Dyilo ICC-01/04-01/06

Prosecutor v. Thoman Lubanga Dyilo, Case No. ICC-01/04-01/06, Decision on the consequences of non-disclosure of exculpatory materials (June 13, 2008).

Cour

Pénale

Internationale

International

Criminal

Court

Original: English

No.: ICC-01/04-01/06

Date: 13 June 2008

TRIAL CHAMBER I

Before:

Judge Adrian Fulford, Presiding Judge

Judge Elizabeth Odio Benito

Judge René Blattmann

SITUATION IN THE DEMOCRATIC REPUBLIC OF THE CONGO

IN THE CASE OF THE PROSECUTOR v. THOMAS LUBANGA DYILO

Public Document

URGENT

Decision on the consequences of non-disclosure of exculpatory materials covered

by Article 54(3)(e) agreements and the application to stay the prosecution of the

accused, together with certain other issues raised at the Status Conference on 10

June 2008

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Decision/Order/Judgment to be notified in accordance with regulation 31 of the Regulations of the

Court to:

The Office of the Prosecutor

Counsel for the Defence

Ms Fatou Bensouda

Ms Catherine Mabille

Mr Ekkehard Withopf

Mr Jean-Marie Biju-Duval

Legal Representatives of the Victims

Legal Representatives of the Applicants

Mr Luc Walleyn

Mr Franck Mulenda

Ms Carine Bapita Buyangandu

Unrepresented Victims

Unrepresented Applicants for

Participation/Reparation

The Office of Public Counsel for

The Office of Public Counsel for the

Victims

Defence

States Representatives

Amicus Curiae

REGISTRY

Registrar

Defence Support Section

Ms Silvana Arbia

Victims and Witnesses Unit

Detention Section

Victims Participation and Reparations

Other

Section

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1. Trial Chamber 1 ("Trial Chamber" or "Chamber") of the International

Criminal Court ("Court" or "ICC") in the case of The Prosecutor v. Thomas

Luganga Dyilo, following the Status Conference on 10 June 2008 and the

Chamber's oral announcement on 11 June 2008 that the trial date of 23 June

2008 was vacated, ₁ delivers its decision on the following issues:

(a) The consequences of the inability on the part of the Office of the

Prosecutor ("prosecution") to disclose to the accused potentially

exculpatory materials covered by agreements entered into pursuant to

Article 54(3)(e) of the Rome Statute ("Statute");

(b) The applications by the defence on 2 June 2008, contained within its

"Requête de la Défense aux fins de cessation des poursuites" ₂ seeking

orders from the Chamber:

1. For the discontinuance of the prosecution and the release

of the accused;

2. For the immediate disclosure of potentially incriminatory

material;

3. That the defence is not obliged to notify the Court of its

lines of defence; and

4. That any potential charges currently being investigated in

the context of the situation in the Democratic Republic of

1 Transcript of hearing on 11 June 2008, ICC-01/04-01/06-T-90-ENG.

2 ICC-01/04-01/06-1366.

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the Congo ("DRC") will not be brought against the

accused.

2. Certain other matters were addressed during the Status Conference which,

given the Chamber's conclusions on the first issue, have not been resolved in

this Decision.

I. Background and submissions

A. Procedural history

3. The disclosure of potentially exculpatory evidence received by the

prosecution under the provisions of Article 54(3)(e) of the Statute has been the

subject of consideration - including by way of oral and written submissions

- since the earliest hearings before the Trial Chamber in this case. It was first

raised by the prosecution in its 11 September 2007 filing ₃ to which the defence

responded on 24 September 2007; ₄ these were followed by oral submissions

during the Status Conference of 1 October 2007 ₅ and 2 October 2007. 6 The

main elements of those submissions, in so far as they relate to the subject

matter of the present decision, are rehearsed below.

4. Furthermore, during the course of this pre-trial phase, the Chamber has

rendered various decisions which have touched upon this issue, and these

also, where relevant, are set out below.

3 Prosecution's submission regarding the subjects that require early determination: trial date, languages to be

used in the proceedings, disclosure and e-court protocol, 11 September 2007, ICC-01/04-01/06-951.

4 Argumentation de la Défense sur des questions devant être tranchées à un stade précoce de la procédure : la

date du procès, les langues à être utilisées au procès, la divulgation de la preuve et le e-court protocol, 24

September 2007, ICC-01/04-01/06-960.

5 Transcript of hearing on 1 October 2007, ICC-01/04-01/06-T-52-ENG, pages 13-19, 51-52, 83-88 and 93-94.

6 Transcript of hearing on 2 October 2007, ICC-0104-0106-T-54-ENG, pages 47-49.

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5. On 9 November 2007 this Chamber rendered its "Decision regarding the

timing and manner of disclosure and the date of trial" wherein it held as

regards the agreements entered into by the prosecution for the provision of

information on a confidential basis, that "from the moment the prosecution

entered into the agreements and was thereafter presented with exculpatory

materials, it has been under an obligation to act in a timely manner to lift the

agreements in order to ensure a fair trial without undue delay." ₇ In light of

the proposed commencement of trial (at that time being 31 March 2008) ₈ the

Chamber ordered the disclosure of the prosecution evidence to the defence by

14 December 2007. ₉ Any redactions sought by the prosecution were to be

explained and justified.₁₀ The Chamber stated that the obligation to disclose

potentially exculpatory evidence as soon as is practicable would continue

throughout the trial period.₁₁

6. The Chamber further indicated that the prosecution would be under an

obligation to withdraw any charges where non-disclosed exculpatory material

has a material impact on the Chamber's determination of the guilt or

innocence of the accused. If the prosecution were in doubt as to whether or

not any material falls into this category, the Chamber directed that it should

be put before the Trial Chamber for its determination.₁₂

7 Decision Regarding the Timing and Manner of Disclosure and the Date of Trial, 9 November 2007, ICC-

01/04-01/06-1019, paragraph 19.

8 Ibid., paragraph 29.

9 Ibid., paragraph 25

10 Ibid., paragraph 27.

11 Ibid., paragraph 28.

12 Ibid.

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B. Submissions of the parties and the participants

1. Interpretation of the statutory provisions

a. The extent of the prosecution's disclosure obligations

7. The prosecution underlined that whilst Article 67(2) of the Statute and Rule 77

of the Rules of Procedure and Evidence ("Rules") require disclosure of

materials, Rule 77 refers to Rule 81 which "subjects disclosure to the

requirements of confidentiality contained inter alia in Article 54, as well as to

Rule 82 which similarly operates as a restriction on disclosure".₁₃

8. The prosecution submitted that it had taken a very liberal approach to the

definition of "exculpatory" under Article 67(2) so as to include tu quoque

material. However, the prosecution submitted that material in this category

did not afford the accused with a valid defence since in its view the

undisclosed evidence does "not materially impact on the Court's

determination of the guilt or innocence of the accused".₁₄

9. During the Status Conference on 10 June 2008, the Bench requested the

prosecution to define its usage of the term "exculpatory". In particular it

queried how potentially exculpatory evidence would not, ipso facto,

potentially impact on the guilt or innocence of the accused. To this the

prosecution submitted that such evidence could be merely mitigating, or Rule

77 evidence (the latter only being material to the preparation of the defence).

The prosecution clarified, therefore, that its use of the term "exculpatory

material" included, but was not limited to, mitigating evidence.₁₅

13 Prosecution submission on undisclosed documents containing potentially exculpatory information, 28 March

2008, ICC-01/04-01/06-1248, paragraphs 5 and 31.

14 Transcript of hearing on 10 January 2008, ICC-01/04-01/06-T-69-ENG, page 59, line 18 to page 60, line 9.

See also Transcript of hearing on 10 June 2008, ICC-01/04-01/06-T-89-ENG, pages 14-15.

15 Transcript of hearing on 10 June 2008, ICC-01/04-01/06-T-89-ENG, pages 14-15.

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10. On the question of whether mitigating material should also be disclosed to

the defence, prior to any sentencing procedure, the prosecution submitted

there should be no difference in the approach to the disclosure of such

material.₁₆

11. The defence argued that Article 54(l)(a) of the Statute imposed a

responsibility on the prosecution to investigate exonerating materials. One

reason for this, in the submission of the defence, was that it did not have the

resources, authority or institutional aids which are available to the

prosecution.₁₇ This responsibility, according to the defence, created an

obligation for the prosecution to disclose exculpatory and mitigating evidence

to the defence.₁₈

12. The defence submitted that the prosecution had adopted an unjustifiably

narrow interpretation of Article 67(2) of the Statute. In particular, it

emphasised that the prosecution must disclose not only exculpatory evidence

but also mitigating evidence or evidence that affects the credibility of

prosecution evidence.₁₉ The defence argued that exculpatory evidence must

be understood in light of Rule 145 of the Rules which provides that any

mitigating or aggravating factors must be taken into account when

sentencing. This included, in the submission of the defence, evidence relating

to: the nature of the unlawful behaviour, the means used to employ it, the

accused's degree of participation and intent and the manner, time and

location of the crime. The defence argued that all mitigating material within

Rule 145 must be disclosed by the prosecution.₂₀

16 Transcript of hearing on 6 May 2008, ICC-01/04-01/06-T-86-ENG, page 24, lines 19-25.

17 Réponse de la Défense à la "Prosecution's submissions on undisclosed documents containing potentially

exculpatory information" datée du 28 mars 2008, 22 April 2008, ICC-01/04-01/06-1291, paragraph 6.

18 Ibid., paragraph 7.

19 Ibid., paragraphs 9-10.

20 Ibid., paragraphs 12-13.

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13. The defence submitted and relied on jurisprudence of the International

Tribunal for the Former Yugoslavia ("ICTY"), in support of the proposition

that restrictions on disclosure of materials do not relieve the prosecution of its

obligation to disclose to the defence material which tends to show the

innocence of the accused. ₂₁ The prosecution contended that the jurisprudence

of the ICTY which upheld the principle of the disclosure of exculpatory

material could be distinguished from the present circumstances as the

prosecution has already disclosed evidence similar to the protected

exculpatory material to the defence.₂₂

b. Status and exculpatory value of non-disclosed materials

14. On 11 September 2007 the prosecution informed the Chamber that it

anticipated completing disclosure, or applying for the removal of restrictions,

by the end of October 2007. ₂₃ However, it suggested that the outcome of the

process was beyond its control.₂₄

15. During the Status conference on 1 October 2007 the prosecution informed the

Chamber of the disclosure status of evidence obtained pursuant to Article

54(3)(e). The prosecution noted that information providers had refused to lift

the restrictions in respect of 46 documents comprised of about 220 pages.₂₅

The prosecution informed the Chamber that, at that time, requests to lift

redactions were pending as regards over 500 documents which amounted to

about 3080 pages.₂₆

21 Transcript of hearing on 6 May 2008, ICC-01/04-01/06-T-86-ENG, page 28, lines 3-14.

Ibid., page 33, lines 14-18. See also Transcript of hearing on 10 June 2008, ICC-01/04-01/06-T-89-ENG,

page 7, line 24 to page 8, line 4.

23 Prosecution's submission regarding the subjects that require early determination: trial date, languages to be

used in the proceedings, disclosure and e-court protocol, 11 September 2007, ICC-01/04-01/06-951, paragraph

24.

24 Ibid., paragraph 25.

25 Transcript of hearing on 1 October 2007, ICC-01/04-01/06-T-52-ENG, page 14, lines 3-6.

26 Ibid, page 14, lines 7-11.

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16. Following a request by the Chamber on 13 March 2008, ₂₇ the prosecution

provided a summary of the status of exculpatory materials in its written

submissions on 28 March 2008.₂₈

17. In its 28 March filing the prosecution provided an update on the status of

potentially exculpatory materials collected pursuant to Article 54(3)(e).₂₉ In

particular it informed the Chamber that as of 25 March 2008 it had disclosed

or provided for pre-inspection 76 documents containing potentially

exculpatory information or falling within the scope of Rule 77. Of these 76

documents, the prosecution noted that 44 were disclosed or provided in full,

whilst 32 were disclosed with redactions requested by the information

providers. Finally, in reporting on the status of potentially exculpatory

material, the prosecution informed the Chamber that a total of 216 items

containing potentially exculpatory material or information falling within the

scope of Rule 77 had not been disclosed to the defence. For 35 of these items,

the prosecution noted that it was awaiting responses to requests to disclose

from information providers. However, it noted that information providers

had refused to lift Article 54(3)(e) restrictions as regards the remaining 181

items.₃₀

18. On 7 April the prosecution informed the Chamber that the undisclosed

evidence comprised 212 rather than 216 items.₃₁

19. During the Status Conference of 10 June 2008 the prosecution provided up-to-

date information to the Chamber on the situation as regards undisclosed

material and its sources. ₃₂ In particular the prosecution informed the Chamber

27 Transcript of hearing on 13 March 2008, ICC-01/04-01/06-T-79, page 8, lines 7-16.

28 Prosecution submission on undisclosed documents containing potentially exculpatory information, 28 March

2008, ICC-01/04-01/06-1248, paragraphs 8-26.

29 Ibid., paragraphs 5-7.

30 Ibid., paragraph 7.

Prosecution's submission on Article 54(3)(e) confidentiality agreements, 7 April 2008, ICC-01/04-01/06-

1267, paragraph 5.

32 Transcript of hearing on 10 June 2008, ICC-01/04-01/06-T-89-ENG, pages 5-6.

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that there currently are 156 documents provided by the UN under Article 54

(3) (e) for which authorisation to disclose to the defence had been refused.₃₃

Of those 156 documents, the prosecution informed the Chamber that 112 fell

under the heading of Rule 77 of the Rules whilst the remaining 95 were

considered potentially exculpatory or mitigating in nature.₃₄ As to the

documents for which a response was pending, the prosecution submitted that

negotiations were ongoing, although it was unable to predict the outcome

thereof.₃₅

20. In addressing the undisclosed materials, the prosecution divided the evidence

into two categories: evidence which would not materially impact on the

Chamber's determination of the guilt or innocence of the accused and

evidence which had that potential. ₃₆ However, having clearly indicated that

the evidence fell into these two categories, in a seemingly contradictory

submission the prosecution thereafter maintained that none of the

undisclosed evidence "in fact" materially impacted on the Chamber's

determination of the guilt or innocence of the accused.₃₇

21. In elaboration of this latter submission, the prosecution submitted that

evidence which could not, in the prosecution's contention, impact upon the

Chamber's decision as to the guilt or innocence of the accused consisted of the

following: evidence which purported to establish that children voluntarily

joined the UPC/FPLC or were sent by their parents; tu quoque evidence which

purported to establish the use of child soldiers by the Lendu or other armed

groups in Ituri; reported benevolent acts by Thomas Lubanga Dyilo; material

relating to the political nature of the UPC/FPLC and its aim of pacifying Ituri

33 Transcript of hearing on 10 June 2008, ICC-01/04-01/06-T-89-ENG, page 5, lines 8-11.

34 Ibid., page 45, line 17 to page 46, line 2.

35 Ibid., page 6, lines 12-23; see also page 7, lines 4-6.

36 Prosecution submission on undisclosed documents containing potentially exculpatory information, 28 March

2008, ICC-01/04-01/06-1248, paragraph 8.

Prosecution's additional information on the undisclosed evidence, 15 April 2008, ICC-01/04-01/06-1281,

paragraph 2.

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or references to it as an "all-inclusive" organisation; ₃₈ and information falling

within the scope of Rule 77 (which, in the prosecution's submission, did not

go to the guilt or innocence of the accused but was material to the preparation

of his defence).₃₉

22. The categories of evidence which the prosecution submitted could materially

impact on the Court's determination of the guilt or innocence of the accused

included: evidence indicating that Thomas Lubanga Dyilo suffered from a

mental condition; that he was intoxicated thus impairing his capacity to

control, or understand the unlawfulness of, his conduct; that he was under

duress or compulsion; that he acted in self-defence; that he made efforts to

demobilise child soldiers; that he had insufficient command over people who

committed the crimes with which he is charged; that the UPC/FPLC was

under the control of Uganda, Rwanda and other countries. ₄₀ However, it

submitted that none of this evidence revealed control as regards the

recruitment of children,₄₁ and that there was "no doubt" that these categories

of evidence would only impact in principle on the Chamber's decision, and

that it would not in fact materially impact on the determination of the guilt or

innocence of the accused.₄₂

23. The defence averred that the documents outlined in the prosecution's

description of the categories of undisclosed potentially exculpatory materials₄₃

were in fact exculpatory and should be disclosed.₄₄

38 Prosecution submission on undisclosed documents containing potentially exculpatory information, 28 March

2008, ICC-01/04-01/06-1248, paragraph 15.

39 Ibid., paragraph 29

40 Ibid, paragraphs 19-26.

41 Ibid, paragraphs 25-26.

42 Ibid, paragraph 18, original emphasis.

43 Réponse de la Défense à la "Prosecution's submissions on undisclosed documents containing potentially

exculpatory information" datée du 28 mars 2008, 22 April 2008, ICC-01/04-01/06-1291, paragraphs 14-19.

44 Ibid, paragraph 16.

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2. Interpretation of agreements under Article 54(3)(e) of the Statute

a. Purpose of Article 54(3)(e) and agreements concluded pursuant to

Article 54(3)(e)

24. The prosecution argued that Article 54(3)(e) guaranteed confidentiality,

unless the information-providers authorised otherwise, because many of

them did not wish for their co-operation to be revealed in juridical

proceedings. This interpretation, it was averred, accorded with the terms of

the agreements as well as the approach of the prosecution and the

information-providers.₄₅

25. Despite the requirements of Article 54(3)(e) that confidentiality agreements

are to be used solely for the purpose of generating new evidence, the

prosecution contended that evidence which it is anticipated may be used

during the trial can also be obtained pursuant to Article 54(3)(e). This

argument was founded on Rule 82, which anticipates that materials obtained

under Article 54(3)(e) may later be introduced as evidence.₄₆

26. In defending the confidentiality agreements, the prosecution submitted that it

depends upon the co-operation of information-providers who were working

under very difficult conditions on the ground and who had made a deliberate

decision that, in order to protect staff, their information must be confidential.₄₇

In the prosecution's submission, the Court "has to accept" that the mandate of

the information-providers was "very different to [that of] the Office of the

Prosecutor" and that the materials were not collected for the purpose of trial.₄₈

The prosecution submitted that if the Court was not to accept the "realities"

Prosecution's submission on Article 54(3)(e) confidentiality agreements, 7 April 2008, ICC-01/04-01/06-

1267, paragraph 7.

46 Transcript of hearing on 2 October 2007, ICC-01/04-01/06-T-55-ENG, page 4, lines 9-15.

47 Transcript of hearing on 1 October 2007, ICC-01/04-01/06-T-52-ENG, page 84, lines 2-13.

48 Ibid., page 15, lines 4-10.

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for the UN and NGOs on the ground, then they would not provide evidence

and "there was no other option available".₄₉ Similarly, in a later submission,

the prosecution argued that it was not possible to approach the UN with

specific issues in which it was interested before being provided with

materials, and that such an approach would only be viable at later stages of

the investigation.₅₀ The prosecution contended that it would not have been

able to initiate an investigation in the DRC without the information provided

by the UN under the confidentiality agreements.₅₁

27. The prosecution has interpreted Article 54(3)(e) as not limiting confidentiality

agreements to evidence obtained solely for the purpose of generating new

evidence.₅₂ Rather, it submitted that the UN had provided general materials

to the prosecution pursuant to the confidentiality agreement, and thereafter

the prosecution had selected the evidence to be used in the trial and the items

that were to be treated as lead evidence.₅₃ The prosecution accepted that at

the material time, there had been a clear understanding that these materials

were likely to be used as evidence.₅₄

28. By contrast, the defence noted that Article 54(3)(e) of the Statute only permits

the prosecution to enter into a confidential agreement of this kind when it will

generate new evidence and it argued that once obtained under this provision,

the material should not be tendered as evidence in the trial.₅₅

29. The defence submitted that Article 54(3)e was not intended to make the

prosecution's task easier or to allow it to obtain the information more quickly

49 Ibid., page 86, lines 7-9.

50 Transcript of hearing on 2 October 2007, ICC-01/04-01/06-T-55-ENG, page 7, lines 20-23.

51 Ibid., page 8, lines 1-5.

52 Ibid., page 4, lines 9-15.

53 Ibid., page 5, lines 15-23.

54 Ibid., page 7, lines 2-12.

55 Réponse de la Défense à la "Prosecution's Application for authorisation to disclose and rely on incriminating

evidence for which Article 54(3)(e) restrictions have been lifted", 10 March 2008, ICC-01/04-01/06-1215-Conf,

paragraphs 13-14.

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but rather it had a specific purpose that had not been adhered to in the these

proceedings.₅₆

30. The defence argued that Article 54(3)(e) of the Statute permits confidentiality

agreements to cover only documents which will generate new evidence.

Accordingly, in the defence's submission, these agreements cannot be used

loosely to cover all documents from a particular source.₅₇

b. Incorporation of agreements under article 54(3)(e) of the Statute

in the Court's legal framework

31. Addressing the Relationship Agreement with the UN and those reached with

other information providers, the prosecution argued that their interpretation

and use of the agreements were justified. In particular, during the ex parte

Status Conference held on 2 October 2007, the prosecution argued that Article

18(3) of the Relationship Agreement between this Court and the United

Nations ("Relationship Agreement") which prohibited it from disclosing

confidential materials to any organ of the Court without consent of the

information providers, had been endorsed by the Assembly of States Parties.

It was argued that the approval by this entity, being the Court's legislative

body, gave authority to the prosecution's interpretation of Article 54(3)(e).₅₈

32. Despite this, the prosecution acknowledged that an excessive use of Article

54(3)(e) would be problematic and that its use in the present case may be

viewed as excessive. ₅₉ The prosecution acknowledged that the language used

56 Transcript of hearing on 6 May 2008, ICC-01/04-01/06-T-86-ENG, page 29, lines 24-25.

Réponse de la Défense à la "Prosecution's submissions on undisclosed documents containing potentially

exculpatory information" datée du 28 mars 2008, 22 April 2008, ICC-01/04-01/06-1291, paragraphs 20-21.

58 Transcript of hearing on 2 October 2007, ICC-01/04-01/06-T-55-ENG, page 1, lines 21-24.

59 Ibid., page 2, lines 6-9.

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in the agreements did not necessarily reflect what Article 54(3) (e) was meant

to cover.₆₀

33. At the Status Conference of 10 June 2008 the defence submitted that the

prosecution's use of the confidentiality agreements, which could affect the

discovery of the truth and the fairness of the trial, was untenable because no

instance-specific reasons had been provided by the UN justifying the

suggested need for confidentiality.₆₁ The defence cited as an example of the

misuse of the agreements that one of the documents provided to it recently by

the prosecution, which had been covered by one of the confidentiality

agreements, was in fact a public document.₆₂

34. The prosecution submitted that the obligation to provide exculpatory material

under Article 67(2) of the Statute must be read in conjunction with the

Relationship Agreement with the UN, and that, in the result, the obligation is

limited to material that has not been provided to the prosecution

confidentially or whenever the information provider, under a confidentiality

agreement, has granted consent.₆₃ It submitted that the Relationship

Agreement, which prevented the Chamber from viewing the undisclosed

material, became binding law pursuant to Article 21(l)(b) of the Statute.₆₄

35. The defence submitted, in the context of the Relationship Agreement, that

agreements made between the Court and other bodies cannot take precedence

over the Statute or the fundamental right of the accused to obtain exculpatory

60 Transcript of hearing on 1 October 2007, ICC-01/04-01/06-T-52-ENG, page 83, lines 12-15.

61 Transcript of hearing on 10 June 2008, ICC-01/04-01/06-T-89-ENG, page 17, line 24 to page 18, line 4.

62 Ibid., page 19, lines 9-11.

63 Transcript of hearing on 6 May 2008, ICC-01/04-01/06-T-86-ENG, page 4, lines 1-7; page 5, lines 15-19;

page 7, line 22 to page 8, line 11.

64 Transcript of hearing on 10 June 2008, ICC-01/04-01/06-T-89-ENG, page 24, line 9 to page 25, line 2.

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material. Accordingly, the defence argued that the prosecutor had manifestly

exceeded his mandate.₆₅

c. Authorisation from information providers under Article 54(3)(e)

of the Statute

36. The prosecution made extensive submissions regarding its attempts to obtain

the consent of information providers to disclose exculpatory materials. It first

informed the Chamber of these attempts during the Status Conference of 1

October 2007.₆₆ In order to facilitate disclosure, the prosecution informed the

Chamber that it had emphasised the urgency of the matter and it was trying

to speed up the process of obtaining authorisation.₆₇ Whilst the prosecution

noted that the United Nations in particular was "very well-prepared to lift the

restrictions" ₆₈ it submitted that the negotiation process would take time and

that the outcome was beyond the prosecution's control.₆₉ The prosecution,

nonetheless maintained that it "anticipate[d] having disclosed or provided for

inspection or having sought to lift any restrictions on disclosure on the

materials concerned by the end of October [2007]"₇₀

37. The prosecution confirmed its attempts at obtaining this consent from the

information-providers in its 10 December 2007 filing and submitted that it

maintained its aim of effecting full disclosure before 14 December 2007.₇₁

Réponse de la Défense à la "Prosecution's submissions on undisclosed documents containing potentially

exculpatory information" datée du 28 mars 2008, 22 April 2008, ICC-01/04-01/06-1291, paragraph 34.

66 Transcript of hearing on 1 October 2007, ICC-01/04-01/06-T-52-ENG, page 14, lines 12-21.

67 Ibid., page 19, lines 6-13.

68 Ibid., page 85, lines 9-12.

69 Ibid., page 14, lines 15-21, page 15, lines 11-20; page 19, lines 2-3. See also Prosecution's submission

regarding the subjects that require early determination: trial date, languages to be used in the proceedings,

disclosure and e-court protocol, 11 September 2007, ICC-01/04-01/06-951, paragraph 25.

70 Transcript of hearing on 1 October 2007, ICC-01/04-01/06-T-52-ENG, page 16, lines 21-23.

71 Prosecution's Application for Extension of Time Limit for Disclosure, 10 December 2007, ICC-01/04-01/06-

1073, paragraph 43.

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38. However, in its written submissions of 24 January 2008, the prosecution

submitted that it had not received responses to its requests to lift the Article

54(3)(e) restrictions prior to 14 December 2007.₇₂

39. The prosecution indicated that it was engaged in continuing negotiations with

the information-providers at the Status Conference of 13 March 2008.₇₃

40. On 7 April 2008 the prosecution informed the Chamber that whilst it was

seeking consent from the information providers other than the UN, the

deadline imposed by the Chamber had not afforded it sufficient time.₇₄

However, the prosecution indicated that some responses were expected

within a short period.₇₅

41. During the Status Conference on 10 June 2008 the prosecution submitted that

negotiations were ongoing, although it was unable to predict the eventual

outcome.₇₆

d. Disclosure of similar materials as an alternative to disclosure

under Article 67(2) of the Statute

42. In the event that consent to disclose materials was not forthcoming, the

prosecution submitted that its approach was to provide the defence with

similar alternative materials.₇₇ On 10₇₈ and 15 April 2008,₇₉ pursuant to an

72 Prosecution's application for authorisation to disclose and rely on incriminating evidence for which Article

54(3)(e) restrictions have been lifted, 24 January 2008, ICC-01/04-01/06-1129-Conf, paragraph 4.

73 Transcript of hearing on 13 March 2008, ICC-01/04-01/06-T-79-ENG, page 7, lines 10-24.

74 Order on the "Prosecution's submission on undisclosed documents containing potentially exculpatory

information", 3 April 2008, ICC-01/04-01/06-1259, paragraph 3.

75 Prosecution's submission on Article 54(3)(e) confidentiality agreements, 7 April 2008, ICC-01/04-01/06-

1267, paragraph 9.

76 Transcript of hearing on 10 June 2008, ICC-01/04-01/06-T-89-ENG, page 3, lines 5-6, page 6, lines 12-23;

page 7, lines 4-6.

77 Transcript of hearing on 1 October 2007, ICC-01/04-01/06-T-52-ENG, page 18, lines 5-9. See also transcript

of hearing on 13 March 2008, ICC-01/04-01/06-T-79-ENG, page 7, lines 10-24.

78 Prosecution's submission of alternative potentially exonerating evidence further to the Trial Chamber's Ex

Parte order of 9 April 2008, 10 April 2008, ICC-01/04-01/06-1272-Conf-Exp, paragraphs 3-8.

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order of the Chamber,₈₀ the prosecution filed its submissions on similar

alternative material to the undisclosed evidence. The prosecution submitted

that it had provided the defence with sufficient similar alternative evidence to

allow it to prepare for trial.₈₁

43. The defence contested the prosecution's argument that sufficient similar

evidence had been provided; it argued that the fundamental right of the

accused is to receive the totality of exculpatory materials and no

confidentiality agreement, in the submission of the defence, could justifiably

form an obstacle to this fundamental right.₈₂

e. The provision of non-disclosed material to the Bench

44. In order to address the matter fully, on 3 April 2008 the Chamber ordered the

prosecution to provide it with the undisclosed exculpatory material.₈₃ The

prosecution indicated it was unable to comply with this order, citing the

provisions of the agreements under which the material had been obtained.₈₄

Thereon, the Chamber directed the prosecution to furnish it with descriptions

of the undisclosed potentially exculpatory material, together with

explanations as to why each document was not in the prosecution's view

exculpatory; however, the prosecution indicated that it was also unable to

comply with this order of the Chamber.₈₅

Prosecution's supplementary submission of alternative potentially exonerating evidence further to the Trial

Chamber's Ex Parte order of 9 April 2008, 10 April 2008, ICC-01/04-01706-1277-Conf-Exp.

80 Transcript of hearing on 9 April 2008, ICC-01/04-01/06-T-82-EXP-ENG, page 25, lines 14-18.

Transcript of hearing on 10 June 2008, ICC-01/04-01/06-T-89-ENG, page 7, line 22 to page 8, line 4.

Prosecution submission on undisclosed documents containing potentially exculpatory information, 28 March

2008, ICC-01/04-01/06-1248, paragraphs 17-18.

Réponse de la Défense à la "Prosecution's submissions on undisclosed documents containing potentially

exculpatory information" datée du 28 mars 2008, 22 April 2008, ICC-01/04-01/06-1291, paragraph 18.

Order on the "Prosecution's submission on undisclosed documents containing potentially exculpatory

information", 3 April 2008, ICC-01/04-01/06-1259, paragraph 3.

Prosecution's submission on Article 54(3)(e) confidentiality agreements, 7 April 2008, ICC-01/04-01/06-

1267, paragraphs 7-10, Order on the "Prosecution's submission on undisclosed documents containing potentially

exculpatory information", 3 April 2008, ICC-01/04-01/06-1259, paragraph 3.

85 Transcript of hearing on 9 April 2008, ICC-01/04-01/06-T-81-CONF-EXP-ENG, page 27, lines 6-10.

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45. As an alternative, the prosecution agreed that if the Chamber were to

undertake not to disclose the material without the consent of the information-

providers, the latter may provide the documents to the Chamber for its

review₈₆ (the Chamber having indicated its willingness to give such an

undertaking ₈₇). However it emerged thereafter that at least two information

providers (including the UN) declined to allow the Chamber to view the

material, notwithstanding the Chamber's undertaking, and other information-

providers required redactions to the information which removed information

which may identify individuals or bodies.₈₈

46. The defence submitted that the Chamber was able to review the relevant

materials, accepting that this process may reveal some incriminatory

material.₈₉

47. In the contention of the defence, exculpatory evidence and the confidentiality

agreements should be provided to the Chamber so that it can establish

whether the agreements are justified.₉₀ Accordingly, the Chamber can

override confidentiality agreements which affect the rights of the defence

under Article 67(2) of the Statute and Rule 77 of the Rules.₉₁

48. The prosecution submitted that disclosure of exculpatory material should not

be ordered by the Chamber pursuant to its powers under Article 72(7) of the

Statute but, rather, the appropriate remedy for non-disclosure "where the

evidence is so critical as to materially impact on the guilt or innocence of the

accused is for the Chamber to make such inferences in the trial as to the

86 Transcript of hearing on 6 May 2008, ICC-01/04-01/06-T-86-ENG, page 17, lines 12-22.

87 Ibid, page 35, line 20 to page 36, line 17.

88 Prosecution's updated information on documents that were obtained by the Office of the Prosecutor from the

United Nations pursuant to Article 54(3)(e) on the condition of confidentiality and solely for the purpose of

generating new evidence and that potentially contain evidence that falls under Article 67(2), 10 June 2008, ICC-

01/04-01/06-1387-Conf.

89 Transcript of hearing on 28 May 2008, ICC-01/04-01/06-T-88-ENG, page 44, lines 17-19.

90 Réponse de la Défense à la "Prosecution's submissions on undisclosed documents containing potentially

exculpatory information" datée du 28 mars 2008, 22 April 2008, ICC-01/04-01/06-1291, paragraphs 37-38.

91 Ibid., paragraph 39.

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existence or non-existence of facts as may be appropriate in the circumstances,

and where the Chamber considers this remedy to be insufficient, the

appropriate remedy is the dropping of the relevant charges".₉₂

49. On 9 June 2008, the prosecution filed an update on information obtained from

the United Nations containing potentially exculpatory materials. ₉₃ Therein the

prosecution informed the Chamber that, pursuant to recent negotiations, the

United Nations had authorised disclosure of two documents to the defence. In

respect of 33 documents, the prosecution noted that the UN was willing to

explore ways in which "elements of information" could be provided to the

Chamber.₉₄ On 11 June 2008, the prosecution filed a further confidential

update on information obtained from the UN.₉₅

50. The Presiding Judge observed during the Status Conference on 10 June 2008

that Article 67(2) establishes that the Chamber is the arbiter of whether or not

material falls to be disclosed and that the confidential agreements tended to

undermine its role in this regard.₉₆ In response, the prosecution argued that

the materials it had disclosed to the defence were similar to the material

covered by the confidentiality agreements and thus the Chamber was able to

evaluate the latter by process of analogy.₉₇

92 Transcript of hearing on 6 May 2008, ICC-01/04-01/06-T-86-ENG, page 12, line 4 to page 13, line 8.

93 Prosecution's updated information on documents that were obtained by the Office of the Prosecutor from the

United Nations pursuant to Article 54(3)(e) on the condition of confidentiality and solely for the purpose of

generating new evidence and that potentially contain evidence that falls under Article 67(2), 9 June 2008, ICC-

01/04-01/06-1387-Conf; Transcript of hearing on 10 June 2008, ICC-01/04-01/06-T-89-ENG, page 3, lines 16-

18.

94 Prosecution's updated information on documents that were obtained by the Office of the Prosecutor from the

United Nations pursuant to Article 54(3)(e) on the condition of confidentiality and solely for the purpose of

generating new evidence and that potentially contain evidence that falls under Article 67(2), 9 June 2008, ICC-

01/04-01/06-1387-Conf, paragraphs 3-6; see also ICC-01/04-01/06-T-89-ENG, page 3, lines 16-18.

95 Prosecution's further updated information on documents that were obtained by the Office of the Prosecutor

from the United Nations pursuant to Article 54(3)(e) on the condition of confidentiality and solely for the

purpose of generating new evidence and that potentially contain evidence that falls under Article 67(2), 11 June

2008, ICC-01/04-01/06-1391-Conf.

96 Transcript of hearing on 10 June 2008, ICC-01/04-01/06-T-89-ENG, page 8, lines 11-25 and page 9, lines 1-

17.

97 Ibid., page 11, lines 5-10.

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3. Suitability of 23 June 2008 trial date

51. In arguing for the retention of the 23 June 2008 trial date, the prosecution

averred on 10 June 2008 that the defence had been provided with alternative

evidence, not covered by confidentiality agreements,₉₈ which was similar in

nature. Furthermore, the prosecution argued that Article 67(2), by directing

the prosecution to disclose materials that it believed to be potentially

exculpatory, implied that it was trusted to deal with evidence in this area

appropriately₉₉ and that disclosure, as an ongoing obligation, necessitated the

defence accepting that disclosure of exculpatory materials would continue

throughout the trial.₁₀₀ In support of this, the prosecution repeated its

contention that none of the undisclosed potentially exculpatory material

would impact on the guilt or innocence of the accused. Similarly, in the

prosecution's submission, the defence would have adequate time to prepare

given the trial date is in late June and the limited volume of the material in

question.₁₀₁

52. On the proposed 23 June commencement of the trial, the defence argued,

during the Status Conference on 10 June 2008, that it had "never requested the

postponement of the trial in writing and will not do so."₁₀₂

4. The power of the Chamber to stay the proceedings

53. Whilst the prosecution acknowledged the inherent power of the Chamber to

discontinue the proceedings, it submitted that such a drastic remedy is strictly

limited to the most serious cases involving an abuse of power by the

prosecution. It submitted that the abuse would have to call into question the

98 Ibid, page 7, line 24 to page 8, line 4.

99 Ibid., page 8, lines 5-11.

100 Ibid., page 13, lines 12-14.

101 Transcript of hearing on 12 March 2008, ICC-01/04-01/06-T-78-CONF-ENG, page 90, lines 11-19.

102 Transcript of hearing on 10 June 2008, ICC-01/04-01/06-T-89-ENG, page 47, lines 24-25.

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integrity of the system, resulting in a contravention of the rights of the

accused of constitutional magnitude. In the prosecution's submissions no

such abuse had occurred, nor had the defence alleged as such.₁₀₃

54. The defence argued that the proceedings should be terminated.₁₀₄ The power

to do so, in the submission of the defence, originated in the inherent power of

the Bench to prevent an abuse of the process and ensure the fairness of

proceedings.₁₀₅

55. The legal representative of victims a/0001/06 to a/0003/06 submitted that

issues relating to the possible discontinuance of the trial go to the crux of

victims' interests.₁₀₆ Responding to the defence's filing requesting the

discontinuance of the proceedings, the legal representative of victims

a/0001/06 to a/0003/06 argued that there are legally only two justifications for

such discontinuance: inadmissibility or lack of jurisdiction.₁₀₇ He further

submitted that in such a situation certain participants must be heard,

including the referring state and victims.₁₀₈ Discontinuance of the present

proceedings, in the submission of the legal representative of victims a/0001/06

to a/0003/06, was not possible and in any event was not within the Trial

Chamber's powers but rather those of the Pre-Trial Chamber.₁₀₉

5. Ongoing investigations

56. In relation to the issue of ongoing investigations the prosecution submitted

that it was continuing to investigate other possible crimes committed by

103 Ibid, page 28, line 9 to page 20, line 19. The prosecution relied specifically on the Appeal's Chamber

decision titled Judgment on the Appeal of Mr. Thomas Lubanga Dyilo against the Decision on the Defence

Challenge to the Jurisdiction of the Court pursuant to article 19 (2) (a) of the Statute of 3 October 2006, 14

December 2006, ICC-01/04-01/06-772, paragraphs 36-39.

104 Transcript of hearing on 10 June 2008, ICC-01/04-01/06-T-89-ENG, page 19, lines 17-18.

105 Ibid, page 20, lines 7-16.

106 Ibid., page 36, lines 16-20.

107 Ibid., page 37, lines 8-21.

108 Ibid., page 39, lines 1-2.

109 Ibid., page 39, lines 3-18.

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Thomas Lubanga Dyilo. However, it averred that it would not seek to amend

the charges and that it had the right and obligation to conduct such

investigations.₁₁₀

57. In this regard, the defence submitted that the prosecution was concealing

further potential charges against the accused.₁₁₁ This, the defence argued, was

in violation of the accused's right to be informed of the charges against him

and prosecutorial fairness.₁₁₂

II. Relevant provisions

Article 21 of the Statute

Applicable Law

1. The Court shall apply:

[...]

(b) In the second place, where appropriate, applicable treaties and the principles and rules of

international law, including the established principles of the international law of armed conflict;

[...]

3. The application and interprétation of law pursuant to this article must be consistent with

internationally recognized human rights [...]

Article 54 of the Statute

Duties and powers of the Prosecutor with respect to investigations

[...]

3. The Prosecutor may:

[...]

(e) Agree not to disclose, at any stage of the proceedings, documents or information that the

Prosecutor obtains on the condition of confidentiality and solely for the purpose of generating

new evidence, unless the provider of the information consents; and

Article 64 of the Statute

Functions and powers of the Trial Chamber

[...]

110 Ibid., page 30, lines 2-15.

111 Ibid page 20, line 22 to page 21, line 8.

112 Ibid page 21, lines 13-23.

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2. The Trial Chamber shall ensure that a trial is fair and expeditious and is conducted with full

respect for the rights of the accused and due regard for the protection of victims and witnesses.

3. Upon assignment of a case for trial in accordance with this Statute, the Trial Chamber assigned

to deal with the case shall:

[...]

information not previously disclosed, sufficiently in advance of the commencement of the trial to

enable adequate preparation for trial.

Article 67 of the Statute

Rights of the accused

1. In the determination of any charge, the accused shall be entitled to a public hearing, having

regard to the provisions of this Statute, to a fair hearing conducted impartially, and to the

following minimum guarantees, in full equality:

[...]

(b) To have adequate time and facilities for the preparation of the defence and to

communicate freely with counsel of the accused's choosing in confidence;

[...]

2. In addition to any other disclosure provided for in this Statute, the Prosecutor shall, as soon

as practicable, disclose to the defence evidence in the Prosecutor's possession or control

which he or she believes shows or tends to show the innocence of the accused, or to mitigate

the guilt of the accused, or which may affect the credibility of prosecution evidence. In case of

doubt as to the application of this paragraph, the Court shall decide.

Rule 77 of the Rules of Procedure and Evidence ("Rules")

Inspection of material in possession or control of the Prosecutor

The Prosecutor shall, subject to the restrictions on disclosure as provided for in the Statute and in

rules 81 and 82, permit the defence to inspect any books, documents, photographs and other

tangible objects in the possession or control of the Prosecutor, which are material to the

preparation of the defence or are intended for use by the Prosecutor as evidence for the purposes

of the confirmation hearing or at trial, as the case may be, or were obtained from or belonged to

the person.

Rule 82 of the Rules

Restrictions on disclosure of material and information protected under article 54, paragraph 3

(e)

1. Where material or information is in the possession or control of the Prosecutor which is

protected under article 54, paragraph 3 (e), the Prosecutor may not subsequently introduce

such material or information into evidence without the prior consent of the provider of the

material or information and adequate prior disclosure to the accused.

2. If the Prosecutor introduces material or information protected under article 54, paragraph 3

(e), into evidence, a Chamber may not order the production of additional evidence received

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from the provider of the initial material or information, nor may a Chamber for the purpose

of obtaining such additional evidence itself summon the provider or a representative of the

provider as a witness or order their attendance.

[...]

Rule 83 of the Rules

Ruling on exculpatory evidence under article 67, paragraph 2

The Prosecutor may request as soon as practicable a hearing on an ex parte basis before the

Chamber dealing with the matter for the purpose of obtaining a ruling under article 67,

paragraph 2.

58. In addition, in light of Article 21(3) of the Statute,₁₁₃ the Chamber has also

considered the following international provisions:

Article 14(1) of the International Covenant on Civil and Political Rights₁₁₄

All persons shall be equal before the courts and tribunals. In the determination of any criminal

charge against him, or of his rights and obligations in a suit at law, everyone shall be entitled to a

fair and public hearing by a competent, independent and impartial tribunal established by law.

[...]

Article 11(1) of the Universal Declaration of Human Rights₁₁₅

Everyone charged with a penal offence has the right to be presumed innocent until proved guilty

according to law in a public trial at which he has had all the guarantees necessary for his defence.

Article 6 of the European Convention on Human Rights₁₁₆

1. In the determination of his civil rights and obligations or of any criminal charge against him,

everyone is entitled to a fair and public hearing within a reasonable time by an independent and

impartial tribunal established by law. Judgement shall be pronounced publicly by the press and

public may be excluded from all or part of the trial in the interest of morals, public order or

national security in a democratic society, where the interests of juveniles or the protection of the

private life of the parties so require, or the extent strictly necessary in the opinion of the court in

special circumstances where publicity would prejudice the interests of justice.

2. Everyone charged with a criminal offence shall be presumed innocent until proved guilty

according to law.

113 Judgment on the Appeal of Mr Thomas Lubanga Dyilo against the Decision on the Defence Challenge to the

Jurisdiction of the Court pursuant to article 19(2)(a) of the Statute of 3 October 2006, 14 December 2006, ICC-

01/04-01/06-772, paragraph 36.

114 International Covenant on Civil and Political Rights, Adopted and opened for signature, ratification and

accession by General Assembly resolution 2200A (XXI) of 16 December 1966, entry into force 23 March 1976.

115 Universal Declaration of Human Rights, United Nations General Assembly resolution 217 A (III) of 10

December 1948, third session.

116 Convention for the Protection of Human Rights and Fundamental Freedoms, 4 November 1950, as amended

by protocol no 11 with protocols 1,4, 6, 7, 12 and 13.

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3. Everyone charged with a criminal offence has the following minimum rights:

a. to be informed promptly, in a language which he understands and in detail, of the

nature and cause of the accusation against him;

b. to have adequate time and the facilities for the preparation of his defence;

c. to defend himself in person or through legal assistance of his own choosing or, if he

has not sufficient means to pay for legal assistance, to be given it free when the

interests of justice so require;

d. to examine or have examined witnesses against him and to obtain the attendance and

examination of witnesses on his behalf under the same conditions as witnesses

against him;

e. to have the free assistance of an interpreter if he cannot understand or speak the

language used in court.

III. Analysis and conclusions

The inability on the part of the prosecution to disclose to the accused

exculpatory materials covered by Article 54(3)(e) agreements

Preliminary matters

59. The expression "exculpatory material" has been used during the submissions

on this issue to cover a variety of circumstances,₁₁₇ all of which are to be found

in Article 67(2) of the Statute. Exculpatory material therefore includes

material, first, that shows or tends to show the innocence of the accused;

second, which mitigates the guilt of the accused; and, third, which may affect

the credibility of prosecution evidence. The prosecution accepts that the

exculpatory material which it is unable to disclose to the defence or to put

before the judges in non-redacted form comes, in each instance, from one of

these categories. Furthermore, the prosecution has included under the general

umbrella of materials that it has been unable to disclose those that are covered

by Rule 77 of the Rules.

117 For interpretation by the prosecution see for example "Prosecution submission on undisclosed documents

containing potentially exculpatory information", 28 March 2008, ICC-01/04-01/06-1248, paragraph 9. For the

interpretation adopted by the defence, see "Réponse de la Défense à la "Prosecution's submissions on

undisclosed documents containing potentially exculpatory information" datée du 28 mars 2008", 22 April 2008,

ICC-01/04-01/06-1291, paragraphs 9-10.

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60. Although the prosecution has sought to suggest, in a general sense, that the

exculpatory value of the non-disclosed material has been covered in other

documents or information that have already been served, the Court has been

unable to assess for itself whether this proposition is accurate, and whether,

notwithstanding the existence of other disclosed material, fairness dictates

that the accused should be provided with part or all of the undisclosed

evidence. On this latter issue, the Chamber has grave reservations as to

whether serving other, similar evidence can ever provide an adequate

substitute for disclosing a particular piece of exculpatory evidence: the right

of the accused is to both items. In the Chamber's "Decision on Disclosure

Issues, Responsibilities for Protective Measures and other Procedural

Matters" of 8 May 2008₁₁₈ the majority observed in the context of the accused's

"absolute entitlement" to potentially exculpatory evidence:

The fact that it may be undermined by other evidence, or the witness may also

provide incriminating evidence, or there are other sources providing similar

evidence are all irrelevant for these purposes. If the real possibility exists that

this evidence may contribute to a resolution of material factual issues in the

case in favour of the accused, he is to be provided with it [...]

(See also the decision of the Appeals Chamber of the ICTY in the case of

Blaskic, which is considered in paragraph 81 below.)

61. As set out above, under the heading 'Rights of the accused', Article 67(2)

obliges the prosecution to disclose to the defence exculpatory material in "the

Prosecutor's possession or control which he or she believes shows or tends to

show the innocence of the accused, or to mitigate the guilt of the accused, or

which may affect the credibility of prosecution evidence". It is left to the

Chamber to decide whenever there is a doubt as to the application of this

118 Decision issuing a confidential and a public redacted version of "Decision on disclosure issues,

responsibilities for protective measures and other procedural matters", 8 May 2008, ICC-01/04-01/06-1311-

Anx2, paragraph 94.

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provision: "In case of doubt as to the application of this paragraph, the Court

shall decide".

62. Despite the unequivocal terms of this section, the prosecution has been given

the opportunity, pursuant to Article 54(3)(e), to enter into agreements not to

disclose material provided on a confidential basis, when the sole purpose of

obtaining the material is to generate new evidence.

63. In this case over 200 documents, which the prosecution accepts have potential

exculpatory effect or which are material to defence preparation, are the

subject of agreements of this kind. On 10 June 2008, the Chamber was told

that there are "approximately" 95 items of potentially exculpatory material

and 112 items which are "material to defence preparation",₁₁₉ pursuant to Rule

77, making a total of 207 items of evidence. Of these 207 items, 156 were

provided by the UN.₁₂₀

64. The prosecution is unable to disclose any of these items of evidence to the

accused, in full or in a redacted form. Furthermore, save for a limited number

of documents (32) that have been supplied to the Chamber by six unidentified

information-providers in redacted form,₁₂₁ the prosecution (given the terms of

the agreements) is unable to show them to the Chamber. This is because the

information-providers do not consent to the judges viewing copies of the

original materials (in the majority of instances the Chamber cannot be shown

the documents at all),₁₂₂ notwithstanding an undertaking which has been

119 Transcript of hearing on 10 June 2008, ICC-01/04-01/06-T-89-ENG, page 45, lines 16-22.

120 Ibid., page 5, lines 8-9.

121 Prosecution's provision of 32 documents and further information on documents that were obtained by the

Office of the Prosecutor pursuant to Article 54(3)(e) on the condition of confidentiality and solely for the

purpose of generating new evidence and that potentially contain evidence that falls under Article 67(2), 3 June

2008, ICC-01/04-01/06-1373; Prosecution's corrigendum and supplementary information to the "Prosecution's

provision of 32 documents and further information on documents that were obtained by the Office of the

Prosecutor pursuant to Article 54(3)(e) on the condition of confidentiality and solely for the purpose of

generating new evidence and that potentially contain evidence that falls under Article 67(2)", 9 June 2008, ICC-

01/04-01/06-1385.

122 Transcript of hearing on 1 October 2007, ICC-01/04-01/06-T-52-ENG, page 14, lines 4-6.

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given by the judges to uphold the confidential status of the documents or

information, unless consent is given by the information-providers for their

wider distribution.₁₂₃ It needs to be stressed, however, that the Chamber fully

appreciates that the UN, and possibly other information-providers, were

invited by the Court to enter into these agreements, and it unreservedly

accepts that they will have approached this issue in good faith, bearing in

mind their own particular responsibilities and their respective mandates.

65. The Chamber has only seen two of the agreements that have been reached

under Article 54(3)(e) of the Statute; the Relationship Agreement with the UN,

stipulates in Article 18(3) that:

The United Nations and the Prosecutor may agree that the United Nations

provide documents or information to the Prosecutor on condition of

confidentiality and solely for the purpose of generating new evidence and that

such documents or information shall not be disclosed to other organs of the

Court or to third parties, at any stage of the proceedings or thereafter, without

the consent of the United Nations.₁₂₄

66. The Chamber has not seen the agreements with the other unidentified

information-providers; it does not know who they are; and the Chamber has

not been provided with the terms of these further agreements.

67. Having been informed earlier₁₂₅ that the Prosecutor was to raise these issues

with the UN, in a document filed at 20.48 on 9 June 2008, the judges were

informed that the Prosecutor and the UN Legal Counsel had met on 3 June

2008 to discuss them. Following that meeting, two documents have been

123 Transcript of hearing on 6 May 2008, ICC-01/04-01/06-T-86-ENG, page 35, line 20 to page 36, line 17.

124 Prosecution's submission on Article 54(3)(e) confidentiality agreements, 7 April 2008, ICC-01/04-01/06-

1267, Annex 1; the second agreement is the "Memorandum of understanding between the United Nations and

the International Criminal Court concerning cooperation between the United Nations Organization Mission in

the Democratic Republic of the Congo and the International Criminal Court", ICC-01/04-01/06-1267, Annex 2.

'"Prosecution's information on documents that were obtained by the Office of the Prosecutor from the United

Nations pursuant to Article 54(3)(e) on the condition of confidentiality and solely for the purpose of generating

new evidence and that potentially contain evidence that falls under Article 67(2), 2 June 2008, ICC-01/04-

01/06-1364, paragraph 5.

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disclosed to the defence, ₁₂₆ and in relation to a further 33 documents "the UN

is ready and willing to explore with the OTP ways in which elements of

information that are contained in the documents and that the OTP believes to

be of a potentially exculpatory nature may be made available to the Trial

Chamber without at the same time disclosing the documents themselves,

either in whole or in part."₁₂₇

68. It is to be observed that if this proposal is adopted, in the result the Chamber

will not be allowed to view and evaluate any of this evidence in its original

form and instead it will be dependent on the prosecution's evaluation of its

"exculpatory nature" and the adequacy of any "elements of information" -

whatever this latter expression means - as may be provided to the judges.

69. The other documents supplied by the UN are not covered by this proposal

and the Chamber has simply been informed that "[t]he OTP continues its

discussions and efforts to find solutions with the UN in respect of the

remaining documents that form part of the list of documents that due to their

status cannot be disclosed."₁₂₈

The Agreements

70. It is necessary, first, to analyse whether the prosecution has correctly applied

the provisions of Article 54(3)(e) in the agreements it reached with the

information-providers, because it is self-evident that the situation confronting

the Court has only arisen because of the agreements which the prosecution

has entered into in this case, and the way which they have been implemented.

Importantly, therefore, if the exculpatory material was not covered by the

126 Prosecution's updated information on documents that were obtained by the Office of the Prosecutor from the

United Nations pursuant to Article 54(3)(e) on the condition of confidentiality and solely for the purpose of

generating new evidence and that potentially contain evidence that falls under Article 67(2), 9 June 2008, ICC-

01/04-01/06-1387-Conf, paragraph 4.

127 Ibid., paragraph 3(ii).

128 Ibid, paragraph 7.

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agreements, it would have been provided to the defence: non-disclosure is the

direct result of the prosecution's use of the Article 54(3)(e) agreements.

71. Addressing whether the agreements conform to the provisions of Article 54

(3)(e), in the view of the Chamber the wording of the subsection is clear, and

its purpose is readily apparent. In highly restricted circumstances, the

prosecution is given the opportunity to agree not to disclose material

provided to it at any stage in the proceedings. The restrictions are that the

prosecution should receive documents or information on a confidential basis

solely for the purpose of generating new evidence - in other words, the only

purpose of receiving this material should be that it is to lead to other evidence

(which, by implication, can be utilised), unless Rule 82(1) applies.

72. The prosecution has given Article 54(3)(e) a broad and incorrect

interpretation: it has utilised the provision routinely, in inappropriate

circumstances, instead of resorting to it exceptionally, when particular,

restrictive circumstances apply. Indeed, the prosecution conceded in open

court that agreements reached under Article 54(3)(e) have been used generally

to gather information, unconnected with its springboard or lead potential.

During the Status Conference on 6 May 2008, the prosecution made this

unequivocally clear, during the following exchange:

Presiding Judge:

You have used the expression [...] "lead evidence" on various occasions today.

Is it the Prosecution's intention that these agreements in fact were all limited to

lead evidence, what I think on earlier occasions I have referred to as

springboard material?

Prosecution:

Mr President, your Honours, not at all [...] and this is just an example, but the

most important example, in relation to the United Nations. On top of the UN

relationship agreement and the Memorandum of Understanding there's a letter

of 8 November 2005 to the United Nations where interpretation is given to the

relevant provisions in the agreement and, in particular, in respect of the

Memorandum of Understanding, and here it says in relation to Article 10(6)

[...] "It is understood as a general rule the United Nations will endeavour to the

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extent possible to accede to all requests to consent to view such documents and

information in trial. This understanding shall also apply with respect to the

information of records referred to in Article 11(7)."[...] And this [...] refers to

the question you put to me. Of course, there was never any intention on the

side of the Prosecutor, and it was also understood as such by the United

Nations, that these materials were received only for lead purposes. The point

was to obtain these materials as quickly as possible for the sake of the

ongoing investigation and then to allow the Office of the Prosecutor to

identify the materials it wishes to use as evidence and then seek permission

[added emphasis].₁₂₉

73. Therefore, although the Chamber does not have the information necessary to

analyse the circumstances in which each of the individual documents was

supplied to the prosecution, the overall picture is clear: the prosecution's

general approach has been to use Article 54(3)(e) to obtain a wide range of

materials under the cloak of confidentiality, in order to identify from those

materials evidence to be used at trial (having obtained the information-

provider's consent). This is the exact opposite of the proper use of the

provision, which is, exceptionally, to allow the prosecution to receive

information or documents which are not for use at trial but which are instead

intended to "lead" to new evidence. The prosecution's approach constitutes a

wholesale and serious abuse, and a violation of an important provision which

was intended to allow the prosecution to receive evidence confidentially, in

very restrictive circumstances. The logic of the prosecution's position is that

all of the evidence that it obtains from information-providers can be the

subject of Article 54(3)(e) agreements.

74. Judge Steiner on 2 June 2008 in her "Decision Requesting Observations

concerning Article 54(3)(e) Documents Identified as Potentially Exculpatory

or Otherwise Material for the Defence's Preparation for the Confirmation

Hearing" observed:

9. At the outset, the Single Judge notes the considerable number of documents

(1632 according to the last indication given by the Prosecution on 25 April

2008) that the Prosecution has collected pursuant to article 54(3)(e) of the

129 Transcript of hearing on 6 May 2008, ICC-01/04-01/06-T-86-ENG, page 22, line 4 to page 23, line 6.

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Statute, and that, according to the Prosecution, "were considered to be relevant"

for the present case. In the view of the Single Judge, this is particularly notable

because the present case is confined to the crimes allegedly committed during

one attack against one village on a single day.

10. The Single Judge finds this considerable number of documents to indicate

that the Prosecution is not resorting to article 54(3) (e) of the Statute only in

exceptional or limited circumstances, but rather is extensively gathering

documents under such provision.

11. This practice, in the view of the Single Judge, is at the root of the problems

that have arisen in the present case, as well as in the case of the Prosecutor v.

Thomas Lubanga Dyilo, with regard to the disclosure to the Defence of those

materials identified as potentially exculpatory (article 67(2) of the Statute) or

otherwise material for the Defence's preparation for the confirmation hearing

(rule 77 of the Rules) and that have been collected under the conditions of

confidentiality set forth in article 54(3)(e) of the Statute.

12. Furthermore, the series of reports filed by the Prosecution in the last six and

a half months (i.e. from 14 November 2007 to 23 May 2008) show that the

problems posed by the practice of extensively gathering materials pursuant to

article 54(3)(e) of the Statute are significantly aggravated by the Prosecution's

difficulties in securing the consent of the providers.

With respect, this Bench echoes those sentiments.

75. In light of the prosecution's inappropriate use of these confidentiality

agreements, and the resulting inability to effect proper disclosure to the

defence, it is manifest that the agreements should not be allowed to operate in

a way that subverts the Statute. The choices for the prosecution are clear and

stark. Either it must disclose all the potentially exculpatory material in its

possession (in accordance with the Statute) to the accused or it will choose not

to do so because of the improper agreements it has reached with information-

providers. If it follows the latter course, the consequences of that decision are

analysed in detail hereafter.

76. Finally on this subject, if Article 54(3)(e) is used appropriately, the apparent

tension which exists between this provision and Article 67(2) is likely to be

negligible: although exculpatory material may be included in the springboard

or lead evidence, in the limited circumstances in which this provision should

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be used, it is likely that a mechanism can be established which facilitates all

necessary disclosure; for instance, the prosecution may need to make

arrangements with the information-provider for disclosure of such parts of

the Article 54(3)(e) material as will enable it to provide any potentially

exculpatory evidence to the accused. In any event, if the prosecution is unable

to disclose evidence of this kind which is covered by these agreements, the

issue should always be raised with the Chamber in accordance with Rule 83.

Does the right to a fair trial include the right to disclosure of potentially exculpatory material?

77. The Chamber has unhesitatingly concluded that the right to a fair trial -

which is without doubt a fundamental right - includes an entitlement to

disclosure of exculpatory material. This is established not only by the

provisions of Article 67(2) of the Statute, but also by a review of the relevant

international jurisprudence,₁₃₀ and particularly that of the European Court of

Human Rights and the ICTY. In Krstic the Appeals Chamber of that latter

court stated:

The disclosure of exculpatory material is fundamental to the fairness of

proceedings before the Tribunal and considerations of fairness are the

overriding factor in any determination of whether the governing Rule has been

breached.₁₃₁

78. In Oric the Trial Chamber of the ICTY observed:

130 See for example ECtHR, V. v Finland, no 40412/98, Judgment of 24 July 2007, paragraph 74 in which the

European Court of Human Rights stated that "both [the] prosecution and defence must be given the opportunity

to have knowledge of and comment on the observations filed and the evidence adduced by the other party...

prosecution authorities [must] disclose to the defence all material evidence in their possession for or against the

accused." See also ECtHR, Jasper v United Kingdom, no 27052/95, Judgment of 16 February 2000.

131 The Prosecutor v Krstic, IT-98-33-A, Judgment, 19 April 2004, paragraph 180.

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The jurisprudence of the Tribunal is clear that, in pursuit of justice, the

disclosure of Rule 68 [exculpatory] Material to the Defence is of paramount

importance to ensure the fairness of proceedings before this Tribunal.₁₃₂

79. In Jespers v. Belgium, the European Commission of Human Rights held that the

principle of equality of arms imposes on prosecuting and investigating

authorities an obligation to disclose any material in their possession, or to

which they could gain access, which may assist the accused in exonerating

himself or in obtaining a reduction in sentence. This principle covers a wide

variety of evidential possibilities, and it includes evidence which may

undermine the credibility of a prosecution witness.₁₃₃

80. Critically, although international human rights jurisprudence and that of the

ad hoc tribunals indicate that "only such measures restricting the rights of the

accused, which are strictly necessary, ought to be adopted"₁₃₄, these cannot

extend to denying him or her a fair trial. For instance, the ICTY in Talic

emphasised that although it may be "necessary in some cases to withhold

certain material from the defence, so as to safeguard an important public

interest" nonetheless "the public interest [...] is excluded where its application

would deny to the accused the opportunity to establish his or her

innocence."₁₃₅

132 ICTY, Trial Chamber, The Prosecutor v Oric, IT-03-68-T, Decision on ongoing complaints about

prosecutorial non-compliance with Rule 68 of the Rules, 13 December 2005, paragraph 20.

133 ECHR, Jespers v Belgium, no 8403/78, Commission's report of 14 December 1981, DR 27, paragraph 58.