Another ICC decision on the victim’s participation in trial

In its recent decision in the Katanga and Ngudjolo case, the ICC Appeals Chamber noted that victims do not have a right to present evidence pertaining to the guilt of the accused. Under Article 68(3) of the ICC Statute they may only present their “views and concerns”, and this only if their personal interests are affected.

However, according to the Chamber, there may be instances where, in requesting to present their views and concerns, victims bring to the Trial Chamber evidence that the Chamber may consider necessary for the determination of the truth.

The Appeals Chamber found that the possibility for the victims to testify on matters including the role of the accused in the crimes charged against them, grounded on the Trial Chamber’s authority to request evidence necessary for the determination of the truth, is not per se inconsistent with the rights of the accused and the concept of a fair trial.

Disclosure by the Victims

The Appeals Chamber also held that it is not incompatible with the accused’s right to a fair trial if, during the course of the trial the Trial Chamber requests victims to submit evidence that was not previously disclosed to the accused.
In such a situation, the Trial Chamber shall order disclosure of the evidence to the accused sufficiently in advance of its presentation at the trial, and take any other measures necessary to ensure the accused’s right to a fair trial, in particular the right to have adequate time and facilities for the preparation of the defence.

The Appeals Chamber found that, although no general obligation must be imposed on victims, there may be specific instances in which a Trial Chamber may require victims to disclose exculpatory evidence in their possession to the accused.

In addition, according to the Chamber, where the submissions in the victims’ applications for participation indicate that victims may possess potentially exculpatory information, the Prosecutor’s investigation should extend to discovering any such information in the victims’ possession. Such information would then be disclosed to the accused.

Katanga and Ngudjolo, Judgment on the Appeal of Mr. Katanga against the Decision of Trial Chamber II of 22 January 2010 entitled "Decision on the Modalities of Victim Participation at Trial", Case No. ICC-01/04-01/07, App. Ch., 16 July 2010.