Applicability of Rule 68 at the appellate stage
|Decision on Motions - 26.09.2000||
31. […] [T]he close of trial proceedings means the close of all proceedings before a Trial Chamber, ending with the delivery of the judgement. […] [T]he practice of the Tribunal [is] that evidence disclosed after the close of hearings but before judgement may lead to the re-opening of a case at first instance. The situation could arise where, following the close of the presentation of evidence, but prior to the delivery of the judgement of the Trial Chamber, exculpatory evidence relating to the accused has come to the possession of the Prosecution. A Trial Chamber is entitled to have the benefit of all relevant evidence put before it in order to reach an informed and well-balanced judgement, and its ability to accept evidence late prior to judgement is in conformity with the requirement of a fair trial under the Statute and the Rules. In such a situation, it would be open to the Defence to move before the Trial Chamber, right up to the date of judgement, to seek permission to re-open the trial proceedings to enable the Defence to present the new exculpatory evidence that has come to light. The Appeals Chamber therefore takes the view that the duty of the Prosecution to disclose to the Defence the existence of such evidence pursuant to Rule 68 continues at least until the date when the Trial Chamber delivers its judgement.
32. […] the Appeals Chamber also believes that the Prosecution is under a legal obligation to continually disclose exculpatory evidence under Rule 68 in proceedings before the Appeals Chamber. The application of Rule 68 is not confined to the trial process. Like sub-Rule 66 (A) (ii), Rule 68 provides a tool for disclosure of evidence. In the context of the Rules, admission of evidence on appeal can be effected through either Rule 115 or Rule 89, but the Rules do not specify means of disclosure in appeals. This is where Rule 107 has a role to play: to enable the Appeals Chamber to import rules for trial proceedings to fill a lacuna in appellate proceedings, subject to appropriate modifications. […]
38. However, the Appeals Chamber considers that the Prosecution may still be relieved of the obligation 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. […]
39. […] Under Rule 68, the initial decision as to whether evidence is exculpatory has to be made by the Prosecutor. Without further proof that the Prosecution abused its judgement, the Appeals Chamber is not inclined to intervene in the exercise of this discretion by the Prosecution. […]
40. […] It is to be noted, however, that a request based on Rule 68 is not required to be so specific as to precisely identify which documents shall be disclosed. […]
 Prosecutor v. Anto Furundžija, Case No. IT-95-17/1-T, Judgement, para. 22.
Rule 107 ICTY Rule Rule 68