Institute of Law Studies, Polish Academy of Sciences, Warsaw, Poland
The realisation of the suspect’s right to be informed imposes on the prosecutor an obligation to provide information in a manner and to the extent that guarantee observance of this right. Depending on the legal system, the prosecutor’s obligation to inform the defence is performed using one of the following two procedures. In continental systems, the prosecutor may, and sometimes must, provide access to the case file. In common law states, an obligation to provide information on the evidence to the suspect and the accused is performed as part of the “disclosure of evidence”. Before the ICC, the obligations of the Prosecutor to inform the accused about the evidence was solved utilising the model adopted in Anglo-Saxon states. The disclosure of evidence procedure was found to be strictly related to the assumption adopted by the ICC—that a trial was a dispute between two versions of a case prepared by the parties. In consequence, disclosure of evidence procedure constitutes a complicated procedure of gradual and multifaceted activities, including the application of the bilateral obligation to disclose and the specification of categories of evidence subject to disclosure, and complicated technical rules that are to be followed. However, is the disclosure of evidence procedure in the format existing in common law states compatible with the ICC’s needs?
5.1 Model of Realisation of the Prosecutor’s Obligations
5.1.1 Disclosure of Evidence as a Prerequisite of a Fair Trial
It is an element of the accused’s right to information not only to get to know the contents of charges brought against him but also to familiarise himself with the evidence that the prosecution intends to use to support an indictment. In all legal systems, there is no doubt that knowledge of the evidence that is going to be used to prove guilt is one of the basic guarantees of a fair and adversarial trial. The European Court of Human Rights (ECtHR) considers it as a fundamental aspect of the right to a fair trial: “The right to an adversarial trial means, in a criminal case, that both prosecution and defence must be given the opportunity to have knowledge of and comment on the observations filed and the evidence adduced by the other party”. In consequence, Article 6 § 1 (of the ECHR) requires that the prosecution authorities disclose to the defence all material evidence in their possession for or against the accused.1 Also, the international criminal tribunals established that “the disclosure of exculpatory material is fundamental to the fairness of proceedings before the Tribunal”.2
The issue of disclosure of evidence by the prosecutor to the accused (a suspect) is related to the broader matter of the overt nature of an investigation. Whereas the principle of transparency (“publicness”) applies to judicial proceedings, the principle of confidentiality prevails at the investigation stage. The Polish Constitutional Tribunal emphasised that “the elements of openness in these proceedings, both internal and external, are very limited (for example, presentation of charges). It seems obvious that the possibility of achieving the objectives of the investigation is determined, inter alia, by keeping some information and evidence confidential. Therefore, the principle of open access to files in judicial proceedings gives way to ‘discretionary’ disclosure in the investigation. The legal situation and – most of all – the current facts of a case determine each time whether the suspect (or their defence attorney) may access files”.3 An investigation, however, may not be completely confidential either, by excluding any access to case files by the parties. The principle of confidentiality should be balanced with the accused’s right of defence and with the principle of adversary trial. In each legal system, it is necessary to develop a reasonable compromise.4 The interests of law enforcement should be reconciled with the rights of the suspect, including the right to defend his trial interests.
The realisation of the suspect’s right to be informed imposes on the prosecutor an obligation to provide information in a manner and to the extent that guarantee observance of this right. Depending on the legal system, the prosecutor’s obligation to inform the defence is performed using one of the following two procedures. In continental systems, the prosecutor may, and sometimes must, provide access to the case file (a dossier in the nomenclature of common law states). The case file is used to “ensure completeness and authenticity of documentation”5 of the investigation conducted by the prosecutor and the police, and all the “traces of official activity must be preserved for future audits”. Thus, the accused does not receive any information from the prosecutor, but from a case file.6 In common law states, an obligation to provide information on the evidence to the suspect and the accused is performed as part of the “disclosure of evidence” procedure (“discovery” in the United States). This is an institution established in order to secure forced co-operation between litigants. These two institutions—despite the visible and diametric differences—fulfil the same procedural function, guaranteeing the realisation of the defendant’s right to information.7
5.1.2 Access to a Case File in Continental Law Systems
In continental systems, the prosecutor fulfils his obligation to inform the defence through two institutions of investigation. The first of these is access to case files of an investigation, which includes both the right to request access of case files of a pending investigation and the institution of a final inspection of materials of the case. The second institution is the obligation to provide to the suspect specific documents drawn up in investigation: the decision on the presentation of charges and the indictment.
The first element of access to a case file is inspection of files during investigation. Article 156 § 5 CCP states that “unless provided otherwise by law, permission by the person conducting the investigation shall be required for the inspection of files of the investigation in progress, making copies and photocopies of the same by parties, defence counsels, legal representatives and statutory agents, and for the issuance of certified copies”. This right of the defence is activated at the issuance of the decision on the presentation of charges and lasts till the end of investigation.8
The above is not, however, an absolute right. It can be exercised only if the authority carrying the investigation gives consent. In this system, then, an investigation’s files are not disclosed automatically. Each time, the evaluation of suitability and feasibility of disclosure remain the responsibility of the authority managing the proceedings. The legislator, however, did not specify the criteria to be followed by the authority carrying out the proceedings when deciding to provide access to files to parties. The CCP does not even provide a general basis for refusal in the form of an “interest of the investigation”.9 As a result, the right of access to case files and the scope of this right are fully dependent on the discretion of the authority, and there is a risk that decisions are taken entirely arbitrarily. It has also been recognised in the legal science that the authority conducting investigation may express his consent to access the case files only in relation to some of the materials included in the case file or some fragments of files.10 Naturally, “the trial authority should balance, with utmost care, on the one hand, the suspect’s interests and rights protected by conventional standards, and on the other, the interest of effective prosecution in an investigation”; this does not, however, affect the fact that this decision is left to the authority’s discretion.11 Although it has been widely accepted that the authority should indicate specific reasons for its refusal, this standard is rarely met in practice. The legal science proposes what kind of circumstances could be invoked in a decision justifying the refusal: e.g., the risk of premature disclosure of evidence, the distortion of evidence, the loss thereof, intimidation of witnesses or co-suspects, destruction of physical evidence, production of false evidence, as well as a reprehensible attitude towards the obligations of the accused, for example hiding or fleeing to another country.12 In most cases, the practice shows that the authorities limit themselves to the reference to the contents of the legal provision underlying such a decision.
The access to case files always depends on the existence of a consent by the person conducting the investigation “unless provided otherwise by law”. The law provides that two types of documents should always be disclosed. The party may not be refused permission to inspect documents as stipulated in Article 157 § 3 CCP, that is, a record of investigative steps in which it participated or had the right to participate, as well as a document obtained from such party or prepared with the participation of the same. Also, the suspect (later accused) and his defence counsel should be served with the decision on the admission of evidence based on an opinion issued by experts or a scientific institute and permitted to participate in the examination of such experts and to acquaint themselves with their opinions, if they have been prepared in writing (Article 318 CCP).
The institution of access to case files in the course of an investigation will be significantly remodelled effective as of 1st of June 2015 when the Act of 27 September 2013 amending the CCP13 comes into effect. Pursuant to the new wording of Article 156 § 5 of the CCP, “(…) unless there is a need to safeguard the proper course of the proceedings or to protect a significant interest of the state, in the course of investigation the parties, defence counsels, legal representatives and statutory agents are provided access to files and allowed to make copies or photocopies and are issued certified copies or photocopies for a fee; the parties retain this right also upon completion of preparatory proceedings”. This means that the parties will have access to files of an investigation that will not be conditional on an arbitrary decision of the prosecutor but made on the basis of statutory grounds (although drafted also as a general clause). Denial of access to the case files will be limited to statutory grounds: the significant interest of the state or the safeguarding of the proper course of the proceedings. It is important to compare these two provisions to see how the legislator amended the current shortcomings of the CCP by accepting and meeting the criticism of the legal doctrine.
The second important element of access to a case file is institution of final inspection of the case materials. Namely, if there are grounds to conclude the investigation, the authority conducting the investigation notifies the suspect and the defence counsel of the date of final inspection of the materials of the case, advising them of their right to examine files (Article 321 § 1 CCP). The suspect and his defence counsel can access the materials only upon request. This right does not depend on the consent of the authority carrying out the investigation. The suspect does not have to meet any additional conditions or demonstrate any basis for exercising his right—submission of the request automatically activates it. The scope of this right also covers the right of access to the materials that are not included in the files, that is, to the physical evidence kept in a deposit.14
Also in German criminal trial, a defence counsel has the right to inspect files that will be submitted to the court if charges are preferred even if investigations have not yet been designated as concluded on the file, as well as to inspect officially impounded pieces of evidence. It is, however, limited by two conditions: the counsel will be refused inspection of the files or of individual evidence if this may endanger the purpose of the investigation (also conducted in another case) and if overriding interests of third persons meriting protection do present an obstacle thereto (§ 147(6) and (7) StPO). The scope of inspection and the possibility to inspect files are decided by the prosecutor conducting investigation. Paragraph 147(3) states: “At no stage of the proceedings may defence counsel be refused inspection of records concerning the examination of the accused or concerning such judicial acts of investigation to which defence counsel was or should have been admitted, nor may he be refused inspection of expert opinions”. Access to files also includes the right to make copies and take notes. Similarly as in the Polish law, the suspect may submit such a request a number of times, and any previous denial of access does not prevent the case files from being made available when the reasons underlying the denial cease to exist.15 Also, as in the Polish procedure, the case files are always made available to the defence prior to filing of an indictment and upon completion of an investigation. The defence counsel—but only him—always has the right to inspect the files of a case, in which investigation has been concluded. He also enjoys the right to take the files (with the exception of physical evidence), to his office or to his private premises for inspection, unless significant grounds present an obstacle thereto. We can see how the Polish new version of Article 156 § 5 CCP draws from the experience of the German StPO.
The second institution constituting realisation of obligation to inform the defendant about the evidence existing in his case is the obligation to disclose the contents of certain procedural decisions at specified stages of preparatory proceedings.
The first stage of realisation of this obligation takes place during the presentation of charges. A decision on the presentation of charges shall specify the identity of the suspect, detailed data on the act imputed to him and the legal characterisation thereof. The statement of reasons for such an order as demanded by Article 313 § 4 CCP should, in particular, indicate what facts and evidence were adopted as the grounds for the charges. The legal practice demonstrates, however, that the right to information is limited due to the prevailing practices of law enforcement services. The statement of reasons is usually very concise, “frequently omitting facts or evidence or indicating them only partially. Often, this statement only recounts the aspects of the alleged act, providing some limited elaboration, indicating the facts noted in a crime notification, and including a conclusion that the collected evidence provides a reasonable basis to suspect that the person named in the decision has committed the crime he is accused of, and therefore that the presentation of charges was necessary”.16 This tendency arises from the unwillingness to disclose information on evidence to the suspect. Most frequently the prosecutor assumes that the disclosure of all material facts and evidence could disrupt the course of proceedings already at their initial phase, opening the door to illicit destruction and obliteration of traces and evidence, as well as their distortion. As a result of such a practice, at this stage of the proceedings the suspect is rarely notified about the evidence to support the charges brought against him, despite the explicit statutory obligation.
The second stage of realisation of obligation to inform the defendant about evidence in his case is constituted by filing an indictment to the accused. In the indictment, the prosecutor indicates all the facts and evidence upon which the accusation is founded, and in an attachment he should include a list of the persons whom the prosecutor requests to be summoned and a list of such other evidence that the prosecutor will seek to obtain at the first instance hearing (Article 333 § 1 CCP, similarly § 200 StPO). Thus, an indictment is a comprehensive compendium for the accused and for the court on the evidence held by the prosecutor, on which the accusation will be based during the trial (this is the so-called informative function of an indictment, in German: Informationsfunktion). Only at this stage of criminal proceedings—upon completion of an investigation—is all evidence currently held by the prosecutor to support the charges brought against the accused disclosed in an obligatory and automatic manner, irrespective of the accused’s request. An indictment should also include the information on the to-date line of defence adopted by the accused, which proves that this document is also informative for the court. The accused himself does not have the obligation of presenting any information or evidence pertaining to his line of defence, whether to the prosecutor or to the court.17 At this stage, the prosecutor’s obligation to inform ends, which is a characteristic of continental law systems. During the judicial proceedings, he does not have to disclose evidence prior to using it if he comes into possession of such evidence only at this stage of the proceedings (it may be percieved as a consequence of the fact – discussed in the previous chapters – that in general all the evidence presented by the prosecution at trial are gathered during the stage of investigation).
Again, the scope of the information as provided in the indictment changes beginning from the 1st of July 2015. First, there will be no obligation to present reasoned opinion of the indictment. Second, amendment is in favour of the accused: the prosecutor should not only present the list of all the evidence he requests to introduce during trial (grouped in three categories: witnesses, documents and physical evidence), but he is also obliged to explain what circumstances he is going to prove with a specific piece of evidence and indicate the method and scope of presentation of the evidence. Therefore, the prosecutor will be obliged to draft the evidentiary thesis relative to each piece of evidence, which should prompt him to analyse carefully the collected evidence. As we can see, also on this occasion the amendments require from the prosecutor more diligence in fulfilling his duties. The aforementioned solution will allow the other parties to prepare properly for interrogation of the individual witnesses. On the one hand, we can suppose that it will also force the parties to prepare properly, as the court may oversee whether the scope of the evidentiary motion is complied with, including by rejecting certain questions. On the other hand, it seems that in the new system of criminal procedure there are no obstacles to the evidentiary arguments set forth in an indictment being expanded in the course of the proceedings, upon request of the parties.
The last change is connected to the fact that together with the indictment, the prosecutor submits only some of the materials from the investigation to the court, rather than the complete investigation files, as has been the case so far. These are only the evidentiary materials that will be used by the prosecution in support of the charges formulated in the indictment.
On the basis of a theoretical analysis of the presented continental systems, we can draw a general conclusion on the access to case files. It may be concluded that there are various rules for disclosing evidence, depending on the stage of investigation. First, access to evidence contained in a case file during an ongoing investigation is possible only upon consent of the authority conducting the investigation; it is fully discretionary, and it is not always based on clear and objective criteria. It is advised to introduce criteria that are assessed by this authority, such as, most frequently, the “interest of the proceedings” or “interests of the state”. Second, the access to materials of an investigation may not be denied upon its completion. In particular, the interest of the proceedings, which most frequently is the basis for denial of access to the case files of pending investigation, may not at this stage be referred to as a rational criterion. The full access to case files is, therefore, possible only upon completion of an investigation, during the stage of final inspection of the materials of the investigation. However, complete information on the evidence and the line of accusation is contained only in the indictment, which is the document from which the accused learns what evidence will be brought forth by the prosecutor in the trial to support his line of accusation. Finally, there are two groups of evidence that are always subject to disclosure, regardless of the opinion of the authority carrying out the proceedings: the opinions of experts and reports concerning procedures in which the party was or had the right to be involved (e.g., procedures performed at a party’s request, unique investigative opportunities), as well as documents produced by him or prepared with his involvement.
It is characteristic of the continental law systems that if the accused wants to obtain information on evidence that may be favourable for him, he will not find such evidence in the indictment but must apply for access to case files, which should contain such evidence in line with the assumption that the prosecutor is obligated to collect it. Thus, he does not access the case file of the prosecution but an integrated case file, which organises the investigation into “a meaningful whole”.18 Another characteristic feature of this model is the fact that the obligation to disclose evidence is unilateral. Because all documents of a criminal case, both incriminating and exculpatory, are collected in a case file, known to the prosecutor and the court from the very beginning of the proceedings, it is assumed that the only party that should obtain the information on the content of this dossier is the accused and his defence counsel. Therefore, there is no balance between the obligations of the parties—as it was never the assumption in these legal systems.19
5.1.3 Disclosure of Evidence in Common Law Systems
The procedural institution referred to as the disclosure of evidence consists of establishing an obligation of a specific conduct of the parties upon completion or at the final stage of an investigation but prior to the initiation of the trial. It is defined as “the process by which each party to a case learns of the evidence that the opposition will present”.20 As the two parties prepare two sets of evidence separately, this institution enables communication between them and sharing (but only to the extent required by law) of information. The disclosure of evidence procedure plays a dual role. First, it constitutes an exercise of the accused’s right to defence and to information. Second, it makes it possible to prepare the trial. It organises the work of the court, so that it is aware of what evidence will be presented by the parties, to support or to defend against specific charges. Third, it tempers some of the more unsatisfactory aspects of adversarialism.21 It makes the course of the proceedings more efficient and also allows the parties to plan the presentation of evidence more effectively. The other party’s familiarity with evidence enables the development of a certain strategy, which results in the trial becoming a carefully staged event. Disclosure of evidence in support of the indictment may even lead to the accused pleading guilty in the face of an obvious advantage of the prosecution.
In the Anglo-Saxon systems, the prosecutor’s obligation resulting from the disclosure of evidence has two aspects. First, it consists in disclosing evidence to support an indictment pursuant to a general principle that presentation of evidence in trial that has not been previously disclosed to the opposite party is not possible. Second, the evidence that may be favourable for the accused is disclosed (exculpatory evidence).
The evidence disclosure process is usually much more complicated than the institution of access to case files in continental systems and constitutes a separate stage of the criminal procedure or, rather, two additional stages. The first stage of disclosing evidence is done prior to a confirmation of charges hearing, or a so-called preliminary hearing. The scope of disclosure of evidence is determined by the prosecutor’s intention to rely upon it during this hearing. All the evidence that the prosecutor intends to present must be disclosed beforehand. The second stage is the disclosure of evidence prior to the trial, to the extent in which the prosecutor intends to use evidence at the trial to support an indictment. There are major differences between specific systems of the common law tradition as far as the scope of the disclosed evidence is concerned. This obligation may apply to all evidence of the prosecution, but it may also mean that the prosecutor presents to the defence only such evidence as is material for a given case. It may also refer to the disclosure of only the evidence in a specific category or only the information on (a list of) evidence intended to be relied upon.
The first basic difference between the common law and the continental tradition is the fact that each of the parties to the trial prepares separate sets of evidence that contain different versions of the case (two cases approach). The essence of a strictly adversarial trial is to convince the judge that one of these versions is true by way of a dispute between the parties to the trial. These versions are often entirely different, and using the lack of knowledge of the evidence of the opposite party seems to be a popular practice employed in trials. Such tactics, in turn, lead to the unpredictability of the course of the trial and the impossibility of planning its course. In continental systems, however, there is one case file and only the version prepared by the state law enforcement authorities and the public prosecutor is presented to the court.
Second, as it follows from the previous paragraph, in Anglo-Saxon systems there are no official case files controlled by a state authority that would contain all the evidence known to the prosecution and in its possession. The obligation of disclosure of evidence is inherently related to the position of the prosecutor. It is characteristic of states in which the prosecutor is an authority appointed solely to accuse. He looks only for incriminating evidence but does not have any obligation to perform an active search for evidence in the accused’s favour. In the continental systems, on the other hand, the public prosecutor, in his official capacity, collects both incriminating and exculpatory evidence. As a result, all evidence and information on the evidence, both exculpatory and incriminating, is located in one place, accessible to both parties and to the court, namely in the dossier of the case. When the prosecutor submits the case to the court, the dossier is completed by the court, as the latter has the competence to call new evidence at trial and there is no preclusion for the parties to request including new evidence.
Third, in common law systems criminal proceedings are based on the basic principle that says that during the trial the parties may not rely on facts and evidence that have not been disclosed before. Therefore, as it is not possible to surprise the opposite party with new evidence, the strategy of presenting evidence and challenging evidence of the opposite party is of major importance. Disclosure obligation ends where strategy begins,22 and the latter does not have to be shared with the opposite party.
The fourth basic difference in exercising the accused’s right to information on evidence of the prosecution is the fact that in Anglo-Saxon systems of criminal proceedings it is not the “evidentiary mass” or “the bulk of evidence” (i.e., all that is contained in case files in the continental systems) that is subject to disclosure but rather individual categories of evidence, carefully specified in procedural laws. The court makes sure that the parties conscientiously meet the obligation to disclose evidence in the specific categories. In continental law jurisdictions, the defence simply has access to the whole of the prosecution’s dossier.
Finally, the last difference is the right of inspection by the prosecution in Anglo-Saxon systems. Disclosure of evidence is of a reciprocal character. It is considered that provision of access to the outcome of the prosecutor’s entire work only to the accused would result in inequality between the parties, unacceptable in this legal tradition.23 Usually, disclosure of specific information by one party entails that the other party also has to disclose its evidence. For instance, the disclosure of the intention to use an alibi by the defence requires that the prosecutor disclose evidence that will be used to challenge this defence. On the other hand, in continental systems there is no doubt that only the prosecutor is obliged to enable inspection of the investigation files and there is no respective obligation on the part of the defence. The prosecution itself is also obliged to investigate exculpatory evidence, and—as he even enjoys greater practical and legal investigatory capacities—there is no need for the defence to disclose its evidence, as the prosecutor had both possibility and obligation to search for it.24
Moreover, the bilateral nature of disclosure of evidence also means that the evidence is transferred directly to the other party. The judge does not receive in advance any information pertaining to the evidence a party intends to present during the trial and therefore does not have any knowledge on the case. The court is only an authority managing and controlling the evidence disclosure procedure and also becomes an appeal authority if one of the parties raises objections as to the correctness of disclosure of evidence by the other party.
There are also certain similarities between both legal traditions. Common for them is the necessity to impose limitations on the access to evidence collected by the prosecution. These limitations are related to three basic areas: the need to protect witnesses, the need to protect classified information and the need to ensure effectiveness of prosecution by making specific evidence restricted for a defined period of time due to the interests of the investigation.
Both legal systems described above assume the confidentiality of an investigation, allowing, however, for certain exceptions to this rule. Two theoretical systems regulating access to investigation materials may be defined; the first one theoretically assumes “a general publicness of an investigation with specific secrecy concessions wherever same are necessary for the interest of the proceedings”; the second one assumes the confidentiality of an investigation with exceptions for disclosing specific materials to the defence.25 In consequence, the mechanisms for applying exemptions to the confidentiality rule are different. There is no doubt that the continental model provides for much simpler means of access to information than the model of disclosure of evidence. The Anglo-Saxon model provides sets of highly complex technical rules determined by the case law and leading to a lack of clarity as to the extent of the obligation to disclose evidence, while the continental system simply offers access to all evidence. In common law states, there are major objections to the institution of disclosure. References are made to its misuse, as well as to its misapplication that leads to abuses of the trial. The basic objection applies to the lack of definition for specific categories of evidence—there is no certainty what evidence falls within the scope of the specific statutory categories. It has also been argued that the whole system is unnecessarily complicated.26 Especially in England, it has been highlighted that the rules, only some of which were created by statute, while others were devised at common law, are not contained in one place. Therefore, while some of them have the force of law, some do not and are expressed in various guidelines.27 Failure to comply with these rules by any of the parties may lead to further disputes and prolonging of a trial. In fact, a precise determination of evidence that should be disclosed pursuant to each of the rules is not possible in advance and depends on the circumstances of a specific case. Often, not all evidence may be found by the prosecutor at the investigation stage, which obliges him to an ongoing evaluation of the scope of evidence to be disclosed to the defence—also during trial. Moreover, there is one more disadvantage of this system that may be observed in the proceedings before international criminal courts that will be discussed later: the system of disclosure of evidence is not applied in a uniform manner. Attorneys from different jurisdictions seem to have different attitudes to the rules of disclosure and apparently brought this attitude with them to the international criminal court.28
It should be acknowledged that continental systems are much more favourable for the suspect and the accused in this respect. The prosecutor’s scope of obligations is significantly broader in continental states, which makes it possible to disclose the entire case files, regardless of the fact of whether the evidence belongs to a specific category. The timing of disclosure makes preparation of the defence much easier. Moreover, files are disclosed at length, which gives an insight into the way the investigation has developed. The system for handling case files is a straightforward one that does not require any complicated rules to govern the accused’s (suspect’s) access to the information on the charges brought against him and the evidence to support it.29 In Anglo-Saxon states, access to such materials is highly formalised and divided into specific stages. Although at first glance it may seem that in the Anglo-Saxon system the suspect’s situation is better, as the disclosure of evidence is not discretionary, the proper procedure of disclosing evidence takes place only upon completion of drafting an indictment—at which point it is the entire contents of case files that can be accessed by the accused in the continental procedure. In continental systems, case files can already be inspected during an investigation. It needs to be kept in mind at the same time that even in continental systems, this right depends solely on the consent of the authority handling the investigation, which does not always depend on transparent regulatory premises (although this major disadvantage of the system is soon going to be repaired in Poland). It should be also borne in mind that the suspect enjoys the right to submit requests to conduct certain investigative steps in investigation (Article 315 § 1 CCP). Thanks to this right, he has an impact on the contents of case files that arrive at the court.
5.2 Disclosure of Evidence by the Prosecutor
There was no doubt that it was necessary to introduce guarantees for the suspect’s right to information in the proceedings before international criminal tribunals. This was done utilising the model adopted in Anglo-Saxon states. The disclosure of evidence procedure was found to be strictly related to the assumption adopted by all tribunals—both ad hoc tribunals and the ICC—that a trial was a dispute between two versions of a case prepared by the parties. In the proceedings before all international criminal tribunals, regulation of this obligation resembles the Anglo-Saxon solution, including the application of the bilateral obligation to disclose evidence, the specification of categories of evidence subject to disclosure and complicated technical rules of the disclosure procedure.
In proceedings before the International Military Tribunals, an obligation of disclosure of evidence was introduced in a rudimentary form. Article 16(a) of the Nuremberg Charter provided only for serving the defendants with a copy of the indictment and of all the documents lodged with the indictment, translated into a language that they understand, at a reasonable time before the trial. The Rules of Procedure supplemented this provision by stating that these documents should be received not less than 30 days before trial and that the defendants should also receive copies of the Charter and the Rules of Procedure “as may be adopted by the Tribunal from time to time”. There was also an obligation to inform the Tribunal (but only the Tribunal) of “the nature of any evidence” before it is entered so that it may rule upon the relevance thereof (Article 20 of the Charter). This regulation, however, was intended solely to enable judges to assess whether evidence was acceptable as per the rules of acceptability of evidence adopted by this Tribunal. In practice, the defence complained about inadequate disclosure by the prosecution: receiving disorganised documents in English at a late date and only after repeated requests. The prosecution repeatedly used documents at trial that it had not listed in the list of evidence presented in the court and thus had not disclosed. This was done when the most drastic evidence was presented in order to achieve a better effect during cross-examination. When a defence counsel requested 25 copies of one of the documents for all the accused, the prosecution refused explaining that “the presses were already functioning to maximum capacity” and it was not possible to grant the request despite the fact that at the same time the prosecution delivered 250 copies of the same document to the press.30
The procedure of disclosure of evidence in the proceedings before the ICTY was adopted by incorporating the rules governing the discovery procedure in the United States. Not only does the procedure before the ad hoc tribunals rely upon procedural laws, sometimes adopting their contents literally, but also in their practice the tribunals refer directly to the decisions of American courts. Numerous authors have expressed an opinion that the adoption of such a form of disclosure of evidence first before the ICTY and ICTR and later before the ICC “is a clear expression of the adversarial model”,31 or at least that it “leans more towards an adversarial approach”.32 For continental lawyers, it was often the first time they were not given access to case files: “when a defence counsel from the former Yugoslavia made a request for a ‘full’ disclosure in one of the cases, he was directed by the Chamber to relevant United States and United Kingdom case-law”.33
Similarly as in the case of other procedural institutions, before the ICC the institution of disclosure of evidence has been regulated in a different way than before the ad hoc tribunals. Drawing on the experience of the ad hoc tribunals, the ICC adopted a solution that, according to its creators, was best tailored to the specific role played by the International Criminal Court and its Prosecutor. At present, there are two basic differences between the ad hoc tribunals and the ICC when it comes to the disclosure of evidence. The first one is the specific “constitutionalisation” of the disclosure institution that was effected through the ICC Statute. In the Rome Statute, the right to be informed of the evidence on which the Prosecutor intends to rely is one of the fundamental rights of the accused (and earlier of the suspect), constituting a guarantee of a fair trial (Article 61(3), Article 67(2)). Such institution is never mentioned in the Statutes of the ICTY and ICTR. The “statutory” rights of the accused include only the right to be informed promptly and in detail in a language that he understands of the nature and cause of the charge against him and the right to have adequate time and facilities for the preparation of his defence (Article 21(4)(a) and (b)). Thus, the issue of disclosing evidence was considered not only to constitute a separate right of the accused but also to be one of the rules of proceeding. The second significant difference is the fact that the ICC linked the procedure of disclosure of evidence with the new role of the Prosecutor as the authority seeking the material truth and obliged actively to collect evidence also in favour of the accused.
In the proceedings before all international criminal tribunals, there is a basic rule that the prosecutor discloses two groups of evidence to the accused. Firstly, it is the evidence he intends to use to support the charges brought against the accused, initially during the preliminary hearing and then during the trial (to the extent it has not been disclosed before). Secondly, he has an ongoing obligation of disclosing the entire evidence that may be favourable for the accused.
5.2.1 Disclosure of the Prosecution Evidence
Both in England and Wales and in the United States, the prosecution is always obliged to present the evidence to the accused by way of which it intends to prove his guilt in the trial. As there is an institution of a preliminary/preparatory hearing to confirm the charges, as early as at the stage of this hearing the prosecutor has to present the evidence showing that there is a reasonable basis to believe that the accused has committed a crime. In relation to the existence of such a separate adversarial hearing, two stages of disclosing evidence may be distinguished: the first one takes place prior to the preliminary hearing, and the second one is the actual disclosure that occurs after an indictment is brought before the court by the prosecutor and pertains solely to additional evidence not previously disclosed. At every stage of the disclosure of evidence, a general rule will be applied that the prosecutor may not use the evidence that has not been previously disclosed to the accused as the basis for prosecution.
In the English system, an obligation to disclose evidence (and its scope) depends on the procedure pursuant to which a given case is heard: basically, this applies to cases brought before the Crown Court (in the trial on indictment procedure). At the first stage of disclosure, the prosecution is required to serve on the defendant a committal bundle prior to the case being committed to the Crown Court. “The committal bundle” will comprise “used material”, that is, the substance of the evidence the prosecution intends to rely on at trial. Based on this evidence, the examining judges may conclude that the prosecution has a case to answer and the defendant should be committed to stand jury trial in the Crown Court. In the Magistrates’ Courts, the prosecution must disclose evidence to the defence only upon entering a not guilty plea.34 Once the obligation is activated, its scope is set not only by Criminal Procedure and Investigations Act 199635 but also in the Guidelines on Disclosure drawn up by the Attorney General: “the prosecutor should, in addition to complying with the obligations under the Act, provide to the defence all evidence upon which the Crown proposes to rely in a summary trial. Such provision should allow the accused and their legal advisers sufficient time properly to consider the evidence before it is called” (section 57).36 The second stage is disclosure of evidence within a certain period in the case of sending for trial.37 As a rule, in the Crown Court the prosecutor discloses prosecution material to the defendant or serves on the defendant a written statement that there is no such material to disclose.38 If some evidence is not disclosed, it is a customary practice of the court that the trial is postponed so that the prosecutor can disclose a given piece of evidence and the accused can prepare for the trial again, having the necessary knowledge. Separating the evidence to be used during the trial (or hearing) and the evidence in the prosecutor’s possession that will not be used in line with the assumed strategy is of key importance for the scope of prosecutorial obligation. It is a continuous obligation. If the prosecution intends to broaden the scope of evidence as a result of disclosure of the defence’s evidence, it is obliged to disclose supplementary evidence. For example, in the R v. Lattimore case, the police altered the scope of the expert’s opinion when the alibi of the accused had been disclosed.39 It did not notify the accused about it, as this information would provide an opportunity to prepare a new alibi. Such conduct was considered to be neglect of the obligation to disclose evidence and, in consequence, a violation of the right to a fair trial.
Also in the United States, the procedure of informing the accused about the evidence collected by the prosecution is a two-stage procedure. The information on incriminating evidence is received by the accused prior to the preliminary hearing, when the court confirms an indictment. At this stage, the prosecutor must disclose this evidence that he intends to present in the hearing and that is intended to convince the court that there is a reasonable basis to believe that the accused has committed the alleged offence. Depending on the state, the prosecutor may disclose evidence to support the entire line of prosecution, including the depositions of witnesses for the prosecution, or only to a limited extent, presenting only the selected material prior to this hearing.40 The second stage takes place before the trial when the prosecutor discloses the remaining evidence to the extent that has not been disclosed before—in each of the categories specified below.
The United States Federal Rules of Criminal Procedure establish a detailed list of categories of evidence that should be disclosed by a prosecutor—before the preliminary hearing and later during the trial (Rule 16).41 The first information subject to disclosure is Defendant’s Oral Statement made by the defendant, before or after arrest, in response to interrogation by a person the defendant knew was a government agent if the government intends to use the statement at trial. Second, it is any relevant Defendant’s Written or Recorded Statement that is within the government’s possession, custody or control, and the attorney for the government knows—or through due diligence could know—that the statement exists (e.g., the defendant’s recorded testimony before a grand jury relating to the charged offence). Third, the prosecutor must furnish the defendant with a copy of the defendant’s prior criminal record that is within the government’s possession, custody or control. Fourth, the government must permit the defendant to inspect and to copy or photograph books, papers, documents, data, photographs, tangible objects, buildings or places or copies or portions of any of these items, if the item is within the government’s possession, custody or control and
the item is material to preparing the defence;
the government intends to use the item in its case-in-chief at trial; or
the item was obtained from or belongs to the defendant.
Fifth, the government must permit a defendant to inspect and to copy or photograph the results or reports of any physical or mental examination and of any scientific test or experiment. Last, the government must give to the defendant a written summary of any testimony that the government intends to use during its case-in-chief at trial.
What is characteristic of this system is that the disclosure categories are not the same in every state. In most of them, however, legislation is adopted on the basis of federal law.42 In many of the states, this obligation does not concern the contents of witnesses’ testimonies but only their identity. In some other jurisdictions, the list of witnesses is disclosed to defence only when the court so requires.43
A second characteristic feature of this system is the fact that all the above-mentioned information is disclosed upon a defendant’s request. It should all be made available for inspection, copying or photographing. Demand made by the private party triggers certain disclosure obligations for the state official in order to establish a certain procedural form of balance.44 It is a double-edged weapon: a request to disclose a certain category of evidence leads to opening the possibility for the prosecutor to make a request to disclose the same category of evidence by the defence. On the other hand, as discovery is reciprocal, if a defendant requests disclosure of Documents and Objects and the government complies, then the defendant must permit the government, upon request, to inspect and to copy or photograph books, papers, documents, data, photographs, tangible objects, buildings or places or copies or portions of any of these items if
the item is within the defendant’s possession, custody or control; and
the defendant intends to use the item in the defendant’s case-in-chief at trial.
The same rule applies to Reports of Examinations and Tests, where the government is allowed to conduct the same activities in relation to the results or reports of any physical or mental examination and of any scientific test or experiment. In practice, though, not all the categories of evidence potentially subject to disclosure will be disclosed in every criminal process; however, the prosecution must be prepared to do it on request of the defence.
It is an obligation of the prosecutor in proceedings before international criminal tribunals to disclose evidence to support the charges formulated in an indictment. These tribunals adopted a broad understanding of the prosecutor’s obligation to disclose evidence. As a rule, he is required to disclose any and all evidence and information that he intends to use in the trial (or in the preliminary hearing) regardless of the request of the accused or regardless of whether this evidence is material for the prosecution or not.
In the proceedings before the ICTY, the evidence to be disclosed by the Prosecutor to support the prosecution has been divided into three categories:
The Prosecutor is under an obligation to disclose to the accused copies of the supporting material that accompanied the indictment when confirmation was sought within 30 days of the initial appearance of the accused (Rule 66(A)(i)). There was some controversy as to whether evidence should be disclosed solely to the parties of the proceedings or whether it should also be presented to the Trial Chamber. The case law of the ad hoc tribunals showed that it depended solely on the opinion of the Chamber, which could demand access to the disclosed material.45
The Rules of Procedure and Evidence require the Prosecutor to disclose to the accused—within the same time limit—prior statements obtained by the Prosecutor from the accused (Rule 66(A)(i)). Their disclosure does not depend on whether they were oral or written, and neither does it need to be demonstrated (as is the case in the United States) that they are of material importance for the case or that they were obtained in the course of interrogation by the authorities of the Court. They may be statements delivered in any type of judicial proceedings, provided they are in the possession of the prosecutor.46 This category of disclosure should be viewed in connection with the obligation of the prosecution to audio-record or video-record questioning of a suspect and to supply a copy of the recorded tape to the suspect (Rule 43).
The Prosecutor must disclose copies of the statements of all witnesses whom he intends to call to testify at trial and copies of all transcripts and written statements within the time limit prescribed by the Trial Chamber (Rule 66A (ii)). This obligation is expressed in much broader terms than in the United States, where the prosecutor (usually) does not need to disclose the contents of depositions of such witnesses. This obligation has been additionally expanded relative to the original system adopted from the United States, as it also covers disclosing the contents of the opinions presented by court experts if the Prosecutor intends to summon them to the trial.47 It is a continuous obligation: copies of the statements of additional prosecution witnesses shall be made available to the defence as soon as a decision is made to call those witnesses.
In proceedings before the ICC, the Prosecutor’s obligation to disclose evidence to support the charges is also realised in stages. Its model follows the example of the ICTY.48 The specific categories of evidence that is subject to disclosure are grouped in the following three sets:
The first group consists of obligations of the Prosecutor before the confirmation of the charges hearing. According to Article 61(3) of the Rome Statute, within a reasonable time before the hearing, the suspect shall be provided with a copy of the document containing the charges on which the Prosecutor intends to bring the person to trial and be informed of the evidence on which the Prosecutor intends to rely at the hearing—also in order to argue with the defence’s evidence. Rules of Procedure and Evidence specify that the Prosecutor is under an obligation to provide to the suspect (and the Pre-Trial Chamber), no later than 30 days before the date of the confirmation hearing, a detailed description of the charges together with a list of the evidence that he intends to present at the hearing (Rule 121(3)). This still does not constitute an obligation to disclose all incriminating evidence that is in the Prosecutor’s possession. It pertains solely to this evidence that he will present in order to prove that there is a reasonable basis to suspect that the accused has committed the alleged offence, which the Prosecutor is obliged to demonstrate during this hearing.49
The second group of disclosure obligations is activated before the trial: upon assignment of a case for trial in accordance with this Statute, the Trial Chamber assigned to deal with the case shall provide for disclosure of documents or information not previously disclosed, sufficiently in advance of the commencement of the trial to enable adequate preparation for trial (Article 64(3)(c));
The Rules of Procedure and Evidence complement both provisions, defining the scope of materials that are subject to disclosure. In this way, they establish two sets of rules pertaining to the evidence concerning:- the prosecution witnesses and- inspection of material in the possession or control of the Prosecutor.
When it comes to prosecution witnesses, the Prosecutor shall provide the defence with the names of witnesses whom the Prosecutor intends to call to testify and copies of any prior statements made by those witnesses. The statements of prosecution witnesses shall be made available in original and in a language that the accused fully understands and speaks. It should be done “sufficiently in advance to enable the adequate preparation of the defence” (Rule 76(1)). It is a continuous obligation. It extends also to additional prosecution witnesses, whom the prosecution decides to call subsequently, after the commencement of the trial. This decision needs to be communicated to the defence as soon as possible. The disclosure of evidence in respect of a witness is activated every time the Prosecutor makes a decision to summon this witness or even to present a part of his statement during the trial. Furthermore, it pertains to the stage of the confirmation of charges hearing: where the Prosecutor amended the charges, he should deliver a list of evidence he intends to bring in support of those charges at the hearing (Rule 121(4)).
Additionally, the suspect should be provided with a copy of his statements made during investigation before the Prosecutor—either a written copy or video- or audio-recorded one (Rule 112(1)(e))—but only materials being in possession or control of the Prosecutor and taken during the investigation.50
Regarding the inspection of material in possession or control of the Prosecutor, a distinction should be made between “providing the defence” (Rule 76) with evidence and the obligation to allow for “inspection” of evidence (Rule 77). Namely, the Prosecutor must permit the defence to inspect any books, documents, photographs and other tangible objects in his possession or control, which are intended for use by the Prosecutor as evidence for the purposes of the confirmation hearing or at trial, as the case may be, or were obtained from or belonged to the person. Inspection of a tangible document is not dependent on a prior request from the defence, although the use of the term “permit to inspect” might suggest, that the defence was interested in getting access to these documents—which interest is best expressed by the way of submitting a request. Additionally, the Pre-Trial Chamber may oblige the Prosecutor to “organise” a list of evidence, by matching each piece of evidence to the relevant fact and also by linking fragments of witnesses’ statements with the elements of the crimes they pertain to.51
Interestingly, some similarities may be seen between the system adopted by international criminal tribunals and the continental systems with respect to evidence that is subject to mandatory disclosure. In the latter systems, also obligatorily, regardless of the prosecutor’s consent, reports of procedures in which the party has participated or had the right to participate, documents coming from a party or that were prepared with its participation, as well as opinions of experts, research or a scientific institutions, need to be disclosed. In continental systems, however, this obligation is already activated during an investigation.
5.2.2 Disclosure of the Evidence Material to the Preparation of the Defence
It is the disclosure of evidence in favour of the accused by the prosecutor that is of major importance in common law systems. It is also the disclosure of exculpatory evidence that receives most attention in the Anglo-Saxon literature, and it is a key component of the disclosure of evidence procedure.
An element of this obligation includes recording certain categories of evidence set forth in the law and bringing favourable evidence to the prosecutor’s attention, which rests with the police. An obligation of recording and then disclosing the evidence that may be favourable for the defence by the prosecution is intended to balance the disadvantaged position of the accused relative to the state authorities. What is meant here is not an active search for evidence but rather the recording and retaining of evidence that came into his possession.52 If not for this obligation, the prosecutor would not be interested in recording such evidence, even if he came across it. The failure of the prosecution to preserve this evidence may lead to depriving the defendant of a fair trial. However, in order to demonstrate that the prosecutor violated this obligation, the defence needs to prove that the failure to retain specific evidence was intentional, namely that it arose from the ill will of the police (or the prosecutor). Failure to disclose evidence due to, for example, the prosecutor’s lack of knowledge about the fact that a piece of evidence may be used as exculpatory by the defence (when the favourable nature of the evidence was not obvious) will not constitute a violation of law.53
Another element of an obligation to disclose exculpatory evidence is the obligation to demonstrate the legitimacy of the origin of the evidence—the so-called chain of evidence. It means that the prosecutor is obliged to ensure that the evidence that is favourable for the accused is obtained and stored in a manner that would not be illicit and that would not infringe on its essence or make it unbelievable or inadmissible under the fruits of the poisonous tree doctrine.
In England and Wales, the prosecutor must disclose to the accused any prosecution material that “might reasonably be considered capable of undermining the case for the prosecution” against the accused or of assisting the case for the accused or give to the accused a written statement that there is no such material (so-called unused material—unlike the evidence that the prosecution intends to rely upon during the trial). Thus, an objective test for the notion “exculpatory material” has been adopted.54 Disclosure of exculpatory information is regulated by Criminal Procedure and Investigation Act 1996, as recently amended by the Criminal Justice Act 2003. It states that “prosecution material” is not only
evidentiary material, which is in the prosecutor’s possession, and came into his possession in connection with the case for the prosecution against the accused, but also
which he has inspected in connection with the case for the prosecution against the accused.55
Section 7(a) CPIA sets out the prosecution’s obligation to constantly review the question of whether there is additional prosecution material that should be disclosed to the accused (constituting the so-called continuous prosecutor’s obligation).
Very detailed guidelines according to which the English prosecutor must interpret these provisions have been drawn up by the Attorney General (recently, in 2005). In Guidelines on Disclosure, he gives examples of material that might reasonably be considered capable of undermining the prosecution case or of assisting the case for the accused, which is
any material casting doubt upon the accuracy of any prosecution evidence;
any material that may point to another person, whether charged or not (including a co-accused), having involvement in the commission of the offence;
any material that may cast doubt upon the reliability of a confession;
any material that might go to the credibility of a prosecution witness;
any material that might support a defence that is either raised by the defence or apparent from the prosecution papers;
any material that may have a bearing on the admissibility of any prosecution evidence.
It is underlined in the Guidelines that it should also be borne in mind that while items of material viewed in isolation may not be reasonably considered to be capable of undermining the prosecution case or assisting the accused, several items together can have that effect. Particular attention should be given to materials relating to the accused’s mental or physical health, intellectual capacity or to any ill treatment that the accused may have suffered when in the investigator’s custody.56 The Guidelines on Disclosure also provide an interesting example, how the disclosure regime should be seen and interpreted by the practitioners: “It is vital that everybody in the criminal justice system operates these procedures properly and fairly to ensure we protect the integrity of the criminal justice system, whilst at the same time ensuring that a just and fair disclosure process is not abused so that it becomes unwieldy, bureaucratic and effectively unworkable”. This is thus important in that the disclosure regime can only work “if there is trust and confidence in the system and everyone plays their role in it. If this is achieved, applications for a stay of proceedings on the grounds of non-disclosure will only be made exceedingly sparingly, and never on a speculative basis”. Moreover, the “investigators must provide detailed and proper schedules. Prosecutors must not abrogate their duties under the CPIA by making a wholesale disclosure in order to avoid carrying out the disclosure exercise themselves. Likewise, defence practitioners should avoid fishing expeditions and where disclosure is not provided using this as an excuse for an abuse of process application”.
A failure by the police to seize or retain evidence that may be of relevance to the accused’s defence can give rise to an application to have the proceedings stayed for an abuse of process—especially if such evidence was earlier secured by the police.57 In cases R (Ebrahim) v. Feltham Magistrates Court and Mouat v. Director of Public Prosecutions, the main objection of the defence related to the fact that the police failed to retain evidence that was of relevance to the defendant’s guilt. As they failed to retain it, it was impossible to fulfil the disclosure of evidence obligation. In the first case, it was alleged that the police failed to secure possibly relevant video footage of a defendant captured on store security cameras. In the second case, the police had wiped clear a videotape (in order to reuse it) of the defendant speeding—having first viewed the tape in the presence of the defendant.58
What is specific about the English system is the fact that the applicable disclosure obligations are influenced by the classification of offences. In summary trials, there is no prosecutor’s obligation until the accused enters a plea of guilty. Disclosure provisions come into play only when the accused pleads not guilty. Disclosure should be undertaken by the prosecutor within 28 days of this plea.
Also in the United States, the prosecutor is obliged to disclose the evidence that is exculpatory for the accused. This obligation has been restricted by the Supreme Court of the United States in Brady v. Maryland to disclosing evidence that is “material” either to an accused’s guilt or to punishment.59 The Court concluded that suppression by the prosecution of evidence favourable to an accused who has requested it violates due process where the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution. This notion is defined as raising “a reasonable probability that its disclosure would have produced a different result at trial”—specifically—a different verdict by the jury.60 In the next cases, the Supreme Court limited the scope of discovery; it concluded that “the Constitution does not demand such broad discovery; and the mere possibility that an item of undisclosed information (a criminal record) might have aided the defence, or might have affected the outcome of the trial, does not establish ‘materiality’ in the constitutional sense”.61 Moreover, in this case the fact that non-disclosure has not “harmed” the defence case was taken into consideration, especially that the defence did not request information about the victim’s prior criminal record at trial, only on appeal. However, while the prosecution is not necessarily required to disclose every bit of information that might prove “helpful” to the defence, it must be “assigned the consequent responsibility to gauge the likely net effect of all such evidence and make disclosure when the point of ‘reasonable probability’ is reached”.62
Similarly to the Anglo-Saxon systems, in proceedings before the ICTY the Prosecutor is under an obligation to disclose materials that are favourable to the accused. Also, there is no general obligation for him to disclose all evidence in his possession. According to Rule 68 RPE ICTY, the Prosecutor must disclose to the defence any material that in the actual knowledge of the Prosecutor
may suggest the innocence or mitigate the guilt of the accused, or
affect the credibility of Prosecution evidence.
Additionally, Rule 66(B) introduces an obligation to ensure the inspection of tangible evidence: the Prosecutor should, on request, permit the defence to inspect any books, documents, photographs and tangible objects in the Prosecutor’s custody or control, which are “material to the preparation of the defence”.
The condition that the physical evidence favourable for the defence was “material to the preparation of the defence” indicates that the prosecutor’s obligation should not be interpreted as an obligation to provide the defence with all information that could be useful to it.63 The criteria for establishing whether the evidence is actually “material to a case” have been set forth in Prosecutor v. Delalić. 64 In this case, the ICTY, citing the US Supreme Court’s jurisprudence, expressed its opinion that “the requested evidence must be ‘significantly helpful to an understanding of important incriminating or exculpatory evidence’”; it is material if there “is a strong indication that it will play an important role in uncovering admissible evidence, aiding witness preparation, corroborating testimony, or assisting impeachment or rebuttal”.65 On the other hand, it also invoked the English, wider understanding of the evidence material to the preparation of the defence, which might be also evidence that holds out a real (as opposed to fanciful) prospect of providing a lead on evidence that goes to exonerating evidence (as understood above).66
In 2001, the terminology used in Rule 68 RPE ICTY was changed, and exonerating “evidence” became exonerating “material”. In this way, it has been highlighted that the scope of the disclosure of evidence material does not depend on the fact whether it would be admissible as evidence in a trial. Thus, the Prosecutor should disclose not only evidence in a strict meaning, but since the Rules refer to “material”, the disclosure must not be restricted to material in a form that would be admissible as evidence but includes all information in any form.67 As a result, any and all information that could be favourable for the accused is disclosed; for instance, it can be a combined fact of concluding favourable arrangements between the prosecution and a witness, and all information collected by the prosecution suggesting that any of its proposed witnesses may have committed or may have taken part in the commission of any criminal offence. Such a piece of information may indeed go to the credibility of prosecution’s witness.68 The prosecution’s duty to disclose does not encompass material of a public nature—however, a distinction should be drawn between material of a public character in the public domain and material reasonably accessible to the defence. The ICTY emphasised that unless exculpatory material is reasonably accessible to the accused (with the exercise of due diligence), the prosecution has anyway a duty to disclose such material.69
This rule resembles the solution adopted in the United States. Moreover, the judges of the ICTY referred to the regulations of this country in the process of its interpretation.70 They concluded that because, first, Rule 66(B) does not provide any guidelines on the type of physical evidence that is to be disclosed to the accused and, second, its wording is identical to that of Rule 16(a) of Federal Rules of Evidence,71 the interpretation on the scope of application of this provision adopted by the US courts should serve as a guideline in the interpretation of the ICTY provisions. It is one of the numerous examples of the ICTY’s reliance on national interpretations of provisions that have been transplanted into international criminal proceedings. However, the scope of disclosure is broader than in the case of the United States’ system, as the obligation extends all the materials favourable for the defence and not only evidence that would have been admitted at trial. Moreover, the testimony of witnesses must be disclosed in extenso. 72
Before the ICTY, the Prosecutor is an accuser who does not have an obligation to seek actively evidence in favour of the accused. Therefore, using the United States as an example, the ICTY also highlighted the need for introducing the requirement that evidence that is potentially favourable for the accused “should be in possession of the Prosecutor”—so as to avoid interpreting this obligation as one of performing an active search for evidence in favour of the accused.73 This requirement has been stressed on several occasions. In Prosecutor v. Blagojević, the Trial Chamber stressed that the obligation to disclose exculpatory evidence is not intended to serve as a means through which the prosecution is forced to replace the defence in conducting investigations or gathering material that may assist the defence.74