Failure

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 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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ICTR Rule Rule 66 ICTY Rule Rule 66;
Rule 68 bis
Notion(s) Filing Case
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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Notion(s) Filing Case
Decision on Additional Evidence - 01.12.2006 NAHIMANA et al. (Media case)
(ICTR-99-52-A)

11. […] Finally, if an accused wishes to show that the Prosecution is in breach of these obligations, he/she must identify the material sought, present a prima facie showing as to its probable exculpatory nature, and prove the Prosecution's custody or control thereof.[1] Even when the Defence satisfies the Chamber that the Prosecution has failed to comply with its Rule 68 obligations, the Chamber will examine whether the Defence has actually been prejudiced by such failure before considering whether a remedy is appropriate.[2]

[1] Bralo 30 August 2006 Decision, para. 31; Kajelijeli Appeal Judgement, para. 262; Brđanin7 December 2004 Decision, p. 3.

[2] Bralo 30 August 2006 Decision, para. 31; Kajelijeli Appeal Judgement, para. 262; Krstić Appeal Judgement, para. 153; see also Prosecutor v. Edouard Karemera et al., Case No. ICTR-98-44-T, Oral Decision on Stay of Proceedings, 16 February 2006, pp 4 and 8-9

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ICTY Rule Rule 68 bis
Notion(s) Filing Case
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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MICT Rule Rule 73
Notion(s) Filing Case
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
Notion(s) Filing Case
Decision on Additional Evidence - 08.12.2006 NAHIMANA et al. (Media case)
(ICTR-99-52-A)

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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ICTY Rule Rule 68 bis
Notion(s) Filing Case
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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ICTY Rule Rule 68 bis
Notion(s) Filing Case
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