"Decision on Motion by Prosecution to modify Order for Compliance with Rule 68"

1 November 1999
Trial Chamber II (Pre-Trial Judge, Judge Hunt)

The Issue

Problems have arisen in a number of trials relating to compliance by the Prosecution with its obligation to disclose exculpatory evidence in accordance with Rule 681, notwithstanding assurances given by counsel that such evidence has been disclosed. These problems appear to have arisen mainly because there is no one person upon whom the responsibility rests and who can genuinely give an assurance of compliance with personal knowledge after taking the steps necessary to ensure its accuracy.

The Decision

For this reason, an additional onus was placed upon the Prosecution in this trial by requiring a signed report from such a person in the Prosecution team. The Prosecution must assign the appropriate person to do so, and that person must identify his or her knowledge of the material which allows the giving of those assurances.

The Reasoning

The orders were made in the following terms:

1. The Prosecution is to comply, on or before 15 November 1999, with its obligation pursuant to Rule 68 of the Rule and Procedure and Evidence to disclose to the defence the existence of evidence known to it:

(a) which in any way tends to suggest the innocence of, or to mitigate the guilt of the accused, or
(b) which may affect the credibility of the prosecution evidence.

The expression "evidence" is intended to include any material which may put the accused on notice that material exists which may assist him in his defence, and it is not limited to material which is itself admissible in evidence.

2. On or before that date, the prosecution is to file a signed report by a member of its team for this case in which he or she certifies2:

(a) that a full search has been conducted throughout the materials in the possession of the prosecution or otherwise within its knowledge for the existence of such evidence; and
(b) that he or she is aware of the continuing nature of the obligation pursuant to Rule 68.
(c) The member of the team who signs the report is to identify in the report his or her knowledge of that material which enables him or her to so certify.

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1. See The Prosecutor v. Blaskic, Decision on the Production of Discovery Material, 27 January 1997; The Prosecutor v. Delalic et al., Decision on the Request of the Accused pursuant to Rule 68 for exculpatory Information, 24 June 1997; The Prosecutor v. Furundzija, Decision, 16 July 1998 (paras. 18-19).
2.Pre-Trial Judge Hunt modified the Order to take account of the fact that Dutch law contains no provision for swearing affidavits for use in legal proceedings. He therefore deleted any mention of national law from his order but maintained the additional onus placed on the Prosecution necessary to ensure compliance with the rule.