ICC: Lubanga: OTP Shall Disclose Information Re Defence Witnesses

2010-11-12, The Hague, The Netherlands. In its Decision on the Scope of the Prosecution’s Disclosure Obligations as regards Defence Witnesses, the Trial Chamber held

• that the prosecution’s disclosure obligations under Rule 11 are wide, and they encompass, inter alia, any item that is relevant to the preparation of the defence, and include not only material that may undermine the prosecution case or support a line of argument of the defence but also anything substantive that is relevant, in a more general sense, to the preparation of defence; (para. 16)
• that the prosecution is to communicate to the defence any material in its possession that may significantly assist the accused in understanding the incriminating and exculpatory evidence and the issues in the case. (para. 16)
• the information, that is relevant and concerns defence witnesses who are to be called, is to be disclosed to the defence for preparation, not least because it will enable the accused to decide whether or not to call them; (para. 18)
• the information that undermines or supports the evidence or the credibility of proposed defence witnesses falls within the scope of Rule 11; (para. 18)
• the prosecution is not obliged to disclose its theories or its tactics, but instead it must provide all relevant information and material as regards the defence witnesses; (para. 18)
• the prosecution’s disclosure obligations continue throughout the trial, and if the answers from witnesses reveal additional material that is relevant and disclosable, this is to be effected expeditiously. (para. 20)

Decision