The Appeals Chamber ruled that the Trial Chamber applied an incorrect legal standard when it held that where a document contains both exculpatory and incriminating information on the same issue, all the information on that particular issue “must be read in context” and “only information, that, when read in its entirety tends to be exculpatory, must [it] be disclosed under Rule 68(A) [of the Rules]” (paras 12-13):

12. The Appeals Chamber agrees with the Appellant’s contention that Rule 68 of the Rules, as a rule of disclosure rather than admissibility of evidence, imposes a categorical obligation to disclose any document or witness statement that contains exculpatory material. Consequently, this obligation is not subject to a balancing test. Because the Trial Chamber applied an incorrect legal standard, it by definition committed a discernible error. The Appeals Chamber notes that the Trial Chamber earlier considered alleged violations of Rule 68(A) of the Rules,[1] and adopted the reasoning from a decision in the Bagosora et al. case.[2] In that case, the Trial Chamber, when considering whether certain witnesses’ statements contained excuplatory material, ruled that:

whether [the] information “may suggest the innocence or mitigate the guilt of the accused” must depend on an evaluation of whether there is any possibility, in light of the submissions of the parties, that the information could be relevant to the defence of the accused.[3]

The Appeals Chamber considers this to be the correct standard for assessing whether certain material is to be considered as exculpatory within the meaning of Rule 68(A) of the Rules. In this case, the Trial Chamber, by reasoning that exculpatory material in a document could be rendered nugatory by the existence of inculpatory material, applied an incorrect legal standard resulting in an abuse of its discretion.

12. […] the Appeals Chamber clarifies that an appeal lies as of right of any decision taken under Rule 73 of the Rules by a single judge or trial chamber after an applicant’s trial and appeal proceedings have concluded. This is necessary to give full effect to the continuous obligation imposed upon the Prosecution by Rule 73(E) of the Rules to disclose exculpatory material after the completion of trial and any subsequent appeal.[1]

18.     The Appeals Chamber turns to Niyitegeka’s contention that the Single Judge erred in failing to consider that all the statements and testimony of the 12 Prosecution witnesses given subsequent to his own proceedings constitute potentially exculpatory material subject to disclosure under Rule 73 of the Rules. In this respect, the Appeals Chamber recalls that Rule 73(A) of the Rules imposes upon the Prosecution a positive and continuous obligation to, “as soon as practicable, disclose to the Defence any material that in [its] actual knowledge […] may suggest the innocence or mitigate the guilt of the accused or affect the credibility of Prosecution evidence”. The determination as to which material is subject to disclosure under Rule 73 of the Rules is a fact-based enquiry made by the Prosecution. A chamber will not intervene in the exercise of the Prosecution’s discretion unless it is shown that the Prosecution abused it and, where there is no evidence to the contrary, will presume that the Prosecution is acting in good faith. Niyitegeka demonstrates no error in the Single Judge’s determination that, with respect to Niyitegeka’s present request for disclosure, there was no reason to doubt that the Prosecution was complying with its continuous disclosure obligations in good faith. The Appeals Chamber recalls that the Prosecution’s obligation to disclose exculpatory material is essential to a fair trial, and notes that this obligation has always been interpreted broadly.

19.     […] [T]he Appeals Chamber recalls that the Office of the Prosecutor has a duty to utilize procedures designed to ensure that, particularly in instances where the same witnesses testify in different cases, the evidence provided by such witnesses is re-examined in light of Rule 73 of the Rules to determine whether any material has to be disclosed.[6] This obligation reflects the possibility that statements or testimony given by a witness in a subsequent proceeding may contain material subject to disclosure under Rule 73 of the Rules and underscores that, as noted above, determining what is subject to disclosure is a fact-based enquiry by the Prosecution. […] Furthermore, Rule 73 of the Rules limits the Prosecution’s obligation to the disclosure of material that “in [its] actual knowledge […] may suggest the innocence or mitigate the guilt of the accused or affect the credibility of Prosecution evidence”.[8] To the extent Niyitegeka considers that the Prosecution may be unaware of information that may impact the assessment of whether material in its possession is subject to disclosure under Rule 73 of the Rules, he may share such information with the Prosecution. In light of the foregoing, the Appeals Chamber finds that Niyitegeka fails to establish that the Single Judge committed a discernible error by not determining that all the statements and transcripts of evidence given by the 12 Prosecution witnesses during proceedings subsequent to the conclusion of Niyitegeka’s case constitute material subject to disclosure pursuant to Rule 73 of the Rules.