Disclosure of evidence before the International Criminal Tribunal for Rwanda

Criminal Law Forum

Volumn 13, Issue 3, 2002, Pages 339-363

  Nahamya, Elizabeth ^a   Diarra, Rokhayatou ^a  

^a Unictr Chambers   (Tanzania)

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EID: 52649128378     PISSN: 10468374     EISSN: 15729850     Source Type: Journal    
DOI: 10.1023/a:1023301010913     Document Type: Article

References (81)

1. See also the International Covenant on Civil and Political Rights, (1976) 999 U.N.T.S. 171, art. 14.
2. Statute of the International Criminal Tribunal for Rwanda, U.N. Doc. S/RES/955 (1994), annex, arts. 20(4)(a) and 20(4)(b) respectively.
3. Wayne R. LaFave, Jerold H. Israel Nancy J. King, CRIMINAL PROCEDURE 911 (Hornbook Series, 2000).
4. See Rule 47 of the Rules, which relates to the confirmation of Indictment.
5. Prosecutor v. Ruggiu (Case No. ICTR-97-32-I), Decision on the Defence Motion for Disclosure of Evidential Material, 16 April 1998.
6. This provision defines certain terms referred to in the Rules.
7. Article 18 stipulates: "1. The judge of the Trial Chamber to whom the indictment has been transmitted shall review it. If satisfied that a prima facie case has been established by the Prosecutor, he or she shall confirm the indictment. If not so satisfied, the indictment shall be dismissed. 2. Upon confirmation of an indictment, the judge may, at the request of the Prosecutor, issue such orders and warrants for the arrest, detention, surrender or transfer of persons, and any other orders as may be required for the conduct of the trial."
8. Prosecutor v. Nahimana et al. (Case No. ICTR-99-52-I), Decision on an Oral Application Concerning Witness X, 19 January 2002, para. 7 (emphasis added).
9. Prosecutor v. Kordic Cerkez (Case No. IT-95-14/2.PT), Order on Motion to Compel Compliance by the Prosecutor with Rules 66(A) and 68, 26 February 1999, p. 3.
10. The defence alleged that Witness ZC was known by the Prosecutor since the beginning and was in fact the Witness X, which the prosecution intended to call, and was therefore a prospective witness.
11. Prosecutor v. Nahimana et al., supra note 8, para. 6.
12. Prosecutor v. Nahimana et al. (Case No. ICTR-99-52-T), Transcript of 20 February 2002, p. 4.
13. Prosecutor v. Delalic (Case No. IT-96-21-T), Decision on the Motion by the Accused Zejnil Delalic for the Disclosure of Evidence, 26 September 1996, para. 4.
14. Prosecutor v. Blaskic (Case No. IT-95-14), Decision on the Production of Discovery Materials, 27 January 1997, p. 14.
15. Ibid., p. 15.
16. Prosecutor v. Mugenzi (Case No. ICTR-99-50-I), Motion on behalf of the Accused Justin Mugenzi to have the Prosecutor Comply with the Requirements of Rule 66(i), Considering the Requirements of Rules 47 72 and for an Adjournment pro tem of any Decision on any Issue Relevant to this Indictment and for the Relief Pleaded, filed on 16 November 1999. In this motion, the defence sought the disclosure of prior statements of the accused in terms of Rule 66(i) of the Rules. Trial Chamber II decided a similar matter, prior to the amendment of the Rules in June 2000. At that time, the prescribed period was sixty days after disclosure under Rule 66(A)(1). The defence was late in submitting its preliminary motions because of the late disclosures by the Prosecutor. The defence agreed to file a preliminary motion within a forty-day period, provided that the Prosecutor effected the disclosure by a given date. The Chamber granted the defence's request.
17. Prosecutor v. Ruggiu, supra note 5.
18. Prosecutor v. Bagosora et al. (Case No. ICTR-96-7-I), Decision on the Motion by the Defence Counsel for Disclosure, 27 November 1997, p. 6.
19. Prosecutor v. Niyitegeka (Case No. ICTR-96-14-I), Decision on the Defence Motion for Disclosure of Evidence, 4 February 2000, para. 18.
20. FEDERAL CRIMINAL CODE AND RULES 98 (1996).
21. Prosecutors. Kupreskic (Case No. IT-25-16-T), Decision on the Prosecutor' s Request to Release Testimony Pursuant to Rule 66 of the Rules, 29 July 1998 (Closed Session under Rule 79, ICTY Rules).
22. Prosecutor v. Nyiramasuhuko et al. (Case No. ICTR-97-21-T), Decision on the Defence's Motion for Disclosure of the Declarations of the Prosecutor's Witnesses detained in Rwanda and All Other Documents or Information Pertaining to the Judicial Proceedings in their Respect, 18 September 2001, para. 9.
23. Prosecutor v. Bagambiki (Case No. ICTR-99-46-I), Decision on Bagambiki's Motion for Disclosure of Guilty Pleas of Detained Witness and of Statements by Jean Kambanda, 1 December 2000, para, 12.
24. Prosecutor v. Nahimana et. al. (Case No. ICTR-99-52-I), Transcript of 4 April 2001, p. 26.
25. Ibid., Transcript of 27 February 2002, p. 42.
26. Ibid., Transcript of 10 April 2001, p. 37.
27. Prosecutor v. Bagosora et al. (Case No. ICTR-98-41-I), Decision on the Defence Motion for Disclosures, 5 December 2001, p. 2.
28. Prosecutor v. Niyitegeka, supra note 19.
29. Rule 73bis(E) states: "After commencement of Trial, the Prosecutor may, if he considers it to be in the interests of justice, move the Trial Chamber for leave to reinstate the list of witnesses or to vary his decision as to which witnesses are to be called.
30. Prosecutor v. Nahimana et al. (Case No. ICTR-99-52-T), Decision on the Prosecutor's Motion to add Witness X to its List of Witnesses and for Protective Measures, 14 September 2001, para, 19.
31. Prosecutor v. Nahimana et al. (Case No. ICTR-99-52-T), Separate and Dissenting Opinion of Judge Asoka de Z. Gunawardana, 14 September 2001, paras. 8 and 9.
32. Prosecutor v. Nahimana et al. (Case No. ICTR-99-52-T), Decision on the Prosecutor's Oral Motion for Leave to Amend the List of Selected Witnesses, 26 June 2001, para. 19.
33. Ibid., para. 20.
34. Ibid.
35. Prosecutor v. Elizaphan and Gerard Ntakirutimana (Case Nos. ICTR-96-10-T ICTR-96-17-T), Decision on the Prosecution Motion for Contempt of Court and on Two Defence Motions for Disclosure, 16 July 2001, paras. 18 and 19.
36. See Lord Mustil's opinion in R. v. Preston, [1993] 4 All E.R. 638 (H.L.).
37. Prosecutor v. Bagosora et al. (Case No. ICTR-96-7-I), Decision on the Motion by the Defence Counsel for Disclosure, 27 November 1997, p. 6.
38. Prosecutor v. Nahimana et al. (Case No. ICTR-99-52-T), Decision on the Defence's Motion to Compel Complete Discovery, 16 March 2000, paras. 12 and 13 (emphasis added).
39. Prosecutor v. Nahimana et al. (Case No. ICTR-99-52-T), Decision on the Defence's Motion for Disclosure in the Case of Ferdinand Nahimana, 29 March 2000, p. 4.
40. Prosecutor v. Nahimana et al. (Case No. ICTR-99-52-T), Transcript of 20 August 2001, pp. 28 and 29.
41. Prosecutor v. Nyiramasuhuko et al. (Case No. ICTR-97-21-T), Decision on the Urgent Motion by the Defence for Disclosure of Evidence by the Prosecutor, 1 November 2000 (emphasis added). See also Prosecutor v. Bagambiki et al. and Prosecutor v. Ntagerura (Case No. ICTR-99-46-T), Decision on Bagambiki's Motion for Disclosure of the Guilty Pleas of Detained Witnesses and of Statements by Jean Kambanda, 1 December 2000, para. 16. The defendant requested the Chamber to order the Prosecutor "to disclose the audio recordings and transcripts from the questioning of Jean Kambanda." The Chamber found that the "appropriate legal procedure […] is, pursuant to Rule 66(B), to request the Prosecutor to permit the inspection. Resorting to the Chamber is permissible only if the request to the Prosecutor is unsuccessful."
42. Prosecutor v. Kabiligi et al. (Case No. ICTR-97-34-I), Decision on Ntabakuze's Motion for Disclosure of Material, 8 June 2000, paras. 23 and 24.
43. Prosecutor v. Delalic et al. (Case No. IT-96-21-T), Decision on Motion by the Accused Zejmil Delalic for the Disclosure of Evidence, 26 September i996, p. 4.
44. Transcript of 4 April 2001, p. 22.
45. Prosecutor v. Kayishema Ruzindana (Case No. ICTR-95-1-T), Decision on the Prosecution Motion for an Order requesting Compliance by the Defence with Rules 67(A)(ii) and 67(C) of the Rules, 15 June 1998, p. 4.
46. Ibid.
47. Prosecutor v. Bagilishema (Case No. ICTR-96-13-T), Decision on the Request of the Defence for an Order for Disclosure by the Prosecutor of the Admissions of Guilt of Witnesses Y, Z and AA, 8 June 2000, para. 5.
48. Prosecutor v. Nahimana et al. (Case No. ICTR-99-52-T), Separate and Dissenting Opinion of Judge Asoka de Z. Gunawardana to Decision on the Prosecutor's Motion to add Witness X to its List of Witnesses and for Protective Measures, 14 September 2001, paras. 12 and 13.
49. Prosecutor v. Nahimana et al. (Case No. ICTR-99-52-T), Decision on the Defence's Application for the Prosecution to Disclose Exculpatory Material Contained in the 17 Transcripts of Interview with Witness X, 29 October 2001, p. 2.
50. Prosecutor v. Blaskic (Case No. IT-95-14), Decision on the Production of Discovery Materials, 27 January 1997, paras. 26-30.
51. Ibid., para. 49.
52. Ibid.
53. See Virginia Morris Michael P. Scharf, I THE INTERNATIONAL CRIMINAL TRIBUNAL FOR RWANDA 645 (1998).
54. Prosecutor v. Nahimana et al. (Case No. 99-52-T), Oral Decision on he Defence's Motion to Furnish in Respect of Custodial Witnesses, Transcript of 4 September 2001, p. 4f.
55. Prosecutor v. Ndayambaje Nsabimana (Case Nos. ICTR-96-8-T ICTR-97-29-A-T), Decision on the Defence Motion Seeking Documents Relating to Detained Witnesses or Leave of the Chamber to Contact Protected Detained Witnesses, i5 November 2001, para. 25.
56. Prosecutor v. Bagambiki et al. (Case No. ICTR-99-46-T), Decision on Bagambiki's and Ntagerura's Motions for Disclosure of Confessions of Detained Witnesses, 8 March 2002, para. 16.
57. Prosecutor v. Nyiramasuhuko et al. (Case No. ICTR-97-21-T), Decision on the Status of the Hearings for the Amendment of the Indictments and for Disclosure of Supporting Material, 30 September 1998, para. 11.
58. Prosecutor v. Bagosora et al. (Case No. ICTR-98-41-I), Decision and Scheduling Order on the Prosecution Motion for Harmonisation and Modification of Protective Measures for Witnesses, 5 December 2001, para. 22.
59. Prosecutor v. Bagosora et al. (Case No. ICTR-98-41-I), Separate and Dissenting Opinion of Judge Pavel Dolenc, 7 December 2001, para. 14.
60. Prosecutor v. Nahimana et al. (Case No. ICTR-99-52-T), Decision on the Prosecutor's Motion to Add Witness X to its List of Witnesses and for Protective Measures, 14 September 2001, para. 30.
61. Prosecutor v. Nahimana et al. (Case No. ICTR-99-52-T), Decision on the Prosecutor's Application for Continued Temporary Redaction of One Portion of the Transcripts of Witness X, Pursuant to Rule 66(C) of the Rules of Procedure and Evidence, 6 February 2002, p. 2.
62. Prosecutor v. Nahimana et al. (Case No. ICTR-99-52-T), Decision on the Prosecutor's Oral Motion for Leave to Amend the list of Selected Witnesses, 26 June 2001, para. 29.
63. Prosecutor v. Nahimana et al. (Case No. ICTR-99-52-T), Transcript of 20 February 2002, p. 15.
64. Prosecutor v. Nahimana et al. (Case No. ICTR-99-52-T), Scheduling Order, 6 October 2000, para. 2.
65. Witness AFO later asked for protection to be lifted and used her real name, Agnes Murebwayire.
66. Prosecutor v. Nahimana et al. (Case No. ICTR-99-52-T), Transcript of 4 December 2001, pp. 1-9.
67. Prosecutor v. Tadic (Case No. IT-94-I), Decision on the Prosecutor's Motion for Production of Defence Witness Statements, Separate Opinions of Judges Stephen and Vohrah, 27 November 1996, pp. 7 and 5 respectively.
68. John E. Theuman, Exclusion of Evidence in State Criminal Action for Failure of Prosecution To Comply with Discovery Requirements as to Physical or Documentary Evidence or the Like Modern Cases, 27 AMERICAN L. REPORTS 6 (1984).
69. Prosecutor v. Bagosora (Case No. ICTR-97-7-I), Decision on the Motion by the Defence Counsel for Disclosure, 27 November 1997, p. 4.
70. Prosecutor v. Bagosora (Case No. ICTR-97-7-I), Decision on the Defence's Motion for Inadmissibility of Disclosure based on the Decision of 11 June 1998, ICT-1996-70, 7 December 1998, p. 3.
71. Prosecutor v. Nahimana et al. (Case No. ICTR-99-52-T), Transcript of 26 September 2000. pp. 32, 33 and 35.
72. Prosecutor v. Nahimana et al. (Case No. ICTR-99-52-T), Transcript of 1 March 2001, p. 38.
73. Prosecutor v. Nahimana et al. (Case No. ICTR-99-52-T), Transcript of 30 November 2001, p. 57.
74. See R. v. Larve, (1991) 65 CCC (3d) 1 (British Columbia C.A) or R. v. D.(E.), (1990) 57 C.C.C. (3d) 151, at 160 (Ontario C.A.).
75. Prosecutor v. Nahimana et al. (Case No. ICTR-99-52-T), Transcript of 26 September 2000, p. 35.
76. Ibid. p. 29.
77. Ibid., p. 25.
78. Prosecutor v. Tadic (Case No. IT-94-I), Decision on the Prosecutor's Motion for Production of Defence Witness Statements, Separate Opinion of Judge Stephen to Decision on Prosecutor Motion for Production of Defence Witness Statement, 27 November 1996, p. 2. Judge Stephen added that "the accused […] is under no similar duty of disclosure of evidence, there is no reciprocity of obligation."
79. V. Morris M. Scharf, supra note 53, pp. 158 and 181.
80. Solvay SA v. Commission of the European Communities, [1995] ECR-II 1775, 1802 at 1812-1813, citing the judgment of the Court of Justice of the European Communities in Case 85/76, Hoffman-La Roche v. Commission of the European Communities, [1979] ECR 461.
81. Prosecutor v. Tadic (Case No. IT-94-T), Separate Opinion of Judge Vohrah on the prosecution motion for the Production of Defence Witness statements, 27 November 1996, p. 3.