A brief note on disclosure obligations

On 27 May 2013, the Appeals Chamber of the International Criminal Court issued a disclosure decision in the Lubanga appeal. Most of the decision is routine. The Prosecutor desired to redact information from documents to be disclosed to the defense, and the defense of course requested the entire document. The important part, and where the Chamber makes an important statement about the nature of disclosure comes at the end of very end. The Chamber held,

In respect of the Prosecutor’s argument that [contact] information is “irrelevant to known issues in the case”, the Appeals Chamber points out that, once it is established that a document is material to the preparation of the defence, pursuant to rule 77 of the Rules of Procedure and Evidence, the disclosure obligation extends to the entire document and not only to the “relevant” portions of information contained within such a document. The Appeals Chamber considers that the Prosecutor has not demonstrated that the disclosure of this information to Mr Lubanga has a sufficient and objectively justifiable risk of prejudicing her ongoing and further investigations. The reasons mentioned by the Prosecutor may convince the Appeals Chamber to find
that such information should not be accessible to the public, but at issue is whether any ongoing and further investigations of the Prosecutor could be prejudiced by Mr Lubanga having access to such contact information. Accordingly, the Appeals Chamber rejects the request for redactions.

The Chamber rightly concluded that the basic rule is, and should be, that entire documents are disclosed and not just the parts that the proseuction deems relevant.


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