Procedure for disclosures under Rule 68

Notion(s) Filing Case
Decision on Expunging Disclosure - 30.10.2006 NAHIMANA et al. (Media case)

8. […] The appropriate procedure for disclosure of materials under Rule 68 of the Rules when a case is before the Appeals Chamber is to serve the Defence with such material.[1] Where the Prosecution files its disclosure with the Registry for purposes of keeping it in the Registry archives, the Prosecution shall do so without copying the Appeals Chamber. Where the Prosecution considers it necessary to advise the Appeals Chamber of its further disclosures of Rule 68 material to the Defence, it may file a status report before the Appeals Chamber informing them of the fact and date but not the nature of that disclosure or the communicated material.

12. The Appeals Chamber hereby INSTRUCTS the Prosecution to follow the procedure described in paragraph eight above for its future disclosures under Rule 68 of the Rules. The Appeals Chamber also INSTRUCTS the Registry to ensure that any copies of disclosures filed with it by the Prosecution are to be kept in its records without communicating the disclosed material to the Appeals Chamber.

[1] In this respect, the Appeals Chamber recalls its recent decision, in which it held that the Prosecution’s obligation under Rule 68(A) of the Rules “extends beyond simply making available its entire evidence collection in a searchable format”, since it “cannot serve as a surrogate for the Prosecution’s individualized consideration of the material in its possession”. (Prosecutor v. Édouard Karemera et al., Case No. ICTR-98-44-AR73.7, Decision on Interlocutory Appeal Regarding the Role of the Prosecutor’s Electronic Disclosure Suite in Discharging Disclosure Obligations, 30 June 2006, para. 10). The Appeals Chamber also found that the EDS does not make documents “reasonably accessible as a general matter”, nor does it allow to assume that the Defence knows about all material included therein, to the extent that the Prosecution could be relieved of its Rule 68 obligation. (Ibid., para. 15). In this sense, it has been suggested that the Prosecution should either “separate[] a special file for Rule 68 material or draw[] the attention of the Defence to such material in writing and permanently update[] the special file or the written notice”. (Id.) See also Bralo Decision, para. 35.

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ICTR Rule Rule 68 ICTY Rule Rule 68
Notion(s) Filing Case
Appeal Judgement - 19.04.2004 KRSTIĆ Radislav

189. The Defence submits that the Rule 68 disclosures of 25 June 2000 and 5 March 2001 made during trial were buried beneath other material provided at the time, and that the failure of the Prosecution to identify the disclosed material as being disclosed under Rule 68 breached the spirit and letter of that Rule.[1] In response, the Prosecution argues that there is no specific requirement obliging it to indicate the provision in accordance with which a disclosure of documents occurs, or to identify the specific material disclosed as exculpatory.[2]

190. The Appeals Chamber agrees with the Prosecution that Rule 68 does not require the Prosecution to identify the material being disclosed to the Defence as exculpatory. The jurisprudence of the Tribunal shows that while some Trial Chambers have recognised that it would be fairer for the Prosecution to do so,[3] there is no prima facie requirement, absent an order of the Trial Chamber to that effect, that it must do so.

191. However, the fact that there is no prima facie obligation on the Prosecution to identify the disclosed Rule 68 material as exculpatory does not prevent the accused from arguing, as a ground of appeal, that he suffered prejudice as a result of the Prosecution’s failure to do so.

[1] Defence Appeal Brief, para. 128.

[2] Prosecution Response [Prosecution Response to the Defence Appeal Brief, 8 May 2002], para. 3.53.

[3] Krajišnik & Plavšić Decision on Motion from Momcilo Krajisnik to Compel Disclosure of Exculpatory Evidence Pursuant to Rule 68 [Prosecutor v. Momčilo Krajišnik & Biljana Plavšić, Case No. IT-00-39&40-PT, Decision on Motion from Momčilo Krajišnik to Compel Disclosure of Exculpatory Evidence Pursuant to Rule 68, 19 July 2001], p. 2: “as a matter of practice and in order to secure a fair and expeditious trial, the Prosecution should normally indicate which material it is disclosing under the Rule and it is no answer to say that the Defence are in a better position to identify it.”

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ICTR Rule Rule 68 ICTY Rule Rule 68