On Friday, November 12, 2010, the judges of Trial Chamber I at the International Criminal Court (ICC) in the trial of Thomas Lubanga ruled that the prosecution’s duty to disclose information to the accused is broad, encompassing everything relevant in its possession except materials related to its theories or tactics. Mr. Lubanga’s counsel raised the scope of disclosure issue on March 5, 2010, when it appeared the prosecution was questioning a defense witness based on undisclosed information. The chamber asked the parties to submit written arguments.
Under the Rome Statute, the governing treaty of the ICC, the prosecution is directed to disclose to the defense any potentially exculpatory evidence. Exculpatory evidence is evidence that the prosecution believes: i) shows or tends to show the innocence of the accused; ii) mitigates the guilt of the accused; or iii) may affect the credibility of the prosecution evidence. In addition, the Rules of Procedure and Evidence state that the prosecution is obligated to allow the defense “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 defense or are intended for use by the Prosecution as evidence . . . or were obtained from or belonged to the person [accused].”
In an earlier ruling in this case, the appeals chamber decided that the trial chamber erred by interpreting the rules too narrowly “because it excluded objects which, while not directly linked to exonerating or incriminating evidence, may otherwise be material to the preparation of the defence.” (emphasis added)
In its recent decision, the trial chamber ruled that anything potentially relevant to defense preparation includes substantive material that “may significantly assist the accused in understanding the incriminating and exculpatory evidence, and the issues, in the case.” Such evidence might include background information about a particular battle or crime site, for example.
The prosecutor opposed broadening the extent of its obligation to make exculpatory evidence available to the accused. In its view, the prosecution should not have to reveal in advance material, which it will use to test the credibility of a defense witness. To a certain extent, cross-examination is reactionary. While parties are required to provide a summary of evidence a witness is expected to give, at times a witness will go beyond that. The prosecutor argued it should not be expected to turn over material it uses to cross-examine on unanticipated issues.
The trial chamber did not agree. “The prosecution’s disclosure obligations continue throughout the trial, and once fresh items are identified that should be provided to the defense, this is to be effected expeditiously,” the court concluded.
The trial chamber cited efficiency as a reason for its decision. Knowing the material the prosecution plans to use in cross-examination will allow the defense to decide whether or not to call the witness. “It will increase the likelihood that only those witnesses are called who are, on an examination of all the relevant material, credible and reliable.”
Mr. Lubanga, the alleged former head of the Union of Congolese Patriots (UPC), has been on trial at the ICC since January 2009. He is on trial over the recruitment, conscription, and use of children in armed conflict during 2002 and 2003 in the Democratic Republic of the Congo.
Throughout the trial, the defense has protested that the prosecution was not honoring their disclosure obligations. In June 2008, trial judges issued a stay of proceedings in the case after determining that it was impossible for the trial to be fair because the prosecutor had not disclosed to the defense, or availed to judges, important potentially exculpatory evidence. Trial judges also ordered Mr. Lubanga’s unconditional release, but the decision was not effected following a prosecution appeal. Once the prosecution made the disclosures, trial judges lifted the stay of proceedings on November 18, 2008. This paved the way for the opening of the trial on January 29, 2009.
However, defense lawyers up to this day are not satisfied with the level of disclosures by the prosecution. Earlier this month, lead defense counsel, Catherine Mabille, said there were many outstanding disclosures that the prosecution had to make. “We are not satisfied with the disclosure by the OTP [related to] the elements for the request on abuse of process,” stated Ms. Mabille. “If possible we would like to include this issue in our request with regard to abuse of process,” she said. The defense will next month file an application asking judges to dismiss the case because of the alleged coaching of prosecution witnesses by intermediaries of the Office of the Prosecutor (OTP). It has requested the OTP to disclose various documents and communications related to the intermediaries alleged to have played a role in corrupting evidence.