Electronic disclosure: ICTY EDS (Electronic Disclosure System)
|Decision on EDS Disclosure - 28.11.2013||
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 […].
|ICTR Rule Rule 68(B) ICTY Rule Rule 68(ii)|
|Decision on Access to Ex Parte Materials and Disclosure of Mitigating Materials - 30.08.2006||
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”. 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”. 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. 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. 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”.
 IT/219/Rev.1, 6 November 2003, p. 2.
 Karemera 30 June 2006 Decision, para. 10.
 Ibid., para. 15; see para. 30 supra [reproduced above].
 Prosecutor v. Tihomir Blaškić, Case No. IT-95-14-R, Confidential Decision on Motion for Extension of Time, 9 November 2005, p. 4.
 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.
|ICTR Rule Rule 68 ICTY Rule Rule 68|