The Appeals Chamber found that, in the circumstances of the case, the Prosecution was not in breach of its Rule 66(B) disclosure obligation since the material at stake was available via EDS.

10. La Chambre d’appel prend note du fait que le Procureur a informé la Défense de la disponibilité des dossiers MINALOC et MRND et des déclarations de Joseph Serugendo après le dépôt de la Requête de l’Appelant alors qu’il aurait pu le faire plus tôt[1]. Cependant, l’Appelant n’a pas fait état, jusqu’à ce jour, de difficultés dans l’obtention des documents via EDS.[2] En conséquence, la Chambre d’appel considère que la demande de communication sur la base de l’article 66 du Règlement relative à ces documents est sans objet.

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.