A Libanoni Különleges Törvényszék fellebbviteli tanácsa mai határozatában több érdekes kérdésben döntött:
“The issues on appeal are:
(1) What is the nature of the right of access claimed by Mr. El Sayed to some or all of the investigatory materials in the three categories?
(2) Did the Pre-Trial Judge err in categorically excluding these three sets of documents from
disclosure to Mr. El Sayed?
(3) What relief if any should be ordered?
68. We conclude that the fact of detention for nearly four years, together with the acknowledgement made by the Prosecutor at the end of the period, demonstrate a real possibility that access to information is required to avoid an injustice, and that the interests in allowing the claim outweigh the costs of that course. But it should be permitted only to the extent required to enable Mr. El Sayed to make the claim he states in his application to the President, subject to appropriate conditions set by the Pre-Trial Judge Use for any other purpose would not be justified and would be improper.
87. We do not agree with the conclusions of the Trial Chamber of the ICC that „investigator's interview notes that are reflected in the witness statements,” and „screening notes ... [or] pre-interview assessments [that] are a stage precedent to an interview when a formal statement is taken,” constitute internal work product that need not be disclosed by the Prosecutor unless it includes exculpatory evidence not otherwise contained in material provided to the defence. This runs the risk that an investigator may sanitize the original account of the witness. That kind of conduct can be a major reason for miscarriage of justice. Both the Trial Chamber and the opposing party are entitled to know how the witness’s version has evolved.
88. We therefore disagree with the ICC Trial Chamber's conclusion in Lubanga that „all preliminary examination reports”, „investigator’s interview notes that are reflected in the witness statements or audio-video recording of the statement,” and “investigator’s subjective opinions or conclusions that are recorded in the investigator’s notes" may be exempted from disclosure.”