ICC—System of Disclosure

The single‑judge Pre‑Trial Chamber at the International Criminal Court (ICC) has issued a procedural ruling in the case against Thomas Lubanga Dyilo (Situation in the Democratic Republic of Congo (DRC)) that has implications for ICC pre‑trial procedural rules generally.^[1]

The Decision sets out guidelines for the system for disclosure of evidence between the parties for the purpose of the preparing for a pre‑trial confirmation hearing. The system will be put into effect for the first time in Mr. Lubanga’s case. The confirmation hearing has been rescheduled to accomodate the new disclosure protocol from June 27 to Thursday, September 28, 2006.^[2]

System of Disclosure

1. The Office of the Prosecutor (OTP) must disclose evidence relating to the particular case, but not to the entire situation under investigation, to the defense including (1) evidence that the Prosecutor will rely on in the confirmation hearing; (2) evidence that is potentially exculpatory; and (3) evidence that is material to the preparation of an adequate defense.^[3]
2. The parties will disclose evidence directly to each other, without the mediation of the Registry.
3. Each side must disclose the names and statements of all witnesses on which it intends to rely, whether or not it intends to call the witness to testify at the confirmation hearing. However, statements may be redacted and each side may request exceptions.
4. Each side must provide a comprehensive “Charging Document and List of Evidence” that will become part of the electronic file of the case, managed by the Registry.
5. Witness statements and documentary evidence must be translated into a language that the defendant understands.
6. The Registry will provide a computer, software, and training so that the defendant may access the record of the case from within the ICC detention center.

This system works in parallel for items that are subject to disclosure and items that are subject to inspection. Disclosure requires that each side provides the other with copies of materials directly while inspection carries an obligation to provide access to the items, and to provide copies upon request during the inspection.^[4] In this first case before the ICC, both sides have agreed to carry out disclosure electronically.

The Office of the Prosecutor (OTP) has submitted a motion to limit this decision to an expression of general principles rather than to give it effect as a direct order with immediate legal effect. To that end, the OTP has requested reconsideration of the decision or, alternatively, permission to appeal the decision, citing potentially “serious consequences for the fairness and efficiency of these proceedings.”^[5]

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[1] Decision on the Final System of Disclosure and the Establishment of a Timetable, ICC‑01/04‑01/06, May 15, 2006 [hereinafter Decision].
[2] Decision on the Postponement of the Confirmation Hearing and the Adjustment of the Timetable Set in the Decision on the Final System of Disclosure, ICC‑01/04‑01/06, May 24, 2006.
[3] Decision at pg. 5.
[4] Decision at pg. 4.
[5] Motion for Reconsideration and, in the Alternative, Leave to Appeal, ICC‑01/04‑01/06, May 24, 2006.