More on the decision on disclosure in the Lubanga case

As promised, here is the “quick and dirty” version of the Pre-Trial Chamber I decision on disclosure and the history leading up to it.

First, a little bit of background on the disclosure process as such – a process which is probably very alien to most people with a background in “inquisitorial” criminal procedure. In those systems, the Defence has access – at least in principle and at some point of the proceedings – to the complete case file prepared by the Prosecution and/or the investigating Judge.
In the adversarial system, on the other hand, each party first and foremost collects evidence for its own use, but both parties are under an obligation to disclose certain parts of the evidence in their possession to the other party. (One such system is laid down in Rule 16 of the US Federal Rules of Criminal Procedure, which also forms the basis for parts of the ICC disclosure rules)
In most jurisdictions, this obligation will weigh a lot more heavily on the Prosecution, for two reasons: First, there is an imbalance in that the Prosecution has a lot more resources for amassing evidence, thus fair trial considerations and the principle of equality of arms require balancing measures. Second, broad disclosure obligations on the defence might run afoul of the privilege against self-incrimination.

While the ICC is not a fully adversarial system – to give only one example, the OTP is obliged to investigate not only incriminating, but also exculpatory evidence (Art. 54 (1) (a) of the Statute) –, it does follow the adversarial system with regard to evidence, containing disclosure obligations rather than a right of Akteneinsicht.

While there are a number of provisions dealing with disclosure in the ICC legal texts (Art. 61 (3) and 67 (2) of the Statute, Rules 76 – 84 and 121 of the Rules of Procedure and Evidence), these are not very precise regarding the scope of disclosure obligations and the procedure to be followed. Therefore, after the initial appearance of Thomas Lubanga Dyilo, Judge Steiner set up an interim system of disclosure and invited the parties’ comments on several aspects of the disclosure system – and comment they did, both in writing and at a hearing on disclosure matters on 24 April (The transcript of which apparently is not yet up on the Court’s website). The decision of Tuesday marks the end of this process.

I won’t go into the nitty-gritty details, such as the precise timetable and the deadlines for the several types of evidence to be disclosed, but instead focus on a couple of the most salient points:

• First of all, the decision states that disclosure is a process that has to happen first and foremost between the parties (Prosecution and Defence), without any other actors being involved in the process. (The interim system had provided for disclosure between the Parties through the Registry, something which both parties had vehemently protested). To ensure transparency and a permanent record of this procedure, parties are required to file “disclosure notes” or “inspection reports” (depending on the type of evidence) in the record of the case (On this aspect, see paras. 16–27 and 61–76 of (the reasoning for) the decision).

• After disclosure between the parties, evidence “disclosed … for the purposes of the confirmation hearing” is to be communicated to the Pre-Trial Chamber (Rule 121 2 (c) RPE). In this regard, the decision makes clear that this only applies to material which the parties intend to use at the hearing – not, e.g., to material the Prosecution has disclosed to the Defence as potentially exculpatory under Art. 67 (2) of the Statute, but which the Defence does not plan to rely on (yet) (see paras. 50–58 of the decision). This is significant in that it sends certain signals about the scope of the confirmation hearing – this will not be a "mini-trial", but will be limited to scrutinizing the evidence presented and deciding whether there is a reasonable basis to proceed with a trial (this is specifically stated in paras. 55–56).

• At the same time, Judge Steiner also rejects the Prosecution argument that “the bulk of disclosure” is supposed to occur between the confirmation hearing and the beginning of the actual trial, and instead obliges the OTP to disclose most, if not all, of the disclosable material to the Defence before the confirmation hearing (see paras. 119–131, especially para. 124, of the decision). In fact, drawing an e contrario argument from Art. 61 (9) of the Statute (which allows the OTP to amend the charges after the hearing), she states that, in general, the OTP will not be allowed to continue the investigation in the case after the hearing (paras. 130–131).

More on other developments in the DR Congo situation and the Thomas Lubanga case (such as questions of the participation of victims in the proceedings) soon.