Specificity

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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ICTR Rule Rule 66(B) ICTY Rule Rule 66(B)
Notion(s) Filing Case
Decision on Access (Karadžić) - 19.05.2009 MILOŠEVIĆ Dragomir
(IT-98-29/1-A)

9. The Appeals Chamber has previously stated that “[t]he first element of gaining access to confidential material is not considered particularly onerous”.[1] […] The Appeals Chamber understands that Karadžić is seeking access to all inter partes confidential material in the Dragomir Milošević case and is satisfied that Karadžić has identified the material sought with sufficient particularity.

[1] Brđanin Decision [Prosecutor v. Radoslav Brđanin, Case No. IT-99-36-A, Decision on Mićo Stanišić’s Motion for Access to All Confidential Materials in the Brđanin Case, 24 January 2007], para. 11.

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ICTR Rule Rule 75 ICTY Rule Rule 75
Notion(s) Filing Case
Decision on Judicial Notice - 01.04.2005 NIKOLIĆ Momir
(IT-02-60/1-A)

45. With respect to the Prosecution’s argument to the effect that documentary evidence must also be adjudicated evidence, the Appeals Chamber concurs with the Trial Chamber in the Bizimungu case which concluded that the wording of Rule 94(B) of the Rules suggests that the term “adjudicated” only relates to “facts” and does not extend to “documentary evidence”. Thus, the Trial Chamber held that:

“…under Sub-Rule 94(B), both facts (which have been previously adjudicated) and documents (which have been received and admitted in previous proceedings) may be judicially noticed. Therefore, to be taken judicial notice of, the facts must be adjudicated facts, meaning facts upon which, on a previous occasion, in another case, this Tribunal in any of its several Chambers has deliberated and made a decision. Such decision must be conclusive in that it is not under challenge before the Appeals Chamber or if challenged, the Appeals Chamber upheld it. Regarding the second part of Sub-Rule 94(B), to be taken judicial notice of, documents must constitute “documentary evidence from other proceedings of the Tribunal” and must “relate to the matter at issue in this case”. [1]

[…] Documents do not need to be “adjudicated” i.e. the Chamber in other proceedings does not need to have pronounced a specific and unchallenged or unchallengeable decision on the admissibility of the document. It is enough that the document was admitted into evidence or “admis lors d’autres affaires portées devant le Tribunal”[2]

[…]

47. The Appeals Chamber notes that concerning “documentary evidence”, Rule 94(B) of the Rules enables a Chamber to take judicial notice of discrete items of evidence such as the testimony of a witness or a trial exhibit, not an entire judgement.[3] Accordingly, the Appeals Chamber could take judicial notice of the section of the report proffered […] if it was satisfied that it meets the requirements set out in Rules 94(B) and 115 of the Rules. […] The Appeals Chamber finds nonetheless, that it would not serve judicial economy to grant the Appellant’s request and judicially notice entire sections of a report or document, since the Appellant has not  demonstrated  exactly which part of the section is relevant to the current proceedings.  The mere reference to whole sections or paragraphs of “documentary evidence” of a previous judgement is insufficient to trigger the exercise of the Chamber’s discretion under Rule 94(B) of the Rules.[4]

[…]

55. […] Bearing in mind the text of Rule 94(B) of the Rules, the Appeals Chamber notes that one paragraph in a judgement can contain more than one fact. Accordingly, a request pursuant to Rule 94(B) of the Rules must be specific if the facts sought to be judicially noticed are to be clearly determined. A motion under Rule 94(B) of the Rules should specify exactly which fact is sought to be judicially noticed and how each fact relates to the matters at issue in the current proceedings, in the instant case, to the grounds of appeal raised.[5]

[1] Prosecutor v. Casimir Bizimungu et al., ICTR-99-50-I, Decision on Prosecution’s Motion for Judicial Notice Pursuant to Rules 73, 89 and 94,  2 December 2003, para. 34.

[2] Ibid., para. 35.

[3] Ibid. [Prosecutor v. Zoran Kupreškić et al,  IT-95-16-A, Decision on the Motions of Drago Josipović, Zoran Kupreškić and Vlatko Kupreškić to Admit Additional Evidence Pursuant to Rule 115 And For Judicial Notice to be Taken Pursuant to Rule 94(B), 8 May 2001, para. 6, ad finem.]]

[4] Regarding “adjudicated facts” sought to be judicially noticed through the reproduction of whole paragraphs of a judgement, see: Bizimungu 10 December 2004 Decision on Defence Motion [Prosecutor v. Casimir Bizimungu et al., ICTR-99-50-I, Decision on Prosper Mugiraneza’s First Motion for Judicial Notice Pursuant to Rule 94(B), 10 December 2004]], para. 13 and Bizimungu 10 December 2004 Decision on Prosecution Motion [Prosecutor v. Casimir Bizimungu et al., ICTR-99-50-I, Decision on the Prosecutor’s Motion and Notice of Adjudicated Facts (Rule 94(B) of the Rules of Procedure and Evidence),10 December 2004]], para. 19.

[5] Bizimungu 10 December 2004 Decision on Defence Motion, para. 13; Bizimungu 10 December 2004 Decision on Prosecution’s Motion, para. 19.

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ICTR Rule Rule 94(B) ICTY Rule Rule 94(B)