Background
1. That on 10th January 2012 the Defence filed an application praying that the Registrar serve on it a copy of the investigation report compiled by the Investigation Officer into crimes alleged to have been committed by the Accused-Petitioner.
2. In its application the Defence relied on Sections 9 (3) and 16 (2) of the International Crimes (Tribunals) Act 1973 (hereinafter ‘ICTA 1973’), in conjunction with rules 11, 15, 18, 29, 35, 36, 27 and 38 of the Rules of Procedure (hereinafter ‘ROP’), to demonstrate that the Tribunal is under an obligation to do justice between the parties by ensuring that the Prosecution and Investigation Agency serve copies of all documents on which the Prosecution intends to rely.
3. In particular, rule 11 ROP, provides that: ‘after completion of the investigation, the investigation officer shall submit an investigation report together with all the documents, papers and the evidence collected during the investigation of offence(s) as specified in the Act committed by persons before the Chief Prosecutor’.
4. It was further submitted that the investigation report is a pivotal document on which the Prosecution will base its case against the Petitioner.
5. On 22nd January 2012 the Hon’ble Tribunal passed Order No.5 (hereinafter ‘22nd January Order’) refusing to direct the Registrar to serve a copy of the investigation report on the Defence.
6. In its reasoning the Tribunal relied primarily on the argument that supply of the report would disclose to the Defence particulars of witnesses which in turn would place the security of those witnesses in jeopardy.
7. On this basis the Defence was complied to formulate its cross-examination questions against Prosecution witnesses without examining the investigation report.
Requirement of investigation report for cross-examination of Investigation Officer
8. On 08.10.2012 the Tribunal recorded the deposition of the Investigation Officer. The purpose of the Defence cross-examining the Investigation Officer is to rigorously question him on the process by which he produced the investigation report that formed the basis of the charges against the Petitioner.
9. Further, the integrity of this process must be beyond doubt if the Tribunal is to make a proper and reliable finding in respect of the Petitioner. The Tribunal is therefore required to ascertain in the interest of a fair trial, the integrity of this process, as does the Petitioner.
10. As such the Investigation Officer is a crucial witness not just for the Prosecution but also for the Defence, and since the Defence does not have a corresponding Investigation Officer of its own, therefore the Tribunal is required to rely on the integrity of the Investigation Officer.
11. It is also self-evident that without a copy of the investigation report the Petitioner cannot know in any detail the process of the investigation and as such it will not be possible to conduct cross-examination of the Investigation Officer to the standard necessary for the Tribunal to be sure of the integrity of that process.
12. The fact the investigation reports themselves are only submitted to the Chief Prosecutor, leaves the Defence as the only party at trial not privy to those reports or the process that produced them. As such prevent the Accused from being satisfied that no abuse of process has taken place.
13. In the ongoing International Criminal Court (hereinafter ‘ICC’) case of The Prosecution v. Saif Al-Islam Gaddafi and Abdullah Al-Senussi (ICC-01/11-01/11, filing 147), the Pre-Trial Chamber recently rejected the Office of Public Counsel for the Defence’s response to an admissibility challenge where the latter sought to rely on ex-parte evidence, in other words evidence offered by one side only. It is submitted that the situation is similar in the instant case where, without access to all investigative material, the Petitioner is unable to properly submit his own evidence via the process of cross-examination.
14. That equitable disclosure in respect of the investigation report is essential in order that the Defence can identify exculpatory material and expose limitations to the Prosecution case that can be demonstrated in cross-examination of the Investigation Officer and relied on in final submissions. This is especially relevant in the instant example where it is an integral part of the Defence case that Prosecution witnesses have been coerced by the Investigation Officer in a deeply flawed investigation process.
15. The importance of equitable disclosure is reflected in the Rome Statute of the ICC, which sets out the prosecution’s disclosure obligations at Article 67(2). Article 67(2) stipulates that: “The Prosecutor shall, as soon as practicable, disclose to the defence evidence in the Prosecution’s possession or control which he or she believes shows or tends to show the innocence of the accused, or to mitigate the guilt of the accused, or which may affect the credibility of prosecution evidence.”.
16. Rule 77 of the Rome Stature further expands on the prosecution’s duty requiring disclosure of items: i) material to the preparation of the defence case; ii) intended for use by the prosecutor as evidence, or iii) obtained from or belonging to the accused.
17. The ICC’s Rules of Procedure and Evidence also set out when disclosure is not required. Rule 81 states that: “[i]nternal documents prepared by a party, its assistants or representatives in connection with the preparation or investigation of the case are not subject to disclosure.” These are generally known as ‘work product.’
18. In the case of The Prosecutor v. Thomas Lubanga Dyilo (ICC-01/04-01/06), the Chief Prosecutor, Mr. Ocampo, also stressed restrictions on disclosure when, for example, it is a party’s work product or where disclosure could harm a witness or his or her family, and moreover that when some but not all information in a document is subject to disclosure, the prosecution should redact the non-disclosable portion.
19. In relation to specific examples of work product, the ICC Chamber in The Prosecutor v. Thomas Lubanga Dyilo cited: i) all preliminary examination reports; ii) information related to the preparation of a case, such as internal memoranda, legal research, case hypotheses, and investigation or trial strategies; iii) information related to the prosecution’s objectives and techniques of investigation; iv) analyses and conclusions derived from evidence collected by the OTP; v) investigator’s interview notes that are reflected in the witness statements or audio-video recording of the statement; vi) investigator’s subjective opinions or conclusions that are recorded in the investigator’s interview notes; and vii) internal correspondence.”
20. Crucially, the result of the work product – in other words the investigation report itself – is not subject to the limits on disclosure and should constitute a considered document to be served on the defence.
21. As mentioned above, the primary reason of the Tribunal for denying the Defence access to the investigation report in the 22nd January Order was protection of witnesses’ personal details. However, during the course of the trial the majority of these details have now been disclosed and as such witness protection can no longer remain a reason to continue to deny the Defence access to the investigation report.
22. It is further submitted that should any outstanding concerns regarding witness security remain, these could be earlier addressed by deleting the offending details from the report as outlined by the ICC rules in advance of its supply to the Defence; furthermore the Defence states it’s willing to accept the report in this form together with any other measures necessary for protection.
23. In the 22nd January Order the Tribunal sought to rely on the argument that the Defence could not suffer prejudice by not having access to the investigation report because the document is, in any event, inadmissible. However, the Defence does not intend to seek to admit the investigation report into evidence. Rather it simply seeks disclosure of the document for the purpose of guiding its approach in cross-examination of the Investigation Officer.
24. Further, in the 22nd January Order the Tribunal also sought to rely on the argument that the Tribunal’s power and jurisdiction could not be equated with that of the parties’ and therefore that the Tribunal was under no obligation to elevate the Defence to its own level in terms of a right of access to what was inherently a Prosecution document.
25. That it is stated that although the power of the Tribunal is higher than both the Defence and Prosecution, but the same should be exercised in the interests of justice, which clearly entails ordering the Registrar to furnish a copy of the investigation report.
Equality of arms
26. Section 17 ICTA 1973 enshrines fundamental aspects of due process including the principle of equality of arms.
27. Article 67 (1) (e) of the Rome Statute provides that: ‘In the determination of any charge, the accused shall be entitled to the following minimum guarantees, in full equality: to examine, or have examined, the witnesses against him or her and to obtain the attendance and examination of witnesses on his or her behalf under the same conditions as witnesses against him or her.
28. It is submitted that this provision from the Rome Statute provides the most modern statement of the fundamental principle of equality of arms and must be read in its widest sense with the words ‘under the same conditions against him or her’ clearly meaning access to all information necessary for formulating a strategy in cross-examination.
29. In further support of the principle of equality of arms, Article 6 (3) (d) of the European Convention on Human Rights (hereinafter: ‘ECHR’), stipulates that: ‘Everyone charged with a criminal offence has the following minimum rights to examine or have examined witnesses against him and to obtain the attendance and examination of witnesses on his behalf under the same conditions as witnesses against him’ [emphasis added].
30. Article 14 (3) (e) of the International Covenant on Civil and Political Rights (hereinafter ‘ICCPR’), which provides the basis for the foregoing Article 67 (1) (e) of the Rome Statute, also guarantees an accused person the right to summon and examine witnesses under the same conditions vis-à-vis the prosecution: ‘In the determination of any criminal charge against him, everyone shall be entitled to the following minimum guarantees: to examine, or have examined, the witnesses against him and to obtain the attendance and examination of witnesses on his behalf under the same conditions as witnesses against him’ [emphasis added].
31. Bangladesh adopted the ICCPR on 6 September 2000 and ratified the Rome Statute on 23 March 2010, and as such it is now under an obligation to adhere to its undertakings with respect to the rights and principles that they enshrine.
32. In application of these principles, the Appeals Chamber of the International Criminal Tribunal for the former Yugoslavia (hereinafter ‘ICTY’) in the Karemera et al. case [Prosecutor v. Édouard Karemera et al., Case No.ICTR-98-44-AR 15bis 3, Decision on Appeal Pursuant to Rule 15 bis (D), 20 April 2007, para. 27.] has endorsed the following reasoning of the Appeals Chamber in the Orić case: ‘The Appeals Chamber has long recognised that “the principle of equality of arms between the prosecutor and accused in a criminal trial goes to the heart of the fair trial guarantee.” At a minimum, “equality of arms obliges a judicial body to ensure that neither party is put at a disadvantage when presenting its case,” certainly in terms of procedural equity’.
33. In view of the aforesaid principles and provisions set out in this application, the Petitioner respectfully requests that the Tribunal ensures that the Petitioner is afforded the right to view the investigation report in order that fairness and equality of arms are ensured in the interests of a just trial, and orders that a copy of the investigation report be served on the Defence forthwith in order to complete cross-examination of the Investigation Officer currently in the dock.
The tribunal passed the following order
This is an application under section 9(3), 16(2) of the International Crimes Tribunal Act filed by accused Abdul Kader Molla for an order directing the prosecution to submit a copy of investigation report for handing over the same to the defence. Mr. Abdur Razzaque, the learned senior counsel for the defence submits that the defence has received a copy of formal charge along with other documents which the prosecution intends to rely upon except the copy of investigation report. He further submits that if the copy of a investigation report is not supplied to the defence it shall be prejudiced in conducting the case and as such he prays for passing an order directing the prosecution to supply the same to the defense.
Mr. Mohammad Ali, the learned prosecutor submits that the defence in the earlier occasion filed an application under section 9(3) of the Act praying for a copy of the investigation report but such application was rejected on merit after hearing both the sides and as such this application is not maintainable in law as the matter has already been decided by the Tribunal. we have heard the submissions of the leamed lawyers of both the sides. It appears from the record that the defence counsel in the earlier occasion filed an application under section 9(3) of the Act praying for supplying a copy of the investigation report to the defence and after hearing the matter on both sides that application was rejected on merit by the order No. 5 dated 22.01.2012. we have gone through the order dated22.01.2012 in which it is found that this Tribunal by showing sufficient reasons rejected the application for supplying a copy of investigation report to the accused. This present application filed by the defence is simply a repetition of the earlier application which was rejected on merit.
This application is neither a review nor an application for a new remedy. In view of the facts and circumstances, we are inclined to hold that this application is not maintainable in law as the same matter has already been decided by this tribunal by the order No' 5 dated 22.01.2012
The defence has filed another application for adjoumment of cross- examination of P.W. 12 for a period of 1(one) week. Since the fresh copy of the statement of witnesses has already been supplied to the defence and the prayer for supplying copy of investigation report has been rejected, this application has become in fructuous and accordingly it is rejected. The defence has filed another application for supply a fresh copy of the statement of witnesses having signature and date of the investigation officer. It may be mentioned that a fresh copy of the statement of witnesses has already been supplied to them as such the application has become in fructuous and accordingly it is rejected.
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