ICC: Gombo: Most Pre-Interview Assessment Notes Are Not Subject to Disclosure

2010-04-09, The Hague, The Netherlands. The TC denied the defence motion for disclosure of the OTP’s materials created in the context of the pre-interview assessments of all witnesses (regardless of whether the OTP calls them to testify), and barring the OTP from calling such witnesses until the disclosure is provided. The defence argued that these materials are prima facie relevant because they disclose reasons for the witness’ cooperation with the OTP, conditions under which the statements were obtained, prior inconsistent statements and potentially exculpatory evidence. The OTP argued that such information is captured in other, disclosed, interviews.

The Chamber held that

• pre-assessment interviews (that are compiled prior to taking a statement from a witness) are not “statements” for the purpose of Rule 76(1), because they are not signed, and therefore not approved by the witness, and
• the OTP does not have an obligation to disclose exculpatory evidence contained in the notes if such statements are disclosed in the witness statement.

However, the Chamber

• rejected a rigid approach that would label all such documents as internal preparatory documents under Rule 81(1), holding that in some cases disclosure will be required;
• held that because witnesses do not have reasonable expectation of privacy, these records are not privileged under Rule 73(2).

Decision