Facts pleaded under a different count
|Appeal Judgement - 08.05.2012||
106. The Appeals Chamber recalls that the Prosecution’s failure to expressly state that a paragraph in the indictment supports a particular count in the indictment is indicative that the allegation in the paragraph is not charged as a crime. Paragraphs 4.6 and 4.8 of the Indictment, however, are contained in a section titled “The Accused”, which merely describes Ntabakuze and provides information on his professional background and military authority during the period of the relevant events. Although they contain material facts supporting elements of crimes pleaded elsewhere in the Indictment, paragraphs 4.6 and 4.8 do not plead allegations that may be separately charged as a crime. As a result, the Appeals Chamber considers that the Prosecution was not required to plead these paragraphs expressly under each of the counts in the charging section of the Indictment.
 Karera Appeal Judgement, para. 365, citing Muvunyi Appeal Judgement of 29 August 2008, para. 156.
 Indictment, Section 4 (“The Accused”), pp. 16, 17.
|Appeal Judgement - 02.02.2009||
The Appeals Chamber considered proprio motu the question of whether the Trial Chamber erred in finding the Appellant responsible for the killings of individuals under Count 1 (genocide) and Count 3 (extermination as a crime against humanity), while these killings were only pleaded under Count 4 (murder as a crime against humanity). It found
365. In Muvunyi, the Appeals Chamber observed that “the Prosecution’s failure to expressly state that a paragraph in the Indictment supports a particular count in the Indictment is indicative that the allegation is not charged as a crime”. The Appeals Chamber considers that the same may be said where a particular allegation is charged under a particular count only. In the present case, the Amended Indictment put the Appellant on notice that the Prosecution was charging him for the murder of Murekezi only under Count 4. In view of this, there is some basis for argument that by reading the Amended Indictment alone, the Appellant would not have understood that he was also charged for the same fact under Counts 1 and 3. In regard to the Amended Indictment, the Prosecution knew the identity of a finite number of victims and was able, when it sought to amend the Indictment, to specify the circumstances of their murder. It chose not to list Murekezi’s killing in the statements of facts pertaining to counts alleging genocide and extermination as a crime against humanity. The Appeals Chamber has previously held that “[e]ven in cases where a high degree of specificity is ‘impractical […] since the identity of the victim is information that is valuable to the preparation of the defence case, if the Prosecution is in a position to name the victims, it should do so.’”
366. Turning to the Prosecution’s submission that the Amended Indictment has to be read as a whole, the Appeals Chamber notes that while the statement of facts supporting Count 4 incorporates the statements of facts supporting Counts 1 and 3, the reverse is not true. The statements of facts supporting Counts 1 and 3 do not incorporate the statement of facts supporting Count 4. This lack of reciprocity might have added to the impression that Murekezi’s murder was not incorporated in Counts 1 and 3 of the Amended Indictment.
367. The Appeals Chamber further notes that the process of amending the initial Indictment might have laid the groundwork for confusion on this issue. Originally, Murekezi’s killing was listed in a statement of facts pertaining to both Counts 3 and 4. However, this statement of facts was eventually severed, and Murekezi’s killing was subsequently mentioned only in the statement of facts applicable to Count 4. While the rationale for the severing of the original, combined statement of facts did not centre on Murekezi, the amendment may have given the message that Murekezi’s killing related only to Count 4 of the Indictment, rather than serving as a key basis for the gravest of the charges involved. The Prosecution’s decision not to refer to Murekezi at all in Counts 1 and 3 of the Amended Indictment, especially in the context of the Indictment amendment process, resulted in vagueness with potentially serious consequences for the preparation of the Appellant’s defence. In these circumstances, the Appeals Chamber considers that reversal of the affected convictions is appropriate.
368. The Appeals Chamber further notes that the Amended Indictment was issued on 19 December 2005, seven days after the filing of the Prosecution Pre-Trial Brief. As a result, while the Prosecution Pre-Trial Brief included a summary of anticipated witness testimony, the text of the Prosecution Pre-Trial Brief and the summaries referred to either the Indictment or the draft amended indictment annexed to the Prosecution Motion to Amend the Indictment, but not to the Amended Indictment itself. Turning to the Prosecution’s contention that the Prosecution Pre-Trial Brief presented “the factual allegations by location, including Nyamirambo, rather than with respect to each count”, the Appeals Chamber does not see how this argument is capable of demonstrating that any defect in the Amended Indictment relating to the facts underlying Counts 1 and 3 was cured by the Prosecution Pre-Trial Brief.
369. In a world of limited legal resources, the Appellant’s counsel might have focused more attention on Murekezi’s killing had this key material fact been more specifically linked to a larger number of counts concerning crimes such as genocide and extermination as a crime against humanity, which on their face appear even more serious than murder. Instead, the Amended Indictment may have given the opposite impression. This error and the confusion it might have generated justify reversal of the Appellant’s convictions under Counts 1 and 3, insofar as they rely on the murder of Murekezi.
 Karera Appeal Judgement, paras. 360-364.
 Muvunyi Appeal Judgement, para. 156.
 Ntakirutimana Appeal Judgement, para. 25 (quoting Kupreškić et al. Appeal Judgement, para. 90).
 More specifically, on 25 November 2005, the Prosecution filed a request for leave to amend the Indictment. The Prosecution, inter alia,, requested authorization to present Counts 3 (extermination as a crime against humanity) and 4 (murder as a crime against humanity) cumulatively instead of alternatively. See Prosecution’s Motion for Leave to Amend the Indictment, paras. 1.2, 3.5-3.7. The Trial Chamber granted the Prosecution’s request in part, allowing the cumulative pleading of Counts 3 and 4, the deletion of some paragraphs, sections and words, and the insertion of names of victims in one paragraph. The Trial Chamber also instructed the Prosecution to specify “the location, time and manner of the death of Theoneste Gakuru” and “clarify the facts which are intended to support the charge of murder as a crime against humanity, as opposed to extermination as a crime against humanity” (emphasis added). It specified that “such clarification should include the names of the victims, the location, time and manner of the alleged murders”. See Decision on the Prosecutor’s Request for Leave to Amend the Indictment, Rule 50 of the Rules of Procedure and Evidence, 12 December 2005 p. 5. The Amended Indictment, incorporating the Trial Chamber’s instructions, was filed on 19 December 2005. See The Prosecutor v. François Karera, Amended Indictment, 19 December 2005. The concise statement of facts supporting Counts 3 and 4 was severed and the murder of Murekezi was no longer mentioned under Count 3, only being pleaded under Count 4. Compare Amended Indictment pp. 5, 6, with Amended Indictment, p. 7.
 See Ntakirutimana Appeal Judgement, para. 27.
 Compare The Prosecutor v. François Karera, Amended Indictment, 19 December 2005, with Prosecution Pre-Trial Brief, 12 December 2005.
 The Prosecution Pre-Trial Brief, which was filed after the Prosecution Motion to Amend the Indictment, merely refers to “the indictment” without specifying whether it points to the Initial Indictment or the draft amended indictment.