"Public Version of the Confidential Decision on the Interpretation and Application of Rule 70"1
23 October 2002
· On 25 July 2002 Trial Chamber III issued its Decision on the Prosecution’s Motion to Grant Specific Protection pursuant to Rule 70 of the Rules of Procedure and Evidence (hereinafter the "Impugned Decision").2
· On 8 August 2002 the […] Government filed a request for review by the Appeals Chamber of the Impugned Decision pursuant to Rule 108 bis of the Rules (hereinafter "Request for review").
· On 4 September 2002 the Prosecution filed an interlocutory appeal against the Impugned Decision under Rule 73 of the Rules (hereinafter "Interlocutory Appeal").
· On 6 September 2002 the Appeals Chamber issued an Order joining the Interlocutory Appeal and the Request for Review, and suspending execution of the Impugned Decision.
The Appeals Chamber granted the Request for Review and the Interlocutory Appeal. It ordered that the evidence be heard in accordance with Rule 70 (B)-(G) and that two representatives of the […] Government may be present in the courtroom during the testimony of the Witness.align
The admissibility of the Request for Review
Rule 108 bis (A) of the Rules3 provides that a State directly affected by an interlocutory decision of a Trial Chamber may, within fifteen days from the date of the decision, file a request for review of the decision by the Appeals Chamber if that decision concerns issues of general importance relating to the powers of the Tribunal.
In the present case the […] Government put forward two issues of general importance. The first dealt with the fundamental procedural fairness. The […] Government alleged that it had been deprived of the opportunity to be heard before the Trial Chamber and to be given notice of the Impugned Decision. The second dealt with the very foundation for cooperation with the Tribunal relied on by governments and other information-providers, which is the "predictable protections to States and others providing potentially sensitive information" provided by Rule 70.4 The […] Government submitted that the Trial Chamber’s retroactive stripping of Rule 70 protections from information already provided has destroyed this foundation by removing the very predictability on which information providers rely.
According to the Appeals Chamber "Rule 70 is indeed the basis of cooperation with the Prosecution for governments and other bodies who possess confidential and sensitive information that assist its investigations".5 The Appeals Chamber has considered that the Impugned Decision related to the extent to which the Chambers of the Tribunal may intervene in this relationship and, as such, concerned an issue of general importance relating to the powers of the Tribunal like the question of procedural fairness.
The Impugned Decision
The Trial Chamber held that Rule 70 did not apply to the evidence of the Witness, but recognised the right of States to protect their national security interests and ordered protective measures designed to match those sought by the Prosecutor on behalf of the […] Government.
The […] Government alleged that it should have been heard by the Trial Chamber prior to the Impugned Decision, that the Trial Chamber had erred in deciding that Rule 70 did not apply to the Witness without proper inquiry, and that the Trial Chamber had applied an erroneous legal test in determining whether Rule 70 applied.
The Prosecution submitted that the Trial Chamber had erred in concluding that it had the authority to review whether the evidence of the Witness fell within Rule 70 and based itself on its own test that Rule 70 did not apply.
Interpretation of Rule 70
The aim and the essence of Rule 70
According to the Appeals Chamber, Rule 70 "creates an incentive for such cooperation by permitting the sharing of information on a confidential basis and by guaranteeing information providers that the confidentiality of the information they offer and of the information’s source will be protected."6 It recalled the jurisprudence of the Tribunal according to which "the exceptions to disclosure in Sub-rules 70(B) to (E) were introduced into the Rules to permit the use, as and when appropriate, of certain information which, in the absence of explicit provisions, would either not have been provided to the Prosecutor or have been unusable on account of its confidential nature or its origin"7 and according to which without such guarantees of confidentiality, it would be "almost impossible to envisage this Tribunal, of which the Prosecution is an integral organ, being able to fulfil its functions".8
The nature of the information
On the question of whether the information to which paragraphs (C) and (D) refer (1) has been provided to the Prosecutor on a confidential basis or (2) has been provided to the Prosecutor on a confidential basis and has been used solely for the purpose of generating new evidence, the Appeals Chamber has clearly stated that the "it becomes a matter of necessary textual interpretation, […] that the information referred to in paragraphs (C) and (D) must be that which was provided to the Prosecutor on a confidential basis […], and not that which was so provided and which has been used solely for the purpose of generating new evidence […]".9 Thus it considered that the Trial Chamber had erred in adopting the first option.
The purpose of providing information
The Appeals Chamber considered that the Trial Chamber had "impermissibly" interpreted Rule 70(B) by introducing a requirement that the sole purpose of providing the information was to generate new evidence, "whereas paragraph (B) speaks only of the material having been used solely for that purpose".10 According to the Appeals Chamber there is "[n]o doubt [that] the purpose of providing information on a confidential basis will in many cases include a purpose (sole or otherwise) that new evidence will thereby be generated, but the limitations imposed by Rule 70(B) are not based upon the existence of such state of mind on the part of the provider."11
Definition of the term "information" and criterion of applicability of Rule 70
The Trial Chamber ruled that three characteristics prevented the testimony at issue from being Rule 70 information provided under: (1) it was testimony, that is provision of a witness, rather than information; (2) the witness was one the Prosecution could have found in any case; (3) the testimony corroborated other evidence the Prosecution already had.
The Appeals Chamber considered that none of these characteristics as relevant to determining whether the information felt within Rule 70.
As of for the word "information", the Appeals Chamber found that the Trial Chamber had adopted an overly narrow interpretation. In its view "[w]hen a person possessing important knowledge is made available to the Prosecutor on a confidential basis, not only the informant’s identity and the general subject of his knowledge constitute the ‘information’ shielded by Rule 70, but also the substance of the information shared by the person".12
As for the Trial Chamber’s second and thirds grounds for excluding the testimony, the Appeals Chamber declared that these constituted "hypothetical factual conclusions".13 In its view, "[a]ll that Rule 70 requires is that the information was provided to the Prosecutor on a confidential basis." It clearly stated that, for the purpose of paragraph (B), the information must also be "used solely for the purpose of generating new evidence," but for paragraphs (C) and (D) that requirement "necessarily drops out".14
The application of Rule 70 to the present case
Objective test to examine whether the information was in fact provided on a confidential basis
The Appeals Chamber acknowledged that the Chambers of the Tribunal do indeed have the authority to assess whether information has been provided under Rule 70(B) and has set an "objective test". The test is that "such enquiry must be of a very limited nature: it only extends to an examination of whether the information was in fact provided on a confidential basis, bearing in mind that the providing of information may not be confined to a single act, but may consist of a process involving several acts".15
In the present case, it considered that the Trial Chamber had correctly ruled when it found that it had the power to determine whether the evidence of the Witness fell within the terms of Rule 70 but had erred in the test it applied.
Procedure to follow in case of a doubt upon the confidential nature of the information
Where there is any doubt about the material placed before a Trial Chamber when the protection of Rule 70 are sought, the Trial Chamber "should invite the party which provided the information and the Prosecutor to supply evidence upon these issues before ruling upon the application of Rule 70 to the information in question [and] should give the information provider an opportunity to be heard on the question by filing written submissions, but need not allow additional oral submissions by the information provider unless the Trial Chamber determines that the interests of justice so require".16
In the present case, the Appeals Chamber was satisfied that Rule 70 applied to the information to be given in evidence by the Witness and allowed the appeal.
Presence in the courtroom of two representatives of the provider whilst evidence is given
The Appeals Chamber declared that Rule 70 does not provide for such an order but nevertheless stated that it is within the discretion of any Trial Chamber to make such an order. It thus confirmed the related Order of the Trial Chamber.