Disclosure under MICT Rule 71

Notion(s) Filing Case
Decision on Disclosure - 25.05.2016 UWINKINDI Jean

RECALLING that Rule 71(B) of the Rules provides, inter alia, that the Prosecutor shall, on request, permit the Defence to inspect any books, documents, photographs, and tangible objects in the Prosecutor’s custody or control, which are material to the preparation of the defence;[1]

CONSIDERING that Rule 71(B) of the Rules applies to appeal proceedings;[2]

CONSIDERING that the obligation to provide access pursuant to Rule 71(B) of the Rules is only triggered by a sufficiently specific request by the Defence;[3]

CONSIDERING FURTHER that, prior to obtaining a judicial order for the inspection of any item material the preparation of the defence, the applicant must: (i) demonstrate that the material sought is in the custody or control of the Prosecution; (ii) establish the prima facie materiality of the document sought to the preparation of the defence case; and (iii) specifically identify the requested material;[4]


CONSIDERING that, in relation to appellate proceedings, the Prosecution should consider the following criteria to determine if material in its possession is material to the preparation of the defence in accordance with Rule 71(B) of the Rules: (i) whether the issue to which the material relates is the subject of a ground of appeal; or (ii) whether the material could reasonably lead to further investigation by the Defence and the discovery of additional evidence admissible on appeal;[5]


CONSIDERING that the Prosecution should not disclose the Report, which was provided confidentially, without first obtaining consent to disclose it from its author;[6]

[1] The Appeals Chamber observes that, in material respects, Rule 71(B) of the Rules tracks the language of Rules 66(B) of the Rules of Procedure and Evidence of the International Tribunal for the former Yugoslavia (“ICTY”) and for the International Criminal Tribunal for Rwanda (“ICTR”) (collectively, “ad hoc Tribunals”). Consequently, the Appeals Chamber finds the Appeals Chamber jurisprudence of the ad hoc Tribunals interpreting Rule 66(B) of the ICTY and ICTR Rules of Procedure and Evidence highly relevant in its interpretation of Rule 71(B) of the Rules. See Phénéas Munyarugarama v. Prosecutor, Case No. MICT-12-09-AR14, Decision on Appeal against the Referral of Phénéas Munyarugarama’s Case to Rwanda and Prosecution Motion to Strike, 5 October 2012, para. 6.

[2] See Prosecutor v. Miroslav Bralo, Case No. IT-95-17-A, Decision on Miroslav Bralo’s Motion for Admission of Additional Evidence (confidential), 12 January 2007 (“Bralo Decision of 12 January 2007”), para. 25; Ferdinand Nahimana et al. v. The Prosecutor, Case No. ICTR-99-52-A, Decision on Motions Relating to the Appellant Hassan Ngeze’s and the Prosecution’s Requests for Leave to Present Additional Evidence of Witnesses ABC1 and EB (public redacted version), 1 December 2006 (“Nahimana et al. Decision of 1 December 2006”), para. 16; 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. Decision of 26 September 2006”), para. 9, n. 35; Prosecutor v. Radislav Krstić, Case No. IT-98-33-A, Decision on the Prosecution’s Motion to be Relieved of Obligation to Disclose Sensitive Information Pursuant to Rule 66(C) (confidential), 27 March 2003 (“Krstić Decision of 27 March 2003”), p. 4.

[3] Bagosora et al. Decision of 26 September 2006, para. 10.

[4] Prosecutor v. Édouard Karemera et al., Case No. ICTR-98-44-AR73.11, Decision on the Prosecution’s Interlocutory Appeal Concerning Disclosure Obligations (public redacted version), 23 January 2008, para. 12. See also Édouard Karemera et al. v. The Prosecutor, Case No. ICTR-98-44-AR73.18, Decision on Joseph Nzirorera’s Appeal from Decision on Alleged Rule 66 Violation, 18 May 2010, para. 13.

[5] See Bralo Decision of 12 January 2007, para. 25; Nahimana et al. Decision of 1 December 2006, para. 16; Krstić Decision of 27 March 2003, p. 4.

[6] Cf. Rule 76(B) of the Rules.

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ICTR Statute Rule 66(B) ICTY Statute Rule 66(B) IRMCT Statute Rule 71(B)