Curing the defects
|Appeal Judgement - 01.04.2011||
120. To support its contention that “post-indictment communications” provided Renzaho with clear, consistent, and timely notice, the Prosecution relies on its Pre-Trial Brief and two written statements disclosed in February 2005. However, these documents were filed before the Second Amended Indictment came into force on 16 February 2006.
121. Renzaho contends that the Prosecution Pre-Trial Brief cannot cure a defect in the Indictment, relying on the Karera Appeal Judgement. The Appeals Chamber recalls that in the Karera case, the pre-trial brief, which was filed seven days before the amended indictment, was found to be incapable of curing a particular defect therein relating to a murder charge because, among other things, it was unclear which version of the indictment the pre-trial brief was referring to, creating further confusion.
122. In the present case, the Appeals Chamber notes that the proposed Second Amended Indictment was attached to the Motion to Amend filed on 19 October 2005. On 31 October 2005, the Prosecution filed its Pre-Trial Brief, specifying that “references to the ‘Indictment’ herein are to the proposed Second Amended Indictment”. Further, the Prosecution Pre-Trial Brief and the attached summaries of anticipated witness testimony were clear about which paragraphs of the proposed Second Amended Indictment they referred to. Once the Trial Chamber accepted the Second Amended Indictment on 16 February 2006, nearly one year before the commencement of Renzaho’s trial, its link to the Prosecution Pre-Trial Brief was consolidated. Since there were no subsequent amendments to the Indictment or the Prosecution Pre-Trial Brief, the Appeals Chamber considers that the Prosecution Pre-Trial Brief in this case is capable of curing defects in the Indictment.
123. Turning to whether the Prosecution’s communications in fact cured the defect in the Indictment [in relation to the material facts which must be pleaded in an indictment charging superior responsibility pursuant to Article 6(3) of the Statute], the Appeals Chamber notes that the Prosecution Pre-Trial Brief emphasized that the receipt of reports of rapes from Renzaho’s subordinates constituted his reason to know about the rapes. Although the Prosecution Pre-Trial Brief also noted Renzaho’s encouragement of rapes, it did so in respect of only two of the relevant Counts. The Appeals Chamber further considers that this new element of the Prosecution’s case was not highlighted in a manner sufficient to give clear notice to Renzaho that his encouragement now formed the basis for his criminal liability as a superior. The Prosecution Pre-Trial Brief notably failed to clarify that the Prosecution was relying on Renzaho’s acts of encouragement to infer his mens rea. Absent any indication that Renzaho’s encouragement was the basis for his reason to know about particular rapes, it is difficult to conclude that the Defence would have understood that this material fact was the key element of the Prosecution’s case.
124. Moreover, the Prosecution Pre-Trial Brief did not provide consistent notice that Renzaho’s encouragement of rapes constituted his reason to know, as conceded by the Prosecution on appeal. While the summaries of Witnesses AWO’s and AWN’s anticipated testimony annexed to the Prosecution Pre-Trial Brief describe the circumstances of their rapes and those of Witness AWN’s sister in detail, Witness AWN’s summary attributed Renzaho’s statement encouraging rapes to another individual. It was only during her testimony that Witness AWN clarified that it was Renzaho who made the statement. The Prosecution Pre-Trial Brief and the summary of Witness AWN’s anticipated testimony therefore did not provide the “unambiguous information” required to cure a defect in the Indictment. While the summary of Witness AWO’s anticipated evidence did allege that Renzaho stated that Tutsi women were food for the soldiers, given the ambiguity contained in the Prosecution Pre-Trial Brief concerning the import of Renzaho’s encouragement, the Appeals Chamber finds this one witness statement insufficient to cure the defect in the Indictment.
 Respondent’s Brief, paras. 42, 43, referring to The Prosecutor v. Tharcisse Renzaho, Case No. ICTR-97-31-I, Interoffice Memorandum, Subject: “Transmission of the unredacted statements for witnesses AWM-1, AWN-1 and AWO-1 as additional support of Amended Indictment in the Renzaho Case”, 3 February 2005 (confidential) (“3 February 2005 Disclosure”).
 “Second Amended Indictment”, interchangeable with “Indictment”.
 Appellant’s Brief, para. 564.
 Karera Appeal Judgement, para. 368, fn. 838.
 Karera Appeal Judgement, paras. 367-369.
 The Prosecutor v. Tharcisse Renzaho, Case No. ICTR-97-31-I, The Prosecutor’s Application for Leave to Amend the Indictment pursuant to Rule 50(A) of the Rules of Procedure and Evidence, 19 October 2005 (“Motion to Amend”).
 Prosecution Pre-Trial Brief, p. ii (“Preliminary Note”). See also Preliminary Note where the Prosecution indicated that “[g]iven that no decision has yet been made as to whether leave to amend will be granted, but also in view of the fact that no trial date has yet been set, the Prosecutor reserves the right to file an Amended Pre-Trial Brief and/or to amend the list of witnesses and/or the list of exhibits filed herein.”
 As indicated in the Preliminary Note, “‘Indictment’ paragraph numbers quoted refer [to the proposed Second Amended Indictment], but are followed, where applicable, by the paragraph number in the existing Amended Indictment in square brackets to assist both the Accused and the Trial Chamber.”
 The trial in this case started on 8 January 2007. Trial Judgement, Annex A: Procedural History, para. 837.
 See Prosecution Pre-Trial Brief, paras. 114 (“It is the Prosecution’s case that by virtue of the reports made to him by his Bourgmestres and Conseillers, the Accused knew or had reason to know that these acts of sexual violence were occurring.”)(emphasis added), 141 (“The Prosecution asserts that the Accused knew or had reason to know that these acts were being carried out not only because these houses were notorious, but also because their existence was reported to him by his Conseillers.”), 160 (“The Prosecution asserts that the Accused knew or had reason to know that women were being maintained in houses in Kigali-ville for the purpose of being raped and otherwise sexually abused because these houses were notorious, and also because their existence was reported to him by his Conseillers.”).
 In relation to the charge of rape as a crime against humanity, the Prosecution stated “[t]he Accused actively encouraged the rape of Tutsi women, stating that they were ‘food for the soldiers’ or words to that effect.” Prosecution Pre-Trial Brief, para. 139. In relation to the charge of rape as a violation of Article 3 common to the Geneva Conventions, the Prosecution stated “[t]he Accused actively encouraged the rape of Tutsi women, stating that they were ‘food for the soldiers’ or words to that effect.” Prosecution Pre-Trial Brief, para. 159.
 The Appeals Chamber also notes that, at the Appeal Hearing, the Prosecution took the position that the Indictment did plead Renzaho’s reason to know about the rapes, namely, that Renzaho’s subordinates regularly informed him of the rapes of Tutsi women. See AT. 16 June 2010 pp. 31, 33.
 See AT. 16 June 2010 pp. 34, 35.
 Prosecution Pre-Trial Brief, pp. 63, 64 (“Munanira said words to the effect that ‘this is the time to show the Tutsi women that we can make them marry Hutu men against their will.’”).
 Witness AWN, T. 5 February 2007 p. 37 […].
 Cf. Kalimanzira Appeal Judgement, para. 140.
 Prosecution Pre-Trial Brief, pp. 64, 65.
 Ntakirutimana Appeal Judgement, para. 27 (“As has been previously noted, ‘mere service of witness statements by the [P]rosecution pursuant to the disclosure requirements’ of the Rules does not suffice to inform the Defence of material facts that the Prosecution intends to prove at trial.”). See also Muhimana Appeal Judgement, para. 224.
|Appeal Judgement - 09.07.2004||
197. Whether the Prosecution cured a defect in the indictment depends, of course, on the nature of the information that the Prosecution provides to the Defence and on whether the information compensates for the indictment’s failure to give notice of the charges asserted against the accused. Kupreškić considered that adequate notice of material facts might be communicated to the Defence in the Prosecution’s pre-trial brief, during disclosure of evidence, or through proceedings at trial. The timing of such communications, the importance of the information to the ability of the accused to prepare his defence, and the impact of the newly-disclosed material facts on the Prosecution’s case are relevant in determining whether subsequent communications make up for the defect in the indictment. As has been previously noted, “mere service of witness statements by the [P]rosecution pursuant to the disclosure requirements” of the Rules does not suffice to inform the Defence of material facts that the Prosecution intends to prove at trial.
 Kupreškić et al. Appeal Judgement, paras. 117-120.
 Kupreškić et al. Appeal Judgement, paras. 119-121.
 Prosecutor v. Brðanin and Talić, Case No. IT-99-36-PT, Decision on Form of Further Amended Indictment and Prosecution Application to Amend, 26 June 2001, para. 62.
|Appeal Judgement - 08.05.2012||
80. Notice that the Prosecution intended to rely on this series of events to underpin the charge of other inhumane acts was only provided at the close of the trial, in the Prosecution Closing Brief. Considering that the basic purpose of informing an accused clearly of the charges against him is so that he may prepare his defence, the Appeals Chamber reiterates that notification in closing submissions cannot constitute proper notice.
111. The Prosecution submits that “if Ntabakuze still had any doubt about his Article 6(3) liability over the acts of the militiamen, the Trial Chamber’s Rule 98 bis decision highlighted […] his liability”. In its Decision on Motions for Judgement of Acquittal, the Trial Chamber indeed stated that “[t]he evidence […] of the relationship between the four Accused and the Interahamwe could, if believed, establish a relationship of ‘effective control’ over the Interahamwe”. However, this statement was made after the close of the Prosecution’s case and, in these circumstances, cannot be deemed to constitute timely notice.
 The Prosecutor v. Théoneste Bagosora et al., Case No. ICTR-98-41-T, Prosecutor’s Final Trial Brief, public redacted version, signed 1 March 2007, filed 2 March 2007 (“Prosecution Closing Brief”), para. 203 (“In particular, there is evidence that witness AR and his family suffered from inhumane treatment when, along with numerous other Tutsi refugees fleeing from ETO to the safety of Amahoro Stadium, the Paracommandos led by Major Ntabakuze refused to permit the refugees to seek safety at Amahoro. Such a deprivation of liberty, while arguably falling short of actual imprisonment, is inhumane in that it can be said it is a fundamental human right to seek safety and protection from dangerous circumstances. There was widespread deprivation of the right to seek safety.”).
 Ntawukulilyayo Appeal Judgement, para. 202.
 AT. 27 September 2011 p. 59.
 The Prosecutor v. Théoneste Bagosora et al., Case No. ICTR-98-41-T, Decision on Motions for Judgement of Acquittal, 2 February 2005, para. 31.
|Decision on Indictment - 16.11.2011||
13. The Trial Chamber also erred in concluding that there was no need to amend the Amended Indictment because the Prosecution indicated in its Response to the Preliminary Motion that it intended to rely on the basic and extended forms of JCE and because additional details could be provided in the Pre-Trial Brief. It is accepted that defects in the indictment can be cured later by timely, clear, and consistent information detailing the factual basis underpinning the charge. However, the indictment is the primary accusatory instrument and the Prosecution has been warned in the past that the practice of failing to allege known material facts in the indictment is unacceptable. Consequently, in a case such as the present, where defects in the indictment surface at the pre-trial stage, the Prosecution cannot refrain from amending the indictment by arguing that it will correct existing defects through its Pre-Trial Brief.
39. The Appeals Chamber rejects the Prosecution’s argument that the Trial Chamber properly denied Uwinkindi’s Preliminary Motion because additional details are contained in a disclosed witness statement and because the Prosecution suggested that paragraph 10 of the Amended Indictment could be further amended in light of this material. As stated above, the indictment is the primary accusatory instrument. Furthermore, the Appeals Chamber has repeatedly held that the mere service of witness statements or potential exhibits by the Prosecution pursuant to disclosure requirements does not suffice to inform the Defence of material facts that the Prosecution intends to prove at trial.
 See Impugned Decision [The Prosecutor v. Jean Uwinkindi, Case No. ICTR-01-75-I, Decision on Defence Preliminary Motion Alleging Defects in the Form of the Amended Indictment, 9 March 2011], para. 16.
 See, e.g., Renzaho Appeal Judgement, para. 55; Karera Appeal Judgement, para. 293; Muvunyi I Appeal Judgement, para. 20; Ntagerura et al. Appeal Judgement, para. 29. See also Simić Appeal Judgement, para. 23.
 Blaškić Appeal Judgement, para. 220.
 See, e.g., Ntakirutimana Appeal Judgement, para. 125.
 Cf. The Prosecutor v. Ildephonse Nizeyimana, Case No. ICTR-01-55C-PT, Decision on Ildephonse Nizeyimana’s Motion for Certification, 13 August 2010, para. 8; The Prosecutor v. Dominique Ntawukulilyayo, Case. No. ICTR-05-82-PT, Decision on Defence Preliminary Motion Alleging Defects in the Indictment, 28 April 2009, para. 13.
 See supra, para. 13.
 Ntakirutimana Appeal Judgement, para. 27; Simić Appeal Judgement, para. 24; Prosecutor v. Mladen Naletilić and Vinko Martinović, Case No. IT-98-34-A, Judgement, 3 May 2006, para. 27.
|Appeal Judgement - 07.07.2006||
NTAGERURA et al. (Cyangugu)
At paras 21-32, the Appeals Chamber recalled its previous case-law regarding the necessary elements of an indictment. It confirmed that, in exceptional cases, defects in an indictment can be “cured” if the Prosecution provides the accused with timely, clear and consistent information (para. 28). In an obiter dictum, the Appeals Chamber expressed concern about the extent to which the Prosecution tried to rely on this jurisprudence in the present case, and stressed that this jurisprudence applies only in a limited number of cases (para. 114):
114. The Appeals Chamber wishes to express its concern regarding the Prosecution’s approach in the present case. The Appeals Chamber recalls that the indictment is the primary accusatory instrument and must plead the Prosecution case with sufficient detail. Although the Appeals Chamber allows that defects in an indictment may be “remedied” under certain circumstances, it emphasizes that this should be limited to exceptional cases. In the present case, the Appeals Chamber is disturbed by the extent to which the Prosecution seeks to rely on this exception. Even if the Prosecution had succeeded in arguing that the defects in the Indictments were remedied in each individual instance, the Appeals Chamber would still have to consider whether the overall effect of the numerous defects would not have rendered the trial unfair in itself.
 Kupreškić et al. Appeal Judgement, para. 114; see also Ntakirutimana Appeal Judgement, para. 125; Kvočka et al. Appeal Judgement, para. 33.
|Appeal Judgement - 13.12.2004||
NTAKIRUTIMANA and NTAKIRUTIMANA
(ICTR-96-10-A and ICTR-96-17-A)
471. […] [T]he Kupreškić et al. Appeal Judgement addressed the degree of specificity required to be pleaded in an indictment. It stressed that it is not acceptable for the Prosecution to omit material aspects of its main allegations in the indictment with the aim of moulding the case against the accused in the course of the trial depending on how the evidence unfolds. It also considered that a defective indictment may, in certain circumstances, cause the Appeals Chamber to reverse a conviction. The ICTY Appeals Chamber, however, did not exclude the possibility that, in a limited number of instances, a defective indictment may be cured if the Prosecution provides the accused with timely, clear and consistent information detailing the factual basis underpinning the charges. In the Rutaganda case, the Appeals Chamber found that, before holding that an alleged fact is not material or that differences between the wording of the indictment and the evidence adduced are minor, a trial chamber should generally ensure that such a finding is not prejudicial to the accused. An example of such prejudice would be vagueness capable of misleading the accused as to the nature of the criminal conduct with which he is charged.
472. At the Appeal hearing, the Prosecution sought to argue that a recent decision of the Appeals Chamber in Nyiramasuhuko and Ntahobali had expanded the Kupreškić holding. It claimed that, following that decision, in all circumstances a defective indictment can be cured by the provision in another form of timely, clear and consistent information detailing the factual basis underpinning the charges against him or her. The Appeals Chamber does not accept this reading of that decision. Accordingly, the applicable law has not changed since the Kupreškić et al. Appeal Judgement.
 Kupreškić et al. Appeal Judgement, para. 92.
 Id., paras. 89-114.
 Rutaganda Appeal Judgement, para. 303.
 Id., quoting the Furundžija Appeal Judgement, para. 61.
 Appeal Hearing, T. 7 July 2004, p. 71, referring to Prosecutor v Arsène Shalom Ntahobali and Pauline Nyiramasuhuko, case No. ICTR-97-21-AR73, Decision on the Appeals of Arsène Shalom Ntahobali and Pauline Nyiramasuhuko against the “Decision on Defence Urgent Motion to declare Parts of the Evidence of Witnesses RV and QBZ Inadmissible”, 2 July 2004.
|Appeal Judgement - 14.12.2011||
202. In additional support of its finding that Ntawukulilyayo knew that he was charged with ordering the killings at Kabuye hill on 23 April 1994, the Trial Chamber recalled that the Prosecution’s Closing Brief and Closing Arguments provided him with further notice that ordering was pleaded. In this regard, the Appeals Chamber emphasizes that the Prosecution is expected to know its case before proceeding to trial. Considering that the basic purpose of informing an accused clearly of the charges against him is so that he may prepare his defence, the Appeals Chamber finds that notification in closing submissions cannot constitute proper notice.
 Trial Judgement, para. 408.
 See, e.g., Setako Appeal Judgement, para. 296; Muvunyi Appeal Judgement of 29 August 2008, para. 18; Ntagerura et al. Appeal Judgement, para. 27; Kupreškić et al. Appeal Judgement, para. 92.
 Cf. Nahimana et al. Appeal Judgement, para. 322; Simić Appeal Judgement, para. 20; Ntagerura et al. Appeal Judgement, para. 22; Kupreškić et al. Appeal Judgement, para. 88.