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contribution 05 - CONDÉ Aïcha

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Civil law vs Common law - Disclosure of evidence


transtlated version

Yes. I would like to pick on what Ms. Arbia has stated but from the angle of the frustration of the Defence, because you have the raw evidence and you say we do not have the obligation to disclose to Defence, but there is no obligation to investigate in an exculpatory matter, and there is an obligation to make disclosures to the Defence, and practice has shown that that does not happen.

There was a decision taken in 2008 when, two years after the end of the Prosecution case, it was revealed that the Prosecutor had kept evidence for 8 years without disclosing to the Defence. And to me, it has been a source of frustration because I have been under the impression that lacking access to the raw evidence was an impediment to my performance. And I premised that the system as designed was not good, and hence to ensure the sound functioning of international justice, it would have been important to have a judge controlling the Office of the Prosecutor. And without a judge controlling the Office of the Prosecutor, we cannot work because we do not have access to exculpatory evidence; we do not have access to the same case files. And as far as the Judges are concerned, this makes the trials much longer.

And if the two parties are working on the same material well, that is what obtains in my system. In the civil law, there is a case file. And it is on that score that is the working document relied upon by the Prosecution, by the Defence, by the investigators. And this gives for shorter trials, and the Judges know exactly where you are going. And, therefore, they can better control the proceedings and understand tell you, cut you short by saying, "I have understood your point." And so my point is, the Judges must exercise control.


Very well. We are in a general discussion now, and I believe that Barrister Muna has something to say.