The Hague, 27 October 2008 (FH) - The sanction handed down to the prosecutor of the International Criminal Tribunal for having violated the rights of Augustin Ndindiliyimana, former chief of staff of the Rwandan gendarmerie during the genocide, is an important moment in the history of international courts.

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This sanction was handed down on 22 September in the "Military II" case. The prosecutor was sanctioned for his "negligence" in the execution of his obligation to communicate evidence of the case. The judges, moreover, authorized the defence to recall witnesses.

Already on 13 June, the International Criminal Court (ICC), for the same reasons, cancelled the proceedings against Thomas Lubanga and the Appeal Chamber has certified the decision.

The judges were clear by reminding the prosecutors that the statutes of international criminal law obligate them to communicate to the defence information which they hold including those which could affect the guilt of the defendant.

The international judges considered that the defendant had suffered a prejudice in the preparation of his defence, explained to the Hirondelle Agency Mr. Lurquin, a lawyer for Ndindiliyimana who is one of the accused in the "Military II" case.

Indeed, the presentation of evidence is off-limits for his client. However, the prosecutor has held secret since 2002 certain defence elements which could have an exculpatory value. "The accused in this case was deprived of the opportunity of using the exculpatory material to test the credibility of the prosecution witnesses", deplored the judges.

The standpoint of the international judges is "courageous", considers to Lurquin. It is "about a new conception of the role of the prosecutor". The lawyer has worked at the ICTR since 1999, he says that it was usual, since each party does its investigation on its own side, that the prosecutor does not communicate information to the defence. It was up to defence to collect it.

However, and it is what the judges reminded in their decisions, this manner of proceeding is not in accordance with the law. In international criminal law, the prosecutor investigates for the prosecution and the defence.

Thus, article 68 A) of the ICTR Rules of Procedure and Evidence (RPE) states that the prosecutor is continuously obligated as soon as possible to communicate "to the defence all the elements of which it knows certainly that they are likely to clear in all or partly the defendant or to attack the credibility of his prosecution evidence" and this, until the end of the appeal proceedings.

It is only under strict conditions, enumerated by article 68 D) of the RPE, that the prosecutor can ask to be exonerated of this obligation and, thus, to obtain that this information remain confidential.

The First Instance Chamber, then, enumerated various possible remedies which are to its discretion to try to restore fairness in the trial. All do not have the same consequences.

To determine the adequate measure, the Chamber explains why it "must take into account the nature and significance of the prosecution's violations in light of the current stage of the proceedings, the rights of the accused, the need to preserve the integrity of the proceedings, and its obligation to discover the truth about the events that happened in Rwanda in 1994".

The judges believe that the abandonment of the prosecution requested by certain defence teams is a severe remedy which should only be retained in exceptional circumstances. When the damage undergone by the defendant is "unfixable", explained Lurquin.

The International Criminal Court decided in June that the prejudice suffered by Lubanga was unfixable. In this case, the prosecutor had obtained exculpatory information, within the framework of particular agreements, permitted by article 54 3) of the ICC statute, which ensures the confidentiality of their contents and their sources. However, the prosecution still refuses to communicate these elements by basing themselves on these agreements and refuses to show them to the judges so that they can appreciate in which measure they would affect the rights of the defendant.

In "Military II", the First Instance Chamber considered that authorizing the defence to recall certain prosecution witnesses or additional defence witnesses who have a connection to the statements that the prosecutor should have communicated to him could constitute a remedy for the wrong that was suffered. Twenty-eight witnesses will be recalled or heard for the first time. Lurquin is not certain that it is enough. For him, the wrong has been done.

The prosecutor reprimanded for his "lack of diligence" was called to order, he "must always exercise the highest standards of integrity and care in discharging".

The non-disclosure of held information also affects the work of the judges. Lurquin points out that "it is difficult to consider the immediate history because we do not have all the elements but that it becomes increased if they are hidden".

"We wonder about factual evidence which is now beaten back". "All documents bring us closer to the truth", he concluded.


© Hirondelle News Agency