disclosure obligations under Rule 68 of the Rules occurred.

[1] Rule 68(A) of the Rules (emphasis added).

[2] The Prosecutor v. Édouard Karemera et al., Case No. 98-44-AR73.7, Decision on Interlocutory Appeal Regarding the Role of the Prosecutor’s Electronic Disclosure Suite in Discharging Disclosure Obligations, 30 June 2006, para. 9 (“Karemera et al. Appeal Decision of 30 June 2006”); The Prosecutor v. Édouard Karemera et al., Case No. 98-44-AR73.6, Decision on Joseph Nzirorera’s Interlocutory Appeal, 28 April 2006, para. 7 (“Karemera et al. Appeal Decision of 28 April 2006”); The Prosecutor v. Théoneste Bagosora et al., Case Nos. ICTR-98-41-AR73, ICTR-98-41-AR73(B), Decision on Interlocutory Appeals of Decision on Witness Protection Orders, 6 October 2005, para. 44; Kordić and Čerkez Appeal Judgement, paras. 183, 242; Blaškić Appeal Judgement, para. 264; Krstić Appeal Judgement, para. 180; Prosecutor v. Radoslav Brđanin, Case No. IT-99-36-A, Decision on Appellant’s Motion for Disclosure Pursuant to Rule 68 and Motion for an Order to the Registrar to Disclose Certain Materials, 7 December 2004, p. 3 (“Brđanin Appeal Decision of 7 December 2004”).

[3] Karemera et al. Appeal Decision of 30 June 2006, para. 9. See also Blaškić Appeal Judgement, paras. 265, 266; Krstić Appeal Judgement, para. 180.

[4] Kajelijeli Appeal Judgement, para. 262. See also Georges Anderson Nderubumwe Rutaganda v. The Prosecutor, Case No. ICTR-96-03-R, Decision on Requests for Reconsideration, Review, Assignment of Counsel, Disclosure, and Clarification, 8 December 2006, para. 36 (“Rutaganda Review Decision”); Karemera et al. Appeal Decision of 28 April 2006, para. 13.

[5] See Kajelijeli Appeal Judgement, para. 262; Krstić Appeal Judgement, para. 153.

[6] Trial Judgement [The Prosecutor v. Callixte Kalimanzira, Case No. ICTR-05-88-T, Judgement, 22 June 2009], paras. 57, 58.

[7] Trial Judgement, para. 56.

[8] Trial Judgement, para. 58.

[9] Trial Judgement, para. 58.

[10] Trial Judgement, para. 58.

[11] Cf. Zigiranyirazo Appeal Judgement, para. 19 (“The Appeals Chamber has recognized that language which suggests, inter alia, that an accused must ‘negate’ the Prosecution evidence, ‘exonerate’ himself, or ‘refute the possibility’ that he participated in a crime indicates that the Trial Chamber misapplied the burden of proof.”) (internal citations omitted); Muhimana Appeal Judgement, para. 18 (“An accused does not need to prove at trial that a crime ‘could not have occurred’ or ‘preclude the possibility that it could occur’.”).

[12] Cf. Zigiranyirazo Appeal Judgement, para. 17.

[13] Karemera et al. Appeal Decision of 28 April 2006, para. 13. Rule 68(A) of the Rules states (emphasis added): “The Prosecutor shall, as soon as practicable, disclose to the Defence any material, which in the actual knowledge of the Prosecutor may suggest the innocence or mitigate the guilt of the accused or affect the credibility of Prosecution evidence.” The Appeals Chamber routinely construes the Prosecution’s disclosure obligations under the Rules broadly in accord with their plain meaning. See Bagosora et al. Appeal Decision of 25 September 2006 [The Prosecutor v. Théoneste Bagosora et al., Case No. ICTR-98-41-AR73, Decision on Interlocutory Appeal Relating to Disclosure Under Rule 66(B) of the Tribunal’s Rules of Procedure and Evidence, 25 September 2006]], para. 8, citing Karemera et al. Appeal Decision of 30 June 2006, paras. 9-13, Krstić Appeal Judgement, para. 180, Blaškić Appeal Judgement, paras. 265, 266.

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ICTR Rule Rule 68 ICTY Rule Rule 68
Notion(s) Filing Case
Appeal Judgement - 20.10.2010 KALIMANZIRA Callixte
(ICTR-05-88-A)

40. The Appeals Chamber considers that the trial chamber is best placed to determine both the modalities for disclosure of material intended for use in cross-examination and also the amount of time that is sufficient for an accused to prepare his defence based on the specifics of such disclosure.[1] In this case, the Trial Chamber stated its preference for disclosure prior to cross-examination, and, when this did not occur, it assessed any possible prejudice to Kalimanzira.[2] The Appeals Chamber can identify no error in the Trial Chamber’s approach. […]

[1] See Bagosora et al. Appeal Decision of 25 September 2006, para. 12.

[2] Trial Judgement, paras. 38, 40, 41.

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Decision on Interlocutory Appeal - 28.04.2006 KAREMERA et al.
(ICTR-98-44-AR73.6)

Background: the Prosecution disclosed to the Defence a judgement of a Rwandan court that implicated a Prosecution witness right before that witness testified. The Defence requested that the Trial Chamber stay the proceedings. In the present interlocutory appeal, the Appellant (Defence) argued that the Trial Chamber erred as a matter of law by failing to provide him with adequate time and facilities to prepare his defence in violation of his rights under Article 20(4)(b) of the Statute.

The Appeals Chamber recalled the standard of review with regard to adjournment and found that the Trial Chamber did not abuse its discretion in finding that, in the circumstances of the case, no prejudice resulted from the late disclosures. The Appeals Chamber held that a Trial Chamber can “control the progress of the proceedings as appropriate, provided that it does not encroach on fair trial rights”.

See paras 7-8:

7. The Prosecution’s obligation to disclose potentially exculpatory material is essential to a fair trial.[1] However, not every violation of this important obligation implicates a violation of an accused’s fair trial rights, warranting a remedy.[2] If a Rule 68 disclosure is extensive, parties are entitled to request an adjournment in order to properly prepare themselves.[3] The authority best placed to determine what time is sufficient for an accused to prepare his defence is the Trial Chamber conducting the case.[4]

8. Mr. Nzirorera raised the issue of his need for investigations arising from the late disclosure before the Trial Chamber.[5] In the Impugned Decision, the Trial Chamber expressly considered the impact of the late disclosure on Mr. Nzirorera’s ability to prepare for Witness UB’s testimony and determined that the late disclosure would not interfere with an effective cross-examination.[6] Furthermore, the Trial Chamber noted that it would provide appropriate additional relief on a case-by-case basis and indicated that it might be appropriate to recall the witness if further investigations warranted additional cross-examination.[7] In the present circumstances, the Appeals Chamber cannot say that the Trial Chamber abused its discretion in declining to stay the proceedings. The Appeals Chamber considers that in long and complicated cases, it is necessary for a Trial Chamber to exercise its discretion to control the progress of the proceedings as appropriate, provided that it does not encroach on fair trial rights.[8]

[1] The Prosecutor v. Théoneste Bagosora et al., ICTR Case Nos. 98-41-AR73, 98-41-AR73(B), Decision on Interlocutory Appeals on Witness Protection Orders, 6 October 2005, para. 44; The Prosecutor v. Dario Kordić and Mario Čerkez, Case No. IT-95-14/2-A, Appeal Judgement, 17 December 2004, paras. 183, 242 (“Kordić and Čerkez Appeal Judgement”); The Prosecutor v. Tihomir Blaškić, Case No. IT-95-14-A, Judgement, 20 July 2004, para. 264 (“Blaškić Appeal Judgement”); The Prosecutor v. Radislav Krstić, Case No. IT-98-33-A, Judgement, 19 April 2004, para. 180 (“Krstić Appeal Judgement”); The Prosecutor v. Radoslav Brđanin, Case No. IT-99-36-A, Decision on Appellant’s Motion for Disclosure Pursuant to Rule 68 and Motion for an Order to the Registrar to Disclose Certain Materials, 7 December 2004, p. 3 (“Brđanin Decision”).

[2] Kordić and Čerkez Appeal Judgement, para. 179 (“Once the Defence has satisfied a Chamber that the Prosecution has failed to comply with Rule 68, the Chamber, in addressing what is the appropriate remedy (if any) must examine whether or not the Defence has been prejudiced by a breach of Rule 68 […].”)(emphasis added). See also The Prosecutor v. Juvénal Kajelijeli, ICTR Case No. 98-44A-A, Judgement, 23 May 2005, para. 262 (Kajelijeli Appeal Judgement”); Blaškić Appeal Judgement, paras. 295, 303; Krstić Appeal Judgement, para. 153.

[3] Krstić Appeal Judgement, para. 206.

[4] The Prosecutor v. Slobodan Milošević, Case No. IT-02-54-AR73.6, Decision on the Interlocutory Appeal by the Amici Curiae against the Trial Chamber Order Concerning the Presentation and Preparation of the Defence Case, 20 January 2004, para. 18.

[5]T. 13 February 2006 p. 16.

[6] Impugned Decision, p. 8.

[7] Impugned Decision, pp. 3, 8, 10.

[8] See Kordić and Čerkez Appeal Judgement, para. 196.

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ICTY Rule Rule 68 bis
Notion(s) Filing Case
Decision on Interlocutory Appeal - 28.04.2006 KAREMERA et al.
(ICTR-98-44-AR73.6)

The Appeals Chamber recalled the standard of proof for alleged Rule 68 violations:

13. To establish a violation of the Rule 68 disclosure obligation, the Defence must (i) establish that additional material exists in the possession of the Prosecution; and (ii) present a prima facie case that the material is exculpatory.[1]

16. […] The responsibility for disclosing exculpatory material rests on the Prosecution, and the determination of what material meets Rule 68 disclosure requirements is primarily a facts-based judgement, falling within the Prosecution’s responsibility.[2]

17. The Appeals Chamber cannot fault the Trial Chamber for requesting Mr. Nzirorera to provide an “evidentiary basis” for his claims that the material fell within the scope of Rule 68, contrary to the assertions of the Prosecution.[3] The Trial Chamber is entitled to assume that the Prosecution is acting in good faith.[4] […]

[1] Kajelijeli Appeal Judgement, para. 262; Kordić and Čerkez Appeal Judgement, para. 179; The Prosecutor v. Radoslav Brđanin, Case No. IT-99-36-A, Decision on Appellant’s Motion for Disclosure Pursuant to Rule 68 and Motion for an Order to the Registrar to Disclose Certain Materials, 7 December 2004, p. 3.

[2] Kordić and Čerkez Appeal Judgement, para. 183; Brđanin Decision, p. 3. See also Kajelijeli Appeal Judgement, para. 262.

[3] See Impugned Decision, pp. 7, 8; T. 13 February 2006 p. 6 (“If you're saying the Prosecutor has not honoured a commitment and you're asking us to provide a remedy for doing so, we would need some evidence that would enable us to say that.”).

[4] Kordić and Čerkez Appeal Judgement, para. 183; Brđanin Decision, p. 3.

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Decision on Rebuttal Material - 13.12.2006 NAHIMANA et al. (Media case)
(ICTR-99-52-A)

15. […] Considering that the Appellant has not suffered any apparent prejudice as a result of this violation, since these documents were communicated to him more than a month before the appeals hearing, the Appeals Chamber will not impose sanctions on the Prosecution for this violation. However, the Appeals Chamber warns the Prosecution of the possibility of sanctions should it again be found in violation of its disclosure obligations in the present case. 

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ICTR Rule Rule 66 ICTY Rule Rule 66; 68bis
Notion(s) Filing Case
Appeal Judgement - 29.09.2014 KAREMERA & NGIRUMPATSE
(ICTR-98-44-A)

52.     The Appeals Chamber further recalls that decisions of individual trial chambers have no binding force on other trial chambers.[1] A trial chamber must make its own final assessment of the evidence on the basis of the totality of the evidence presented in the case before it.[2] Consequently, two reasonable triers of facts may reach different but equally reasonable conclusions when determining the probative value of the evidence presented at trial.[3] Likewise, the Appeals Chamber considers that an assessment as to whether the defence has been prejudiced by the Prosecution’s disclosure violations and whether a remedy is appropriate depends on the particular circumstances of the case.[4] An error cannot be established by simply demonstrating that other trial chambers have exercised their discretion in a different way.[5]

See also paras 257, 262, 439, 543.

[1] Lukić and Lukić Appeal Judgement, para. 260; Aleksovski Appeal Judgement, para. 114. See also The Prosecutor v. Théoneste Bagosora et al., Case Nos. ICTR-98-41-AR73 and ICTR-98-41-AR73(B), Decision on Interlocutory Appeals of Decision on Witness Protection Orders, 6 October 2005, para. 33.

[2] Lukić and Lukić Appeal Judgement, para. 260; Stakić Appeal Judgement, para. 346.

[3] Lukić and Lukić Appeal Judgement, para. 396; Krnojelac Appeal Judgement, paras. 11, 12.

[4] See, e.g., Mugenzi and Mugiraneza Appeal Judgement, paras. 39, 43-46, 54, 55; Kalimanzira Appeal Judgement, paras. 18-22.

[5] Lukić and Lukić Appeal Judgement, para. 396. See also Krnojelac Appeal Judgement, para. 12. 

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Notion(s) Filing Case
Decision on Disclosure - 25.05.2016 UWINKINDI Jean
(MICT-12-25-AR14.1)

RECALLING that Rule 71(B) of the Rules provides, inter alia, that the Prosecutor shall, on request, permit the Defence to inspect any books, documents, photographs, and tangible objects in the Prosecutor’s custody or control, which are material to the preparation of the defence;[1]

CONSIDERING that Rule 71(B) of the Rules applies to appeal proceedings;[2]

CONSIDERING that the obligation to provide access pursuant to Rule 71(B) of the Rules is only triggered by a sufficiently specific request by the Defence;[3]

CONSIDERING FURTHER that, prior to obtaining a judicial order for the inspection of any item material the preparation of the defence, the applicant must: (i) demonstrate that the material sought is in the custody or control of the Prosecution; (ii) establish the prima facie materiality of the document sought to the preparation of the defence case; and (iii) specifically identify the requested material;[4]

[…]

CONSIDERING that, in relation to appellate proceedings, the Prosecution should consider the following criteria to determine if material in its possession is material to the preparation of the defence in accordance with Rule 71(B) of the Rules: (i) whether the issue to which the material relates is the subject of a ground of appeal; or (ii) whether the material could reasonably lead to further investigation by the Defence and the discovery of additional evidence admissible on appeal;[5]

[…]

CONSIDERING that the Prosecution should not disclose the Report, which was provided confidentially, without first obtaining consent to disclose it from its author;[6]

[1] The Appeals Chamber observes that, in material respects, Rule 71(B) of the Rules tracks the language of Rules 66(B) of the Rules of Procedure and Evidence of the International Tribunal for the former Yugoslavia (“ICTY”) and for the International Criminal Tribunal for Rwanda (“ICTR”) (collectively, “ad hoc Tribunals”). Consequently, the Appeals Chamber finds the Appeals Chamber jurisprudence of the ad hoc Tribunals interpreting Rule 66(B) of the ICTY and ICTR Rules of Procedure and Evidence highly relevant in its interpretation of Rule 71(B) of the Rules. See Phénéas Munyarugarama v. Prosecutor, Case No. MICT-12-09-AR14, Decision on Appeal against the Referral of Phénéas Munyarugarama’s Case to Rwanda and Prosecution Motion to Strike, 5 October 2012, para. 6.

[2] See Prosecutor v. Miroslav Bralo, Case No. IT-95-17-A, Decision on Miroslav Bralo’s Motion for Admission of Additional Evidence (confidential), 12 January 2007 (“Bralo Decision of 12 January 2007”), para. 25; Ferdinand Nahimana et al. v. The Prosecutor, Case No. ICTR-99-52-A, Decision on Motions Relating to the Appellant Hassan Ngeze’s and the Prosecution’s Requests for Leave to Present Additional Evidence of Witnesses ABC1 and EB (public redacted version), 1 December 2006 (“Nahimana et al. Decision of 1 December 2006”), para. 16; The Prosecutor v. Théoneste Bagosora et al., Case No. ICTR-98-41-AR73, Decision on Interlocutory Appeal Relating to Disclosure Under Rule 66(B) of the Tribunal’s Rules of Procedure and Evidence, 26 September 2006 (“Bagosora et al. Decision of 26 September 2006”), para. 9, n. 35; Prosecutor v. Radislav Krstić, Case No. IT-98-33-A, Decision on the Prosecution’s Motion to be Relieved of Obligation to Disclose Sensitive Information Pursuant to Rule 66(C) (confidential), 27 March 2003 (“Krstić Decision of 27 March 2003”), p. 4.

[3] Bagosora et al. Decision of 26 September 2006, para. 10.

[4] Prosecutor v. Édouard Karemera et al., Case No. ICTR-98-44-AR73.11, Decision on the Prosecution’s Interlocutory Appeal Concerning Disclosure Obligations (public redacted version), 23 January 2008, para. 12. See also Édouard Karemera et al. v. The Prosecutor, Case No. ICTR-98-44-AR73.18, Decision on Joseph Nzirorera’s Appeal from Decision on Alleged Rule 66 Violation, 18 May 2010, para. 13.

[5] See Bralo Decision of 12 January 2007, para. 25; Nahimana et al. Decision of 1 December 2006, para. 16; Krstić Decision of 27 March 2003, p. 4.

[6] Cf. Rule 76(B) of the Rules.

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ICTR Statute Rule 66(B) ICTY Statute Rule 66(B) MICT Statute Rule 71(B)
Notion(s) Filing Case
Appeal Judgement - 14.12.2015 NYIRAMASUHUKO et al. (Butare)
(ICTR-98-42-A)

435. The Appeals Chamber observes that the Rules, which specifically impose the disclosure of all witnesses’ statements and their identity, do not provide for the disclosure of the identity of the witnesses’ parents.[1] Nyiramasuhuko’s submissions, in fact, merely reflect her disagreement with the Trial Chamber’s exercise of its discretion in denying disclosure to the Defence of the identity of the Prosecution witnesses’ parents. […]

[1] See Rules 66(A) and 69(C) of the Rules.

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ICTR Rule Rule 66(A);
Rule 69(C)
ICTY Rule Rule 66(A);
Rule 69(C)