home > SESSION 3 > 02

contribution 02 - VANDERMEERSCH Damien

français english


Investigation - Production of evidence


transtlated version

Thank you. I am Damien Vandermeersch. I was examining magistrate in the Rwandan cases so called Rwandan cases in Belgium. I worked together with investigators of the ICTR. We have a chiefly civil law system with an examining magistrate who is there and who supervises and organises the gathering of evidence. And in addition to that, we had a lot of requests for judicial assistance from the ICTY, ICTR, to collect evidence in Belgium in the context of passive judicial collaboration from us.

So on the issue that is the theme of today, maybe I should raise this difficulty that we faced, because we often had the impression I believe Silvana Arbia mentioned it yesterday the investigation phase and the trial phase. And that the link between the two phases is difficult to articulate.

One had the impression that the first phase was to collect material to see if there was enough evidence to go to trial. But what I would like to recall information. It is easy to collect any kind of information, what he said, all material that may be said in relation to a fact. So it is quite simulating with the information gathering phase.

Investigators come in with very, very extensive reports, information reports. But I believe we can say this in the area of terrorism: There is a lot of intelligence gathering. But when it comes to sorting out all this information, it is a different cup of tea. It raises a lot of difficulties.

So, information or intelligence remains very fragile because it is ^first line gathering. All that information is not supervised. It cannot stand up to analysis. I may even go further and say that, it’s information different from rumour. We know that we have to be very mistrustful of rumour when it comes to using evidence in a legal sense.

So, information may not be usable as such at trial. Information may not have the weight of evidence. Evidence is what can withstand contradiction, adversarial contradiction. So from that standpoint, there is a problem. Whereas, information or, the information cannot have any value at trial, it may be crucial for the guidelines or the directions that may be taken.

Well, on the basis of information, work on a case file and maybe go to trial, and I believe, I am not revealing any secrets when I say that, more than once at trial, information actually subsides completely and cannot be used. So we need to start from scratch. Whereas, in my opinion, that should have been done much earlier.

So that difficulty, of course, explains how the Office of the Prosecutor may have had difficulty at some stage, and maybe they need, in turns of lessons for the future, how we can enhance from a legal standpoint the investigation phase. The investigation phase is it is already enshrined in a legal procedure. So the Prosecutor needs to supervise that phase, that investigation phase even more and not leave it entirely to investigators.

Well, it is an issue that I am trying to raise, that is, the transparency in the investigation phase. What happens? What happens to the investigation report and other incidents? We shouldn’t forget that it is through the investigation that we lay hands on evidence. We contact witnesses and the witnesses that will ultimately serve at trial.

So I am wondering whether investigations could not be more transparent, whether they could not be better supervised. So these are some of the speaking points I wanted to raise.


Thank you. Would somebody like to say something on the use of evidence at trial? Maybe from one side. No side. No side in particular is challenged by that question.

Maybe in some other area that is not entirely related to the use of evidence, but and I turn to André Guichaoua to talk about financial evidence.