Continuing obligation to afford inspection
|Decision on Disclosure - 18.05.2010||
KAREMERA et al.
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.
24. The Appeals Chamber notes that Rule 67(D) of the Rules provides that
[i]f either party discovers additional evidence or information or materials which should have been produced earlier pursuant to the Rules, that party shall promptly notify the other party and the Trial Chamber of the existence of the additional evidence or information or materials.
The Appeals Chamber considers that Rule 67(D) of the Rules also applies to materials subject to an inspection request pursuant to Rule 66(B) of the Rules. Once the Defence files an inspection request pursuant to Rule 66(B) of the Rules, the Prosecution is under an obligation to permit inspection of the requested materials, provided that the requisite standards for such a request are met. This puts the requested records into the category of material “which should have been produced earlier” within the meaning of Rule 67(D) of the Rules. Accordingly, where such materials come into the Prosecution’s possession subsequent to an inspection request from the Defence, the Prosecution is under a continuous obligation to promptly notify the Defence of their existence.
25. However, the Appeals Chamber reiterates that a continuous obligation to notify a party of inspection material pursuant to Rule 67(D) of the Rules can only arise where the underlying request reaches a degree of specificity that allows a direct and unambiguous identification of the sought material as squarely falling into the ambit of that request. This requires, as a minimum, the specificity described below.
 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.
 First Karemera Decision, para. 12; Bagosora Decision, paras. 10, 11. See also supra, para. 15.
 Bagosora Decision, para. 10.
 See ibid.
 First Karemera Decision, paras. 14, 16.
 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).
 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.
 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.
Rule 67(D) ICTY Rule Rule 66(B);