Gender Report Card on the International Criminal ... - YWCA Canada

OTP Situations and Cases
Pre-trial disclosure and language issues
Mbarushimana was surrendered into the Court’s
custody by the French authorities on 25 January
2011, 604 and made his initial appearance before Pre-
Trial Chamber I 605 on 28 January. During the initial
appearance, the Pre-Trial Chamber set a date of 4 July
2011 for the confirmation of charges hearing. 606 In
the course of pre-trial litigation over disclosure issues,
the Defence claimed that certain devices seized from
Mbarushimana’s residence by the French authorities,
as well as certain intercepted communications,
contained material that was potentially privileged
under Rule 73 of the Rules of Procedure and
Evidence. 607 Pre-Trial Chamber I issued a number
of decisions on the matter, ordering the Registry
to conduct a review of the potentially privileged
information and suspending the Prosecution’s access
to the documents and devices in question until the
issue of whether they contained privileged material
had been resolved. 608
However, a number of technical and procedural
issues gave rise to delays in reviewing the potentially
privileged material, which had a resultant effect
on the Prosecution’s ability to disclose all relevant
incriminating and exculpatory evidence in accordance
with the initial deadline set by the Pre-Trial Chamber.
604 ICC-01/04-01/10-43.
605 Pre-Trial Chamber I is composed of Presiding Judge Cuno
Tarfusser (Italy), Judge Sylvia Steiner (Brazil) and Judge
Sanji Mmasenono Monageng (Botswana).
606 ICC-01/04-01/10-T-1-ENG, p 10, lines 4-9.
607 Rule 73(3) states: ‘[T]he Court shall give particular regard
to recognising as privileged those communications
made in the context of the professional relationship
between a person and his or her medical doctor,
psychiatrist, psychologist or counsellor, in particular
those related to or involving victims, or between a
person and a member of a religious clergy; and in the
latter case, the Court shall recognise as privileged
those communications made in the context of a sacred
confession where it is an integral part of the practice
of that religion.’ Rule 73(2) clarifies that, in order to be
treated as privileged, communications made in the
context of these categories of professional relationship
should take place ‘in the course of a confidential
relationship producing a reasonable expectation of
privacy and non-disclosure’ and under circumstances
where ‘[c]onfidentiality is essential to the nature
and type of relationship between the person and the
confidant’.
608 ICC-01/04-01/10-67; ICC-01/04-01/10-80; ICC-01/04-
01/10-88; ICC-01/04-01/10-105; ICC-01/04-01/10-126;
ICC-01/04-01/10-129; ICC-01/04-01/10-143; ICC-01/04-
01/10-150; ICC-01/04-01/10-158; ICC-01/04-01/10-184
and ICC-01/04-01/10-185.
Consequently, the Chamber issued a decision on 31
May 2011 granting the Prosecution’s request for a
postponement of the confirmation of charges hearing,
which had been initially scheduled for 4 July. 609 The
Chamber noted that the review of the potentially
privileged material was delayed by various technical
problems, including problems with software and the
processing of specific faulty and encrypted devices,
and was therefore outside of the Prosecution’s control.
The Chamber also noted that some of the material
may contain potentially exculpatory information,
which could be material to the preparation of the
Defence. 610 The Chamber was thus required to balance
the adversely affected ability of the Prosecutor to
comply with the evidentiary requirements of Article
54(1)(a) and Article 61(5) against Mbarushimana’s
right to be tried without undue delay, and concluded
that the confirmation hearing should be postponed,
but only for a short period of time, to enable the
review of the remaining material by the Prosecution. 611
The Chamber therefore postponed the confirmation
hearing until 17 August 2011. 612
The confirmation of charges hearing was postponed
a second time, only one day before it was scheduled
to begin, due to issues of disclosure and language
proficiency. On 12 May 2011, the Single Judge had
issued a decision on the language proficiency of
the accused, finding that Mbarushimana did not
understand English well enough for the Prosecutor to
satisfy his disclosure obligations without a French or
Kinyarwanda translation of the relevant documents. 613
On 1 June, the Prosecution disclosed thirteen witness
interviews to the Defence, some of which were
only disclosed in English, although the Prosecution
indicated that the Kinyarwanda translations would be
provided ‘in due course’. When the translations had not
been provided by 28 June, the Defence contacted the
Prosecution by email, and the Prosecution’s response
made clear that it did not intend to disclose any
additional translations or corresponding audio files
for the interviews in question before the confirmation
hearing. 614 On 8 August, the Defence filed a request for
the exclusion from the confirmation hearing of certain
incriminating evidence drawn from witness interviews
for which either only transcripts or only audio files,
not both, had been made available in the relevant
languages to the Defence. A total of 2,856 pages of
witness interviews had been provided in the form of
English and Kinyarwanda transcripts, but without
609 ICC-01/04-01/10-207.
610 ICC-01/04-01/10-207, p 8.
611 ICC-01/04-01/10-207, p 9.
612 ICC-01/04-01/10-207, p 10.
613 ICC-01/04-01/10-145.
614 ICC-01/04-01/10-378, para 9.
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