Exculpatory material

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
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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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
Decision on Appeals of Decisions Rendered by a Single Judge - 09.08.2017 NIYITEGEKA Eliézer
(MICT-12-16-R)

12. […] the Appeals Chamber clarifies that an appeal lies as of right of any decision taken under Rule 73 of the Rules by a single judge or trial chamber after an applicant’s trial and appeal proceedings have concluded. This is necessary to give full effect to the continuous obligation imposed upon the Prosecution by Rule 73(E) of the Rules to disclose exculpatory material after the completion of trial and any subsequent appeal.[1]

[1] Cf. Prosecutor v. Naser Orić, Case No. MICT-14-79, Decision on an Application for Leave to Appeal the Single Judge’s Decision of 10 December 2015, 17 February 2016 (“Orić Decision of 17 February 2016”), para. 6.

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MICT Rule Rule 73;
Rule 146
Notion(s) Filing Case
Decision on Appeals of Decisions Rendered by a Single Judge - 09.08.2017 NIYITEGEKA Eliézer
(MICT-12-16-R)

14. The Appeals Chamber recalls that decisions related to witness protection and disclosure of evidence are discretionary decisions.[1] In order to successfully challenge such a decision, Niyitegeka must demonstrate that the Single Judge committed a discernible error resulting in prejudice to him.[2] […]

[1] The Prosecutor v. Pauline Nyiramasuhuko et al., Case No. ICTR-98-42-A, Judgement, 14 December 2015 (“Nyiramasuhuko et al. Appeal Judgement”), paras. 137, 431; Édouard Karemera and Matthieu Ngirumpatse v. The Prosecutor, Case No. ICTR-98-44-A, Judgement, 29 September 2014, para. 85; Prosecutor v. Nikola Šainović et al., Case No. IT-05-87-A, Judgement, 23 January 2014, para. 29.

[2] Nyiramasuhuko et al. Appeal Judgement, para. 68; Prosecutor v. Vujadin Popović et al., Case No. IT-05-88-A, Judgement, 30 January 2015, para. 131.

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Notion(s) Filing Case
Decision on Appeals of Decisions Rendered by a Single Judge - 09.08.2017 NIYITEGEKA Eliézer
(MICT-12-16-R)

18.     The Appeals Chamber turns to Niyitegeka’s contention that the Single Judge erred in failing to consider that all the statements and testimony of the 12 Prosecution witnesses given subsequent to his own proceedings constitute potentially exculpatory material subject to disclosure under Rule 73 of the Rules. In this respect, the Appeals Chamber recalls that Rule 73(A) of the Rules imposes upon the Prosecution 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”. The determination as to which material is subject to disclosure under Rule 73 of the Rules is a fact-based enquiry made by the Prosecution. A 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 presume that the Prosecution is acting in good faith. Niyitegeka demonstrates no error in the Single Judge’s determination that, with respect to Niyitegeka’s present request for disclosure, there was no reason to doubt that the Prosecution was complying with its continuous disclosure obligations in good faith. 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.

19.     […] [T]he Appeals Chamber recalls that the Office of the Prosecutor has a duty to utilize procedures designed to ensure that, particularly in instances where the same witnesses testify in different cases, the evidence provided by such witnesses is re-examined in light of Rule 73 of the Rules to determine whether any material has to be disclosed.[6] This obligation reflects the possibility that statements or testimony given by a witness in a subsequent proceeding may contain material subject to disclosure under Rule 73 of the Rules and underscores that, as noted above, determining what is subject to disclosure is a fact-based enquiry by the Prosecution. […] Furthermore, Rule 73 of the Rules limits the Prosecution’s obligation to the disclosure of material that “in [its] actual knowledge […] may suggest the innocence or mitigate the guilt of the accused or affect the credibility of Prosecution evidence”.[8] To the extent Niyitegeka considers that the Prosecution may be unaware of information that may impact the assessment of whether material in its possession is subject to disclosure under Rule 73 of the Rules, he may share such information with the Prosecution. In light of the foregoing, the Appeals Chamber finds that Niyitegeka fails to establish that the Single Judge committed a discernible error by not determining that all the statements and transcripts of evidence given by the 12 Prosecution witnesses during proceedings subsequent to the conclusion of Niyitegeka’s case constitute material subject to disclosure pursuant to Rule 73 of the Rules.

[1] See also Augustin Ngirabatware v. Prosecutor, Case No. MICT-12-29-A, Decision on Ngirabatware’s Motions for Relief for Rule 73 Violations and Admission of Additional Evidence on Appeal, 21 November 2014 (“Ngirabatware Decision of 21 November 2014”), para. 15.

[2] Ngirabatware Decision of 21 November 2014 [Augustin Ngirabatware v. Prosecutor, Case No. MICT-12-29-A, Decision on Ngirabatware’s Motions for Relief for Rule 73 Violations and Admission of Additional Evidence on Appeal, 21 November 2014]], para. 15; 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 Decision of 24 September 2012”), para. 7; Prosecutor v. Dario Kordić and Mario Čerkez, Case No. IT-95-14/2-A, Judgement, 17 December 2004 (“Kordić and Čerkez Appeal Judgement”), para. 183.

[3] Ngirabatware Decision of 21 November 2014, para. 15. See also Mugenzi Decision of 24 September 2012, para. 7; Jean de Dieu Kamuhanda v. The Prosecutor, Case No. ICTR-99-54A-R68, Decision on Motion for Disclosure, 4 March 2010, para. 14. 

[4] Decision of 29 January 2016 [Decision on Niyitegeka’s Urgent Request for Orders Relating to Prosecution Witnesses, 29 January 2016 ]], para. 11.

[5] Ngirabatware Decision of 21 November 2014, para. 15; Callixte Kalimanzira v. The Prosecutor, Case No. ICTR-05-88-A, Judgement, 20 October 2010 (“Kalimanzira Appeal Judgement”), para. 18; Prosecutor v. Tihomir Blaškić, Case No. IT-95-14-A, Judgement, 29 July 2004 (“Blaškić Appeal Judgement”), paras. 265, 266. See also Kalimanzira Appeal Judgement, para. 20.

[6] Cf. Blaškić Appeal Judgement, para. 302.

[7] See supra note 51.

[8] Emphasis added.

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MICT Rule Rule 73;
Rule 146