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Notion(s) Filing Case
Appeal Judgement - 07.07.2006 NTAGERURA et al. (Cyangugu)
(ICTR-99-46-A)

At para. 26, the Appeals Chamber recalled in a comprehensive manner what the elements of command responsibility under Article 6(3) are:

26. In relation to an allegation of superior responsibility under Article 6(3) of the Statute, the material facts which must be pleaded in the indictment are: (1) that the accused is the superior of certain persons sufficiently identified, over whom he had effective control – in the sense of a material ability to prevent or punish criminal conduct – and for whose acts he is alleged to be responsible;[1] (2) the criminal acts of such persons, for which he is alleged to be responsible;[2] (3) the conduct of the accused by which he may be found to have known or had reason to know that the crimes were about to be committed or had been committed by his subordinates;[3] and (4) the conduct of the accused by which he may be found to have failed to take the necessary and reasonable measures to prevent such acts or to punish the persons who committed them.[4]

[1] Blaškić Appeal Judgement, para. 218(a).

[2] Naletilić and Martinović Appeal Judgement, para. 67.

[3] Blaškić Appeal Judgement, para. 218(b). The Appeals Chamber notes that “the facts relevant to the acts of those others for whose acts the accused is alleged to be responsible as a superior, although the Prosecution remains obliged to give all the particulars which it is able to give, will usually be stated with less precision because the detail of those acts are often unknown, and because the acts themselves are often not very much in issue”: Blaškić Appeal Judgement, para. 218 and accompanying references. See also Naletilić and Martinović Appeal Judgement, para. 67.

[4] Blaškić Appeal Judgement, para. 218(c). See also Naletilić and Martinović Appeal Judgement, para. 67.

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ICTR Statute Article 6(3) ICTY Statute Article 7(3)
Notion(s) Filing Case
Appeal Judgement - 07.07.2006 GACUMBITSI Sylvestre
(ICTR-2001-64-A)

The Appeals Chamber held that an accused who was present at the scene of a genocidal massacre, personally closely supervised it, and participated in it by separating those to be killed on the basis of ethnicity can be convicted of “committing” genocide through direct and physical perpetration even if he did not personally kill anyone himself:

59. In addition, by a differently composed majority, the Appeals Chamber holds, Judge Güney dissenting, that even if the killing of Mr. Murefu were to be set aside, the Trial Chamber’s conclusion that the Appellant “committed” genocide would still be valid. The Trial Chamber convicted the Appellant of “ordering” and “instigating” genocide on the basis of findings of fact detailing certain conduct that, in the view of the Appeals Chamber, should be characterized not just as “ordering” and “instigating” genocide, but also as “committing” genocide.

60. As the Trial Chamber observed, the term “committed” in Article 6(1) of the Statute has been held to refer “generally to the direct and physical perpetration of the crime by the offender himself.”[1] In the context of genocide, however, “direct and physical perpetration” need not mean physical killing; other acts can constitute direct participation in the actus reus of the crime.[2] Here, the accused was physically present at the scene of the Nyarubuye Parish massacre, which he “directed” and “played a leading role in conducting and, especially, supervising”.[3] It was he who personally directed the Tutsi and Hutu refugees to separate -- and that action, which is not adequately described by any other mode of Article 6(1) liability, was as much an integral part of the genocide as were the killings which it enabled.[4] Moreover, these findings of fact were based on allegations that were without question clearly pleaded in the Indictment.[5]

61. The Appeals Chamber is persuaded that in the circumstances of this case, the modes of liability used by the Trial Chamber to categorize this conduct -- “ordering” and “instigating” -- do not, taken alone, fully capture the Appellant’s criminal responsibility. The Appellant did not simply “order” or “plan” genocide from a distance and leave it to others to ensure that his orders and plans were carried out; nor did he merely “instigate” the killings. Rather, he was present at the crime scene to supervise and direct the massacre, and participated in it actively by separating the Tutsi refugees so that they could be killed. The Appeals Chamber finds by majority, Judge Güney dissenting, that this constitutes “committing” genocide.

[1] Trial Judgement, para. 285; see Kayishema and Ruzindana Appeal Judgement, para. 187; Tadić Appeal Judgement, para. 188. The term also encompasses joint criminal enterprise, as discussed further below.

[2] For instance, it has been recognized that selection of prisoners for extermination played an integral role in the Nazi genocide. See, e.g., Judgment of the International Military Tribunal for the Trial of German Major War Criminals, Nuremberg, 30th September and 1st October, 1946, p. 63 (London: His Majesty's Stationary Office, 1946) (Reprinted Buffalo, New York: William S. Hein & Co., Inc., 2001) (describing the selection process at Auschwitz); Att'y Gen. of Israel v. Adolf Eichmann, 36 I.L.R. 5, p. 185 (Isr. D.C., Jerusalem, Dec. 12, 1961), aff'd, 36 I.L.R.277 (Isr. S. Ct., May 29, 1962) (same).

[3] See Trial Judgement, paras. 168, 169, 171, 172, 173, 261.

[4] Trial Judgement, para. 168.

[5] See Indictment, paras. 4, 13-21.

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ICTR Statute Article 2(3)(a) ICTY Statute Article 4(3)(a)
Notion(s) Filing Case
Appeal Judgement - 07.07.2006 GACUMBITSI Sylvestre
(ICTR-2001-64-A)

Para. 50: when an accused is charged with personally committing a crime, the Prosecution must plead the material facts of that incident:

50. The Indictment, taken alone, does not allege the killing of Mr. Murefu. In the Statement of Facts (“Statement”) related to the genocide count, it states that “Sylvestre Gacumbitsi killed persons by his own hand”, but provides no further details. The Statement goes on to describe the massacre at Nyarubuye Parish, but does not mention Mr. Murefu and does not suggest that the Appellant participated personally in the killing there. Count 4 of the Indictment (Murder) does allege that the Appellant killed a number of individuals in several separate incidents, but Mr. Murefu is not among them. The Appellant could not reasonably have known, on the basis of the Indictment alone, that he was being charged with the killing of Mr. Murefu. While in certain cases, “the sheer scale of the alleged crimes ’makes it impracticable to require a high degree of specificity in such matters as the identity of the victims and the dates for the commission of the crimes’”, this is not such a case. The Prosecution should have expressly pleaded the killing of Mr. Murefu, particularly as it had this information in its possession before the Indictment was filed. The Appeals Chamber thus finds by majority, Judge Shahabuddeen and Judge Schomburg dissenting, that the Indictment was defective in this respect. (internal citation omitted).

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Notion(s) Filing Case
Appeal Judgement - 07.07.2006 GACUMBITSI Sylvestre
(ICTR-2001-64-A)

In the present case, the Prosecution contended that the Appellant had waived his right to challenge on appeal any vagueness of the Indictment in respect of the murder of Mr. Murefu as he did not object at trial to the testimony concerning that event. At para. 51, the Appeals Chamber recalled its previous finding in Niyitegeka on whether and under which conditions an appellant can raise an indictment defect for the first time on appeal:

In general, “a party should not be permitted to refrain from making an objection to a matter which was apparent during the course of the trial, and to raise it only in the event of an adverse finding against that party.” Failure to object in the Trial Chamber will usually result in the Appeals Chamber disregarding the argument on grounds of waiver. In the case of objections based on lack of notice, the Defence must challenge the admissibility of evidence of material facts not pleaded in the indictment by interposing a specific objection at the time the evidence is introduced. The Defence may also choose to file a timely motion to strike the evidence or to seek an adjournment to conduct further investigations in order to respond to the unpleaded allegation. [...]

The importance of the accused's right to be informed of the charges against him under Article 20(4)(a) of the Statute and the possibility of serious prejudice to the accused if material facts crucial to the Prosecution are communicated for the first time at trial suggest that the waiver doctrine should not entirely foreclose an accused from raising an indictment defect for the first time on appeal. Where, in such circumstances, there is a resulting defect in the indictment, an accused person who fails to object at trial has the burden of proving on appeal that his ability to prepare his case was materially impaired. Where, however, the accused person objected at trial, the burden is on the Prosecution to prove on appeal that the accused's ability to prepare his defence was not materially impaired. All of this is of course subject to the inherent jurisdiction of the Appeals Chamber to do justice in the case.[1]

In the present case, the Appeals Chamber held the following:

54. Although the Niyitegeka Appeal Judgement referred to the accused’s obligation to interpose a timely objection to a pleading defect when evidence is introduced at trial, it did so in the context of deciding whether and under what conditions it was appropriate for an appellant to challenge such a defect for the first time on appeal. This case presents a different situation. The Appellant repeatedly brought the issue to the Trial Chamber’s attention in its briefing, and the Prosecution never suggested that he had waived his objection by not raising it earlier. And the Trial Chamber actually decided the issue, albeit in the context of murder alone and not genocide. In Ntakirutimana, the Appeals Chamber recognized that where the Trial Chamber has treated a challenge to an indictment as being adequately raised, the Appeals Chamber should not invoke the waiver doctrine.[2] In light of these circumstances, the Appeals Chamber holds that the Appellant did not waive his objection to the pleading defect. It therefore remains the Prosecution’s burden to prove that the Appellant’s defence was not materially impaired by the defect.

[1] Niyitegeka Appeal Judgement, paras. 199, 200 (internal citations omitted).

[2] See Ntakirutimana Appeal Judgement, para. 23.

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Notion(s) Filing Case
Appeal Judgement - 07.07.2006 GACUMBITSI Sylvestre
(ICTR-2001-64-A)

Having found that the indictment was vague, the Appeals Chamber considered whether that vagueness was cured by the Prosecution’s other filings (paras 55-58). It confirmed the finding of the ICTY Appeals Chamber in Naletilić and Martinović that an indictment defect can be cured by the provision of timely, clear and consistent information in the form of a Chart of Witnesses, disclosed before trial, setting forth the allegations of the relevant material facts and specifically identifying the charges to which those allegations relate.[1]

[1] See Naletilić and Martinović Appeal Judgement, para. 45. Judges Liu and Meron issued a Joint Separate Opinion.

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Notion(s) Filing Case
Appeal Judgement - 07.07.2006 GACUMBITSI Sylvestre
(ICTR-2001-64-A)

At para. 122, the Appeals Chamber recalled its previous finding that, even when the Prosecution quotes in full the provisions of Article 6(1) of the Statute in the Indictment, the Indictment can be sufficiently pleaded in other paragraphs of the indictment.[1]

The Appeals Chamber considered “the reference to aiding and abetting in the preamble to Count 4 [by repeating the language of Article 6(1)], taken in combination with the allegations of material facts sufficient to support a conviction under that mode of liability, was sufficient to put the Appellant on notice that he was charged with aiding and abetting”.[2]

[1] “[I]t has long been the practice of the Prosecution to merely quote the provisions of Article 6(1) of the Statute in the charges, leaving it to the Trial Chamber to determine the appropriate form of participation under Article 6(1) of the Statute. The Appeals Chamber reiterates that, to avoid any possible ambiguity, it would be advisable to indicate in relation to each individual count precisely and expressly the particular nature of the responsibility alleged. Nevertheless, even if an individual count of the indictment does not indicate precisely the form of responsibility pleaded, an accused might have received clear and timely notice of the form of responsibility pleaded, for instance in other paragraphs of the indictment.” (Semanza Appeal Judgement, para. 259, referring to Ntakirutimana Appeal Judgement, para. 473; Aleksovski Appeal Judgement, fn. 319).

[2] Appeal Judgement, para. 123. Judges Güney and Meron both issued a Partially Dissenting Opinion.

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Notion(s) Filing Case
Appeal Judgement - 07.07.2006 GACUMBITSI Sylvestre
(ICTR-2001-64-A)

At para. 161, the Appeals Chamber recalled its previous case-law in Ntakirutimana, based on the Krnojelac Appeal Judgement:

With respect to the nature of the liability incurred, the Appeals Chamber holds that it is vital for the indictment to specify at least on what legal basis of the Statute an individual is being charged (Article 7(1) and/or 7(3)). Since Article 7(1) allows for several forms of direct criminal responsibility, a failure to specify in the indictment which form or forms of liability the Prosecution is pleading gives rise to ambiguity. The Appeals Chamber considers that such ambiguity should be avoided and holds therefore that, where it arises, the Prosecution must identify precisely the form or forms of liability alleged for each count as soon as possible and, in any event, before the start of the trial. Likewise, when the Prosecution charges the “commission” of one of the crimes under the Statute within the meaning of Article 7(1), it must specify whether the term is to be understood as meaning physical commission by the accused or participation in a joint criminal enterprise, or both. The Appeals Chamber also considers that it is preferable for an indictment alleging the accused’s responsibility as a participant in a joint criminal enterprise also to refer to the particular form (basic or extended) of joint criminal enterprise envisaged. However, this does not, in principle, prevent the Prosecution from pleading elsewhere than in the indictment--for instance in a pre-trial brief--the legal theory which it believes best demonstrates that the crime or crimes alleged are imputable to the accused in law in the light of the facts alleged. This option is, however, limited by the need to guarantee the accused a fair trial.[1]

At para. 162, the Appeals Chamber then relied on the ICTY Appeals Chamber’s holding in Kvocka to find that “failure to plead a JCE theory, including the category of JCE and the material facts supporting the theory, constitutes a defect in the indictment” which can however be cured by the Prosecution’s subsequent submissions.[2] It then held:

163. The Appeals Chamber adopts the holding and rationale of the ICTY Appeals Chamber in Kvočka. The mode of liability under Article 6(1) (including the JCE theory) must be pleaded in the indictment, or the indictment is defective. As Krnojelac makes clear, however, such defects may be cured by the provision of timely, clear, and consistent information -- for example, in a pre-trial brief.[3] This approach is consistent with the Appeals Chamber’s approach to all other pleading failures.[4]

For example, while the words “joint criminal enterprise” need not be contained in the indictment, other wordings may be used:

165. The words “joint criminal enterprise” are not contained in the Indictment. This absence does not in and of itself indicate a defect. As the Appeals Chamber noted in Ntakirutimana, the Tadić Appeal Judgement used interchangeably the expressions “joint criminal enterprise”, “common purpose”, and “criminal enterprise”.[5] It is possible that other phrasings might effectively convey the same concept.[6] The question is not whether particular words have been used, but whether an accused has been meaningfully “informed of the nature of the charges” so as to be able to prepare an effective defence.[7]

In the present case, however, the Appeals Chamber noted that such language was not sufficient because other language in the indictment dispelled the clarity that language could have provided.  (paras 171-172).

[1] Krnojelac Appeal Judgement, para. 138. See also Ntakirutimana Appeal Judgement, para. 475.

[2] Kvočka et al. Appeal Judgement, paras 28, 42-54.

[3] Krnojelac Appeal Judgement, para. 138.

[4] See supra section II.B.2.

[5] Ntakirutimana Appeal Judgement, n. 783.

[6] See Ntakirutimana Appeal Judgement, n. 783.

[7] Ntakirutimana Appeal Judgement, para. 470. The Appeals Chamber notes, however, that because today ICTY and ICTR cases routinely employ the phrase “joint criminal enterprise”, that phrase should for the sake of maximum clarity preferably be included in future indictments where JCE is being charged.

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Notion(s) Filing Case
Appeal Judgement - 07.07.2006 GACUMBITSI Sylvestre
(ICTR-2001-64-A)

The Prosecution argued that the Trial Chamber committed an error by failing to impose a sentence reflecting the gravity of the crimes and of the Appellant’s degree of criminal culpability, and submits that the Trial Chamber should have considered the Appellant as one of the most serious offenders, deserving the highest penalty available at the Tribunal (para. 200).

The Appeals Chamber held that it was an abuse of discretion for the Trial Chamber to issue a sentence of only thirty years under the circumstances of the case:

205. The Appeals Chamber is, as noted above, fully cognizant of the margin of discretion to which Trial Chambers are entitled in sentencing. This discretion is not, however, unlimited. It is the Appeals Chamber’s prerogative to substitute a new sentence when the one given by the Trial Chamber simply cannot be reconciled with the principles governing sentencing at the Tribunal. This is such a case. The Appeals Chamber concludes that in light of the massive nature of the crimes and the Appellant’s leading role in them, as well as the relative insignificance of the purported mitigating factors, the Trial Chamber ventured outside its scope of discretion by imposing a sentence of only thirty years’ imprisonment. The Appeals Chamber therefore upholds this sub-ground of the Prosecution’s appeal.

Based on this and other errors, it quashed the sentence and entered a life sentence.

See paras 200-206.

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Notion(s) Filing Case
Appeal Judgement - 07.07.2006 GACUMBITSI Sylvestre
(ICTR-2001-64-A)

The Prosecution was arguing that non-consent is not an element of the crime of rape as a crime against humanity or as an act of genocide but that consent should rather be considered an affirmative defence. In the Prosecution’s view, rape should be viewed in the same way as other violations of international criminal law, such as torture or enslavement, for which the Prosecution is not required to establish absence of consent.

The ICTR Appeals Chamber followed the holding of the Kunarac Appeal Judgement that lack of consent and the accused's knowledge of that lack of consent are elements of rape as a crime against humanity.[1] It rejected the Prosecution's contrary argument that consent should be treated as an affirmative defense.  It held, however, that lack of consent and the accused's knowledge thereof may be inferred from the existence of coercive circumstances, as the Trial Chamber correctly did in this case (paras 151-157).

[1] Kunarac et al. Appeal Judgement, para. 127.

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ICTR Statute Article 3(g) ICTY Statute Article 5(g)
Notion(s) Filing Case
Appeal Judgement - 07.07.2006 GACUMBITSI Sylvestre
(ICTR-2001-64-A)

The Appeals Chamber recalled that no formal superior-subordinate relationship is required for ordering under Article 6(1). It then held that all what is required is authority to order:

182. Thus, after finding that no formal superior-subordinate relationship existed, the Trial Chamber proceeded to consider whether, under the circumstances of the case, the Appellant’s statements nevertheless were perceived as orders. This is in accordance with the most recent judgements of the Appeals Chamber. In the Semanza Appeal Judgement, the Appeals Chamber explained:

As recently clarified by the ICTY Appeals Chamber in Kordić and Čerkez, the actus reus of “ordering” is that a person in a position of authority instruct another person to commit an offence. No formal superior-subordinate relationship between the accused and the perpetrator is required. It is sufficient that there is proof of some position of authority on the part of the accused that would compel another to commit a crime in following the accused’s order.[1]

The Appeals Chamber notes that this element of “ordering” is distinct from that required for liability under Article 6(3) of the Statute, which does require a superior-subordinate relationship (albeit not a formal one but rather one characterized by effective control).[2] Ordering requires no such relationship -- it requires merely authority to order, a more subjective criterion that depends on the circumstances and the perceptions of the listener. (emphasis added).

[1] Semanza Appeal Judgement, para. 361, referring to Kordić and Čerkez Appeal Judgement, para. 28. See also Kamuhanda Appeal Judgement, para. 75 (“To be held responsible under Article 6(1) of the Statute for ordering a crime, on the contrary, it is sufficient that the accused have authority over the perpetrator of the crime, and that his order have a direct and substantial effect on the commission of the illegal act.” (internal citations omitted)).

[2] See supra section III.B.3.

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Notion(s) Filing Case
Decision on Interlocutory Appeal - 04.07.2006 PRLIĆ et al.
(IT-04-74-AR73.2)

Further, the Appeals Chamber felt that the Trial Chamber’s decision would help to avoid “undue delays” in order to complete the trial “within a reasonable time”, therefore preserving the right to due process, which is fundamental in human rights law.[1]

In conclusion, the Appeals Chamber found that the Trial Chamber acted in compliance with Rule 90(F) and subsequently dismissed the Defence’s interlocutory appeal.[2]

[1] Article 14(3)(c) International Covenant on Civil and Political  Rights;  Article  6.1  European  Convention  on  Human Rights; Article 8(l) American Convention  on  Human  Rights;  see  Human  Rights  Committee  General  Comment  No.  13 of 1984 para. 10: "Subparagraph 3(c) provides that the accused shall be tried  without  undue  delay.  This  guarantee relates not only to the time by which trial should commence, but also the time by which it should end and judgement be rendered: all stages must take place 'without undue delay'. To make this right effective, a procedure must be available in order to ensure that the trial will proceed 'without undue delay', both in first instance and on appeal."; Moreira de Avezedo v. Portugal, European Court of Human Rights, Application No.  11296/90,  Judgement,  23  October  1990,  para.74: "By requiring that cases be  heard  'within  a  reasonable  time',  the  Convention  stresses  the  importance  of administering justice without delays which might jeopardise its effectiveness and credibility"; see also H. v. France, European Convention on Human Rights, Application No. 10073/82, Judgement, 24 October 1989, para. 58.

[2] Decision, p. 4-5.

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ICTR Rule Rule 90(F) ICTY Rule Rule 90(F)
Notion(s) Filing Case
Decision on Interlocutory Appeal - 04.07.2006 PRLIĆ et al.
(IT-04-74-AR73.2)

In its Oral Decision of 8 May 2006, the Trial Chamber adopted three principles concerning cross-examination guidelines for the six accused in this case. They included 1) the total time limit of cross-examination by the Defence shall not in principle exceed the Prosecution’s direct-examination and if Defence cannot agree the time will be allocated equally, 2) the Defence will rotate their order of cross-examining witnesses, and 3) the allocation of time for cross-examination will be altered if a witness’s testimony goes to the responsibility of one of the accused.[1]

In their interlocutory Appeal, the Appellants submit that the Trial Chamber abused its discretion by committing the following:

(a) severely restricting the fundamental right of the Accused to cross-examine the witnesses against them;

(b) applying rigid time-constraints in preference to using less restrictive methods of control;

(c) effectively requiring the Accused to exercise the right of cross-examination as a group rather than individually, regardless of conflicts of interest, and to bargain with each other for time to cross-examine;

(d) preventing Defence Counsel from affording effective assistance of counsel to the Accused; and

(e) failing to exercise judicial independence by subjugating the fight of the Accused to a fair trial to the political and economic pressures imposed upon the Trial Chamber by the UN Security Council through the Completion Strategy.[2]

The Prosecution submitted that the Trial Chamber decision was rather “a practical and flexible guideline that ensures a fair and expeditious trial, discourages unfocused and irrelevant cross-examination, and facilitates the scheduling of witnesses who must travel internationally to testify before the International Tribunal”.[3]

The Appeals Chamber noted that each of the Defence teams had 1/6 of the time allocated to Prosecution (unless another agreement was reached),[4] and the Trial Chamber could allocate the time differently depending on whether a witness’ testimony spoke directly to the culpability of the one of the accused.[5] Additionally, the Appeals Chamber referred to the Tribunal’s established practice of avoiding “rigid time limits”[6] for cross-examination, “in particular, since the Trial Chamber reserves its power to modify the time allowed for cross-examination as necessary and allows the Appellants to adjust the specified time allocation by agreement among themselves.”[7]

Therefore, the Appeals Chamber found that the Trial Chamber was “sufficiently flexible”[8] in preserving the Defendant’s right to cross-examination as stated in the Statute, while also balancing the needs and right to a fair trial of each individual defendant.

[1] Decision on Defence Request Filed Jointly by the Six Accused for Certification of Interlocutory Appeal Against the Oral Decision of 8 May on Time Allocated for Cross-Examination by Defence, 29 May 2006; see  also Transcript, 8 May 2006, pp. 1475-76, 1485-86.

[2] Joint Defence Interlocutory Appeal Against the Trial Chamber’s Oral Decision of 8 May 2006 Relating to Cross-Examination by Defence, 15 June 2006, para. 1.

[3] Prosecution Response to Joint Defence Interlocutory Appeal Against the Trial Chamber’s Decision Relating to Cross-Examination by Defence, 22 June 2006, para. 1.1.

[4] Oral Decision on Cross-Examination by Defence, 8 May 2006, T. 1474-1476.

[5] Decision, p. 3.

[6] Decision, p. 4.

[7] Decision, page 4, referring to: Prosecutor v. Milan Martić, Case No. IT-95-11-T, Decision Adopting Guidelines on the Standards Governing the Presentation of Evidence and The Conduct of Counsel in Court, 13 April 2006, Annex A, para. 11: “In the interest of ensuring fair and expeditious conduct of the trial proceedings, the parties are requested to adhere to the principle that the time for cross-examination of a witness should not exceed the time allotted for the examination-in-chief of that witness, unless there are particular circumstances requiring that the cross-examination be extended”; see also Prosecutor v. Goran Jelisić, Case No. IT-95-10-T, T. 1063, 7 September 1999; Prosecutor v. Mladen Naletilić and Vinko Martinović, Case  No. IT-98-34-T, T. 12248, 10 June 2002 (closed session); Prosecutor v. Momčilo Krajišnik, Case No.  IT-00-39-T, T.  2652, 23 April 2004, where the Trial Chamber indicated as a guideline that the cross-examination of witnesses should take approximately 60 percent of the time allocated for the examination-in-chief; Prosecutor v.  Slobodan  Milošević, Case No. IT-02-54-T, Third Order on the  Use  of  Time  in  the  Defence  Case  and  Decision  on  Prosecution's  Further Submissions on the Recording and Use of Time during the Defence Case, 19 May 2005, p. 1, where the judges ordered that 60 percent of the time allocated to the Accused to present his case-in-chief  would  be allocated to the Prosecution for  cross-examination  during  the  Defence  case.

[8] Id.

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ICTR Rule Rule 90(F) ICTY Rule Rule 90(F)
Notion(s) Filing Case
Decision on Interlocutory Appeal - 04.07.2006 PRLIĆ et al.
(IT-04-74-AR73.2)

Decision, pp. 2-3:

Article 21(4) of the Statute of the Tribunal provides the right to cross-examine a witness, which is recognised as a basic element under international human rights law.[1] Additionally, the Trial Chamber has control over the examination of witnesses in the Tribunal under Rule 90(F) of the Rules. The precedent of the Tribunal has given the Trial Chamber “considerable discretion” in guiding this right of the Defence.[2]

[1] Article 14(3)(e) International Covenant on Civil and Political Rights; article 6(3)(d) European Convention on Human Rights; article 8(2)(f) American  Convention  on  Human  Rights;  see  also  e.g.  Human Rights  Committee  General Comment No. 13 of  1984,  para.  12; Peart  and  Peart  v.  Jamaica, Human  Rights  Committee,  Communication  No. 482/199 1, UN Doc. CCPR/C/54/D/482/1991, 24 July 1995, paras. 1 1.4-11.5; Saidi v. France,  European  Court  of  Human Rights, Application No. 1933/1992, Judgement,  23  August  1993,  paras.  43-44;  van  Mechelen  v.  The  Netherlands, European Court of Human Rights, Application No. 55/1996, Judgement, 18  March  1997,  para.  51;  Krasniki  v.  The Czech Republic, European Court of Human Rights, Application No. 51277/99, Judgement,  28  February  2006,  para.  75;  Kostovski v. The Netherlands, European Court of Human  Rights,  Application  No.  1145/85, Judgement, 20  November 1989,  para.  41; P.S.  v.  Germany,  European  Court  of  Human  Rights,  Application  No.   33900/96,  Judgement,  20 December 200 1, para. 2 1. [2] Decision, p. 2, see also Milosević v. Prosecutor, Case No.  IT-02-54-AR73.7,  Decision  on  Interlocutory  Appeal  of   the Trial Chamber's Decision  on  the  Assignment  of  Defence  Counsel,  I  November  2004  ("Milosević  Decision  on the Assignment of Defence Counsel") para.  9; Prosecutor  v.  Zdravko  TolimirRadivoje  Miletić  &  Milan  Gvero,  Case  No.  IT-04-80-AR73. 1,  Decision on Radivoje  Miletićs  Interlocutory  Appeal  Against  the  Trial  Chamber's  Decision  on  Joinder  of accused, 27 January 2006 ("Decision on Radivoje Miletić's Interlocutory Appeal") para. 4.

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ICTR Statute Article 20(4)(e) ICTY Statute Article 21(4)(e) ICTR Rule Rule 90(F) ICTY Rule Rule 90(F)
Notion(s) Filing Case
Decision on Interlocutory Appeal - 04.07.2006 PRLIĆ et al.
(IT-04-74-AR73.2)

The Appeals Chamber held (Decision, p. 3):

[…] in interlocutory appeals dealing with trial management rulings, the Appeals Chamber shall afford deference to the Trial Chamber’s discretion[1] and the examination by the Appeals Chamber shall be limited to establishing whether the Trial Chamber has fallen into error or has abused its discretionary power;[2]

[1] Decision on Radivoje Miletić’s Interlocutory Appeal, para. 4: “Deference is afforded to the Trial Chamber’s discretion in these decisions because they ‘draw on the Trial Chamber’s organic familiarity with the day-to-day conduct of the parties and practical demands of the case, and require a complex balancing of intangibles in crafting a case-specific order to properly regulate a highly variable set of trial proceedings.’”, citing Milošević Decision on the Assignment of Defence Counsel, para. 9.

[2] Prosecutor v. Milošević, Case Nos. IT-99-37-AR73, IT-01-50-AR73, and IT-01-51-AR73, Reasons for Decision on Prosecution Interlocutory Appeal from Refusal to Order Joinder, 18 April 2002, para. 4: “Where an appeal is brought from a discretionary decision of a Trial Chamber, the issue in that appeal is not whether the decision was correct, in the sense that the Appeals Chamber agrees with that decision, but rather whether the Trial Chamber has correctly exercised its discretion in reaching that decision.”, see also paras 5-6; see also Milošević Decision on the Assignment of Defence Counsel, para. 10; Decision on Radivoje Miletić’s Interlocutory Appeal, para. 6 citing Prosecutor v. Mićo Stanišić, Case No. IT-04-79-AR65.1, Decision on Prosecution’s Interlocutory Appeal of Mićo Stanišić’s Provisional Release, 17 October 2005, para. 6.

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Notion(s) Filing Case
Review Decision - 30.06.2006 NIYITEGEKA Eliézer
(ICTR-96-14-R)

Para. 61: the Appeals Chamber recalled that Rule 68(B) requires the Prosecution to make available to the Appellant, “in electronic form, collections of relevant material held by the Prosecution, together with appropriate computer software with which the Defence can search such collections electronically” and as such the Prosecution cannot rely upon its failure to diligently update electronic records to justify a disclosure failure.

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ICTR Rule Rule 68 ICTY Rule Rule 68
Notion(s) Filing Case
Review Decision - 30.06.2006 NIYITEGEKA Eliézer
(ICTR-96-14-R)

Para. 42: when the Appeals Chamber directs a subsequently assigned Defence counsel to file additional submissions to a request for review previously filed pro se by a convicted person, the said submissions shall be limited to issues raised by the convicted person in the initial pro se request. Any issue raised for the first time in the additional submissions is deemed to be out of the scope of the Appeals Chamber’s order and the merit thereof shall not be considered.

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ICTR Statute Article 25 ICTY Statute Article 26 ICTR Rule Rule 120 ICTY Rule Rule 119
Notion(s) Filing Case
Review Decision - 30.06.2006 NIYITEGEKA Eliézer
(ICTR-96-14-R)

45. The Appeals Chamber considers that the general provision of Rule 89 (C) governing admission of evidence cannot supersede the lex specialis of Article 25 of the Statute and Rule 120 of the Rules in respect of review proceedings, for which the Statute and the Rules have set a different and more restrictive standard. It thus does not apply in this case.

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ICTR Statute Article 25 ICTY Statute Article 26 ICTR Rule Rule 89(C);
Rule 120
ICTY Rule Rule 89(C);
Rule 119
Notion(s) Filing Case
Review Decision - 30.06.2006 NIYITEGEKA Eliézer
(ICTR-96-14-R)

Paras 12, 16, 21, 25, 30, 36: the Appeals Chamber after having recalled the cumulative nature of the criteria for review in para. 7, as previously set out in Josipović,[1] and having concluded that none of the alleged issues met the first criterion of “new fact” within the meaning of Article 25 of the Statute and Rule 120 of the Rules of the Tribunal, ruled that it was not obliged to examine them further. This determination conforms to previous approaches adopted by the Appeals Chamber, halting the analysis at the first criterion upon concluding that no “new fact” is presented.[2]

Nevertheless, the Appeals Chamber proceeded to consider whether, assuming the proffered material could be characterised as a “new fact”, it could have been a decisive factor in reaching the original decision.[3] The approach of the Appeals Chamber in this case, as in previous cases, was to consider the fourth criterion of “decisive factor” after finding that the first criterion is not met.[4] The Appeals Chamber adopted this approach out of an abundance of caution and not because the requirement of a “new fact” can be waived to avoid a miscarriage of justice.

[1] Prosecutor v. Drago Josipović, Case No. IT-95-16-R2, Decision on Motion for Review, 7 March 2003, para. 21.

[2] Prosecutor v Goran Jelisić, Case No. IT-95-10-R, Decision on Motion for Review, 2 May 2002, p. 3.

[3] Eliézer Niyitegeka v. The Prosecutor, Case No. ICTR-96-14-R, 30 June 2006, paras 13‑14,17‑19, 22‑23, 26‑28, 31‑32, 37‑40.

[4] See Prosecutor v. Drago Josipović, Case No. IT-95-16-R2, Decision on Motion for Review, 2 April 2004, pages 4‑5.

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ICTR Statute Article 25 ICTY Statute Article 26 ICTR Rule Rule 120 ICTY Rule Rule 119
Notion(s) Filing Case
Review Decision - 30.06.2006 NIYITEGEKA Eliézer
(ICTR-96-14-R)

Paras 47‑48: relying on Delić, Tadić and Josipović,[1] the Appeals Chamber noted that there is a fundamental distinction between the admission of additional evidence on appeal and a review based on a “new fact”. Rule 115 provides for the admission of additional evidence in appellate proceedings only, and is related to Article 24 of the Statute. Rule 120, on the other hand, pertains to review proceedings under Article 25 of the Statute and constitutes an “exceptional” procedure; it does not represent a second appeal. Further, there is a distinction in the nature of the additional material which may be considered under Rule 115 and that which may be considered during a review proceeding. The Appeals Chamber recalled that while Rule 115 accepts any relevant and credible additional evidence of an issue which has already been considered at trial, Article 25 and Rule 120 require a “new fact”, defined as “new information of an evidentiary nature of a fact that was not in issue during the trial or appeal proceedings”. The Appeals Chamber held that it will only permit review on the basis of new evidence of a fact known at trial under exceptional circumstances. The Appeals Chamber held that it is incorrect for parties to rely on the provisions of Rule 115 for the purpose of review instead of relying on Article 25 of the Statute and Rule 120 of the Rules.

Para. 42, lines 8‑10; para. 72, lines 4‑5: reinforcing the strictly exceptional nature of review proceedings, the Appeals Chamber held that it will not consider de novo arguments which were already raised by the Applicant and rejected at the appeals stage as a review proceeding is not an opportunity simply to re-litigate unsuccessful appeals.

[1] See Prosecutor v. Hazim Delić, Decision on Motion for Review, 25 April 2002, paras. 9, 11, 13; Prosecutor v. Duško Tadić, Decision on Motion for Review, Case No. IT-94-1-R, 30 July 2002, para. 25 (“Tadić, Decision on Motion for Review”); Prosecutor v. Drago Josipović, Case No. IT‑95‑16‑R2, Decision on Motion for Review, 7 March 2003, paras 18‑19.

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ICTR Statute Article 25 ICTY Statute Article 26 ICTR Rule Rule 120 ICTY Rule Rule 119
Notion(s) Filing Case
Decision on Interlocutory Appeal on EDS - 30.06.2006 KAREMERA et al.
(ICTR-98-44-AR73.7)

In the present case, the Prosecution argued that it could discharge its Rule 68 disclosure obligations through the EDS. The Appeals Chamber dismissed the Prosecution’s appeal, holding that the EDS does not discharge the Prosecution of its positive obligation to disclose exculpatory material in its possession. The full reasoning is provided below (paras 8-16):

 

8. The Prosecution argues that the Trial Chamber erred as a matter of law in finding that it cannot discharge its disclosure obligations under Rule 68 by making the Prosecution evidence collection and other relevant materials accessible to the Defence through the EDS.[1] In identifying the Trial Chamber’s alleged legal error, the Prosecution contends that the Trial Chamber failed to appreciate the searchable format of the EDS.[2] However, in the very same passage upon which the Prosecution relies in support of this proposition, the Trial Chamber clearly expressed that the EDS, “allows the Defence to do its searches for exculpatory material.”[3] Consequently, the Appeals Chamber cannot agree that the Trial Chamber failed to appreciate this aspect of the EDS. Rather, in the view of the Appeals Chamber, the Prosecution appears to take issue with the Trial Chamber’s finding that the Prosecution has a “positive obligation” to disclose Rule 68 material “in its possession” to individual accused.[4] The Appeals Chamber, however, can identify no legal error on the part of the Trial Chamber in holding that the Prosecution has a positive obligation to disclose exculpatory material in its possession.

9. The Prosecution’s obligation to disclose exculpatory material is essential to a fair trial.[5] The Appeals Chamber has always interpreted this obligation broadly.[6] The positive nature of this obligation and its significance stem from the Prosecution’s duty to investigate, which the Appeals Chamber has explained runs conterminously with its duty to prosecute.[7] In particular, the Appeals Chamber recalls that one of the purposes of the Prosecution’s investigative function is “to assist the Tribunal to arrive at the truth and to do justice for the international community, victims, and the accused.”[8] The responsibility for disclosing exculpatory material rests on the Prosecution alone, and the determination of what material meets Rule 68 disclosure requirements is primarily a fact-based judgement, falling within the Prosecution’s responsibility.[9] In other words, the Prosecution has a distinct obligation to participate in the process of administering justice by disclosing to the Defence, as required by Rule 68(A), material which it actually knows “may suggest the innocence or mitigate the guilt of the accused or affect the credibility of the Prosecution evidence”. This responsibility is crucial to the analysis.

10. Bearing these principles in mind, the Prosecution must actively review the material in its possession for exculpatory material[10] and, at the very least, inform the accused of its existence.[11] In the view of the Appeals Chamber, the Prosecution’s Rule 68 obligation to disclose extends beyond simply making available its entire evidence collection in a searchable format. A search engine cannot serve as a surrogate for the Prosecution’s individualized consideration of the material in its possession. As such, the Appeals Chamber can identify no legal error on the part of the Trial Chamber in finding that the EDS, as described by the Prosecution, fails to fulfill these important and expansive obligations.

11. The Prosecution’s reasoning includes the following two steps. First, it argues that paragraphs (A) and (B) of Rule 68 establish two distinct disclosure obligations covering different categories of materials: paragraph (A) applies to materials that the Prosecution actually knows may be exculpatory, while paragraph (B) applies more broadly to all “collections of relevant material”, whether or not the Prosecution knows that they may be exculpatory. Second, it argues that when the Prosecution provides the defence with an electronic collection of relevant materials in satisfaction of its obligation under paragraph (B), that also satisfies its obligations under paragraph (A) with respect to any materials governed by paragraph (A) that may be found somewhere within the collection. The Appeals Chamber notes that while the first step of the Prosecution’s argument appears to embrace a rather broad interpretation of the Prosecution’s disclosure obligations, the second step would have the effect of curtailing them by making it unnecessary for the Prosecution to draw the attention of the Defence to the particular material that it actually knows may be exculpatory.

12. The Appeals Chamber observes several flaws in the Prosecution’s reasoning. The Prosecution’s obligation to disclose to the defence material that may suggest the innocence or mitigate the guilt of the accused or affect the credibility of Prosecution evidence is set forth in Rule 68(A).[12] It is only Rule 68(A) that articulates which material is subject to disclosure under this rule and which obliges the Prosecution to disclose it. Rule 68(B) does not establish a distinct disclosure obligation.[13] Rather, it simply provides for a possible modality of conveying exculpatory material to the defence, in an electronic format, after the Prosecution identifies it as “relevant material” which is subject to disclosure under Rule 68. This is supported by the plain language of sub-paragraph B of Rule 68 and by its drafting history, which focused on the technical feasibility of providing to the defence electronic versions of documents subject to Rule 68 disclosure.[14]

13. Thus, disclosure under Rule 68(B) is merely the digital equivalent of disclosure under Rule 68(A), consisting of the same material in searchable electronic form. For these reasons, for the Prosecution to seek to satisfy its Rule 68 obligations merely by granting the Defence access to an electronic database containing tens of thousands of documents, only a few of which it knows to be potentially exculpatory, is the equivalent of the Prosecution seeking to satisfy those obligations by giving the Defence a key to a storage closet containing the same tens of thousands of documents in paper form. In both cases, the Prosecution has for all intents and purposes buried the exculpatory materials, at least unless it notifies the Defence of the existence of such materials and provides a means by which the Defence can be reasonably expected to find them. Rule 68(B) was not intended to facilitate this kind of evasion of the Prosecution’s disclosure obligations. Indeed, its text makes clear that it is in no way intended to dilute or circumvent Rule 68(A)’s requirements: it states that it is “without prejudice to paragraph (A)”.[15]

14. The Prosecution’s second principal argument on appeal is that, by creating the EDS and by making it searchable, its collection is now “reasonably accessible” to the defence, which is a recognized exception to its obligation to disclose.[16] By way of illustration, the Prosecution refers to Appeals Chamber jurisprudence indicating that transcripts of open session testimony are not subject to disclosure as they are “reasonably accessible”.[17] Mr. Nzirorera disputes this claim, emphasizing the difficulty of identifying exculpatory material given the redacted nature of the documents on the EDS.[18] The Prosecution counters that Mr. Nzirorera’s complaints are belied by his possession of material, which it surmises came from the EDS, thereby demonstrating its proper functioning.[19] The Appeals Chamber observes that it is not clear from the record how Mr. Nzirorera obtained the material he used to demonstrate that the Prosecution was in breach of its disclosure obligations.

15. The Appeals Chamber agrees that the Prosecution may be relieved of its Rule 68 obligation if the existence of the relevant exculpatory material is known to the Defence and if it is reasonably accessible through the exercise of due diligence.[20] On the basis of the record before it, however, the Appeals Chamber cannot find that the EDS makes documents reasonably accessible as a general matter, nor that the Defence can be assumed to know about all materials included in it. The determination whether given exculpatory information is reasonably accessible, and whether its existence is known to the Defence requires a careful examination of the relevant circumstances.[21] This is true for material on the EDS – especially given that, as Mr. Nzirorera notes, it may be difficult to recognize material as exculpatory if it is only available in redacted form – just as it is true for material not found on this system. The Appeals Chamber has not been asked to decide here whether the Prosecution satisfied its disclosure obligation with respect to any particular piece of information. The Appeals Chamber cautions the Prosecution, however, that just because it has placed a particular piece of material on the EDS, it has not necessarily made that piece of material “reasonably accessible” to any given accused. It might be helpful if the Prosecution either separates a special file for Rule 68 material or draws the attention of the Defence to such material in writing and permanently updates the special file or the written notice.

 

[1] Prosecution Appeal, paras. 2, 16, 18.

[2] Prosecution Appeal, para. 25.

[3] Impugned Decision, p. 5; Prosecution Appeal, para. 25.

[4] Prosecution Appeal, para. 34 (“The Trial Chamber incorrectly formulated the Prosecutor’s obligation, stating that the Prosecution has a ‘positive obligation to disclose all Rule 68 material in the possession of the Prosecution’”) (emphasis in original); Prosecution Reply and Response, para. 7 (“The objectionable language used by the Trial Chamber in the impugned Decision was that the EDS ‘does not relieve the Prosecution from its positive obligation to disclose all Rule 68 material in the possession of the Prosecution’”) (emphasis in original).

[5] Nzirorera Appeal Decision, para. 7 [The Prosecutor v. Édouard Karemera et al., Case No. 98-44-AR73.6, Decision on Joseph Nzirorera’s Interlocutory Appeal, 28 April 2006). See also The Prosecutor v. Théoneste Bagosora et al., Case Nos. ICTR-98-41-AR73, ICTR-98-41-AR73(B), Decision on Interlocutory Appeals on Witness Protection Orders, 6 October 2005, para. 44 (“Bagosora Appeal Decision”); 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 Appeal Decision”).

[6] Blaškić Appeal Judgement, paras. 265, 266; Krstić Appeal Judgement, para. 180.

[7] Bagosora Appeal Decision, para. 44. See also Brđanin Appeal Decision, p. 3; Kordić and Čerkez Appeal Judgement, para. 183; Blaškić Appeal Judgement, para. 264.

[8] Prosecution Regulation No. 2, para. 2(h). As a result, the Appeals Chamber finds disconcerting the Prosecution’s suggestion before the Trial Chamber that it is somehow not obliged to search for material impacting on the credibility of its own witnesses. See T. 13 February 2006 p. 11 (“we cannot exhaustively search the entire OTP database simply to prosecute witnesses that we’re bringing to this Court as part of our Prosecution case … our job here is to prosecute the three men … sitting on the other side of the courtroom. We do not prosecute our other witnesses. When we find material that is relevant to this case and relevant to – and within the parameters of Rule 68, we disclose it, but we can only do the best that we can do, and that’s what we’ve done.”).

[9] Nzirorera Appeal Decision, paras. 16, 22; Bagosora Appeal Decision, para. 43 (“… the [disclosure] obligations rest on the Prosecutor alone …”). See also Kordić and Čerkez Appeal Judgement, para. 183; Brđanin Appeal Decision, p. 3.

[10] See, e.g., Blaškić Appeal Judgement, para. 302; The Prosecutor v. Juvénal Kajelijeli, Case No. ICTR-98-44A-A, Judgement, 23 May 2005, para. 262. The Appeals Chamber has recognized that the voluminous nature of materials “in the possession” of Prosecutor may give rise to delays in disclosure. It does not however excuse the Prosecution from reviewing it and assessing it in light of Rule 68. See, e.g., Blaskić Appeal Judgement, para. 300 (“… the voluminous nature of the materials in the possession of the Prosecution may result in delayed disclosure, since the material in question may be identified only after the trial proceedings have concluded.”); Krstić Appeal Judgement, para. 197 (“The Appeals Chamber is sympathetic to the argument of the Prosecution that in most instances material requires processing, translation, analysis and identification as exculpatory material. The Prosecution cannot be expected to disclose material which – despite its best efforts - it has not been able to review and assess. Nevertheless, the Prosecution did take an inordinate amount of time before disclosing material in this case, and has failed to provide a satisfactory explanation for the delay.”) (internal citation omitted). Moreover, the Appeals Chamber has explained the unity of the Office of the Prosecutor in discharging disclosure. See Bagosora Appeal Decision, paras. 42-46.

[11] See Krstić Appeal Judgement paras. 190, 195.

[12] Rule 68 (A) provides: “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.”

[13] Rule 68 (B) provides: “Where possible, and with the agreement of the Defence, and without prejudice to Paragraph (A), the Prosecutor shall make available to the Defence, in electronic form, collections of relevant material held by the Prosecutor, together with appropriate computer software with which the Defence can search such collections electronically.”

[14] Minutes of the Fourteenth Plenary Session (confidential), paras. 87-100.

[15] Indeed, this proviso makes it clear that even if the Prosecution were correct that Rule 68(B) refers to a different category of materials than does Rule 68(A), it would not follow that granting access to the EDS satisfies all of its disclosure obligations.  Instead, it would simply mean that the Prosecution could use electronic disclosure to satisfy its obligation under Rule 68(B) with respect to one category of materials, but would still be obligated to follow the traditional method of disclosure for the narrower category of materials subject to Rule 68(A).  Thus, the second step of the Prosecution’s argument does not follow logically from the first. 

[16] Prosecution Appeal, paras. 2, 43-47. The Prosecution also raises a related argument, submitting that the EDS addresses the underlying rationale for the Prosecution’s disclosure obligation by eliminating its superior access to the material. Prosecution Appeal, paras. 38-42.

[17] Prosecution Appeal, para. 46, citing Blaškić Appeal Judgement and Brđanin Appeal Decision.

[18] Nzirorera Response and Motion, paras. 14-26.

[19] Prosecution Appeal, para. 26.

[20] Brđanin Appeal Decision, p. 4; Blaškić Appeal Judgement, para. 296.

[21] See, e.g., Blaškić Appeal Judgement, paras. 286-303.

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