Defects

Notion(s) Filing Case
Appeal Judgement - 04.02.2013 MUGENZI AND MUGIRANEZA (Government II)
(ICTR-99-50-A)

122. […] The Appeals Chamber has previously held that “objections based on lack of notice should be specific and timely”.[1] Furthermore, when an objection based on lack of notice is raised at trial, a trial chamber may consider whether it was so untimely as to shift the burden of proof to the Defence to demonstrate that the accused’s ability to defend himself has been materially impaired.[2] In the absence of any explanation for Mugenzi’s and Mugiraneza’s failure to make a contemporaneous objection, the Appeals Chamber is satisfied that it was reasonable for the Trial Chamber to consider the delay in bringing challenges to the Indictment and conclude that such challenges were untimely. Therefore, Mugenzi and Mugiraneza bear the burden of demonstrating that their ability to prepare a defence was materially impaired.

[1] The Prosecutor v. Théoneste Bagosora et al., Case No. ICTR-98-41-AR73, Decision on Aloys Ntabakuze’s Interlocutory Appeal on Questions of Law Raised by the 29 June 2006 Trial Chamber I Decision on Motion for Exclusion of Evidence, 18 September 2006 (“Bagosora et al. Appeal Decision of 18 September 2006”), para. 46.

[2] Bagosora et al. Appeal Decision of 18 September 2006, paras. 45, 46. 

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Notion(s) Filing Case
Appeal Judgement - 01.04.2011 RENZAHO Tharcisse
(ICTR-97-31-A)

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.[1] However, these documents were filed before the Second Amended Indictment came into force on 16 February 2006.[2]

121. Renzaho contends that the Prosecution Pre-Trial Brief cannot cure a defect in the Indictment, relying on the Karera Appeal Judgement.[3] 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,[4] creating further confusion.[5]

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.[6] 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”.[7] 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.[8] Once the Trial Chamber accepted the Second Amended Indictment on 16 February 2006, nearly one year before the commencement of Renzaho’s trial,[9] 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.[10] 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.[11] 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.[12] 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.[13] 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.[14] It was only during her testimony that Witness AWN clarified that it was Renzaho who made the statement.[15] 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.[16] While the summary of Witness AWO’s anticipated evidence did allege that Renzaho stated that Tutsi women were food for the soldiers,[17] 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.[18]

[1] 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”).

[2] “Second Amended Indictment”, interchangeable with “Indictment”.

[3] Appellant’s Brief, para. 564.

[4] Karera Appeal Judgement, para. 368, fn. 838.

[5] Karera Appeal Judgement, paras. 367-369.

[6] 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”).

[7] 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.”

[8] 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.”

[9] The trial in this case started on 8 January 2007. Trial Judgement, Annex A: Procedural History, para. 837.

[10] 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.”).

[11] 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.

[12] 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.

[13] See AT. 16 June 2010 pp. 34, 35.

[14] 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.’”).

[15] Witness AWN, T. 5 February 2007 p. 37 […].

[16] Cf. Kalimanzira Appeal Judgement, para. 140.

[17] Prosecution Pre-Trial Brief, pp. 64, 65.

[18] 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.

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Appeal Judgement - 01.04.2011 RENZAHO Tharcisse
(ICTR-97-31-A)

125. […] The Appeals Chamber recalls that a defect in the Indictment, not cured by timely, clear, and consistent notice, constitutes a prejudice to the accused.[1] The defect may only be deemed harmless through a demonstration that the accused’s ability to prepare his or her defence was not materially impaired.[2] When an appellant raises a defect in the indictment for the first time on appeal, the appellant bears the burden of showing that his or her ability to prepare his or her defence was materially impaired.[3] When, however, an accused has previously raised the issue of lack of notice before the Trial Chamber, the burden rests on the Prosecution to prove on appeal that the ability of the accused to prepare his or her defence was not materially impaired. The Appeals Chamber therefore turns to consider this issue.

126. In the pre-trial stage, Renzaho challenged the Indictment on the basis of vagueness, a challenge that was dismissed by the Trial Chamber.[4] Although Renzaho did not object to Witnesses AWO’s and AWN’s evidence that he encouraged rapes upon the filing of the Prosecution Pre-Trial Brief or at the time of their testimony, the Appeals Chamber considers that Renzaho’s confusion regarding the import of this evidence, discussed below, reasonably explains his failure to object. Further, in his Closing Brief, Renzaho renewed his challenge to the Indictment on the basis that it failed to plead the material facts necessary to establish his superior responsibility.[5] Renzaho also contended that the charges alleging his responsibility for sexual violence were impermissibly vague, and noted that the evidence that he made encouraging statements about rapes was not included in the Indictment.[6] The Appeals Chamber therefore finds that Renzaho raised an adequate objection to the failure to properly plead his reason to know.[7] Consequently, the Prosecution has the burden of establishing that Renzaho’s defence was not materially impaired by the defect in the Indictment.[8]

127. The Appeals Chamber finds that the Prosecution has not met its burden. It notes that, when Witness AWN testified that it was Renzaho who encouraged rapes, rather than another individual, the Defence did not object to the introduction of the new material fact. At the Appeal Hearing, the Defence indicated that it failed to do so because it “did not make the link at that time”[9] and suffered prejudice from the introduction of this new material fact because it did not understand that this evidence was relevant to the charge under Article 6(3) of the Statute.[10] The strategy adopted at trial by the Defence and in particular the cross-examination of Witnesses AWO and AWN convinces the Appeals Chamber that Renzaho understood that he was to defend himself against knowledge of rapes through receipt of reports as pleaded in the Indictment.[11] He was therefore prejudiced by the Prosecution’s failure to cure the defect in the Indictment through adequate notice.

128. The Appeals Chamber also notes with concern that the relevant paragraphs of the Indictment are extremely broad, and fail to specify the dates and locations of the meetings at which Renzaho encouraged the rapes; the dates and locations of the rapes; and the names of the victims. The provision of these material facts only in post-indictment documents impacts upon the ability of the accused to know the case he or she has to meet and to prepare his or her defence,[12] and is particularly troubling when the Prosecution was in a position to include them in the Indictment.[13]

[1] Ntagerura et al. Appeal Judgement, para. 30.

[2] Ntagerura et al. Appeal Judgement, para. 30.

[3] Nahimana et al. Appeal Judgement, para. 327.

[4] See Preliminary Motion, paras. 38, 58-123, 158, 167, 173; Decision on Preliminary Motion [The Prosecutor v. Tharcisse Renzaho, Case No. ICTR-97-31-I, Décision sur la requête en exception préjudicielle pour vices de forme de l’acte d’accusation, 5 September 2006]. Renzaho requested certification to appeal the Decision on Preliminary Motion, which was dismissed by the Trial Chamber. See Decision on Certification of Decision on Preliminary Motion [The Prosecutor v. Tharcisse Renzaho, Case No. ICTR-97-31-I, Décision relative à la demande aux fins de certification d’appel de la décision du 5 septembre 2006 en vertu de l’article 72(B), 25 October 2006].

[5] Defence Closing Brief, paras. 86-144.

[6] Defence Closing Brief, paras. 179, 188, 194, 934, 936, 1136.

[7] Cf. Muhimana Appeal Judgement, para. 219; Gacumbitsi Appeal Judgement, para. 54.

[8] See supra, Chapter IV (Alleged Lack of Notice), Section A (Applicable Law), para. 56; Niyitegeka Appeal Judgement, para. 200.

[9] AT. 16 June 2010 p. 57 (“I think we […] became aware of that [inconsistency] during the testimony of the witness. At that stage as well things proceeded very fast during testimony in-chief. We did not link this to what was said in the pre-trial brief and which was attributed to Mr. Munanira. We did not make the link at that time.”).

[10] AT. 16 June 2010 p. 58 (“When the witness appeared before the Court, indeed, we immediately had the feeling that those utterances were incriminating. […] But what we did not understand – and this is where we suffered prejudice – is that on the basis of this statement, the Prosecutor wanted to attribute responsibility to Mr. Renzaho on the basis of [Article] 6(3). […] And, indeed, the Chamber pointed out that this fact failed [sic] under 6(1) and not 6(3). […] We did not understand that that was the objective pursued. We cross-examined the witness with the limited information we had only as regards the materiality of the events.”).

[11] The Appeals Chamber recalls that this basis for Renzaho’s knowledge of rapes committed by subordinates was pleaded in paragraphs 41, 53, and 63 of the Indictment.

[12] Cf. Bagosora et al. Interlocutory Appeal on Questions of Law Decision [The Prosecutor v. Théoneste Bagosora et al., Case No. ICTR-98-41-AR73, Decision on Aloys Ntabakuze’s Interlocutory Appeal on Questions of Law Raised by the 29 June 2006 Trial Chamber I Decision on Motion for Exclusion of Evidence, 18 September 2006], para. 26; The Prosecution v. Tharcisse Muvunyi, Case No. ICTR-00-55A-AR73, Decision on Prosecution Interlocutory Appeal Against Trial Chamber II Decision of 23 February 2005, 12 May 2005, para. 22; Ntagerura et al. Appeal Judgement, para. 114.

[13] The Appeals Chamber notes that the many of these details were included in the Prosecution Pre-Trial Brief, filed just 12 days after the Indictment. Although, at the time, the Prosecution assured the Trial Chamber that it had included as much detail as it was able in the Indictment, it concedes on appeal that it was in fact possible to include this information in the Indictment. See The Prosecutor v. Tharcisse Renzaho, Case No. ICTR-97-31-I, The Prosecutor’s Response to the Accused’s ‘Requ[ê]te en exception pr[é]judicielle pour vices de forme de l’acte d’accusation’, 10 April 2006 (confidential), para. 12; AT. 16 June 2010 p. 31 (“Your Honours, it was actually possible for us to include in the indictment the specific evidence that the two witnesses would testify to [and] […] in view of the fact that we already had this information before we gave our second amended indictment, it would have been desirable to actually include these statements in the indictment. However, […] the Appellant was not prejudiced by the lack […] of these statements in the indictment.”).

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Notion(s) Filing Case
Appeal Judgement - 27.02.2014 NDINDILYIMANA et al. (Military II)
(ICTR-00-56-A)

195. The Appeals Chamber recalls that where the Indictment is found to be defective, an appellant who raises a defect in the indictment for the first time on appeal bears the burden of showing that his ability to prepare his defence was materially impaired. Where, however, an accused had already raised the issue of lack of notice before the Trial Chamber, the burden rests on the Prosecution to demonstrate on appeal that the accused’s ability to prepare a defence was not materially impaired.

196. With regard to the Trial Chamber’s finding that Sagahutu issued an operational instruction in relation to the Belgian peacekeepers’ access to the Prime Minister’s residence and sent an armoured unit and supplies to his subordinates on the ground, the Trial Chamber relied on the evidence of Prosecution Witnesses AWC, ALN, DA, and HP.[3] The Appeals Chamber notes that, in his closing arguments, Sagahutu made a general objection in relation to the pleading in the Indictment of the charge regarding the killing of the Prime Minister.[4] Nonetheless, Sagahutu did not take specific issue with the introduction of particular material facts during the testimony of Witnesses AWC, ALN, DA, and HP.[5] Therefore, the Appeals Chamber considers that Sagahutu did not make a specific and timely objection at trial to the lack of pleading in the Indictment of these material facts. In such circumstances, it falls on Sagahutu to demonstrate that the preparation of his defence was materially impaired by these omissions in the Indictment.[6]

[1] Ntagerura et al. Appeal Judgement, paras. 31, 138; Kvočka et al. Appeal Judgement, para. 35; Niyitegeka Appeal Judgement, para. 200.

[2] Muvunyi I Appeal Judgement, para. 41; Ntagerura et al. Appeal Judgement, paras. 31, 138; Kvočka et al. Appeal Judgement, para. 35; Niyitegeka Appeal Judgement, para. 200.

[3] See Trial Judgement, paras. 1715-1720, 1740, 1744. See also Trial Judgement, paras. 1625-1628, 1632-1635, 1638, 1642, 1643.

[4] Sagahutu Closing Arguments, T. 25 June 2009 p. 83 (“Concerning the murder of [the] Prime Minister […] [i]n the Ntagerura [et al.] case, it was held that the Accused was charged [with] having planned, incited, committed, ordered or aided and abetted, and executed the alleged crimes. The Prosecutor should spell out the actions and the line of conduct of the Accused which give rise to the charges that are brought against him. This was not proven by the Prosecutor insofar as Captain Innocent Sagahutu is concerned”.). In his Closing Brief, Sagahutu generally objected to the Prosecution’s failure to plead in the Indictment his “role” in the killing of the Prime Minister. See Sagahutu Closing Brief [The Prosecutor v. Augustin Ndindiliyimana et al., Case No. ICTR-00-56-T, Mémoire final du Capitaine Innocent Sagahutu (confidential), 31 March 2009 (English translation filed on 16 June 2009)], para. 55 (“[a]ux paragraphes 78, 103 à 107, le Procureur ne montre pas le rôle que le Capitaine Sagahutu aurait joué en tant que commandant de l’Escadron A ou comme supérieur hiérarchique”.).

[5] On the issue of the armoured unit: Witness ALN, T. 29 September 2004 pp. 45, 47; Witness DA, T. 11 January 2005 pp. 40-44, 53; Witness AWC, T. 18 January 2006 pp. 29-31. On the issue of supplies: Witness DA, T. 11 January 2005 pp. 56-58, 65, 71; T. 12 January 2005 p. 7; T. 13 January 2005 p. 10; Witness HP, T. 9 May 2005 pp. 21, 22, 24. Sagahutu did not challenge the pleading of these material facts in the Indictment at trial. See Sagahutu Closing Brief, paras. 54-57, 71-74, 76-79, 225-230, 234, 236, 240, 509, 516, 663. The Appeals Chamber notes further that Sagahutu challenged the credibility of the testimonies of Witnesses DA, HP, and AWC relating to the allegation of sending supplies and an armoured unit. See Sagahutu Closing Brief, paras. 240, 242, 243, 246, 287, 289-292, 509, 516, fn. 241; Sagahutu Closing Arguments, T. 25 June 2009 pp. 83, 84. The Appeals Chamber notes that during examination-in-chief, Witness DA attributed the instruction regarding the access of the Belgian peacekeepers to the Prime Minister’s residence to Nzuwonemeye. See Witness DA, T. 11 January 2005 pp. 48 (“There was a message from Bizimungu and addressed to Sagahutu stating that Belgian soldiers wanted to get in where he was, and he was asking him to say whether he should allow those Belgian soldiers to get in”.), 49 (“Warrant Officer Bizimungu said that the vehicles on board which were -- where he was, wanted to get in where he was, that is, in the [P]rime [M]inister’s residence, and he was asking whether he should be allowed to let those vehicles get in where he was. That was the content of that message. […] That message was meant for Sagahutu, and the person who responded to it was the commander of the battalion, who said that they should let them in but that they shouldn’t be let out with anything whatsoever”.). However, during cross-examination, Witness DA attributed this instruction to Sagahutu. See Witness DA, T. 24 January 2005 p. 38 (“Q. Are you able then to say who was in charge of the radio during the day of 7th April 1994? […] Q. […] Are you able to tell the Court – let me rephrase my question. You heard Bizimungu call Major Nzuwonemeye? A. No, he was speaking, rather, to Sagahutu and not to Nzuwonemeye.”). It should be noted that the Trial Chamber in its summary of Witness DA’s evidence only referred to his evidence given during examination-in-chief. See Trial Judgement, paras. 1624-1631.

[6] See Ntagerura et al. Appeal Judgement, paras. 31, 138; Kvočka et al. Appeal Judgement, para. 35; Niyitegeka Appeal Judgement, para. 200.

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Notion(s) Filing Case
Appeal Judgement - 19.09.2005 KAMUHANDA Jean de Dieu
(ICTR-99-54A-A)

21. In Niyitegeka, the Appeals Chamber ruled that, in order to succeed in challenging the exclusion of a material fact from an indictment, an accused must make a timely objection to the admission of evidence of the material fact in question before the Trial Chamber:

In the case of objections based on lack of notice, the Defence must challenge the admissibility of evidence of material facts not pleaded in the indictment by interposing a specific objection at the time the evidence is introduced. The Defence may also choose to file a timely motion to strike the evidence or to seek an adjournment to conduct further investigations in order to respond to the unpleaded allegation.[1]

Failure to object before the Trial Chamber will usually result in the Appeals Chamber disregarding the argument. Here, the Defence did not object to the introduction of Witness GEK’s testimony at trial; rather, it challenged her credibility during cross-examination. However, even in such a case, the Appeals Chamber may choose to intervene proprio motu, considering the importance of the accused’s right to be informed of the charges against him and the possibility of serious prejudice to the accused if the Prosecution informs him about crucial facts for the first time at trial. In such circumstances the accused has the burden of proving on appeal that his ability to prepare his case was materially impaired.[2]

22. In Ntakirutimana, the Appeals Chamber treated a challenge to the Indictment as properly raised, although the Appellant did not object to the error at the time of the introduction of the evidence at trial, because the Trial Chamber had concluded that the challenges to the vagueness of the Indictment had subsequently been properly presented before it.[3]

[1] Niyitegeka Appeal Judgement, para. 199. See also Kayishema and Ruzindana Appeal Judgement, para. 91.

[2] Niyitegeka Appeal Judgement, paras. 199, 200.

[3] Ntakirutimana Appeal Judgement, para. 52.

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Notion(s) Filing Case
Appeal Judgement - 09.07.2004 NIYITEGEKA Eliézer
(ICTR-96-14-A)

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.[1] 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.[2] 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.[3]

[1] Kupreškić et al. Appeal Judgement, paras. 117-120.

[2] Kupreškić et al. Appeal Judgement, paras. 119-121.

[3] 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.

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Appeal Judgement - 09.07.2004 NIYITEGEKA Eliézer
(ICTR-96-14-A)

198. In considering whether a defect in the indictment has been cured by subsequent disclosure, the question arises as to which party has the burden of proof on the matter. Although the Judgement in Kupreškić did not address this issue expressly, the Appeals Chamber’s discussion indicates that the burden in that case rested with the Prosecution. Kupreškić stated that, in the circumstances of that case, a breach of “the substantial safeguards that an indictment is intended to furnish to the accused” raised the presumption “that such a fundamental defect in the … Indictment did indeed cause injustice.”[1] The defect could only have been deemed harmless through a demonstration “that [the Accused’s] ability to prepare their defence was not materially impaired.”[2] Kupreškić clearly imposed the duty to make that showing on the Prosecution, since the absence of such a showing led the Appeals Chamber to “uph[o]ld the objections” of the accused.[3]

[1] Kupreškić et al. Appeal Judgement, para. 122.

[2] Ibid.

[3] Kupreškić et al. Appeal Judgement, paras. 124-125.

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Notion(s) Filing Case
Appeal Judgement - 23.01.2014 ŠAINOVIĆ et al.
(IT-05-87-A)

250.   Recalling that waiver “should not entirely foreclose” indictment defects from being raised for the first time on appeal by the defence,[1] the Appeals Chamber notes that it has not previously considered whether waiver should preclude the Prosecution from arguing for the first time on appeal that its Indictment should have been interpreted differently, when it had been put on notice at trial that the Trial Chamber considered the Indictment to be defective. The Appeals Chamber observes that the rationale for allowing the Defence to raise such objections for the first time on appeal does not apply to the Prosecution who bears the obligation of ensuring that the indictment adequately pleads its case against the accused.

[1] See supra, para. 224.

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Appeal Judgement - 08.05.2012 NTABAKUZE Aloys
(ICTR-98-41A-A)

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.[1] 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.[2]

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”.[3] 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”.[4] However, this statement was made after the close of the Prosecution’s case and, in these circumstances, cannot be deemed to constitute timely notice.

[1] 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.”).

[2] Ntawukulilyayo Appeal Judgement, para. 202.

[3] AT. 27 September 2011 p. 59.

[4] 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.

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Decision on Indictment - 16.11.2011 UWINKINDI Jean
(ICTR-01-75-AR72(C))

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.[1] 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.[2] However, the indictment is the primary accusatory instrument[3] and the Prosecution has been warned in the past that the practice of failing to allege known material facts in the indictment is unacceptable.[4] 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.[5]

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.[6] 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.[7]

[1] 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.

[2] 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.

[3] Blaškić Appeal Judgement, para. 220.

[4] See, e.g., Ntakirutimana Appeal Judgement, para. 125.

[5] 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.

[6] See supra, para. 13.

[7] 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.

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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.[1] 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.[2] 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.[3] 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.[4]

472. At the Appeal hearing, the Prosecution sought to argue that a recent decision of the Appeals Chamber in Nyiramasuhuko and Ntahobali[5] 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.

[1] Kupreškić et al. Appeal Judgement, para. 92.

[2] Id., paras. 89-114.

[3] Rutaganda Appeal Judgement, para. 303.

[4]  Id., quoting the Furundžija Appeal Judgement, para. 61.

[5] 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.

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Appeal Judgement - 13.12.2004 NTAKIRUTIMANA and NTAKIRUTIMANA
(ICTR-96-10-A and ICTR-96-17-A)

77. […] Although the evidence at trial sometimes turns out to be different from the Prosecution’s expectations, the accused are generally entitled to proceed on the basis that the material facts disclosed to them are “exhaustive in nature” unless and “until given sufficient notice that evidence will be led of additional incidents.”[1] Given that “the Prosecution is expected to know its case before it goes to trial,” the question is whether it was fair to the Appellant to be tried and convicted based on an allegation as to which neither he nor the Prosecution had actual or specific notice.[2] On this question, as on the question of whether communications of information sufficed to cure an indictment defect, the Prosecution bears the burden of demonstrating that the new incidents that became known at trial caused no prejudice to the Appellant.

[…]

112. [I]n circumstances where the Prosecution relies on material facts that were revealed for the first time at trial, the Prosecution bears the burden of showing that there was no unfairness to the Accused.

[1] 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. 63.

[2] Kupreškić et al. Appeal Judgement, para. 92.

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Appeal Judgement - 20.10.2010 RUKUNDO Emmanuel
(ICTR-2001-70-A)

119. […] When the Defence is of the view that the Prosecution introduces evidence of material facts of which it had no notice, it can make an objection to the admission of such evidence for lack of notice.[1] If the Trial Chamber agrees with the Defence that insufficient notice was given, the Trial Chamber may exclude the challenged evidence in relation to the unpleaded material facts, require the Prosecution to amend the indictment, grant an adjournment to allow the Defence adequate time to respond to the additional allegations, or take other measures to preserve the rights of the accused to a fair trial.[2] With respect to this last measure, the Appeals Chamber recalls that a Trial Chamber can also find the particular evidence inadmissible to prove a material fact of which the accused was not on notice, but admissible with respect to other allegations sufficiently pleaded.[3]

[1] The Prosecutor v. Théoneste Bagosora et al., Case No. ICTR-98-41-AR73, Decision on Aloys Ntabakuze’s Interlocutory Appeal on Questions of Law Raised by the 29 June 2006 Trial Chamber I Decision on Motion for Exclusion of Evidence, 18 September 2006 (“Bagosora et al. Appeal Decision”), para. 18. See also Furund‘ija Appeal Judgement, para. 61.

[2] Bagosora et al. Appeal Decision, para. 18.

[3] Arsène Shalom Ntahobali & Pauline Nyiramasuhuko v. The Prosecutor, Case No. ICTR-97-21-AR73, Decision of the Appeals by Pauline Nyiramasuhuko and Arsène Shalom Ntahobali on the “Decision on Defence Urgent Motion to Declare Parts of the Evidence of Witnesses RV and QBZ Inadmissible”, 2 July 2004, para. 15 (“[A]]lthough on the basis of the present indictment it is not possible to convict Nyiramasuhuko in respect of her presence at the installation of Ndayambaje, evidence of this meeting can be admitted to the extent that it may be relevant to the proof of any allegation pleaded in the Indictment.”). See also Kanyarukiga Appeal Decision, para. 11; Bagosora et al. Appeal Decision, n. 40.

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Appeal Judgement - 23.10.2001 KUPREŠKIĆ et al.
(IT-95-16-A)

113. […] As found above, the attack on Suhret Ahmić’s house and its consequences constituted a material fact in the Prosecution case and, as such, should have been pleaded in the Amended Indictment.  Absent such pleading, the allegation pertaining to this event should not have been taken into account as a basis for finding Zoran and Mirjan Kupreškić criminally liable for the crime of persecution.  Hence, the Trial Chamber erred in entering convictions on the persecution count because these convictions depended upon material facts that were not properly pleaded in the Amended Indictment. 

114.    The Appeals Chamber notes that, generally, an indictment, as the primary accusatory instrument, must plead with sufficient detail the essential aspect of the Prosecution case.  If it fails to do so, it suffers from a material defect.  A defective indictment, in and of itself, may, in certain circumstances cause the Appeals Chamber to reverse a conviction.  The Appeals Chamber, however, does not exclude the possibility that, in some instances, a defective indictment can be cured if the Prosecution provides the accused with timely, clear and consistent information detailing the factual basis underpinning the charges against him or her.  Nevertheless, in light of the factual and legal complexities normally associated with the crimes within the jurisdiction of this Tribunal, there can only be a limited number of cases that fall within that category.  […]

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Decision on Leave to Appeal (Defence) - 30.11.2001 GALIĆ Stanislav
(IT-98-29-AR72)

11. A preliminary motion challenging the form of the indictment pursuant to Rule 72 is one which seeks to demonstrate that the indictment does not sufficiently make the accused aware of the nature of the case which he has to meet.[1]  The defect may lie in the clarity with which the prosecution case is stated or it may lie in the sufficiency of the information given in relation to that case. [….]

[1]     Prosecution v Brđanin and Talić, IT-99-36-PT, Decision on Objections by Momir Talić to the Form of Amended Indictment, 20 Feb 2001 (“First Talić Decision”), par 18.

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ICTR Rule Rule 72 ICTY Rule Rule 72
Notion(s) Filing Case
Appeal Judgement - 14.12.2015 NYIRAMASUHUKO et al. (Butare)
(ICTR-98-42-A)

1276.            The Appeals Chamber rejects Ntahobali’s claim that the Trial Chamber applied the wrong legal criterion in evaluating the cumulative effect of the defects in the Indictment. Although the Trial Chamber mainly relied on its finding that the defects of the Indictment concerning allegations on which it made factual findings were cured, its analysis reflects that it did not limit its examination to this matter but, in accordance with the jurisprudence that it expressly recalled, examined whether the Defence had sufficient time and resources to investigate properly all the new material facts and that it was not prejudiced by the addition of numerous material facts. The Appeals Chamber refers in particular to the Trial Chamber’s reliance on the additional time allotted to the co-Accused to prepare their case[1] and its findings throughout the Trial Judgement that, where remedied, the original lack of notice had not caused prejudice.[2]

1277.            The Appeals Chamber also finds no merit in Ntahobali’s argument that the number of defects in an indictment that can be cured is limited. The Appeals Chamber considers that, in instances where it is found that defective charges have not only been cured but also that the initial lack of notice did not result in prejudice, the question of the number of defects cured becomes secondary. It is clear from the Appeals Chamber’s jurisprudence that the key question remains whether or not the accused was materially prejudiced in the preparation of his defence.[3]

[1] Trial Judgement, para. 130.

[2] See, e.g., Trial Judgement, paras. 1464, 2166, 2932, 2942, 3161.

[3] See Bagosora et al. Appeal Decision on Exclusion of Evidence [The Prosecutor v. Théoneste Bagosora et al., Case No. ICTR-98-41-AR73, Decision on Aloys Ntabakuze’s Interlocutory Appeal on Questions of Law Raised by the 29 June 2006 Trial Chamber I Decision on Motion for Exclusion of Evidence, 18 September 2006], para. 26:

[…] Further, while the addition of a few material facts may not prejudice the Defence in the preparation of its case, the addition of numerous material facts increases the risk of prejudice as the Defence may not have sufficient time and resources to investigate properly all the new material facts. Thus, where a Trial Chamber considers that a defective indictment has been subsequently cured by the Prosecution, it should further consider whether the extent of the defects in the indictment materially prejudice an accused’s right to a fair trial by hindering the preparation of a proper defence.

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