The Appeals Chamber specified that the Prosecution’s obligation under Rule 68 only covers the exculpatory material which is in its possession. In the present case, the Prosecution was found to have acted in compliance with this provision.

12. Il ressort clairement de l’article 68 B) du Règlement que l’obligation du Procureur de communiquer des éléments de preuve à décharge est subordonnée à sa possession de tels éléments[1]. Or, à la lumière de ce qui précède, la Chambre d’appel constate que le Procureur s’est suffisamment expliqué sur la manière dont l’enregistrement de l’interview a été recueilli ainsi que sur son caractère incomplet, en précisant qu’il s’agissait de la seule version en sa possession. La demande de l’Appelant tendant à ce que la Chambre d’appel ordonne au Procureur de s’expliquer sur le caractère incomplet de l’enregistrement de l’interview et de le verser au dossier ne peut donc prospérer.

321. The mandate of the International Tribunal, as set out in Article 1 of the Statute, is to prosecute persons responsible for serious violations of international humanitarian law committed in the former Yugoslavia. To fulfil its mandate, a Trial Chamber has to ascertain the credibility of all the evidence brought before it. A Trial Chamber must also take account of the following provisions of the Statute: Article 20(1), concerning the need to ensure a fair and expeditious trial, Article 21 dealing with the rights of the accused, and Article 22, dealing with the protection of victims and witnesses. Further guidance may be taken from Article 14 of the International Covenant on Civil and Political Rights[1] and Article 6 of the European Convention on Human Rights,[2] which are similar to Article 21 of the Statute.

322. With regard to the present case, once a Defence witness has testified, it is for a Trial Chamber to ascertain the credibility of his or her testimony.  If he or she has made a prior statement, a Trial Chamber must be able to evaluate the testimony in the light of this statement, in its quest for the truth and for the purpose of ensuring a fair trial.  Rather than deriving from the sweeping provisions of Sub-rule 89(B), this power is inherent in the jurisdiction of the International Tribunal, as it is within the jurisdiction of any criminal court, national or international.  In other words, this is one of those powers mentioned by the Appeals Chamber in the Blaškić (Subpoena) decision which accrue to a judicial body even if not explicitly or implicitly provided for in the statute or rules of procedure of such a body, because they are essential for the carrying out of judicial functions and ensuring the fair administration of justice.[3]

323. It would be erroneous to consider that such disclosure amounts to having the Defence assist the Prosecution in trying the accused.  Nor does such disclosure undermine the essentially adversarial nature of the proceedings before the International Tribunal, including the basic notion that the Prosecution has to prove its case against the accused.  Although this provision was not in force at the time relevant to the present enquiry, it is worth noting that Sub-rule 73ter(B) provides that should a Pre-Defence Conference be held:

[…] the Trial Chamber may order that the defence, before the commencement of its case but after the close of the case for the prosecution, file the following:

[…];

(iii)        a list of witnesses the defence intends to call with:

(a)        the name or pseudonym of each witness;

(b)         a summary of the facts on which each witness will testify;

[…][4]

This Sub-rule does not require that the Defence file its witness statements.  But the substance is not far removed: the provision has been designed to assist a Trial Chamber in preparing for hearing the Defence case, and the Prosecution in preparing for cross-examination of the witnesses.

324. As stated above, once the Defence has called a witness to testify, it is for a Trial Chamber to ascertain his or her credibility.  If there is a witness statement, in the sense referred to above, it would be subject to disclosure only if so requested by the Prosecution and if the Trial Chamber considers it right in the circumstances to order disclosure.  The provisions of Rule 68 are limited to the Prosecution and do not extend to the Defence.  Disclosure would follow only once the Prosecution’s case has been closed.  Even then, Sub-rules 89(C),[5] (D)[6] and (E)[7] would still apply to such a disclosed witness statement, with the consequence that a Trial Chamber might still exclude it.  Furthermore, the provisions of Sub-rule 90(F)[8] relating to self-incrimination would of course apply.

325. The Appeals Chamber is also of opinion that no reliance can be placed on a claim to privilege.  Rule 97[9] relates to lawyer-client privilege; it does not cover prior Defence witness statements.

It concluded:

326. For the reasons set out above, it is the opinion of the Appeals Chamber that a Trial Chamber may order, depending on the circumstances of the case at hand, the disclosure of Defence witness statements after examination-in-chief of the witness. [10]

30. Pursuant to Rule 66(A)(ii) of the Rules, the Prosecutor has a duty, inter alia, to make available to the Defence copies of the statements of all witnesses whom the Prosecutor intends to call to testify at trial. The Appeals Chamber notes that neither the ICTR nor ICTY has provided a clear definition of the term “statement.” In particular, the jurisprudence has not made a clear distinction between “statements” and “internal documents prepared by a party [which] are not subject to disclosure or notification”[1] under Rules 66 and 67 of the Rules.[2]

31. A record of a witness interview, ideally, is composed of all the questions that were put to a witness and of all the answers given by the witness. The time of the beginning and the end of an interview, specific events such as requests for breaks, offering and accepting of cigarettes, coffee and other events that could have an impact on the statement or its assessment should be recorded as well.

32. Such an interview must be recorded in a language the witness understands. As soon as possible after the interview has been given, the witness must have the chance to read the record or to have it read out to him or her and to make the corrections he or she deems necessary and then the witness must sign the record to attest to the truthfulness and correctness of its content to the best of his or her knowledge and belief. A co-signature by the investigator and interpreter, if any, concludes such a record.

33. Records of questions put to witnesses by the Prosecution and of the answers given constitute witness statements pursuant to Rule 66(A)(ii) of the Rules. It is necessary to disclose the questions put to the witness in order to make the statement intelligible. This obligation also follows from the fair trial guarantees stipulated in Articles 19 and 20 of the Statute. Furthermore, an accused must have access to the questions put to the witness in order to be able to prepare for cross-examination properly. At times, it may be impossible to assess the probative value of the witness’s answer without juxtaposing it with the relevant question. This may also affect a Chamber’s assessment of the credibility of the witness and the reliability of a testimony in its development. The record of the first interview with a witness is of the highest value because it is most likely to capture the witness’s recollection accurately, being closest in time to the events and less vulnerable to any subsequent influence.

34. Questions that were put to a witness – thus being part of the witness statement – have to be distinguished from “internal documents prepared by a party”,[3] which are not subject to disclosure under Rule 70(A) of the Rules, as an exception to the general disclosure obligation pursuant to Rule 66(A)(ii) of the Rules. A question once put to a witness is not an internal note any more; it does not fall within the ambit and thereby under the protection of Rule 70(A) of the Rules. If, however, counsel or another staff member of the Prosecution notes down a question prior to the interrogation, without putting this question to the witness, such a question is not subject to disclosure. Similarly, any note made by counsel or another staff member of the Prosecution in relation to the questioning of the witness is not subject to disclosure, unless it has been put to the witness.

35. The fact that a particular witness statement does not correspond to the standard set out above does not free a party from its obligation to disclose it to the other party pursuant to Rule 66(A)(ii) of the Rules. Furthermore, a witness statement which does not correspond to the standard set out above does not necessarily render the proceedings unfair. The Prosecution is obliged to make the witness statement available to the Defence in the form in which it has been recorded. However, something which is not in the possession of or accessible to the Prosecution cannot be subject to disclosure: nemo tenetur ad impossibile (no one is bound to an impossibility).[4]

36. Also, a statement not fulfilling the ideal standard set out above is not inadmissible as such. Pursuant to Rule 89(C) of the Rules, a Chamber may admit any relevant evidence which it deems to have probative value. However, any inconsistency of a witness statement with the standard set out above may be taken into consideration when assessing the probative value of the statement, if necessary.

6. The Appeals Chamber recalls that the Prosecution’s obligation under Rule 68 of the Rules is positive and continuous,[1] and that the determination of what material meets Rule 68 disclosure requirements is primarily a fact-based judgement made by and under the responsibility of the Prosecution.[2] The Prosecution “is under no legal obligation to consult with an accused to reach a decision on what material suggests the innocence or mitigates the guilt of an accused or affects the credibility of the Prosecution’s evidence”.[3] Therefore, the Appeals Chamber would 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 assume that the Prosecution is acting in good faith.[4]

15. Before considering what the Prosecution’s duty of disclosure is under sub-Rule 66 (A) (ii) of the Rules, it is necessary to consider whether the testimony given by a witness in a case can constitute a “witness statement” within the meaning of the sub-Rule. The Rules do not define what constitutes a witness statement.  The usual meaning of a witness statement in trial proceedings is an account of a person’s knowledge of a crime, which is recorded through due procedure in the course of an investigation into the crime.  The Appeals Chamber is of the view that when a witness testifies during the course of a trial before the Tribunal, the witness’s verbal assertions recorded by the Registry’s technical staff through contemporaneous transcription, are capable of constituting a witness statement within the meaning of sub-Rule 66 (A) (ii).  The testimony will constitute such a witness statement and therefore be subject to disclosure, only if the witness is intended to be called, in accordance with the sub-Rule, to testify in subsequent proceedings in relation to the subject-matter of the testimony.  In other words, the testimony is a witness statement for the subsequent proceedings.

16. It follows that the Prosecution does have a duty to disclose such witness statements to the Defence under certain conditions.  Whether or not they should be “made available” pursuant to sub-Rule 66 (A) (ii) depends upon the stage of the proceedings that a case has reached.  […] [T]he sub-Rule should be given its plain meaning that, once a witness has given evidence in court, the Prosecution can no longer intend to call that witness to testify, and that there is therefore no obligation to make available any subsequent statements from the witness, unless the witness will be recalled as an additional Prosecution witness in the sense of the sub-Rule. […]

17. The Appeals Chamber is also of the view that sub-Rule 66 (A) (ii) can be applied, mutatis mutandis, in appeals, pursuant to Rule 107. Additional evidence may be admitted on appeal by way of Rule 115, and prior to the presentation of such evidence through witnesses under the rule, the presenting party shall follow the procedure of sub-Rule 66 (A) (ii) to disclose witness statements to the other party.

[RULE 66(A)(II) WAS AMENDED ON 1 DECEMBER 2000, 13 DECEMBER 2000, AND 13 SEPTEMBER 2006.]

29. The Appeals Chamber recalls that the Prosecution has a positive and continuous obligation[1] under Rule 68 of the Rules to, “as soon as practicable, disclose to the Defence any material which in [its] actual knowledge […] may suggest the innocence or mitigate the guilt of the accused or affect the credibility of Prosecution evidence”. The application of this provision is not confined to the trial process and continues throughout the proceedings on the relevant case before the Tribunal.[2]

30. Determining what material meets Rule 68 disclosure requirements falls within the Prosecution’s discretion and its initial assessment of such exculpatory material must be done in good faith.[3] However, Rule 68(i) does not impose an obligation on the Prosecution to search for materials which he does not have knowledge of, nor does it entitle the Defence to embark on a fishing expedition to obtain exculpatory material.[4] It does not confer on the Accused a general right of access to the Prosecution’s files.[5] Indeed, when an accused asks a Chamber to order the production of material, the accused’s request “has to be sufficiently specific as to the nature of the evidence sought and its being in the possession of the addressee of the request”.[6] At the same time, such request is not required to be “as specific as to precisely identify which documents should be disclosed”.[7] The Appeals Chamber also notes that the Prosecution may be relieved of the obligations under Rule 68, “if the existence of the relevant exculpatory evidence is known and the evidence is accessible to the appellant, as the appellant would not be prejudiced materially by this violation”.[8]

At para. 72, the Appeals Chamber reiterated that “the onus on the Prosecution to comply with Rule 68 to the best of its ability is not a secondary obligation, and is as important as the obligation to prosecute.[1]”

435. The Appeals Chamber observes that the Rules, which specifically impose the disclosure of all witnesses’ statements and their identity, do not provide for the disclosure of the identity of the witnesses’ parents.[1] Nyiramasuhuko’s submissions, in fact, merely reflect her disagreement with the Trial Chamber’s exercise of its discretion in denying disclosure to the Defence of the identity of the Prosecution witnesses’ parents. […]