Chamber denied Karadzic’s request to order the Prosecution to collect material for him

In the Karadžić case, the accused requested the Trial Chamber to direct the Prosecution to obtain and disclose any prior statements given by all Prosecution witnesses in domestic proceedings from the authorities in Bosnia and Herzegovina, Croatia, and Serbia.

In this regard, the Chamber recalled that the Prosecution’s obligation to disclose to the Defence copies of the statements of its witnesses extends only to material in the possession of the Prosecution. 
The Chamber noted that the accused was essentially asking the Prosecution to conduct his own investigations, rather than seeking its assistance on a case by case basis to obtain specific material should he encounter difficulties in doing so himself.

The Chamber refused to consider such a broad request.
At the same time, the Chamber expressed its trusts that should the Prosecution become aware of prior statements or testimony given by any of its witnesses to domestic bodies, it will alert the accused thereto.
Furthermore, should the accused encounter difficulties in obtaining such material from national courts or authorities, and the Prosecution be in a position to assist, this is also a matter for the parties to work out between themselves.

The Chamber also found erroneous the accused’s suggestion that he would direct to the authorities of the states in question broadly framed requests for any material relating to all Prosecution witnesses and that, absent the provision of such material, motions for binding orders would be filed.
The Chamber recalled that binding orders must satisfy a strict test of necessity and not be formulated in a manner which places too onerous a burden upon the state in question. Only if the accused is unable to obtain specific material relating to specific witnesses from the authorities of a particular state, he may seek the intervention of the Chamber.

Karadžić, Decision on the Accused’s Motion for Order to Obtain Witness Statements and Testimony from National Courts, Case No. IT-95-5/18-T, T. Ch., 12 January 2011.

STL: a former detainee has the right to request access to the documents in the case, but the access can be limited

Yesterday, the Appeals Chamber of the STL upheld the Pre-Trial Judge's order that the former detainee has standing to seize the Tribunal with the request for access to the documents in his criminal file (see previous post on this issue).
The Chamber also found that the Tribunal has jurisdiction over this matter.

The Chamber noted that the application cannot be addressed through the literal application of Rules that relate to accused.
The fact that the Rules provide for the obligatory disclosure of evidence by the Prosecutor to an accused, does not mean the Rules forbid the disclosure of evidence in a situation where there is no indictment and thus no accused, but where the interests of justice otherwise require it.
Rather, this application must be considered in accordance with international standards of human rights and general principles of international criminal law and procedure, and in light of the spirit of the Statute and the Rules

At the same time, the Chamber emphasised that this determination does not entail a ruling on the modalities and limits of the applicant's right of access to a specific set of documents, including the appropriate time frame for exercising any such right.

According to the Chamber, this is a question of merit that the Pre-Trial Judge must decide on the basis of the applicable rules and the submissions of the parties.

In discharging this task, the Pre-Trial Judge "will have to strike a careful balance between the right of the applicant to judicial remedy if his detention was wrongful, on the one hand, and, on the other, the need for the Prosecutor to conduct his investigation efficiently and with the ability to protect the confidentiality of witnesses and evidence."

Apparently, the judge will also have to take into account the protection of UN documents under the Convention on the Privileges and Immunities of the United Nations.

In its letter to the President of the Tribunal of 1 October, the UN noted that "any documents or material of the United Nations International Independent Investigation Commission, and any other United Nations documents and material on the criminal file, are inviolable under the terms of article 11 of the Convention on the Privileges and Immunities of the United Nations.”
Inviolability entails that the documents cannot be disclosed to a third party without the consent of the United Nations.

Lebanon, Decision on Appeal of Pre-Trial Judge's Order Regarding Jurisdiction and Standing, Case No. CH/AC/2010/02, President of the Tribunal, 10 November 2010.

Karadzic case: Trial Chamber suspended proceedings due to the disclosure violations by the Prosecution

Yesterday, the Trial Chamber in the Karadžić case ordered the suspension of proceedings for a period of one month due to the violations by the Prosecution of its disclosure obligations.

The Trial Chamber, during the course of the hearing, ordered the suspension to allow the accused and his team to review around 14,000 pages of material containing potentially exculpatory information, disclosed to him by the Prosecution at the end of October 2010.

According to the presiding judge, “the sheer volume of this material is such that it is in the interest of justice to suspend the proceedings temporarily.”

In determining the period of suspension, the Chamber also took into consideration the significant number of violations by the Prosecution of its obligations to disclose documents to the accused, which have been recorded by the Chamber in several previous decisions.

The presiding judge stated that the Chamber was increasingly troubled by the potential cumulative effect of late disclosure on the overall fairness of the trial.
He urged the Office of the Prosecutor to take seriously its disclosure obligations and ensure that all necessary resources are dedicated to ensuring timely disclosure of material to the accused. 

The day before, on 2 October, the Chamber, having considered disclosure violations by the Prosecution, ordered that none of the witnesses affected by the recent untimely disclosure of their statements may be called to testify before 31 January 2011.

Previously, in September 2010, the Chamber had suspended the trial for a period of one week to allow the accused and his team to review a large volume of potentially exculpatory material.

See also previous post: "Karadzic case: Prosecution disclosure errors".

Taylor case: Prosecution shall disclose records of payments to its potential witness

Yesterday, Taylor case, the Trial Chamber ordered the Prosecution to disclose to the Defence records of the payments to a Prosecution potential witness.

The Prosecution described the payments it had made to a person as “recompense for his services as a source” which is not subject to disclosure to the Defence.
However, the Trial Chamber found that the Prosecution payments were not used to buy information from a source, but rather were given to a potential witness for his own benefit.

In particular, the Chamber noted that it was clear from the information provided by the person to the Prosecution that he did not merely provide information pointing the Prosecution to independent evidence. Rather, he went further by providing substantial information (whether true or false) not only corroborating the testimony of other Prosecution witnesses, but also going to material allegations in the trial.
In the Trial Chamber’s view, this shows that the person was a potential witness rather than a source.

The Chamber also asserted that the letter from the former Chief Prosecutor of the SCSL, indicating that he did not intend to lay charges against the person, supports the inference that the Prosecution wanted to ensure his cooperation, including his testimony if required.

Accordingly, the Chamber found that prior to his listing as a Defence witness, the person was for all intents and purposes, a potential Prosecution witness, notwithstanding that he was never listed by the Prosecution as such.

The Chamber further found that the payments made by the Prosecution to this potential witness went beyond that which is reasonably required for the management of a witness and assumed a potential exculpatory character.

The Trial Chamber accordingly held that the records of these payments should be disclosed pursuant to Rule 68.

Taylor, Decision on Public with Confidential Annexes A-D Defence Motion for Disclosure of Exculpatory Information Relating to DCT-032, 20 October 2010

 See also previous post: "Taylor case: the Prosecution shall disclose record of payments made to a Defence witness"

Taylor case: the Prosecution shall disclose record of payments made to a Defence witness

In the Taylor case (SCSL), the Trial Chamber ordered the Prosecution to disclose to the Defence an account of all payments made to or benefits conferred upon a person who was on the Defence witness list.
The Prosecution was also ordered to provide an explanation for those payments.

The Prosecution, according to the Defence, communicated with the person for several years although it ultimately did not call him as a witness in any case before the Special Court.
The Defence maintained that the Prosecution had made numerous payments to the person estimated at $ 30,000 in total.

The Prosecution, whilst not denying that it had made the alleged payments, submitted that it was not under an obligation to disclose material relating to the payments as the person was not called to testify on behalf of the Prosecution.

In this regard, the Chamber found that the Prosecution was under obligation to disclose to the Defence in relation to the person any exculpatory material, regardless of whether or not the latter was called by the Prosecution to testify.

The Chamber further noted that the payments have not been made by the Witness and Victims Service of the SCSL and appear to be beyond that which is reasonably required for the management of witnesses or victims.
Accordingly the Chamber held that they should have been disclosed by the Prosecution as evidence which may affect the credibility of the Prosecution evidence.

Taylor, Decision on Defence Motion for Disclosure of Statement and Prosecution Payments Made to DCT-097, Case No. SCSL-03-1-T, T. Ch., 23 September 2010.

 See also "Taylor case: Prosecution shall disclose records of payments to its potential witness".

STL: a former detainee shall have access to the documents in the case

In March 2010, Mr Jamil El Sayed submitted an application before the President of the Special Tribunal for Lebanon (STL) requesting the “release of evidentiary material related to the crimes of libellous denunciations and arbitrary detention”.
He had been detained by the Lebanese judicial authorities in September 2005 until April 2009, when the case was transferred to the STL. He then remained in custody of the Tribunal for about ten days and later released by the pre-trial judge.

The Tribunal has jurisdiction to rule on the application

Yesterday, the pre-trial judge of the STL held that the Tribunal has jurisdiction to rule on the application.
In the judge’s view, should the Tribunal find itself without jurisdiction to rule on the application, the Tribunal would deprive the applicant of any possibility to have his basic right vindicated by a judge. It would thus exclude the applicant from the right to effective judicial protection.

The applicant has standing

The pre-trial judge also held that the applicant has standing to seize the Tribunal of the issues relating to the deprivation of liberty to which he was subjected.

The right of access to the criminal file

The judge recalled that an accused has the right to have access to the documents in his own criminal file.

Accused person

Although the person in this case was not formally indicted, the judge referred to the ECtHR jurisprudence according to which the concept of the indictment is to be interpreted with a certain amount of flexibility and should not be understood in its formal sense, but as meaning “’the official notification given to an individual by the competent authority of an allegation that he has committed a criminal offence’.
The judge emphasised that, according to that jurisprudence, this definition also corresponds to the test whether the situation of the suspect has been substantially affected.

Further, according to the judge, the rights of defence continue to exist even if the person who has been the subject of a criminal investigation is no longer formally accused or has been discharged.
The judge opined that the same is true of the right of access to the criminal file, which does not cease to exist upon release of the individual.
The basic right to be able, if appropriate, to obtain compensation for prejudice suffered by way of an unlawful detention must have as a consequence the right of access to the documents in the case file. Otherwise it would not be possible to prove the unlawful nature of the detention.

The right of access is not absolute

However, the judge recalled that the right of access to the criminal file is not an absolute. This right can be subject to limitations.
In particular, it can be limited in cases where it might compromise an ongoing or future investigation, undermine fundamental interests, such as the physical well-being of persons concerned by those documents, or affect national or international security. These limitations can also stem from difficulties inherent to the conduct of terrorist investigations.
The judge noted that in some cases, in order to resolve these difficulties, it was accepted that this right was respected even if access to the file was limited to the counsel of the accused alone.
In some instances it is necessary for third parties to go through competent national authorities in order to make requests for access to documents.

Accordingly, the pre-trial Judge invited the Prosecutor to inform him, in particular, whether the above limitations or restrictions apply to the case and what form should access to the file take.

Lebanon, Order Relating to the Jurisdiction of the Tribunal to Rule on the Application by Mr El Sayed Dated 17 March 2010 and whether Mr El Sayed has Standing before the Tribunal, Pre-Trial Judge, Case No. CH/PTJ/2010/005, 17 September 2010

See also "STL: a former detainee has the right to request access to the documents in the case, but the access can be limited".

Sierra Leone Tribunal also allowed a witness to testify without having her statement disclosed to the Defence

In the Taylor case, the Defence requested the Prosecution to obtain and disclose to the Defence a statement from Naomi Campbell, a witness who was scheduled to testify.
According to the Defence, “it is only through such disclosure that the accused is informed adequately of the material details of the nature and cause of the charges against him and thus be in a position to adequately prepare his defence and to examine, or have examined, the witnesses against him”.

The Prosecution explained that it did not obtain any statement from the witness, and it has no interview or proofing notes of this witness as Ms. Campbell has declined requests to speak to the Prosecution.
The Prosecution also asserted that it is under no statutory or other obligation to obtain a statement from every witness, particularly in the present circumstances, where the witness is uncooperative and has not agreed to be interviewed.
In its response, the Prosecution referred to the recent decision in the ICTY Stanišić and Simatović case (see previous post “Prosecution has no obligation to take a written statement from a witness for the purpose of disclosure”).

Yesterday, the Trial Chamber dismissed the Defence motion with references to the Stanišić and Simatović decision.

In particular, the Chamber recalled that "the Prosecution is neither able nor obliged to disclose documents that are not in its possession or to which it does not have access, nor is it obliged under Rule 66 to obtain a statement from an uncooperative witness”.

The Chamber also quoted the Stanišić and Simatović in that “the fact that a witness does not have a prior statement does not render a trial unfair or automatically put a party at an unjust disadvantage. A witness may provide evidence which was unforeseen to both parties during his viva voce examination, independent of any previous statements, and [ ... ] it is for the Chamber to determine, on a case by case basis, whether this new information could affect the fairness of the trial proceedings”.

Taylor, Decision on Urgent Defence Motion for Stay of Evidence Pending Disclosure of the Statement of Naomi Campbell, Case No. SCSL-03-1-T, T. Ch., 4 August 2010.

Prosecution has no obligation to take a written statement from a witness for the purpose of disclosure

In the Stanišić and Simatović case, the Defence requested the Prosecution to obtain written statement from a witness who was scheduled to testify and disclose it to the Defence. The Defence argued that it was disadvantaged by the fact that there was no prior statement of the witness.
According to the Defence, it was entitled to the witness’s previous evidence and “to the protection which flows from the disclosure rules, which is a reasonable time to consider that evidence, investigate it, and prepare for cross-examination.”

The Prosecution informed the Defence of the witness’s refusal to cooperate with the Prosecution and for that reason there was no prior ICTY statement.
The Prosecution also argued that there is no requirement that, before a witness can be called as a court witness, that person is compelled to write a statement.

The Trial Chamber accepted the Prosecution arguments and noted that an "uncooperative" witness may give testimony without providing the Prosecution with a prior statement.
The Chamber recalled that the obligation to disclose witness statements extends to all prior statements in the custody or under the control of the Prosecution. However, Rule 66 does not require the Prosecution to produce a statement.

The Chamber emphasized that the Prosecution is neither able nor obliged to disclose documents that are not in its possession, or to which it does not have access.

The Chamber also found that the fact that a witness does not have a prior statement does not render a trial unfair or automatically put a party at an unjust disadvantage.
A witness may provide evidence which was unforeseen to both parties during his viva voce examination, independent of any previous statements, and that it is for the Chamber to determine, on a case by case basis, whether this new information could affect the fairness of the trial proceedings.

Stanišić and Simatović, Reasons for Decision on Postponement of Cross-Examination of the Testimony of Witness Milovanović, Case No. IT-03-69-T, T. Ch., 22 July 2010.

Lubanga case: release of the accused and formal warning to the Prosecutor and his Deputy

Leave to appeal granted

On 8 July 2010, the Trial Chamber in the Lubanga case had stayed the trial proceedings as an abuse of the process of the Court.

(See previous post: “The ICC Prosecutor refused to comply with the Chamber's order”

The Prosecution appealed the stay of the proceedings.
Yesterday, 15 July, the Trial Chamber granted the Prosecution leave to appeal on two issues: whether it was necessary to stay the proceedings as an abuse of the process of the Court because of: i) the Prosecution’s material noncompliance with the Chamber’s orders; and ii) the Prosecutor’s intention not to implement the Chamber’s orders tmade in regard to protective measures, if he considers they conflict with his interpretation of the Prosecution’s other obligations.

Release of the accused

The Presiding judge emphasised that the trial was halted because it was no longer fair. The accuse, in the Chamber's opinion, cannot be held in preventative custody on a speculative basis; namely, that at some stage in the future the proceedings may be resurrected.
Accordingly, the Chamber ordered the release of the accused unconditionally.
This order, however, will not be enforced until the five day time limit for an appeal has expired. If the Prosecution appeals this order the accused will not be released until the Appeals Chamber resolves whether this order granting release is to be suspended.

Warning the Prosecution of sanctions

The Chamber also formally gave the Prosecutor and the Deputy Prosecutor an oral warning of sanctions in the event of any continuing breach of Chamber’s orders.

Lubanga, transcript, Case No. ICC-01/04-01/06, 15 July 2010.

The accused has been detained since March 2006. 
Trial began in January 2009. 
Lubanga denies charges of war crimes in the Democratic Republic of Congo by recruiting, training and deploying hundreds of children to carry out murders, looting and rapes.

The ICC Prosecutor refused to comply with the Chamber's order

In the Lubanga case, the Prosecution refused to comply with the Trial Chamber’s order to disclose to the Defence the identifying information of some of the Prosecution’s intermediaries. 

See previous post: “Lubanga case: disclosure related to Prosecution intermediaries”.

The Prosecution argued that it has “an independent statutory obligation to protect persons put at risk on account of the Prosecution’s actions. It should not comply, or be asked to comply, with an Order that may require it to violate its separate statutory obligation by subjecting the person to foreseeable risk.”

Today, the Trial Chamber ordered the stay of the proceedings.
The Chamber emphasized that no criminal court can operate on the basis that whenever it makes an order in a particular area, it is for the Prosecutor to elect whether or not to implement it, depending on his interpretation of his obligations.

The Prosecutor, according to the Chamber, cannot be allowed to continue with the Prosecution if he seeks to reserve to himself the right to avoid the Court’s orders whenever he decides that they are inconsistent with his interpretation of his other obligations. 

The Chamber concluded that in these circumstances, it is necessary to stay the proceedings.

Whilst the stay of the proceedings is in place, the Chamber will deal with any application for leave to appeal on this or any related issue that is filed.
Otherwise, the Chamber will only entertain submissions regarding the possible application of Article 71 of the Statute (“Sanctions for misconduct before the Court”) on 8 July and submissions on the accused’s detention on 15 July.

Lubanga, Redacted Decision on the Prosecution's Urgent Request for Variation of the Time-Limit to Disclose the Identity of Intermediary 143 or Alternatively to Stay Proceedings Pending Further Consultations with the VWU, Case No. ICC-01/04-01/06, T. Ch., 8 July 2010.

See also See also “Lubanga case: Chamber’s orders are binding, but stay of proceedings was premature”, and "Lubanga case: disclosure related to Prosecution intermediaries" on this blog.

Karadzic case: Prosecution disclosure errors

Under Rule 66(A)(ii) of the ICTY Rules, within the time-limit prescribed by the Trial Chamber or by the pre-trial Judge, the Prosecution shall disclose to the Defence copies of the statements of all witnesses whom the Prosecutor intends to call to testify at trial.

Recently, in the Karadzic case, the Trial Chamber reiterated, the this Prosecution obligation is central for ensuring, inter alia, that the accused has adequate time and resources to examine all relevant material, and to prepare its case. Thus, it is an essential element of Rule 66(A)(ii) that the disclosure of material falling under this Rule must occur within a specific time limit.

In Karadzic, the Chamber set up 7 May 2009 as the deadline for the Prosecution disclosure 66(A)(ii) material.
In its decision of 17 June, the Chamber expressed its “great concern” about the amount of such material which has continued to be disclosed every month, after the expiration of the 7 May 2009 deadline.

The Chamber noted, that it does not view the “recent discovery” of a statement, the “recent identification” of a particular item, or a simple “oversight” as appropriate justifications for the very late disclosure of material that was in the possession of the Prosecution before the 7 May 2009 deadline.

The Chamber noted that there are many circumstances which would entitle the Prosecution to disclose Rule 66(A)(ii) material at a later stage of the proceedings, and which make its disclosure obligations ongoing. For example, a witness who provides testimony at a later stage in the proceedings in a different case, an unavailable witness who becomes available, a witness who is at present unwilling to testify but who decides to testify at a later stage, etc.
Furthermore, the Chamber has acknowledged that errors are inevitable, particularly when considering the vast amount of disclosure in this case.
However, the Chamber expressed “considerable concern” about the quantity of errors that appear to have been made with regard to the disclosure of Rule 66(A)(ii) material, and is of the view that late disclosure due to oversights is unjustified. 

Karadžić, Decision on Accused’s Second Motion for Finding Disclosure Violation and for Remedial Measures, Case No. IT-95-5/18-T, T. Ch., 17 June 2010.

See also  "Karadzic case: Trial Chamber suspended proceedings due to the disclosure violations by the Prosecution".

Lubanga case: disclosure related to Prosecution intermediaries

In the Lubanga case, the Prosecution used intermediaries (NGOs, aid workers, etc.) to contact approximately half of its witnesses.

Recently, the Trial Chamber ordered the Prosecution disclose to the Defence identifying information of some of the intermediaries and to call some of them to testify.

The Chamber noted that the role of the intermediaries increasingly became a focus of scrutiny since the commencement of the trial, leading to the application by the Defence for disclosure of their identities.
The Chamber conceded that the precise role of the intermediaries together with the manner in which they discharged their functions became an issue of major importance in the trial.

The Prosecution based his objection to disclosure, in particular, on a suggested analogous protection that is provided to informants who assist national courts.
However, the Chamber noted that there is a real basis for concern as to the system employed by the Prosecution for identifying potential witnesses. According to the Chamber, on the evidence, there was extensive opportunity for the intermediaries, if they wished, to influence the witnesses as regards the statements they provided to the Prosecution, and there is evidence that this may have occurred.

The Chamber concluded that in the circumstances it would be unfair to deny the Defence the opportunity to research this possibility with all of the intermediaries used by the Prosecution for the relevant witnesses, where the evidence justifies that course.

Accordingly, the Chamber ordered the Prosecution disclose to the Defence identifying information of some of the intermediaries and to call some of them to testify.

Lubanga, Decision on Intermediaries, Case No. ICC-01/04-01/06, T. Ch., 31 May 2010