Indictment

Notion(s) Filing Case
Appeal Judgement - 08.10.2008 MARTIĆ Milan
(IT-95-11-A)

Martić was convicted in relation to the beating of Croats in detention in Benkovac and the detaining of children in a kindergarten. The Appeals Chamber reversed these convictions as they were not included in indictment.

162. The Appeals Chamber recalls that, in accordance with Article 21(4)(a) of the Statute, an accused has the right “to be informed promptly and in detail in a language which he understands of the nature and cause of the charge against him”. The Prosecution is required to plead in an indictment all the material facts underpinning the charges in an indictment, but not the evidence by which the material facts are to be proven.[1]

163. The prejudicial effect of a defective indictment may only be “remedied” if the Prosecution provided the accused with clear, timely and consistent information that resolves the ambiguity or clarifies the vagueness, thereby compensating for the failure of the indictment to give proper notice of the charges.[2] Whether the Prosecution has cured a defect in an indictment and whether the defect has caused any prejudice to the accused are questions aimed at assessing whether the trial was rendered unfair.[3] In this regard, the Appeals Chamber reiterates that a vague indictment not cured by timely, clear and consistent notice causes prejudice to the accused. The defect may only be deemed harmless through demonstrating that the accused’s ability to prepare his defence was not materially impaired.[4]

[1] Simić Appeal Judgement, para. 20; Muvunyi Appeal Judgement, para. 18; Naletilić and Martinović Appeal Judgement, para. 23; Kvočka et al. Appeal Judgement, para. 27; Kupreškić et al. Appeal Judgement, para. 88.

[2] Simić Appeal Judgement, para. 23; Muvunyi Appeal Judgement, para. 20; Gacumbitsi Appeal Judgement, para. 163; Ntagerura et al. Appeal Judgement, para. 29; Naletilić and Martinović Appeal Judgement, para. 26; Kvočka et al. Appeal Judgement, paras 33-34; see also Kupreškić et al. Appeal Judgement, para. 114. 

[3] See Ntagerura et al. Appeal Judgement, para. 30. On the applicable burden of proof in relation to this issue, see Simić Appeal Judgement, para. 25.

[4] Ntagerura et al. Appeal Judgement, para. 30; Ntakirutimana Appeal Judgement, paras 27-28 and 58; Kupreškić et al. Appeal Judgement, paras 119-122. Simić Appeal Judgement, para. 24; Kordić and Čerkez Appeal Judgement, para. 169; Kupreškić et al. Appeal Judgement, paras 117-118.     

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Notion(s) Filing Case
Appeal Judgement - 27.11.2007 SIMBA Aloys
(ICTR-01-76-A)

264. […] The Appeals Chamber has previously held that genocidal intent can be proven through inference from the facts and circumstances of a case.[1] Correspondingly, the Appeals Chamber has held that it is sufficient if the evidentiary facts from which the state of mind is to be inferred are pleaded.[2] […]

[1] Gacumbitsi Appeal Judgement, para. 40; Rutaganda Appeal Judgement, para. 525.

[2] Blaskić Appeal Judgement, para. 219 (internal footnotes omitted).

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Notion(s) Filing Case
Appeal Judgement - 27.11.2007 SIMBA Aloys
(ICTR-01-76-A)

74. […] the Appeals Chamber cannot find any merit in the Appellant’s argument that the Indictment fails to refer to any sort of “organization” among these individuals. It is well established that a JCE need not be previously arranged or formulated and may materialise extemporaneously.[1] Since “organization” is not an element of JCE, it need not be pleaded in the Indictment.

77. The Appeals Chamber recalls that while the JCE categories are mutually incompatible to the extent that a defendant may not be convicted of multiple categories based on the same conduct, an indictment may charge a defendant cumulatively with multiple categories.[2] The Appeals Chamber notes that the Appellant was convicted for his participation in a JCE based on the first category, and therefore restricts its inquiry to whether he was put on notice that the Prosecution intended to rely on that specific category.[3] In this regard, the Appeals Chamber recalls that the three categories of JCE vary only with respect to the mens rea element, not with regard to the actus reus.[4] Accordingly, an accused will have sufficient notice of the category of JCE with which he is being charged where the indictment pleads the mens rea element of the respective category.

see also Other Issues of Particular Interest” below citing para. 78 for application to the circumstances of the case.

[1] Kvočka et al. Appeal Judgement, para. 117; Tadić Appeal Judgement, para. 227 (ii). See also Vasiljević Appeal Judgement, para. 100.

[2] See, e.g. Delalic et al. Appeal Judgement, para. 400 ("Cumulative charging is to be allowed in light of the fact that, prior to the presentation of all of the evidence, it is not possible to determine to a certainty which of the charges brought against an accused will be proven. The Trial Chamber is better poised, after the parties’ presentation of the evidence, to evaluate which of the charges may be retained, based upon the sufficiency of the evidence. In addition, cumulative charging constitutes the usual practice of both this Tribunal and the ICTR.").

[3] The Appellant’s arguments concerning the other categories, including the contention that it is a “mission impossible” to prove the elements of all three categories since they are mutually incompatible, need not be addressed as they could not have had any impact on the verdict.

[4] Tadić Appeal Judgement, paras 227, 228.

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Notion(s) Filing Case
Appeal Judgement - 28.11.2006 SIMIĆ Blagoje
(IT-95-9-A)

The Appeals Chamber addressed the issue of vagueness of an indictment following the principles laid out in the Kupreškić Appeal Judgement. The Appeals Chamber reaffirmed that the Prosecution should only plead the modes of responsibility on which it intends to rely, and that the alleged mode(s) of liability of the accused in a crime pursuant to Article 7(1) of the Statute should be clearly laid out in the indictment. Following ICTY and ICTR jurisprudence, the Appeals Chamber held that the mode of liability of joint criminal enterprise must be specifically pleaded in an indictment. The Appeals Chamber stressed that if the Prosecution is relying on the mode of liability of joint criminal enterprise, it is not sufficient for an indictment to charge an accused for “committing” the crimes in question under Article 7(1) of the Statute. It is not sufficient for the generic language of an indictment to encompass the possibility that joint criminal enterprise is being charged. See paragraphs 21 and 22.

21. The practice of both the International Tribunal and the ICTR requires that the Prosecution plead the specific mode or modes of liability for which the accused is being charged.[1] The Prosecution has repeatedly been discouraged from the practice of simply restating Article 7(1) of the Statute unless it intends to rely on all of the modes of liability contained therein, because of the ambiguity that this causes.[2] When the Prosecution is intending to rely on all modes of responsibility in Article 7(1), then the material facts relevant to each of those modes must be pleaded in the indictment. Otherwise, the indictment will be defective.[3]  The Appeals Chamber further reaffirms that the Prosecution should only plead the modes of responsibility on which it intends to rely,[4] and considers that the alleged mode(s) of liability of the accused in a crime pursuant to Article 7(1) of the Statute should be clearly laid out in the indictment.[5]

22. Similarly, when the Prosecution charges the “commission” of one of the crimes under the Statute within the meaning of Article 7(1), it must specify whether the said term is to be understood as meaning physical commission by the accused or participation in a joint criminal enterprise, or both.[6] It is not enough for the generic language of an indictment to “encompass” the possibility that joint criminal enterprise is being charged.[7] The Appeals Chamber reiterates that joint criminal enterprise must be specifically pleaded in an indictment.[8] Although joint criminal enterprise is a means of “committing”, it is insufficient for an indictment to merely make broad reference to Article 7(1) of the Statute; such reference does not provide sufficient notice to the Defence or to the Trial Chamber that the Prosecution is intending to rely on joint criminal enterprise responsibility.[9] Also, if the Prosecution relies on this specific mode of liability, it must plead the following material facts: the nature and purpose of the enterprise, the period over which the enterprise is said to have existed, the identity of the participants in the enterprise, and the nature of the accused’s participation in the enterprise.[10] In order for an accused charged with joint criminal enterprise to fully understand the acts he is allegedly responsible for, the indictment should also clearly indicate which form of joint criminal enterprise is being alleged.[11] The Appeals Chamber considers that failure to specifically plead joint criminal enterprise in the indictment in a case where the Prosecution intends to rely on this mode of liability will result in a defective indictment.[12]

The Appeals Chamber reiterated that a vague indictment not cured by timely, clear and consistent notice causes prejudice to the accused. See paragraph 24.

[1] Blaškić Appeal Judgement, para. 215; Semanza Appeal Judgement, para. 357. See also Ntakirutimana Appeal Judgement, para. 473; Aleksovski Appeal Judgement, para. 171, fn. 319; Prosecutor v. Radoslav Brđanin and Momir Talić, Case No. IT-99-36-PT, Decision on Objections by Momir Talić to the form of the Amended Indictment, 20 February 2001, para. 10; Prosecutor v. Milorad Krnojelac, Case No. IT-97-25-T, Decision on Preliminary Motion on Form of Amended Indictment, 11 February 2000, para. 60.

[2] Semanza Appeal Judgement, para. 357; see also Ntakirutimana Appeal Judgement, para. 473; Blaskić Appeal Judgement, para. 228; Krnojelac Appeal Judgement, para. 138.

[3] Kvočka et al. Appeal Judgement, para. 29.

[4] Kvočka et al. Appeal Judgement, para. 41.

[5] Blaškić Appeal Judgement, para. 215.

[6] Krnojelac Appeal Judgement, para. 138.

[7] Gacumbitsi Appeal Judgement, para. 167.

[8] Gacumbitsi Appeal Judgement, paras 163 and 167; Ntagerura et al. Appeal Judgement, para. 24 ; Kvočka et al. Appeal Judgement, para. 42.

[9] Kvočka et al. Appeal Judgement, para. 42.

[10]  Ntagerura et al. Appeal Judgement, para. 24; Kvočka et al. Appeal Judgement, para. 28.

[11] Ntagerura et al. Appeal Judgement, para. 24; Kvočka et al. Appeal Judgement, para. 28, referring to Krnojelac Appeal Judgement, para. 138.

[12] Gacumbitsi Appeal Judgement, paras 162-163; Ntagerura et al. Appeal Judgement, para. 24; see Kvočka et al. Appeal Judgement, para. 42.

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Appeal Judgement - 28.11.2006 SIMIĆ Blagoje
(IT-95-9-A)

If an appellant raises the vagueness of an indictment as a ground of appeal and it turns out that he never raised this issue at trial, then he has the burden of proving at the appellate stage that his ability to prepare his defence was materially impaired as a result of the defect in the indictment. If however he did raise this issue at trial, then the Prosecution has the burden of proving that the appellant’s defence was not materially impaired. See paragraph 25.

25. 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.[1] In general, a party should not be permitted to refrain from making an objection to a matter which was apparent during the course of the trial, and to raise it only in the event of an adverse finding against that party. Failure to object in the Trial Chamber will usually result in the Appeals Chamber disregarding the argument on grounds of waiver.[2] However, the importance of the right of an accused to be informed of the charges against him and the possibility that he will incur serious prejudice if material facts crucial to the Prosecution are communicated for the first time at trial suggest that the waiver doctrine should not entirely foreclose an accused from raising an indictment defect for the first time on appeal.[3] Where, in such circumstances, an appellant raises a defect in the indictment for the first time on appeal, he bears the burden of proving that his ability to prepare his defence was materially impaired.[4] On the other hand, when 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 a defence was not materially impaired.[5] 

[1] Niyitegeka Appeal Judgement, para. 198.

[2] Niyitegeka Appeal Judgement, para. 199 referring to Kayishema and Ruzindana Appeal Judgement, para. 91.

[3] Niyitegeka Appeal Judgement, para. 200.

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

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

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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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Appeal Judgement - 04.02.2013 MUGENZI AND MUGIRANEZA (Government II)
(ICTR-99-50-A)

In footnote 290, the Appeals Chamber noted that:

As Mugiraneza suggests, the Indictment was confirmed before the ICTY Appeals Chamber had recognized the theory of joint criminal enterprise. Compare Trial Judgement, Annex A, para. 6 (noting that the Indictment was confirmed on 12 May 1999) with Tadić Appeal Judgement, para. 220 (concluding, in a judgement issued on 15 July 1999, that the notion of joint criminal enterprise is firmly established in customary international law). See also Trial Judgement, para. 1920. However, he fails to show how this fact demonstrates that the elements of the theory of joint criminal enterprise were omitted from the Indictment or that the Trial Chamber erred in finding that the Indictment reflected the Prosecution’s intent to pursue such a theory.

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Appeal Judgement - 21.05.2007 MUHIMANA Mikaeli
(ICTR-95-1B-A)

The Appeals Chamber recalled that vagueness in an indictment may be cured by appropriate notice found in a summary of witness’s anticipated testimony annexed to a Prosecution pre-trial brief. However, in the present case, the Appeals Chamber rejected such notice as insufficient where the relevant summary did not provide clear and consistent information to the Appellant:

223. In the Gacumbitsi Appeal Judgement, the Appeals Chamber held that a summary of an anticipated testimony in an annex to the Prosecution’s pre-trial brief could, in certain circumstances, cure a defect in an indictment.[1] In that case, the indictment alleged generally that “Gacumbitsi killed persons by his own hands”.[2] The Appeals Chamber found this allegation to be vague, in particular as it referred to the physical commission of murder of a particular person.[3] However, a summary of anticipated testimony contained in an annex to the pre-trial brief referred to a specific killing and connected it to the crime of genocide.[4] The Appeals Chamber also observed that the summary did not conflict with any other information that was provided to the accused and was provided in advance of trial.[5] The information in the annex to the pre-trial brief was thus found to be timely, clear, and consistent and to provide sufficient notice of the allegation of the specific murder mentioned in the summary.[6]

224. The circumstances presented in this instance, however, are different. The summary of Witness AW’s anticipated testimony does not simply add greater detail in a consistent manner with a more general allegation already pleaded in the Indictment. Rather, the summary modifies the time, location, and physical perpetrator, matters that were already specifically pleaded in the Indictment, albeit in a materially different manner. In such circumstances, the summary of Witness AW’s anticipated testimony in the annex of the Pre-Trial Brief and the disclosure of his witness statement do not provide clear and consistent information sufficient to put the Appellant on notice that he was being charged with physically committing the murder of Pascasie Mukaremera on Rugona Hill in mid-May 1994. The summary of Witness AW’s testimony does not supplement or provide greater detail, but materially alters key facets of this paragraph. This discrepancy should have been immediately apparent to the Prosecution as it prepared its Pre-Trial Brief and listed the anticipated testimony of Witness AW in support of a paragraph of the Indictment that materially conflicted with it, in particular given that the Prosecution had shortly prior to that added this allegation to the Indictment for the purpose of providing specificity to the Accused. (footnotes omitted).

[1] Gacumbitsi Appeal Judgement, paras. 57, 58. See also Ntakirutimana Appeal Judgement, para. 48 (holding that witness statements, when taken together with “unambiguous information” contained in a pre-trial brief and its annexes may be sufficient to cure a defect in an indictment). This is consistent with ICTY jurisprudence. See Naletilić and Martinović Appeal Judgement, para. 45.

[2] Gacumbitsi Appeal Judgement, para. 58.

[3] Gacumbitsi Appeal Judgement, para. 50.

[4] Gacumbitsi Appeal Judgement, paras. 57, 58.

[5] Gacumbitsi Appeal Judgement, para. 58.

[6] Gacumbitsi Appeal Judgement, para. 58.

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Appeal Judgement - 21.05.2007 MUHIMANA Mikaeli
(ICTR-95-1B-A)

80. […] The Appeals Chamber has held that, where a Trial Chamber has treated a challenge to an indictment as being adequately raised, the Appeals Chamber should not invoke the waiver doctrine. The Appeals Chamber will therefore treat the Appellant’s objection as having been timely raised. It therefore falls to the Prosecution to prove that the Appellant’s defence was not materially impaired by this defect.

[1] Gacumbitsi Appeal Judgement, para. 54. See also Ntakirutimana Appeal Judgement, para. 23.

[2] Gacumbitsi Appeal Judgement, para. 51.

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Appeal Judgement - 28.09.2011 MUNYAKAZI Yussuf
(ICTR-97-36A-A)

36. The Appeals Chamber recalls that charges against an accused and the material facts supporting those charges must be pleaded with sufficient precision in an indictment so as to provide notice to the accused. In reaching its judgement, a Trial Chamber can only convict the accused of crimes that are charged in the indictment.[2] The Appeals Chamber has further held that criminal acts that were physically committed by the accused personally must be set forth specifically in the indictment, including, where feasible, “the identity of the victim, the time and place of the events and the means by which the acts were committed.” An indictment lacking sufficient precision in the pleading of material facts is defective; however, the defect may be cured if the Prosecution provides the accused with timely, clear, and consistent information detailing the factual basis underpinning the charges.

37. The Trial Chamber found that Munyakazi committed the crimes at Shangi and Mibilizi parishes “[o]n the basis of his leadership position at the crime sites”, which showed that “[he] was as much an integral part of the killings as those he enabled”.[5] As Munyakazi submits, the Indictment does not specifically state that he was the leader of the attacks at Shangi and Mibilizi parishes. However, the more general allegations in paragraphs 13 and 14 of the Indictment that “Yussuf MUNYAKAZI, with the Bugarama interahamwe, attacked and killed” Tutsis at the two parishes must be read in light of paragraph 1 of the Indictment, which alleges his role as “a leader” with “de facto authority” over that militia group.[6] Therefore, the Appeals Chamber is satisfied that the Indictment provided Munyakazi with notice that he had a leadership role and exercised de facto authority over the Bugarama Interahamwe during the attacks at Shangi and Mibilizi parishes. Contrary to Munyakazi’s submission, the fact that the Prosecution’s theory of the scope and basis of his leadership of the Bugarama Interahamwe was broader than that ultimately proven at trial does not mean that the notice of Munyakazi’s role in the crimes was deficient.

[1] Muvunyi II Appeal Judgement, para. 19; Renzaho Appeal Judgement, para. 53; Kalimanzira Appeal Judgement, para. 46; Muvunyi I Appeal Judgement, para. 18; Seromba Appeal Judgement, paras. 27, 100; Simba Appeal Judgement, para. 63; Muhimana Appeal Judgement, paras. 76, 167, 195; Gacumbitsi Appeal Judgement, para. 49; Ndindabahizi Appeal Judgement, para. 16.

[2] Muvunyi II Appeal Judgement, para. 19; Kalimanzira Appeal Judgement, para. 46; Muvunyi I Appeal Judgement, para. 18; Ntagerura et al. Appeal Judgement, para. 28; Kvočka et al. Appeal Judgement, para. 33. See also Nahimana et al. Appeal Judgement, para. 326.

[3] Muhimana Appeal Judgement, para. 76; Gacumbitsi Appeal Judgement, para. 49; Ntakirutimana Appeal Judgement, para. 32, quoting Kupreškić et al. Appeal Judgement, para. 89. See also Ndindabahizi Appeal Judgement, para. 16.

[4] Renzaho Appeal Judgement, para. 55; Kalimanzira Appeal Judgement, para. 46; Nchamihigo Appeal Judgement, para. 338; Muvunyi I Appeal Judgement, para. 20; Seromba Appeal Judgement, para. 100; Simba Appeal Judgement, para. 64; Muhimana Appeal Judgement, paras. 76, 195, 217; Ntagerura et al. Appeal Judgement, paras. 28, 65; Gacumbitsi Appeal Judgement, para. 49.

[5] Trial Judgement, para. 491.

[6] See Rutaganda Appeal Judgement, para. 304 (noting that indictment paragraphs cannot be read in isolation from the rest of the document). See also Semanza Appeal Judgement, para. 358 (reading various paragraphs of an indictment together in concluding that the appellant was charged with ordering crimes).

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Appeal Judgement - 28.09.2011 MUNYAKAZI Yussuf
(ICTR-97-36A-A)

161. In cases where the Prosecution intends to rely on a theory of joint criminal enterprise, it must plead the purpose of the enterprise, the identity of its participants, the nature of the accused’s participation in the enterprise, and the period of the enterprise. The indictment should also clearly indicate which form of joint criminal enterprise is being alleged. Failure to specifically plead joint criminal enterprise, including the supporting material facts and the category, constitutes a defect in the indictment.

162. In the Simba Appeal Judgement, the Appeals Chamber determined that an indictment properly pleaded the identity of the participants by identifying the physical perpetrators by general category, such as Interahamwe, and then further identifying them with geographic and temporal details related to each massacre site.[4] The Indictment in the present case provides the same degree of specificity when the reference to the Bugarama Interahamwe in paragraph 4 of the Indictment is read together with paragraphs 13 and 14, alleging that Munyakazi and the Bugarama Interahamwe attacked and killed Tutsi civilians at Shangi and Mibilizi parishes, respectively, on 29 and 30 April 1994. Accordingly, the Trial Chamber erred in law in concluding that the reference to the Bugarama Interahamwe was too vague and in limiting its consideration of the evidence to only the named participants.

[1] Simba Appeal Judgement, para. 63.

[2] Simba Appeal Judgement, para. 63.

[3] Simba Appeal Judgement, para. 63.

[4] Simba Appeal Judgement, paras. 71, 72, quoting Simba Trial Judgement, paras. 392, 393.

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Appeal Judgement - 28.09.2011 MUNYAKAZI Yussuf
(ICTR-97-36A-A)

36. The Appeals Chamber recalls that charges against an accused and the material facts supporting those charges must be pleaded with sufficient precision in an indictment so as to provide notice to the accused. In reaching its judgement, a Trial Chamber can only convict the accused of crimes that are charged in the indictment.[2] The Appeals Chamber has further held that criminal acts that were physically committed by the accused personally must be set forth specifically in the indictment, including, where feasible, “the identity of the victim, the time and place of the events and the means by which the acts were committed.” An indictment lacking sufficient precision in the pleading of material facts is defective; however, the defect may be cured if the Prosecution provides the accused with timely, clear, and consistent information detailing the factual basis underpinning the charges.

37. The Trial Chamber found that Munyakazi committed the crimes at Shangi and Mibilizi parishes “[o]n the basis of his leadership position at the crime sites”, which showed that “[he] was as much an integral part of the killings as those he enabled”.[5] As Munyakazi submits, the Indictment does not specifically state that he was the leader of the attacks at Shangi and Mibilizi parishes. However, the more general allegations in paragraphs 13 and 14 of the Indictment that “Yussuf MUNYAKAZI, with the Bugarama interahamwe, attacked and killed” Tutsis at the two parishes must be read in light of paragraph 1 of the Indictment, which alleges his role as “a leader” with “de facto authority” over that militia group.[6] Therefore, the Appeals Chamber is satisfied that the Indictment provided Munyakazi with notice that he had a leadership role and exercised de facto authority over the Bugarama Interahamwe during the attacks at Shangi and Mibilizi parishes. Contrary to Munyakazi’s submission, the fact that the Prosecution’s theory of the scope and basis of his leadership of the Bugarama Interahamwe was broader than that ultimately proven at trial does not mean that the notice of Munyakazi’s role in the crimes was deficient.

[1] Muvunyi II Appeal Judgement, para. 19; Renzaho Appeal Judgement, para. 53; Kalimanzira Appeal Judgement, para. 46; Muvunyi I Appeal Judgement, para. 18; Seromba Appeal Judgement, paras. 27, 100; Simba Appeal Judgement, para. 63; Muhimana Appeal Judgement, paras. 76, 167, 195; Gacumbitsi Appeal Judgement, para. 49; Ndindabahizi Appeal Judgement, para. 16.

[2] Muvunyi II Appeal Judgement, para. 19; Kalimanzira Appeal Judgement, para. 46; Muvunyi I Appeal Judgement, para. 18; Ntagerura et al. Appeal Judgement, para. 28; Kvočka et al. Appeal Judgement, para. 33. See also Nahimana et al. Appeal Judgement, para. 326.

[3] Muhimana Appeal Judgement, para. 76; Gacumbitsi Appeal Judgement, para. 49; Ntakirutimana Appeal Judgement, para. 32, quoting Kupreškić et al. Appeal Judgement, para. 89. See also Ndindabahizi Appeal Judgement, para. 16.

[4] Renzaho Appeal Judgement, para. 55; Kalimanzira Appeal Judgement, para. 46; Nchamihigo Appeal Judgement, para. 338; Muvunyi I Appeal Judgement, para. 20; Seromba Appeal Judgement, para. 100; Simba Appeal Judgement, para. 64; Muhimana Appeal Judgement, paras. 76, 195, 217; Ntagerura et al. Appeal Judgement, paras. 28, 65; Gacumbitsi Appeal Judgement, para. 49.

[5] Trial Judgement, para. 491.

[6] See Rutaganda Appeal Judgement, para. 304 (noting that indictment paragraphs cannot be read in isolation from the rest of the document). See also Semanza Appeal Judgement, para. 358 (reading various paragraphs of an indictment together in concluding that the appellant was charged with ordering crimes).

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Appeal Judgement II - 01.04.2011 MUVUNYI Tharcisse
(ICTR-2000-55A-A)

19. The Appeals Chamber recalls that charges against an accused and the material facts supporting those charges must be pleaded with sufficient precision in an indictment so as to provide notice to the accused. In reaching its judgement, a Trial Chamber can only convict the accused of crimes that are charged in the indictment.[2] The Appeals Chamber has already confirmed in its previous judgement in this case, as well as in an interlocutory appeal decision during the course of the retrial, that the Indictment was not defective.[3] The question, however, remains whether Muvunyi was convicted of the specific crime which was charged in the Indictment.

29. The final question therefore is whether Muvunyi lacked notice of the meeting for which he was convicted given the variance between the Indictment date range of early May 1994 and the finding that the meeting occurred in mid to late May 1994. The Appeals Chamber is not convinced that the difference between the language of the Indictment and the evidence is material since the variance is not significant,[4] and, as the Trial Chamber noted, there was only one meeting at the Gikore Trade Center in May 1994. Furthermore, Muvunyi in fact defended against the allegation that he incited the local population during a meeting at the Gikore Trade Center in mid to late May 1994 in both his first trial and the retrial, which shows that he had notice of the charge in the Indictment with respect to the May 1994 meeting.[5]

[1] Muvunyi I Appeal Judgement [Tharcisse Muvunyi v. The Prosecutor, Case No. ICTR-00-55A-A, Judgement, 29 August 2008], para. 18; Seromba Appeal Judgement, paras. 27, 100; Simba Appeal Judgement, para. 63; Muhimana Appeal Judgement, paras. 76, 167, 195; Gacumbitsi Appeal Judgement, para. 49; Ndindabahizi Appeal Judgement, para. 16.

[2] Muvunyi I Appeal Judgement, para. 18; Nahimana et al. Appeal Judgement, para. 326; Ntagerura et al. Appeal Judgement, para. 28; Kvočka et al. Appeal Judgement, para. 33.

[3] Muvunyi I Appeal Judgement, para. 140; The Prosecutor v. Tharcisse Muvunyi, Case No. ICTR-2000-55A-AR98bis, Decision on Appeal of Decision Denying the Motion for Judgement of Acquittal, 11 November 2009, para. 13.

[4] See, e.g., Rutaganda Appeal Judgement, para. 302; Kunarac et al. Appeal Judgement, para. 217.

[5] Trial Judgement, para. 47 (“Moreover, each of the Defence’s factual witnesses testified that Muvunyi attended a meeting in Gikore in mid to late May 1994 where he spoke to an audience.”). See also Muvunyi I Trial Judgement [The Prosecutor v. Tharcisse Muvunyi, Case No. ICTR-2000-55A-T, Judgement and Sentence, rendered orally on 12 September 2006, written judgement filed in English on 18 September 2006], paras. 202-205.

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Appeal Judgement I - 29.08.2008 MUVUNYI Tharcisse
(ICTR-2000-55A-A)

123. A review of the trial record, including the evidence of Witness YAQ, reveals that Muvunyi did not object to the form of this paragraph before trial or during the witness’s testimony. Nonetheless, he challenged the form of paragraph 3.24 of the Indictment at the trial stage in his motion for judgement of acquittal, although his submissions did not take specific issue with the evidence of Witness YAQ.[1] In this respect, the Appeals Chamber has held:

[O]bjections based on lack of notice should be specific and timely. The Appeals Chamber agrees with the Prosecution that blanket objections that “the entire indictment is defective” are insufficiently specific. As to timeliness, the objection should be raised at the pre-trial stage (for instance in a motion challenging the indictment) or at the time the evidence of a new material fact is introduced. However, an objection raised later at trial will not automatically lead to a shift in the burden of proof: the Trial Chamber must consider relevant factors, such as whether the Defence provided a reasonable explanation for its failure to raise the objection earlier in the trial.[2]

The Trial Chamber did not consider Muvunyi’s objection to the form of paragraph 3.24 of the Indictment to be timely.[3] Muvunyi has not advanced any reason suggesting that this conclusion was erroneous. It therefore falls to him to demonstrate that the preparation of his defence was prejudiced by the omission from the Indictment of the approximate time and place of the Gikonko meeting.[4]

124. Muvunyi has failed to make such a demonstration. Indeed, the Appellant’s Brief does not address the question of prejudice suffered from the leading of evidence about the Gikonko meeting.[5] In these circumstances, the Appeals Chamber finds that Muvunyi has not discharged his burden to demonstrate prejudice. Consequently, this sub-ground of appeal is dismissed.

[1] Motion for Judgement of Acquittal, para. 59 (“With respect to the sensitization meetings, the Prosecutor offered the testimony of Witnesses CCP, YAI, CCR, YAP. These sensitizing meetings as alleged in the indictment are not sufficiently plead as to victims of the crimes of genocide in each instance or what specific acts of genocide occurred in order to give the Accused notice of what Count 1 or Count 2 acts he must specifically defend against.”).

[2] Bagosora et al., 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, para. 46 (internal citation omitted).

[3] Muvunyi, Decision on Tharcisse Muvunyi’s Motion for Judgement of Acquittal pursuant to Rule 98bis [The Prosecutor v. Tharcisse Muvunyi, Case No. ICTR-00-55A-T, Decision on Tharcisse Muvunyi’s Motion for Judgement of Acquittal pursuant to Rule 98bis, 13 October 2005], para. 41.

[4] Gacumbitsi Appeal Judgement, para. 51, quoting Niyitegeka Appeal Judgement, paras. 199, 200. See also Bagosora et al., 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, paras. 45-47.

[5] Muvunyi Appeal Brief, paras. 80-81 (where he simply objects to the lack of notice). A similar situation occurred in Niyitegeka. In that case, the Appeals Chamber found that the Indictment was defective, that Niyitegeka had not objected to this during trial, and that the burden of showing prejudice was therefore on him. Since he had made no submissions as to how he was prejudiced, the Appeals Chamber held that the Trial Chamber did not err in convicting him. Niyitegeka Appeal Judgement, paras. 200, 207, 211.

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Notion(s) Filing Case
Appeal Judgement I - 29.08.2008 MUVUNYI Tharcisse
(ICTR-2000-55A-A)

20. An indictment lacking this precision is defective; however, the defect may be cured if the Prosecution provides the accused with timely, clear, and consistent information detailing the factual basis underpinning the charge. However, the principle that a defect in an indictment may be cured is not without limits. In this respect, the Appeals Chamber has previously emphasized:

[T]he “new material facts” should not lead to a “radical transformation” of the Prosecution’s case against the accused. The Trial Chamber should always take into account the risk that the expansion of charges by the addition of new material facts may lead to unfairness and prejudice to the accused. Further, if the new material facts are such that they could, on their own, support separate charges, the Prosecution should seek leave from the Trial Chamber to amend the indictment and the Trial Chamber should only grant leave if it is satisfied that it would not lead to unfairness or prejudice to the Defence.[2]

While the Appeals Chamber has previously held that a pre-trial brief can, in certain circumstances, cure a defect in an indictment,[3] the circumstances presented in this instance are different. The Pre-Trial Brief and the annexed witness summaries do not simply add greater detail in a consistent manner with a more general allegation already pleaded in the Indictment. Rather, the Pre-Trial Brief and the annexed witness summaries expand the charges specifically pleaded in the Indictment by charging additional attacks involving ESO Camp soldiers, based on superior responsibility, other than the one specifically mentioned in paragraph 3.29 of the Indictment. This does not amount to clear and consistent notice adding specificity to a vague paragraph; rather it is a de facto amendment of the Indictment.

26. The Prosecution’s contention that the variances between the Indictment and the evidence at trial are minor or that any resulting defect was cured fails to address the fundamental problem with paragraph 3.29 of the Indictment and the related conviction: the paragraph is not vague; it specifically alleges a different event and form of criminal conduct from the one for which Muvunyi was convicted by the Trial Chamber. The differences in the dates as well as the nature of the attack (abductions from the hospital and killings elsewhere versus separations and killings at the hospital), in addition to Muvunyi’s alleged role, underscore this point. Paragraph 3.29 of the Indictment, therefore, did not properly inform Muvunyi of the material facts for the crime for which he was ultimately convicted.

155. The Prosecution’s contention that any defect in the Indictment was cured by the Schedule of Particulars and the summaries of anticipated testimony annexed to its Pre-Trial Brief fails to address the fundamental problem with Count 5 of the Indictment: the count is not vague; it is narrowly tailored and charges the crime of other inhumane acts as a crime against humanity based on one specific event which is described in paragraph 3.44 of the Indictment. By adding paragraph 3.47 of the Indictment as support for Count 5 in the Schedule of Particulars, the Prosecution essentially amended the Indictment and expanded the charge of other inhumane acts as a crime against humanity from a single event alleged in paragraph 3.44 where ESO Camp soldiers allegedly prevented wounded refugees from going to the Butare University Hospital to acts of cruel treatment by ESO and Ngoma Camp soldiers during every event alleged in the Indictment as pleaded in paragraph 3.47.

156. As noted above, the Indictment does not list paragraph 3.47 in support of any count. The Appeals Chamber has previously observed in this case 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.[4] The Appeals Chamber therefore considers that the mistreatment underlying Muvunyi’s conviction for other inhumane acts as a crime against humanity was not charged in his Indictment. The omission of a count or charge from an indictment cannot be cured by the provision of timely, clear, and consistent information.[5]

[1] Seromba Appeal Judgement [The Prosecutor v. Athanase Seromba, Case No. ICTR-2001-66-A, Judgement, 12 March 2008], para 100; Simba Appeal Judgement, para. 64; Muhimana Appeal Judgement [Mikaeli Muhimana v. The Prosecutor, Case No. ICTR-95-1B-A, Judgement, 21 May 2007], paras. 76, 195, 217; Gacumbitsi Appeal Judgement [Sylvestre Gacumbitsi v. The Prosecutor, Case No. ICTR-2001-64-A, Judgement, 7 July 2006], para. 49. See also Ntagerura et al. Appeal Judgement, paras. 28, 65.

[2] Bagosora et al., 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, para. 30 (internal citations omitted).

[3] Muhimana Appeal Judgement, paras. 82, 201, 223, citing Gacumbitsi Appeal Judgement, paras. 57, 58; Naletilić and Martinović Appeal Judgement [Prosecutor v. Mladen Naletilić and Vinko Martinović, Case No. IT-98-34-A, Judgement, 3 May 2006], para. 45; Ntakirutimana Appeal Judgement [The Prosecutor v. Elizaphan Ntakirutimana and Gérard Ntakirutimana, Cases Nos. ICTR-96-10-A and ICTR-96-17-A, Judgement, 13 December 2004], para. 48.

[4] Muvunyi, Decision on Prosecution Interlocutory Appeal against Trial Chamber II Decision of 23 February 2005 [The Prosecutor v. Tharcisse Muvunyi, Case No. ICTR-00-55A-A, Decision on Prosecution Interlocutory Appeal against Trial Chamber II Decision of 23 February 2005, 12 May 2005], para. 33 (“The Appeals Chamber is satisfied that the allegation of the Accused’s involvement in the detention and disappearance of Habyalimana could constitute a new charge against the Accused. In the current indictment, the relevant paragraph is contained in the section titled “Concise Statement of Facts” and not in the section of specific allegations against the Accused. Further, the Prosecution does not reference this paragraph of the current indictment as a material fact underpinning any of the charges made in the indictment. If the proposed amendment is allowed, it is presumed that the Prosecution would include this allegation under Counts 1 and 2 of the indictment, in support of the charges of genocide, or alternatively complicity to genocide. But this does not change the fact that this fresh allegation could support a separate charge against the Accused.”) (emphasis added).

[5] Ntagerura et al. Appeal Judgement [The Prosecutor v. André Ntagerura et al., Case No. ICTR-99-46-A, Judgement, 7 July 2006], para. 32; Bagosora et al., 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 [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. 29.

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

119. However, in relation to the third category [of material facts which must be pleaded in an indictment charging superior responsibility pursuant to Article 6(3) of the Statute], the Appeals Chamber recalls that Renzaho was found by the Trial Chamber to have reason to know of the rapes due to his vocal encouragement of them.[1] The conduct by which Renzaho was found to have reason to know that the rapes were about to be committed was therefore not pleaded in the Indictment. The failure to include this material fact in the Indictment renders it defective. The Appeals Chamber will therefore consider whether this defect was cured by the provision of clear, consistent, and timely information by the Prosecution.

[1] See Trial Judgement, paras. 709, 717, 718, 774, 775.

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Notion(s) Filing Case
Decision on Amendment of the Indictment - 12.05.2005 MUVUNYI Tharcisse
(ICTR-00-55A-AR73)

22. […] While confirming the principle that to avoid prejudice to an accused in the preparation of the defence case the Prosecution must plead the material facts in the indictment, it does not follow that a Trial Chamber must allow a Prosecution application to amend an indictment to expand the material facts alleged pre-trial if in all the circumstances prejudice would accrue to the accused by those amendments.  The fact that the expansion of counts charged may be derived from material already disclosed to the Accused also does not automatically nullify prejudice to the Accused.  It is to be assumed that an Accused will prepare his defence on the basis of material facts contained in the indictment, not on the basis of all the material disclosed to him that may support any number of additional charges, or expand the scope of existing charges.  In either circumstance, when a complaint is made on appeal about a failure to plead material facts, or objection is made to a Prosecution application to amend to add material facts or new charges, the issue is whether the accused has been or will be prejudiced.

38. While the Appeals Chamber has determined that the Trial Chamber erred in classifying some of the proposed amendments as new charges, this does not necessarily mean that the Trial Chamber erred in the decision that it reached to reject the proposed amendments.  As the Trial Chamber acknowledged in its decision, new charges do not prohibit a Chamber from granting the Prosecution leave to amend an indictment.  Conversely, the fact that an amendment to an indictment does not amount to a new charge does not automatically obligate the Trial Chamber to permit it.  Rule 50 (A), which governs the permissibility of amendments to indictments, does not distinguish between amendments that add new charges and those that merely add or clarify material facts.  Rather, whether to permit either kind of indictment is a multi-factor discretionary decision for the Trial Chamber.  In this case, the Trial Chamber’s decision did not turn principally on the fact that new charges were involved, but rather on the prejudice to the Accused that would result from permitting the amendments and on the Prosecution’s failure to request the amendments at a date consistent with due diligence.  Thus, the Appeals Chamber’s conclusion that the Trial Chamber incorrectly categorised some of the amendments as new charges does not require setting aside the Trial Chamber’s decision; instead, the Appeals Chamber must assess the issues of prejudice and prosecutorial diligence.

 

51. […] As the Appeals Chamber held in the Karemera case, “although Rule 50 does not require the Prosecution to amend the indictment as soon as it discovers evidence supporting the amendment, neither may it delay giving notice of the changes to the Defence without any reason”.[1]  Under some circumstances, the Prosecution might justifiably wait to file an amendment while it continues its investigation so as to determine whether further evidence either strengthens its case or weakens it.  […] Where the Prosecution has delayed unnecessarily in bringing particular allegations, and this delay has caused prejudice to the defendant, it is within the Trial Chamber’s discretion to find that this delay constitutes sufficient ground to refuse an amendment to an indictment.[2]

[1]     Prosecutor v Karemera, No ICTR-98-44-AR73, Decision on Prosecutor’s Interlocutory Appeal Against Trial Chamber III Decision of 8 December 2003 Denying Leave to File An Amended Indictment, 19 December 2003, para. 20.

[2]     The Trial Chamber may consider lack of prosecutorial diligence as a factor supporting denial of an amendment even if no bad faith is demonstrated on the part of the prosecution – that is, even if the prosecution did not deliberately delay the amendment in order to seek a strategic advantage. See id. at para. 23 (holding that in such circumstances, the “Prosecution’s failure to show that the amendments were brought forward in a timely manner must be “measured within the framework of the overall requirement of the fairness of the proceedings”).

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ICTR Rule Rule 50 ICTY Rule Rule 50
Notion(s) Filing Case
Decision on Amendment of the Indictment - 12.05.2005 MUVUNYI Tharcisse
(ICTR-00-55A-AR73)

19. There is a clear distinction between counts or charges made in an indictment and the material facts that underpin that charge or count.  The count or charge is the legal characterisation of the material facts which support that count or charge.  In pleading an indictment, the Prosecution is required to specify the alleged legal prohibition infringed (the count or charge) and the acts or omissions of the Accused that give rise to that allegation of infringement of a legal prohibition (material facts).  The distinction between the two is one that is quite easily drawn.

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Notion(s) Filing Case
Appeal Judgement - 26.05.2003 RUTAGANDA George
(ICTR-96-3-A)

301. An Indictment is aimed at providing the accused with “a description of the charges against him with sufficient particularity to enable him to mount his defence.”[1] Accordingly, the indictment must be sufficiently specific, meaning that it must reasonably inform the accused of the material charges, and their criminal characterisation. The materiality of an alleged fact depends, above all, on the nature of the alleged criminal conduct charged to the accused.[2] Before the ICTY, these principles derive from Articles 17(4), 20(2), 20(4)(a) and (b) of the Statute, and Rule 47(C) of the Rules.

302. Although, a priori, the Prosecution is required to prove the facts alleged in the Indictment, the Appeals Chamber holds the view that the Indictment cannot have the degree of specificity of the evidence underpinning it. The Appeals Chamber therefore considers that, in general, minor differences between the indictment and the evidence presented at trial are not such as to prevent the Trial Chamber from considering the indictment in the light of the evidence presented at trial. Moreover, the Appeals Chamber notes that in Kunarac, the ICTY Appeals Chamber held that “minor discrepancies between the dates in the Trial Judgement and those in the Indictment […] go to prove […] that the events charged in the Indictment did not occur.”[3]

303. Such doctrines must, however, be assessed in the light of paragraphs 20(2), (4)(a) and (b) of the Statute, and take into account the specific circumstances of each case. Indeed, the Appeals Chamber is of the opinion that the right of the accused to be informed of the nature of the charge against him and the right to have adequate time for the preparation of his defence imply that an accused must be able to identify the criminal acts and conduct alleged in the indictment in all circumstances. Before holding that an event charged is immaterial[4] or that there are minor discrepancies between the indictment and the evidence presented at trial, a Chamber must normally satisfy itself that no prejudice shall, as a result, be caused to the accused. An example of such prejudice is the existence of inaccuracies likely to mislead the accused as to the nature of the charges against him. Depending on the specific circumstances of each case, the question to be to determined is whether an accused was reasonably able to identify the crime and criminal conduct alleged in each of the paragraphs of the Indictment.[5]

[…]

306. It is the opinion of the Appeals Chamber that the alleged variance between the evidence presented at trial and the Indictment in relation to the date of the commission of the offence cannot lead to invalidation of the Trial Chamber’s findings unless the said date is actually an essential part of the Appellant’s alleged offence.[6]

[…]

401. […] [W]here the Appellant makes serious allegations regarding the integrity of the judicial process, […], he must, inter alia, demonstrate the prejudice caused by the divergences between the facts alleged in the Indictment and the evidence adduced at trial in accordance with the relevant jurisprudence […].[7]

[1] Kupreskic Appeal Judgement, para. 95; see also para. 88, and the Furundzija Appeal Judgement, para. 61.

[2] Kupreskic Appeal Judgement, para. 89.

[3] Kunarac Appeal Judgement, para. 217.

[4] Non-material facts are, by nature, superfluous; in other words, it is not, in principle, necessary to prove them in order to establish the culpability of an accused for a given crime.

[5] Moreover, it goes without saying that where an accused considers that the evidence at trial falls outside the scope of the indictment, he may raise an objection as to lack of fair notice and/or seek appropriate remedy from the Trial Chamber, either by way of an adjournment of the proceedings or by excluding the challenged evidence. (Furundzija Appeal Judgement, para. 61).

[6] See Dossi (1918) 13 Cr App R 158.

[7] See Part VI: Distribution of Weapons.

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Appeal Judgement - 28.11.2007 NAHIMANA et al. (Media case)
(ICTR-99-52-A)

344. […] Defined as an agreement between two or more persons to commit the crime of genocide,[1] the crime of conspiracy as set forth in Article 2(3)(b) of the Statute comprises two elements, which must be pleaded in the indictment: (i) an agreement between individuals aimed at the commission of genocide; and (ii) the fact that the individuals taking part in the agreement possessed the intent to destroy in whole or in part, a national, ethnical, racial or religious group, as such.[2] […]

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

[2] See infra XIV. A.

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ICTR Statute Article 2(3)(b) ICTY Statute Article 4(3)(b)
Notion(s) Filing Case
Appeal Judgement - 28.11.2007 NAHIMANA et al. (Media case)
(ICTR-99-52-A)

322. Under Articles 17(4), 20(2), 20(4)(a) and 20(4)(b) of the Statute and Rule 47(C) of the Rules, the Prosecutor must state the material facts underpinning the charges in the indictment, but not the evidence by which such facts are to be proved.[1] The indictment is pleaded with sufficient particularity only if it sets out the material facts of the Prosecution case with enough detail to inform a defendant clearly of the charges against him or her so that he or she may prepare his or her defence.[2] An indictment which fails to duly set forth the specific material facts underpinning the charges against the accused is defective.[3] The Appeals Chamber emphasises that the issue as to whether a fact is material or not cannot be determined in the abstract: whether or not a fact is considered “material” depends on the nature of the Prosecution's case.[4]

[1] See, inter alia, Simić Appeal Judgement, para. 20; Ntagerura et al. Appeal Judgement, para. 21; Kupreškić et al. Appeal Judgement, para. 88.

[2] Simić Appeal Judgement, para. 20; Ntagerura et al. Appeal Judgement, para. 22; Kupreškić et al. Appeal Judgement, para. 88.

[3] Ntagerura et al. Appeal Judgement, para. 22; Niyitegeka Appeal Judgement, para. 195; Kupreškić et al. Appeal Judgement, para. 114.

[4] Ndindabahizi Appeal Judgement, para. 16; Ntagerura et al. Appeal Judgement, para. 23.

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ICTR Statute Article 17(4) ICTY Statute Article 18(4) ICTR Rule Article 47(C) ICTY Rule Article 47(C)
Notion(s) Filing Case
Appeal Judgement - 28.11.2007 NAHIMANA et al. (Media case)
(ICTR-99-52-A)

323. The Appeals Chamber has, however, made it clear that, whenever an accused is charged with superior responsibility on the basis of Article 6(3) of the Statute, the material facts which must be pleaded in the indictment are: (i) that the accused is the superior of sufficiently identified subordinates over whom he had effective control – in the sense of material ability to prevent or punish criminal conduct – and for whose acts he is alleged to be responsible; (ii) the criminal acts committed by those others for whom the accused is alleged to be responsible; (iii) the conduct of the accused by which he may be found to have known or had reason to know that the crimes were about to be committed or had been committed by his subordinates; and (iv) the conduct of the accused by which he may be found to have failed to take necessary and reasonable measures to prevent such acts or to punish the persons who committed them.[1] As regards this last element, it will be sufficient in many cases to plead that the accused did not take any necessary and reasonable measure to prevent or punish the commission of criminal acts.

324. An indictment may also be defective when the material facts that the Prosecutor invokes are pleaded without sufficient specificity.[2] In this regard, the Prosecutor's characterization of the alleged criminal conduct and the proximity between the accused and the crime charged are decisive factors in determining the degree of specificity with which the Prosecutor must plead the material facts of his case in the indictment.[3]

[1] Ntagerura et al. Appeal Judgement, para. 26, citing Naletilić and Martinović Appeal Judgement, para. 67, and Blaškić Appeal Judgement, para. 218.

[2] Muhimana Appeal Judgement, paras. 76, 167, 195 and 217; Ntagerura et al. Appeal Judgement, para. 27.

[3] Ntagerura et al. Appeal Judgement, para. 23, referring to Kvočka et al. Appeal Judgement, para. 28. See also Ntakirutimana Appeal Judgement, paras. 73-74; Kupreškić et al. Appeal Judgement, para. 89.

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Notion(s) Filing Case
Appeal Judgement - 28.11.2007 NAHIMANA et al. (Media case)
(ICTR-99-52-A)

325. Where the Appeals Chamber finds that the Trial Chamber tried the accused on the basis of a defective indictment, it must consider whether the accused has nevertheless been accorded a fair trial, in other words, whether the defect noted caused prejudice to the Defence.[1] In some cases, a defective indictment can indeed be “cured” and a conviction handed down if the Prosecutor provided the accused with timely, clear and consistent information detailing the factual basis underpinning the charges against him.[2] This information could, inter alia and depending on the circumstances, be supplied in the Prosecutor’s pre-trial brief or opening statement.[3] The Appeals Chamber would nonetheless emphasize that the possibility of curing defects in the indictment is not unlimited. A clear distinction has to be drawn between vagueness or ambiguity in the indictment and an indictment which omits certain charges altogether. While it is possible to remedy ambiguity or vagueness in an indictment by providing the defendant with timely, clear and consistent information detailing the factual basis underpinning the charges, omitted charges can be incorporated into the indictment only by formal amendment under Rule 50 of the Rules.[4]

326. The Appeals Chamber reaffirms that a vague or imprecise indictment which is not cured of its defects by providing the accused with timely, clear and consistent information constitutes a prejudice to the accused. The defect can be deemed harmless only if it is established that the accused's ability to prepare his defence was not materially impaired.[5] Where the failure to give sufficient notice of the legal and factual reasons for the charges against him violated the right to a fair trial, no conviction can result.[6]

460. […] However, as the Appeals Chamber has emphasized, when the Prosecutor relies on material facts which are not stated in the Indictment and, which on their own, could constitute distinct charges, which is the case here, the Prosecutor must seek leave to amend the Indictment in order to add the new material facts:

the Appeals Chamber stresses that the possibility of curing the omission of material facts from the indictment is not unlimited. Indeed, the “new material facts” should not lead to a “radical transformation” of the Prosecution’s case against the accused. The Trial Chamber should always take into account the risk that the expansion of charges by the addition of new material facts may lead to unfairness and prejudice to the accused. Further, if the new material facts are such that they could, on their own, support separate charges, the Prosecution should seek leave from the Trial Chamber to amend the indictment and the Trial Chamber should only grant leave if it is satisfied that it would not lead to unfairness or prejudice to the Defence.[7] […]

[1] Article 24(1)(a) of the Statute.

[2]Muhimana Appeal Judgement, paras. 76, 195 and 217;  Simić Appeal Judgement, para. 23; Ntagerura et al. Appeal Judgement, para. 28.

[3] Ntagerura et al. Appeal Judgement, para. 130. See also Naletilić and Martinović Appeal Judgement, para. 27; Ntakirutimana Appeal Judgement, para. 34; Niyitegeka Appeal Judgement, para. 219.

[4] Ntagerura et al., para. 32.

[5] Simić Appeal Judgement, para. 24; Ntagerura et al. Appeal Judgement, para. 30; Ntakirutimana Appeal Judgement, para. 58.

[6] Ntagerura et al. Appeal Judgement, para. 28; Naletilić and Martinović Appeal Judgement, para. 26; Ntakirutimana Appeal Judgement, para. 58.

[7] The Prosecutor v. Théoneste Bagosora et al, Case No. ICTR-98-41-AR 73, 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. 30 (footnotes omitted). See also Rutaganda Judgement, para. 303:

Indeed, the Appeals Chamber is of the opinion that the right of the accused to be informed of the nature of the charge against him and the right to have adequate time for the preparation of his defence imply that an accused must be able to identify the criminal acts and conduct alleged in the indictment in all circumstances. Before holding that an event charged is immaterial or that there are minor discrepancies between the indictment and the evidence presented at trial, a Chamber must normally satisfy itself that no prejudice shall, as a result, be caused to the accused. An example of such prejudice is the existence of inaccuracies likely to mislead the accused as to the nature of the charges against him (footnotes omitted). 

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Notion(s) Filing Case
Appeal Judgement - 28.11.2007 NAHIMANA et al. (Media case)
(ICTR-99-52-A)

326. When the Appellant raises a defect in the indictment for the first time on appeal, then he bears the burden of showing that his ability to prepare his defence was materially impaired. When, however, an accused has previously raised the issue of lack of notice before the Trial Chamber, the burden rests on the Prosecutor to prove on appeal that the ability of the accused to prepare a defence was not materially impaired.[1] All of this is subject to the inherent jurisdiction of the Appeals Chamber to do justice in the case.[2]

[1] Muhimana Appeal Judgement, paras. 80 and 199; Simić Appeal Judgement, para. 25; Ntagerura et al. Appeal Judgement, para. 31; Kvočka et al. Appeal Judgement., para. 35; Niyitegeka Appeal Judgement, para. 200.

[2] Ntagerura et al. Appeal Judgement, para. 31; Niyitegeka Appeal Judgement, para. 200.

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Notion(s) Filing Case
Appeal Judgement - 28.11.2007 NAHIMANA et al. (Media case)
(ICTR-99-52-A)

347. With respect to mens rea, the Appeals Chamber recalls that the indictment may either (i) plead the state of mind of the accused, in which case the facts by which that matter is to be established are matters of evidence, and need not be pleaded; or (ii) the evidentiary facts from which the state of mind is to be inferred.[1]

[1] Blaškić Appeal Judgement, para. 219.

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Notion(s) Filing Case
Appeal Judgement - 28.11.2007 NAHIMANA et al. (Media case)
(ICTR-99-52-A)

483. The Appeals Chamber concludes by recalling that the modes of responsibility under Article 6(1) of the Statute are not mutually exclusive and that it is possible to charge more than one mode in relation to a crime if this is necessary in order to reflect the totality of the accused’s conduct.[1]

[1] Ndindabahizi Appeal Judgement, para. 122; Kamuhanda Appeal Judgement, para. 77. 

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Notion(s) Filing Case
Appeal Judgement - 03.05.2006 NALETILIĆ & MARTINOVIĆ
(IT-98-34-A)

Para. 27, lines 4-8: the Prosecution’s Rule 65ter witness list may in some cases serve to cure a defective indictment.

Para. 27, lines 8-9: law developed to state that not only the mere service of witness statements, but also of potential exhibits, does not suffice to inform the accused of material facts that the Prosecution intends to prove at trial.

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ICTR Statute Article 20(4)(a) ICTY Statute Article 21(4)(a)
Notion(s) Filing Case
Appeal Judgement - 18.03.2010 NCHAMIHIGO Siméon
(ICTR-01-63-A)

136. […] The Appeals Chamber recalls that, with respect to mens rea, an indictment may plead either (1) the state of mind of the accused, in which case the facts by which that state of mind is to be established are matters of evidence, and need not be pleaded; or (2) the evidentiary facts from which the state of mind is to be inferred.[1]

137. In the instant case, the Indictment pleaded that the Appellant had “the intent to destroy, in whole or in part, an ethnic or racial group as such”,[2] thus providing sufficient notice to the Appellant of the allegation that he possessed the specific intent to commit genocide. The Indictment therefore did not have to plead that the Appellant participated in recruiting young Hutu men for militia training as Impuzamugambi.

[1] Nahimana et al. Appeal Judgement, para. 347. See also Blaškić Appeal Judgement, para. 219.

[2] Indictment [The Prosecutor v. Siméon Nchamihigo, Case No. ICTR-2001-63-T, Second Revised Amended Indictment (In conformity with Trial Chamber III Decision dated 7 December 2006), filed 11 December 2006], para. 19.

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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
Decision on Interlocutory Appeals - 13.09.2000 NGEZE & NAHIMANA
(ICTR 97-27-AR72, ICTR-96-11-AR72)

NOTING that Article 7 of the Statute of the Tribunal restricts the Tribunal's temporal jurisdiction to "a period beginning on 1 January 1994 and ending on 1 December 1994";

CONSIDERING therefore that no one may be indicted for a crime that was not committed between 1 January and 31 December 1994;

CONSIDERING however that the above cannot prevent an indictment from making reference, as an introduction, to crimes previously committed by an accused;

NOTING the decision by the Trial Chamber not to refer to events prior to 1994 except for historical purposes or as information and that it would not hold any accused accountable for crimes committed prior to 1994;

CONSIDERING that the question of the Tribunal's temporal jurisdiction does indeed fall within the scope of application of Rule 72 (D)[[1]] but that in the instant case the question lacks interest in that the Appeals Chamber is convinced that the Trial Chamber will not use events prior to 1994 as the sole factual basis for a count of the indictment; and that therefore the Trial Chamber did not overstep its temporal jurisdiction;

[1] [At the time this decision was issued, Rule 72(D) provided: “Decisions on preliminary motions are without interlocutory appeal, save in the case of dismissal of an objection based on lack of jurisdiction, where an appeal will lie as of right.”]

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ICTR Statute Article 7 ICTR Rule Rule 72(D)
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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Notion(s) Filing Case
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 - 09.07.2004 NIYITEGEKA Eliézer
(ICTR-96-14-A)

199. It is noteworthy, however, that Kupreškić specifically mentioned the fact that the accused in that case had made a timely objection before the Trial Chamber to the admission of evidence of the material fact in question.[1] In general, “a party should not be permitted to refrain from making an objection to a matter which was apparent during the course of the trial, and to raise it only in the event of an adverse finding against that party.”[2] Failure to object in the Trial Chamber will usually result in the Appeals Chamber disregarding the argument on grounds of waiver. 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.

200. The importance of the accused’s right to be informed of the charges against him under Article 20(4)(a) of the Statute and the possibility of serious prejudice to the accused if material facts crucial to the Prosecution are communicated for the first time at trial suggest that the waiver doctrine should not entirely foreclose an accused from raising an indictment defect for the first time on appeal. Where, in such circumstances, there is a resulting defect in the indictment, an accused person who fails to object at trial has the burden of proving on appeal that his ability to prepare his case was materially impaired. Where, however, the accused person objected at trial, the burden is on the Prosecution to prove on appeal that the accused’s ability to prepare his defence was not materially impaired. All of this is of course subject to the inherent jurisdiction of the Appeals Chamber to do justice in the case.[3]

[1] Kupreškić et al. Appeal Judgement, para. 123.

[2] Kayishema and Ruzindana Appeal Judgement, para. 91.

[3] See Kupreškić et al. Appeal Judgement, para. 122 as well as United States v. Cotton, 535 U.S. 625, 631-634 (2002), Rippingdale v. The Queen, 109 A Crim R 304 (1999), at paras. 51-55 and R. v. Nisbet, (1971) 55 Cr. App. R. 490, 499-500.

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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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Notion(s) Filing Case
Decision on Exclusion of Evidence - 23.03.2010 KANYARUKIGA Gaspard
(ICTR-02-78-AR73.2)

The Appellant Kanyarukiga requests the exclusion of Witness YAU’s evidence as in his submission this evidence relates to material facts not properly pleaded in the operative indictment.[1]

9. The Appeals Chamber recalls that there are two ways in which mens rea may be pleaded: (i) either the specific state of mind itself should be pleaded as a material fact, in which case, the facts by which that material fact is to be established are ordinarily matters of evidence, and need not be pleaded; or (ii) the evidentiary facts from which the state of mind is to be inferred, should be pleaded.[2]

10. In the present case, the Indictment pleads as a material fact the specific state of mind alleged in relation to the counts of genocide and complicity in genocide, in particular that Kanyarukiga acted “with the intent to destroy the Tutsi population in whole [or] in part”.[3] Given that the Indictment pleads as a material fact the specific state of mind alleged, the facts by which his mens rea is to be established are matters of evidence and need not be pleaded.[4]

[1] The Prosecutor v. Gaspard Kanyarukiga, Case No. ICTR-2002-78-I, Amended Indictment, 14 November 2007 (“Indictment”).

[2] Ferdinand Nahimana et al. v. The Prosecutor, Case No. ICTR-99-52-A, Judgement, 28 November 2007 (“Nahimana et al. Appeal Judgement”), para. 347; Prosecutor v. Tihomir Blaškić, Case No. IT-95-14-A, Judgement, 29 July 2004 (“Blaškić Appeal Judgement”), para. 219.

[3] Indictment, para. 4. See also Indictment, paras. 7 (“Gaspard KANYARUKIGA, with intent to destroy, in whole or in part, the Tutsi racial or ethnic group, or knowing that other people intended to destroy, in whole or in part, the Tutsi racial or ethnical group…”), 8 (“Gaspard KANYARUKIGA, with intent to destroy in whole or in part, the Tutsi racial or ethical [sic] group, or knowing that other people intended to destroy, in whole or in part, the Tutsi racial or ethnic group, and knowing that his assistance would contribute to the crime of genocide…”).

[4] Nahimana et al. Appeal Judgement, para. 347; Blaškić Appeal Judgement, para. 219.

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Appeal Judgement - 08.05.2012 KANYARUKIGA Gaspard
(ICTR-02-78-A)

76. The Trial Chamber referred to the conversation when assessing Kanyarukiga’s actus reus of planning.[1] Moreover, the Trial Chamber concluded in this context that it was “satisfied beyond reasonable doubt that Gaspard Kanyarukiga, Grégoire Ndahimana, Fulgence Kayishema, Télesphore Ndungutse, Joseph Habiyambere and others planned the destruction of the Nyange [c]hurch on 15 and 16 April 1994 and that the church was destroyed on the afternoon of 16 April 1994, killing those inside.”[2] Accordingly, in the Trial Chamber’s view, Kanyarukiga planned the destruction of the church on both days, his criminal conduct on 15 April 1994 consisting of his conversation with Kayishema.[3] This conversation thus amounted to a material fact that, along with others, underpinned Kanyarukiga’s conviction for planning. Recalling that when the accused is charged with planning, the Prosecution is required to identify the “particular acts” or the “particular course of conduct” on the part of the accused which forms the basis for the charge in question,[4] the Appeals Chamber finds that the conversation should have been pleaded in the Amended Indictment. In this respect, the Amended Indictment was defective.

77. However, as will be discussed below, Kanyarukiga was also held responsible for participating in a meeting at the Nyange parish on the morning of 16 April 1994 where the demolition of the Nyange church was discussed and agreed to as well as for making a remark after the meeting about the need to destroy the church. This conduct was adequately pleaded in the Amended Indictment and is a sufficient basis for Kanyarukiga’s convictions. Therefore, by partly relying on Kanyarukiga’s conversation on 15 April 1994, the Trial Chamber did not commit an error which would invalidate the verdict. The Appeals Chamber therefore declines to consider the issue further[5] and will instead simply disregard the conversation as a basis for Kanyarukiga’s liability.

[1] Trial Judgement [The Prosecutor v. Gaspard Kanyarukiga, Case No. ICTR-02-78-T, Judgement and Sentence, pronounced on 1 November 2010, issued in writing on 9 November 2010], para. 644.

[2] Trial Judgement, para. 645 (emphasis added).

[3] The Appeals Chamber notes that Kanyarukiga was not convicted for crimes which occurred on 15 April 1994. See Trial Judgement, paras. 466-474, 491-496, 499, 633, 643-645.

[4] Uwinkindi Interlocutory Decision, paras. 36, 57; Renzaho Appeal Judgement, para. 53; Karera Appeal Judgement, para. 292; Blaškić Appeal Judgement, para. 213.

[5] See supra, para. 7 (setting out the standards of appellate review [in the Kanyarukiga Appeal Judgement]).

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Notion(s) Filing Case
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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Notion(s) Filing Case
Appeal Judgement - 08.05.2012 NTABAKUZE Aloys
(ICTR-98-41A-A)

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.[1] 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.[2] 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.

[1] Karera Appeal Judgement, para. 365, citing Muvunyi Appeal Judgement of 29 August 2008, para. 156.

[2] Indictment, Section 4 (“The Accused”), pp. 16, 17.

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Notion(s) Filing Case
Decision on Indictment - 16.11.2011 UWINKINDI Jean
(ICTR-01-75-AR72(C))

4. The general principles governing the form of indictments are well established. Articles 17(4), 20(2), 20(4)(a), and 20(4)(b) of the Statute of the Tribunal (“Statute”) and Rule 47(C) of the Rules require the Prosecution to state the material facts underpinning the charges in the indictment, but not the evidence by which such facts are to be proved.[1] Whether a fact is “material” depends on the nature of the Prosecution’s case.[2]

5. The charges against an accused and the material facts supporting those charges must be pleaded with sufficient precision in the indictment in order to provide clear notice to the accused.[3] Decisive factors in determining the degree of specificity with which the Prosecution must plead the material facts of its case are the Prosecution’s characterisation of the alleged criminal conduct and the proximity of the accused to the underlying offence.[4] The Prosecution is expected to know its case before it goes to trial and cannot 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.[5] While it may be impracticable to require a high degree of specificity due to the sheer scale of the alleged crimes,[6] the indictment must particularise the material facts in such a way that the accused can prepare his defence.[7] In particular, the accused must be adequately informed about his role in the alleged crime.[8] An indictment which fails to set forth material facts in sufficient detail is defective.[9]

[1] The Prosecutor v. André Ntagerura et al., Case No. ICTR-99-46-A, Judgement, 7 July 2006 (“Ntagerura et al. Appeal Judgement”), para. 21 (the English translation of the French original was filed on 29 March 2007). See also Prosecutor v. Blagoje Simić, Case No. IT-95-9-A, Judgement, 28 November 2006 (“Simić Appeal Judgement”), para. 20.

[2] Tharcisse Renzaho v. The Prosecutor, Case No. ICTR-97-31-A, Judgement, 1 April 2011 (“Renzaho Appeal Judgement”), para. 53; François Karera v. The Prosecutor, Case No. ICTR-01-74-A, Judgement, 2 February 2009 (“Karera Appeal Judgement”), para. 292.

[3] Renzaho Appeal Judgement, para. 53; Emmanuel Rukundo v. The Prosecutor, Case No. ICTR-01-70-A, Judgement, 20 October 2010 (“Rukundo Appeal Judgement”), para. 29; Callixte Kalimanzira v. The Prosecutor, Case No. ICTR-05-88-A, Judgement, 20 October 2010 (“Kalimanzira Appeal Judgement”), para. 46; Tharcisse Muvunyi v. The Prosecutor, Case No. ICTR-00-55A-A, Judgement, 29 August 2008 (“Muvunyi I Appeal Judgement”), para. 18; The Prosecutor v. Athanase Seromba, Case No. ICTR-01-66-A, Judgement, 12 March 2008 (“Seromba Appeal Judgement”), para. 27; Aloys Simba v. The Prosecutor, Case No. ICTR-01-76-A, Judgement, 27 November 2007 (“Simba Appeal Judgement”), para. 63. See also Simić Appeal Judgement, para. 20; Prosecutor v. Tihomir Blaškić, Case No. IT-95-14-A, Judgement, 29 July 2004 (“Blaškić Appeal Judgement”), para. 209; Prosecutor v. Zoran Kupreškić et al., Case No. IT-95-16-A, Appeal Judgement, 23 October 2001 (“Kupreškić et al. Appeal Judgement”), para. 88.

[4] Ntagerura et al. Appeal Judgement, para. 23.

[5] Kupreškić et al. Appeal Judgement, para. 92. See also Muvunyi I Appeal Judgement, para. 18; Ntagerura et al. Appeal Judgement, para. 27.

[6] Kupreškić et al. Appeal Judgement, para. 89.

[7] Ntagerura et al. Appeal Judgement, para. 22; Simić Appeal Judgement, para. 20.

[8] Cf. Kupreškić et al. Appeal Judgement, para. 98.

[9] Renzaho Appeal Judgement, para. 55; Rukundo Appeal Judgement, para. 29; Kalimanzira Appeal Judgement, para. 46; Ntagerura et al. Appeal Judgement, para. 22.

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ICTR Statute Article 17(4) ICTY Statute Article 18(4) ICTR Rule Rule 47(C) ICTY Rule Rule 47(C)
Notion(s) Filing Case
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 - 20.05.2005 SEMANZA Laurent
(ICTR-97-20-A)

259. The Appeals Chamber notes that it has long been the practice of the Prosecution to merely quote the provisions of Article 6(1) of the Statute in the charges, leaving it to the Trial Chamber to determine the appropriate form of participation under Article 6(1) of the Statute. The Appeals Chamber reiterates that, to avoid any possible ambiguity, it would be advisable to indicate in relation to each individual count precisely and expressly the particular nature of the responsibility alleged.[1] Nevertheless, even if an individual count of the indictment does not indicate precisely the form of responsibility pleaded, an accused might have received clear and timely notice of the form of responsibility pleaded, for instance in other paragraphs of the indictment. […]

[1] Ntakirutimana Appeal Judgement, para. 473; Aleksovski Appeal Judgement, n. 319. 

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

123. The Appeals Chamber recalls that in respect of [failure to prevent or punish], in many cases it will be sufficient to plead that the accused did not take any necessary and reasonable measures to prevent or punish the commission of criminal acts.[1] This stems from the fact that the accused’s failure to prevent or punish may often be inferred from the continuing or widespread nature of the violations committed by his subordinates as alleged in the indictment.[2]

125. [A] review of the Indictment reflects that the Prosecution did not explicitly plead Ntabakuze’s failure to prevent or punish the crimes of his subordinates. However, the Appeals Chamber observes that paragraph 6.18 of the Indictment, which was specifically relied on in support of Ntabakuze’s superior responsibility, pleads that the crimes alleged in the Indictment were carried out on his orders and directives. This, in the Appeals Chamber’s opinion, gave notice to Ntabakuze that he was alleged to have failed to take the necessary measures to prevent or punish the crimes. Further notice was provided through the allegations of repeated and continuing crimes by Ntabakuze’s subordinates from the Para-Commando Battalion,[3] and the allegation at paragraph 6.44 of the Indictment that “[c]ertain units of the Para‑Commando, Reconnaissance and Presidential Guard battalions were the most implicated in these crimes”.[4]

Footnote 88:            The Appeals Chamber notes that the Prosecution appears to submit that, given the widespread nature of the massacres, and the involvement of virtually every unit of the army in perpetrating them in multiple locations throughout Kigali and other prefectures, it was “legitimate” for the Indictment to only provide examples of some locations where massacres occurred. See [Théoneste Bagosora et al. v. The Prosecutor, Case No. ICTR-98-41-A, Prosecutor’s Brief in Response to Aloys Ntabakuze’s Appeal, 7 September 2009 (“Prosecution Response Brief”)], para. 31. See also AT. 27 September 2011 p. 39. The Appeals Chamber considers this argument to be ill-founded. The Appeals Chamber has previously stated that “the facts relevant to the acts of those others for whose acts the accused is alleged to be responsible as a superior [...]] will usually be stated with less precision because the detail[s] of those acts are often unknown, and because the acts themselves are often not very much in issue”. See Muvunyi Appeal Judgement of 29 August 2008, para. 58, citing Ntagerura et al. Appeal Judgement, para. 26, fn. 82, quoting Blaškić Appeal Judgement, para. 218. However, the indictment must plead the criminal conduct of the subordinates for whom the accused is alleged to be responsible. See infra, para. 100. At a minimum, this includes pleading the location and approximate date of the alleged criminal acts and the means by which they were committed when this information is in possession of the Prosecution.

[1] Renzaho Appeal Judgement, para. 54; Nahimana et al. Appeal Judgement, para. 323.

[2] Cf. Muvunyi Appeal Judgement of 29 August 2008, para. 62. The Appeals Chamber emphasises that the finding at paragraph 44 of the Muvunyi Appeal Judgement of 29 August 2008 relied on by Ntabakuze must be read in context. See [Théoneste Bagosora et al. v. The Prosecutor, Case No. ICTR-98-41-A, Amended Appeal Brief in the Interest of: Major Aloys Ntabakuze, 24 June 2009, as corrected by Amended Appeal Brief in the Interest of: Major Aloys Ntabakuze Second Corrigendum, 6 July 2009 (“Appeal Brief”)], paras. 43, 44. In the Muvunyi case, the Appeals Chamber found that the Prosecution had failed to plead in the indictment the role played by Tharcisse Muvunyi’s subordinates in an attack against the Beneberika Convent. See Muvunyi Appeal Judgement of 29 August 2008, paras. 40, 41. It is against this background that the Appeals Chamber concluded that the mere repetition of the legal elements of superior responsibility was not enough to provide notice of the conduct of the accused by which he may be found to have failed to take the necessary and reasonable measures to prevent or punish. See ibid., paras. 44, 45. In another section of the Muvunyi Appeal Judgement of 29 August 2008 relating to attacks at the University of Butare, the Appeals Chamber dismissed Tharcisse Muvunyi’s submission that his indictment was defective with respect to the pleading of his failure to prevent or to punish his subordinates. The Appeals Chamber reasoned that the Trial Chamber implicitly inferred Tharcisse Muvunyi’s failure from the continuing nature of the violations committed by his subordinates, which followed from the assertion in the indictment that the attacks against the University were “widespread”. See ibid., para. 62.

[3] See Indictment, paras. 6.8, 6.15, 6.19, 6.36, 6.41, 6.44. All these paragraphs were relied on in relation to superior responsibility under the relevant counts. See Indictment, pp. 46, 48-53.

[4] Paragraph 6.44 of the Indictment was relied on in support of all relevant counts charged pursuant to Article 6(3) of the Statute. See Indictment, pp. 46, 48-53.

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

36. The Appeals Chamber recalls that where it is alleged that the accused planned, instigated, ordered, or aided and abetted in the planning, preparation, or execution of crimes, the Prosecution is required to identify the “particular acts” or the “particular course of conduct” on the part of the accused which forms the basis for the charges in question.[1] When the Prosecution pleads a case of “instigation”, it must precisely describe the instigating acts and the instigated persons or groups of persons.[2]

37. Paragraph 10 of the Amended Indictment does not fulfil these requirements. It merely states that the attack in Rwankeri cellule was carried out on Uwinkindi’s instigation without providing any details about when, where, and by what conduct Uwinkindi instigated this attack. Contrary to the Prosecution’s assertion, paragraph 10 of the Amended Indictment only specifies that the attack following Uwinkindi’s instigation occurred on 8 April 1994, not the act of instigation itself. Moreover, the Appeals Chamber considers that the Prosecution’s contention, that “the furtherance of the JCE” conveys by what means Uwinkindi instigated crimes, confuses the objective of his alleged instigation with the specific act or course of conduct that needed to be pleaded.

38. Apart from the broad category “armed assailants”, paragraph 10 of the Amended Indictment also does not specify to whom Uwinkindi’s instigation was directed. Furthermore, it does not indicate whether the alleged perpetrators of the killing of Paul Kamanzi were among those instigated by Uwinkindi. This manner of pleading does not inform Uwinkindi of the exact nature of the charges against him.

[1] Renzaho Appeal Judgement, para. 53; Karera Appeal Judgement, para. 292; Seromba Appeal Judgement, para. 27; Ntagerura et al. Appeal Judgement, para. 25; Blaškić Appeal Judgement, para. 213.

[2] Blaškić Appeal Judgement, para. 226.

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

11. The Appeals Chamber recalls that JCE must be specifically pleaded in the indictment.[1] The Prosecution must plead the nature and purpose of the enterprise, the period over which the enterprise is said to have existed, the identity of the participants, and the nature of the accused’s participation therein.[2] In order for an accused to fully understand the acts for which he is allegedly responsible, the indictment should further clearly indicate which form of JCE is being alleged: basic, systemic, or extended.[3] Since the three forms of JCE vary with respect to the mens rea element, the indictment must also plead the mens rea element of each category on which the Prosecution intends to rely.[4]

12. While the Amended Indictment states that Uwinkindi “willfully [sic] and knowingly participated in a joint criminal enterprise”, it does not specify which form of JCE is charged and consequently also fails to plead Uwinkindi’s mens rea.[5] This renders the Amended Indictment defective and the Trial Chamber erred in failing to find so.

[1] Gacumbitsi Appeal Judgement, para. 167; Ntagerura et al. Appeal Judgement, para. 24; Simić Appeal Judgement, paras. 22, 31.

[2] Simba Appeal Judgement, para. 63; Gacumbitsi Appeal Judgement, para. 162; Ntagerura et al. Appeal Judgement, para. 24; Simić Appeal Judgement, para. 22.

[3] Simba Appeal Judgement, para. 63; Ntagerura et al. Appeal Judgement, para. 24; Simić Appeal Judgement, para. 22.

[4] Simba Appeal Judgement, para. 77.

[5] See Amended Indictment [The Prosecutor v. Jean Uwinkindi, Case No. ICTR-01-75-I, Amended Indictment, 23 November 2010 ], third chapeau paragraph under Counts 1 and 2.

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

48. Nevertheless, the Appeals Chamber agrees with Uwinkindi that the assertion in paragraph 15 of the Amended Indictment that he was “often present and/or aware” of crimes committed by Interahamwe does not sufficiently indicate on which form of responsibility the Prosecution intends to rely.[1] The Appeals Chamber recalls that the alleged nature of the responsibility of the accused should be stated unambiguously in the indictment and the Prosecution should therefore indicate precisely which form of liability is invoked based on the facts alleged.[2]

57. The second chapeau paragraph under Counts 1 and 2 of the Amended Indictment implicates Uwinkindi in planning, instigating, ordering, committing, or otherwise aiding and abetting in the preparation or execution of genocide and extermination as a crime against humanity. This enumeration mirrors Article 6(1) of the Statute. The Appeals Chamber recalls that, in order to ensure that an accused is unambiguously informed about the nature of the charges against him, the Prosecution has repeatedly been discouraged from simply restating Article 6(1) of the Statute, unless it intends to rely on all of the forms of individual criminal responsibility contained therein and specifically pleads the material facts relevant to each form.[3] Otherwise, the indictment will be defective.[4] Furthermore, as stated above, the Prosecution is required to identify the “particular acts” or the “particular course of conduct” on the part of the accused which forms the basis for the charges.[5] The Amended Indictment does not fulfil these requirements with respect to every form of individual criminal responsibility listed in the second chapeau paragraph under Counts 1 and 2. It is therefore defective in this respect.

[1] In addition to participating in a JCE, Uwinkindi is charged with all the forms of individual criminal responsibility provided under Article 6(1) of the Statute. See Amended Indictment [The Prosecutor v. Jean Uwinkindi, Case No. ICTR-01-75-I, Prosecutor’s Response to the Defence Preliminary Motion Alleging Defects in the Form of the Indictment, 4 January 2011], second chapeau paragraphs under Counts 1 and 2.

[2] See Blaškić Appeal Judgement, para. 215.

[3] Rukundo Appeal Judgement, para. 30; Ntakirutimana Appeal Judgement, para. 473; Simić Appeal Judgement, para. 21; Blaškić Appeal Judgement, para. 215.

[4] Simić Appeal Judgement, para. 21.

[5] See supra, para. 36.

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Decision on Interlocutory Appeal on Questions of Law - 18.09.2006 BAGOSORA et al. (Military I)
(ICTR-98-41-AR73)

Para. 21(“curing” is likely to occur only in a limited number of cases):

21. The ICTY Appeals Chamber has explained 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.[1] 

Thus, “curing” is likely to occur only in a limited number of cases. In this connection, the Appeals Chamber is not convinced by the Trial Chamber’s suggestion, at paragraph 4 of the Impugned Decision, that a distinction should be made between cases “where the Prosecution knows of material facts at the time the indictment is filed, but fails to plead them” (in which cases curing would be exceptional) and cases where the material facts “are subsequently discovered” (in which cases curing would not be characterized as exceptional). Indeed, the risk of prejudice to the accused is the same in both types of cases.[2] In both types of cases, the defect in the indictment may be deemed cured only by the provision of timely, clear and consistent information to the accused.

Para. 26 (when numerous defects found to have been “cured”):

The Appeals Chamber agrees that when the indictment suffers from numerous defects, there may still be a risk of prejudice to the accused even if the defects are found to be cured by post-indictment submissions. In particular, the accumulation of a large number of material facts not pled in the indictment reduces the clarity and relevancy of that indictment, which may have an impact on the ability of the accused to know the case he or she has to meet for purposes of preparing an adequate defence. 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. The Appeals Chamber finds that the Trial Chamber failed to do so in the Impugned Decision and therefore, instructs the Trial Chamber to reconsider the Impugned Decision on this basis.

Paras 29-30 (type of defects that can be cured):

29. The Appeals Chamber is not convinced by the arguments of the Appellant on this point. The Appeals Chamber first recalls the distinction between counts or charges (“accusations” in French) and “material facts”:

The count or charge is the legal characterisation of the material facts which support that count or charge.  In pleading an indictment, the Prosecution is required to specify the alleged legal prohibition infringed (the count or charge) and the acts or omissions of the Accused that give rise to that allegation of infringement of a legal prohibition (material facts).[3]

It is clear that the omission of a count or charge from the indictment cannot be “cured” by the provision of timely, clear, consistent information.[4] Indeed, since the indictment is the only charging instrument,[5] the addition of counts or charges is possible only through amendment, as set out in Rule 50 of the Rules. However, it is also clear that the omission of a material fact underpinning a charge in the indictment can, in certain cases, be cured by the provision of timely, clear and consistent information.[6]

30. In this connection, the Appeals Chamber stresses that the possibility of curing the omission of material facts from the indictment is not unlimited. Indeed, the “new material facts” should not lead to a “radical transformation” of the Prosecution’s case against the accused.[7] The Trial Chamber should always take into account the risk that the expansion of charges by the addition of new material facts may lead to unfairness and prejudice to the accused. Further, if the new material facts are such that they could, on their own, support separate charges,[8] the Prosecution should seek leave from the Trial Chamber to amend the indictment and the Trial Chamber should only grant leave if it is satisfied that it would not lead to unfairness or prejudice to the Defence.[9]

Para. 35: The Appeals Chamber found that a defect in indictment could be cured by information conveyed in Prosecution motion to add a witness, which clearly states the material facts on which the witness would testify.

35. The Appeals Chamber reiterates that, while the addition of a charge must necessarily be done through an amendment to the indictment, the omission of material facts from the indictment can in certain circumstances be cured without having to amend the indictment.[10] As to whether notice of a new material fact could be conveyed through a Prosecution motion to add a witness, the Appeals Chamber recalls that, as a general rule:

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.[11]

In determining whether a defective indictment was cured by timely, clear and consistent information, the Appeals Chamber has looked to the Prosecution pre-trial brief (together with its annexes and chart of witnesses)[12] or the Prosecution’s opening statement.[13] However, the Appeals Chamber never suggested that defects in the indictment could only be cured through the Prosecution pre-trial brief or its opening statement. The Appeals Chamber cannot exclude the possibility that a defect in the indictment could be cured through a Prosecution motion for addition of a witness, provided any possible prejudice to the Defence was alleviated by, for example, an adjournment to allow the Defence time to prepare for cross-examination of the witness. Accordingly, the Appeals Chamber is not convinced that the Trial Chamber erred in stating that although disclosure of witness statements or potential exhibits are generally insufficient to put an accused on reasonable notice, a defect in the indictment could be cured by the information conveyed in a Prosecution motion to add a witness, which clearly states the material facts on which the witness would testify.

Para. 37: The Appeals Chamber found that an accused can be put on reasonable notice of material facts omitted from indictment where an adjournment is ordered by the Trial Chamber for the express purpose of allowing the Defence to meet newly discovered material facts.

37. In Kupreškić, the Appeals Chamber emphasized that

the Prosecution is expected to know its case before it goes to trial.  It is not acceptable for the Prosecution to omit the 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.  There are, of course, instances in criminal trials where the evidence turns out differently than expected.  Such a situation may require the indictment to be amended, an adjournment to be granted, or certain evidence to be excluded as not being within the scope of the indictment.[14] 

Thus, when a new material fact is discovered at trial, the Trial Chamber should determine which measure(s) are required in the circumstances of the case to preserve the fairness of the proceedings. If the Trial Chamber decides that an adjournment is warranted, it could also order the Prosecution to amend the indictment for greater clarity, but this might not be required in every case. Accordingly, the Appeals Chamber does not find that the Trial Chamber erred in stating at paragraph 10 of the Impugned Decision that the accused was put on reasonable notice of material facts omitted from the indictment where “a lengthy adjournment was ordered by the Chamber for the express purpose of allowing the Defence to meet newly discovered material facts.”

[1] Kupreškić et al. Appeal Judgement, para. 114. See also Cyangugu Appeal Judgement, para. 114.

[2] The only difference concerns the “level of blame” on the Prosecution: As stated in the Ntakirutimana Appeal Judgement (para. 125), “the practice of failing to allege known material facts in an indictment is unacceptable.”  

[3] [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. 19.

[4] Cyangugu Appeal Judgement, para. 32.

[5] Cyangugu Appeal Judgement, para. 114.

[6] Kupreškić et al. Appeal Judgement, para. 88; Kvočka et al. Appeal Judgement, para. 28; Naletilić & Martinović Appeal Judgement, para. 23; Cyangugu Appeal Judgement, para. 22.

[7] See Kupreškić et al. Appeal Judgement, para. 121; Ntakirutimana Appeal Judgement, para. 28.

[8] For examples of new material facts which could support separate charges against an accused, see Muvunyi Decision, paras 33 and 35.

[9] Karemera Decision, para. 28; Muvunyi Decision, para. 22. See also Kvočka et al. Appeal Judgement, para. 32.

[10] See supra paras 29-30.

[11] Niyitegeka Appeal Judgement, para. 197 (references omitted).

[12] Kupreškić et al. Appeal Judgement, para. 117; Ntakirutimana Appeal Judgement, paras 46-48; Kvočka et al. Appeal Judgement, paras 43-45 ; Naletilić & Martinović Appeal Judgement, paras 27, 45; Gacumbitsi Appeal Judgement, paras 57-58.

[13] Kupreškić et al. Appeal Judgement, para. 118; Kordić & Čerkez Appeal Judgement, para. 169; Kvočka et al. Appeal Judgement, paras 46-47.

[14] Kupreškić et al. Appeal Judgement, para. 92. See also Niyitegeka Appeal Judgement, para. 194; Blaškić Appeal Judgement, para. 220; Ntakirutimana Appeal Judgement, para. 26; Kvočka et al. Appeal Judgement, paras 30-31; Naletilić & Martinović Appeal Judgement, para. 25; Cyangugu Appeal Judgement, para. 27.

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Appeal Judgement - 07.07.2006 NTAGERURA et al. (Cyangugu)
(ICTR-99-46-A)

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.

[1] Kupreškić et al. Appeal Judgement, para. 114; see also Ntakirutimana Appeal Judgement, para. 125; Kvočka et al. Appeal Judgement, para. 33.

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Appeal Judgement - 07.07.2006 NTAGERURA et al. (Cyangugu)
(ICTR-99-46-A)

The Appeals Chamber confirmed that a Trial Chamber is entitled to reconsider previous decisions after the closing arguments of the parties. However, in such a case the Trial Chamber has to carefully consider the impact of its reconsideration on the aspects of the procedure which were affected by its initial decision. In the present case, the Trial Chamber was obliged to reopen the debate to give the parties the opportunity to present their view on the issue (para. 55):

55.     It is apparent from the foregoing that the Trial Chamber reconsidered in the Trial Judgement some of the findings it had made in certain pre-trial decisions on the form of the Indictments. This does not in itself constitute an error, as it is within the discretion of a Trial Chamber to reconsider a decision it has previously made if a clear error of reasoning has been demonstrated or if it is necessary to do so to prevent an injustice. However, the Appeals Chamber emphasises that “where such a decision is changed, there will be a need in every case for the Trial Chamber to consider with great care and to deal with the consequences of the change upon the proceedings which have in the meantime been conducted in accordance with the original decision”. In the present case, the Appeals Chamber considers that, once the Trial Chamber decided to reconsider its pre-trial decisions relating to the specificity of the Indictments at the stage of deliberations, it should have interrupted the deliberation process and reopened the hearings. At such an advanced stage of the proceedings, after all the evidence had been heard and the parties had made their final submissions, the Prosecution could not move to amend the Indictment. On the other hand, reopening the hearings would have allowed the Prosecution to try to convince the Trial Chamber of the correctness of its initial pre-trial decisions on the form of the Indictment, or to argue that any defects had since been remedied. The Appeals Chamber finds that the Trial Chamber erred in remaining silent on its decision to find the abovementioned parts of the Indictments defective until the rendering of the Trial Judgement.

[1] Prosecutor v. Stanislav Galić, Case No. IT-98-29-AR73, Decision on Application by Prosecution for Leave to Appeal, 14 December 2001, at para. 13.

[2] Kajelijeli Appeal Judgement, paras. 203 and 204.

[3] Prosecutor v. Stanislav Galić, Case No. IT-98-29-AR73, Decision on Application by Prosecution for Leave to Appeal, 14 December 2001, at para. 13.

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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 - 14.12.2011 NTAWUKULILYAYO Dominique
(ICTR-05-82-A)

194. […] [I]n the Appeals Chamber’s view, a distinction must be drawn between general and specific pleadings. Although some or all modes of liability may be generally pleaded in a chapeau paragraph, it does not necessarily follow that all generally pleaded modes of liability apply to every particularized event in an indictment, especially where each event specifies a limited number of applicable modes of liability. The Appeals Chamber therefore does not agree with the Trial Chamber’s conclusion that, because “‘[o]rdering’ was only pleaded generally in the preamble (paragraph 5) and not in the following paragraphs alleging the particulars […] [i]t was therefore clear that this form of liability was intended to apply to all those paragraphs.”[1]

See also paras 192, 193.

[1] Trial Judgement, para. 411. See also ibid., fn. 579, where the Trial Chamber explained that “the Prosecution expressly indicated the appropriate mode of liability, either by pleading it generally with no subsequent reference in the paragraphs pleading the particular acts (‘ordering’), or pleading generally and then specifying the particular facts to which the mode applied (‘instigating’, ‘committing’ and ‘aiding and abetting’).” In the Appeals Chamber’s view, the Prosecution’s inconsistent way of pleading “ordering”, as opposed to “instigating”, “committing” and “aiding and abetting”, renders the application of the general pleading more ambiguous. See also infra, para. 197. 

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Appeal Judgement - 14.12.2011 NTAWUKULILYAYO Dominique
(ICTR-05-82-A)

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.[1] In this regard, the Appeals Chamber emphasizes that the Prosecution is expected to know its case before proceeding to trial.[2] Considering that the basic purpose of informing an accused clearly of the charges against him is so that he may prepare his defence,[3] the Appeals Chamber finds that notification in closing submissions cannot constitute proper notice.

[1] Trial Judgement, para. 408.

[2] 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.

[3] 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.

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

29. The Appeals Chamber has previously emphasized that “[t]he charges against an accused and the material facts supporting those charges must be pleaded with sufficient precision in an indictment so as to provide notice to the accused”.[1] An indictment which fails to duly set forth the specific material facts underpinning the charges against the accused is defective.[2] The defect may be cured if the Prosecution provides the accused with timely, clear, and consistent information detailing the factual basis underpinning the charge. However, a clear distinction has to be drawn between vagueness in an indictment and an indictment omitting certain charges altogether.[4] While it is possible, as stated above, to remedy the vagueness of an indictment, omitted charges can be incorporated into the indictment only by a formal amendment pursuant to Rule 50 of the Rules.[5] Finally, in reaching its judgement, a Trial Chamber can only convict the accused of crimes that are charged in the indictment.[6]

[1] Muvunyi Appeal Judgement, para. 18, referring to Seromba Appeal Judgement, paras. 27, 100, Simba Appeal Judgement para. 63, Muhimana Appeal Judgement, paras. 76, 167, 195, Gacumbitsi Appeal Judgement, para. 49, Ndindabahizi Appeal Judgement, para. 16.

[2] Nahimana et al. Appeal Judgement, para. 322; Ntagerura et al. Appeal Judgement, para. 22; Niyitegeka Appeal Judgement, para. 195; Kupreškić et al. Appeal Judgement, para. 114.

[3] Muvunyi Appeal Judgement, para. 20, referring to Seromba Appeal Judgement, para. 100; Simba Appeal Judgement, para. 64; Muhimana Appeal Judgement, paras. 76, 195, 217; Gacumbitsi Appeal Judgement, para. 49. See also Ntagerura et al. Appeal Judgement, paras. 28, 65.

[4] Karera Appeal Judgement, para. 293; Ntagerura et al. Appeal Judgement, para. 32. See also Muvunyi Appeal Judgement, para. 20, citing The Prosecutor v. 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. Decision of 18 September 2006”), para. 30.

[5] Karera Appeal Judgement, para. 293; Ntagerura et al. Appeal Judgement, para. 32. See also Muvunyi Appeal Judgement, para. 20, citing Bagosora et al. Decision of 18 September 2006, para. 30.

[6] Muvunyi Appeal Judgement, para. 18; Nahimana et al. Appeal Judgement, para. 326; Ntagerura et al. Appeal Judgement, para. 28; Kvočka et al. Appeal Judgement, para. 33.

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

163. The Appeals Chamber considers that a broad date range, in and of itself, does not invalidate a paragraph of an indictment.[1] In light of the Trial Chamber’s finding that abductions were recurring and that Rukundo was involved on “at least four occasions”,[2] and given that the evidence indicates that his involvement in the abductions did essentially span this period, the Appeals Chamber does not consider that the date range of April and May 1994 was unreasonably broad. […]

[1] See, e.g., Muvunyi Appeal Judgement, para. 58 (in which the Appeals Chamber found that a paragraph of the indictment which gave a date range of mid-April to June 1994 was not defective).

[2] Trial Judgement, paras. 364, 570.

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

30. The Appeals Chamber recalls that the practice of both the Tribunal and the ICTY requires the Prosecution to plead the specific forms of individual criminal responsibility for which the accused is being charged.[1] The Prosecution has repeatedly been discouraged from simply restating Article 6(1) of the Statute, unless it intends to rely on all of the forms of individual criminal responsibility contained therein, because of the ambiguity that this causes.[2]

[1] Semanza Appeal Judgement, para. 357; Blagoje Simić Appeal Judgement, para. 21; Blaškić Appeal Judgement, para. 215. See also Ntakirutimana Appeal Judgement, para. 473; Aleksovski Appeal Judgement, para. 171, n. 319; Prosecutor v. Radoslav Brđanin and Momir Talić, Case No. IT-99-36-PT, Decision on Objections by Momir Talić to the form of the Amended Indictment, 20 February 2001 (“Brđanin and Talić Decision of 20 February 2001”), para. 10; Prosecutor v. Milorad Krnojelac, Case No. IT-97-25-T, Decision on Preliminary Motion on Form of Amended Indictment, 11 February 2000 (“Krnojelac Decision of 11 February 2000”), para. 60.

[2] See, e.g., Semanza Appeal Judgement, para. 357; Ntakirutimana Appeal Judgement, para. 473; Krnojelac Decision of 11 February 2000, para. 60; Aleksovski Appeal Judgement, para. 171, n. 319; Delalić et al. Appeal Judgement, para. 351; Brđanin and Talić Decision of 20 February 2001, para. 10.

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

160. As the Trial Chamber correctly observed, where the number of victims is large, each and every victim need not be identified in the indictment.[1] While the Trial Chamber noted that there was no evidence adduced regarding the specific number of deaths resulting from the abductions from the Saint Léon Minor Seminary, the repetitive nature of the abductions and the fact that at least one bus was used to remove the identified refugees suggests that there was a significant number of victims.[2] In this context, the Appeals Chamber considers that the identification of the victims as Tutsi refugees taken from the Saint Léon Minor Seminary was sufficiently precise to allow Rukundo to prepare his defence.

[1] Kupreškić et al. Appeal Judgement, para. 90.

[2] See Trial Judgement [The Prosecutor v. Emmanuel Rukundo, Case No. ICTR-2001-70-T, Judgment, 27 February 1999], para. 589.

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Appeal Judgement - 14.12.2011 BAGOSORA et al. (Military I)
(ICTR-98-41-A)

132. The Appeals Chamber recalls that a decisive factor in determining the degree of specificity with which the Prosecution is required to particularise the facts of its case in the indictment is the nature of the alleged criminal conduct charged.[1] The Trial Chamber correctly stated that where an accused “is alleged to have given precise orders for the killing of specific individuals, the obligation to provide precisions as to the circumstances thereof is as its highest”.[2] In the present case, the Prosecution was, at the time of the filing of the Indictment,[3] in a position to provide information that was obviously valuable to the preparation of Nsengiyumva’s defence by naming the victim, and should have done so.[4] The Indictment was therefore defective in respect of the identity of this victim, as well as the time and place of this particular event.

[1] Kamuhanda Appeal Judgement, para. 17; Ntakirutimana Appeal Judgement, para. 25; Kupreškić et al. Appeal Judgement, para. 89. See also Nahimana et al. Appeal Judgement, para. 324; Ntagerura et al. Appeal Judgement, para. 23.

[2] The Prosecutor v. Théoneste Bagosora et al., Case No. ICTR-98-41-T, Decision on Nsengiyumva Motion for Exclusion of Evidence Outside the Scope of the Indictment, 15 September 2006 (“Decision on Exclusion of Evidence”), para. 69.

[3] See Prosecution Response Brief (Nsengiyumva), para. 114, referring to Witnesses AS’s and ZF’s Written Statements disclosed on 20 July 1998 and 12 July 1999, respectively.

[4] Ntakirutimana Appeal Judgement, para. 25; Kupreškić et al. Appeal Judgement, para. 90.

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Appeal Judgement - 14.12.2011 BAGOSORA et al. (Military I)
(ICTR-98-41-A)

150. The Appeals Chamber recalls that a broad date range, in and of itself, does not invalidate a paragraph of an indictment.[1] A decisive factor in determining the degree of specificity with which the Prosecution is required to particularise the facts of its case in the indictment is the nature of the alleged criminal conduct with which the accused is charged.[2] Obviously, there may be instances where the sheer scale of the alleged crimes makes it impracticable to require a high degree of specificity in such matters as the identity of the victims and the dates for the commission of the crimes.[3]

151. Nonetheless, in the present case, given that the Nyundo Parish attacks occurred during three specific consecutive days at the beginning of April 1994, the Appeals Chamber considers that by pleading a time-frame of almost three months, the Indictment was vague and overly broad with respect to the dates of the attacks. The Appeals Chamber therefore considers that the Indictment was defective in relation to the allegations pertaining to Nyundo Parish. It therefore turns to consider whether this defect in the Indictment was cured.

[1] Rukundo Appeal Judgement, para. 163.

[2] Kamuhanda Appeal Judgement, para. 17; Ntakirutimana Appeal Judgement, para. 25; Kupreškić et al. Appeal Judgement, para. 89. See also Nahimana et al. Appeal Judgement, para. 324; Ntagerura et al. Appeal Judgement, para. 23.

[3] Muvunyi Appeal Judgement of 29 August 2008, para. 58; Muhimana Appeal Judgement, paras. 79, 197; Kupreškić et al. Appeal Judgement, para. 89.

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Appeal Judgement - 30.06.2014 BIZIMUNGU Augustin
(ICTR-00-56B-A)

102. The Trial Chamber found that Bizimungu failed to prevent the crimes for which he was convicted or to punish his subordinates for their roles in these crimes.[1]

103. Bizimungu submits that the Indictment does not state how it could be inferred from his conduct that he failed to take the necessary and reasonable measures to prevent the crimes or punish his subordinates as it merely reproduced the wording of Article 6(3) of the Statute.[2] He asserts that neither the Prosecution Pre-Trial Brief nor its opening statement remedied this defect.[3] The Prosecution responds that Bizimungu’s submissions lack merit.[4]

104. The Appeals Chamber recalls that, in respect of this element of superior responsibility, in many cases it will be sufficient to plead that the accused did not take any necessary and reasonable measures to prevent or punish the commission of criminal acts.[5] This stems from the fact that the accused’s failure to prevent or punish may often be inferred from the continuing or widespread nature of the violations committed by his subordinates as alleged in the indictment.[6] The Appeals Chamber finds the Indictment sufficient in this respect, particularly in light of the Indictment’s further qualification that Bizimungu did not “use his statutory powers to punish the perpetrators or to institute proceedings against them”.[7] Accordingly, this argument is dismissed.

[1] Trial Judgement, para. 1994.

[2] Bizimungu Appeal Brief [Mémoire d’appel du Général Augustin Bizimungu, 23 January 2012 (English translation filed on 4 June 2012)], para. 267. See also Bizimungu Reply Brief [Mémoire du Général Augustin Bizimungu en réplique au « Prosecution’s Respondent’s Brief in Response to Augustin Bizimungu’s Appellant’s Brief », 20 March 2012 (English translation filed on 5 July 2012)], paras. 70, 71.

[3] Bizimungu Appeal Brief, paras. 268, 269.

[4] Prosecution Response Brief (Bizimungu) [Prosecution’s Respondent’s Brief in Response to Augustin Bizimungu’s Appellant’s Brief, 5 March 2012], paras. 113, 114.

[5] Ntabakuze Appeal Judgement, para. 123; Renzaho Appeal Judgement, paras. 54, 118; Nahimana et al. Appeal Judgement, para. 323.

[6] See Ntabakuze Appeal Judgement, para. 123.

[7] Indictment [The Prosecutor v. Augustin Bizimungu et al., Case No. ICTR-2000-56-I, Amended Indictment (Joinder), 23 August 2004], para. 70. See also Indictment, paras. 59, 61, 78, 109, 110, 118, 119.

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Appeal Judgement - 29.07.2004 BLAŠKIĆ Tihomir
(IT-95-14-A)

218. In accordance with the jurisprudence of the International Tribunal, the Appeals Chamber considers that in a case where superior criminal responsibility pursuant to Article 7(3) of the Statute is alleged, the material facts which must be pleaded in the indictment are:

(a) (i) that the accused is the superior[1] of (ii) subordinates sufficiently identified,[2] (iii) over whom he had effective control – in the sense of a material ability to prevent or punish criminal conduct [3]– and (iv) for whose acts he is alleged to be responsible;[4]

(b) the conduct of the accused by which he may be found to (i) have known or had reason to know that the crimes were about to be committed or had been committed by his subordinates,[5] and (ii) the related conduct of those others for whom he is alleged to be responsible.[6] The facts relevant to the acts of those others for whose acts the accused is alleged to be responsible as a superior, although the Prosecution remains obliged to give all the particulars which it is able to give, will usually be stated with less precision,[7] because the detail of those acts are often unknown, and because the acts themselves are often not very much in issue;[8] and

(c) the conduct of the accused by which he may be found to have failed to take the necessary and reasonable measures to prevent such acts or to punish the persons who committed them.[9]

219. With respect to the mens rea, there are two ways in which the relevant state of mind may be pleaded: (i) either the specific state of mind itself should be pleaded as a material fact, in which case, the facts by which that material fact is to be established are ordinarily matters of evidence, and need not be pleaded; or (ii) the evidentiary facts from which the state of mind is to be inferred, should be pleaded.[10] Each of the material facts must usually be pleaded expressly, although in some circumstances it may suffice if they are expressed by necessary implication.[11] This fundamental rule of pleading is, however, not complied with if the pleading merely assumes the existence of the legal pre-requisite.[12]

[1] Deronjić Decision, Case No.: IT-02-61-PT, Decision on Form of the Indictment, 25 Oct. 2002, para. 15 (ordering the Prosecution to clearly plead the position forming the basis of the superior responsibility charges).

[2] Deronjić Decision, Case No.: IT-02-61-PT, Decision on Form of the Indictment, 25 Oct. 2002, para. 19.

[3]Čelebići Appeal Judgement, para. 256.

[4] Krnojelac Decision on Preliminary Motion on the Form of Amended Indictment, 11 Feb. 2000, para. 18; Brđanin and Talić Decision on Objections by Momir Talić to the Form of the Amended Indictment, 20 Feb. 2001, para. 19; Krajišnik, Decision Concerning Preliminary Motion on the Form of the Indictment, 1 Aug. 2000, para. 9; Hadžihasanović Decision on Form of the Indictment, 7 Dec. 2001, paras 11, 17; Mrkšić Decision on Form of the Indictment, 19 June 2003, para. 10.

[5] Krnojelac Decision on Preliminary Motion on the Form of Amended Indictment, 11 Feb. 2000, para. 18; Krajišnik Decision Concerning Preliminary Motion on the Form of the Indictment, 1 Aug. 2000, para. 9; Brđanin and Talić, Decision on Objections by Momir Talić to the Form of the Amended Indictment, 20 Feb. 2001, para. 19; Hadžihasanović Decision on Form of the Indictment, 7 Dec. 2001, para. 11; Mrkšić Decision on Form of the Indictment, 19 June 2003, para. 10.

[6] Krnojelac Decision on the Defence Preliminary Motion on the Form of the Indictment, 24 Feb. 1999, para. 38; Hadžihasanović Decision on Form of the Indictment, 7 Dec. 2001, para. 11; Mrkšić Decision on Form of the Indictment, 19 June 2003, para. 10.

[7] Krnojelac Decision on Preliminary Motion on the Form of Amended Indictment, 11 Feb. 2000, para. 18; Brđanin and Talić Decision on Objections by Momir Talić to the Form of the Amended Indictment, 20 Feb. 2001, para. 19; Hadžihasanović Decision on Form of the Indictment, 7 Dec. 2001, para. 11; Mrkšić Decision on Form of the Indictment, 19 June 2003, para. 10.

[8] Krnojelac Decision on Preliminary Motion on the Form of Amended Indictment, 11 Feb. 2000, para. 18; Brđanin and Talić Decision on Objections by Momir Talić to the Form of the Amended Indictment, 20 Feb. 2001, para. 19; Prosecutor v. Kvočka et al, Case No.: IT-98-30-PT, Decision on Defence Preliminary Motions on the Form of the Indictment, 12 Apr. 1999, para. 17; Krajišnik, Decision Concerning Preliminary Motion on the Form of the Indictment, 1 Aug. 2000, para. 9; Hadžihasanović Decision on Form of the Indictment, 7 Dec. 2001, para. 11; Mrkšić Decision on Form of the Indictment, 19 June 2003, para. 10.

[9] Brđanin and Talić Decision on Objections by Momir Talić to the Form of the Amended Indictment, 20 Feb. 2001, para. 19; Krnojelac 11 February 2000 Decision, para.18; Krajišnik, Decision Concerning Preliminary Motion on the Form of the Indictment, 1 Aug. 2000, para. 9; Hadžihasanović Decision on Form of the Indictment, 7 Dec. 2001, para. 11; Deronjić, Decision on Form of the Indictment, 25 Oct. 2002, para. 7; Mrkšić Decision on Form of the Indictment, 19 June 2003, para. 10.

[10] Brđanin and Talić 26 June 2001 Decision, para. 33; Mrkšić Decision on Form of the Indictment, 19 June 2003, para. 11.

[11] Brđanin and Talić Decision on Objections by Momir Talić to the Form of the Amended Indictment, 20 Feb. 2001, para. 48; Prosecutor v. Brđanin and Talić, Decision on Form of Fourth Amended Indictment, 23 November 2001, para. 12; Hadžihasanović Decision on Form of the Indictment, 7 Dec. 2001, para. 10; Deronjić Decision on Form of the Indictment, 25 Oct. 2002, para. 9; Mrkšić Decision on Form of the Indictment, 19 June 2003, para. 12.

[12] Brđjanin and Talić Decision on Objections by Momir Talić to the Form of the Amended Indictment, 20 Feb. 2001, para. 48; Hadžihasanović Decision on Form of the Indictment, 7 Dec. 2001, para. 10; Mrkšić Decision on Form of the Indictment, 19 June 2003, para. 12.

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Appeal Judgement - 02.02.2009 KARERA François
(ICTR-01-74-A)

292. The charges against an accused and the material facts supporting those charges must be pleaded with sufficient precision in an indictment so as to provide notice to an accused. Whether a fact is “material” depends on the nature of the Prosecution’s case.[2] The Appeals Chamber has previously held that where it is alleged that the accused planned, instigated, ordered, or aided and abetted in the planning, preparation, or execution of the alleged crimes, the Prosecution is required to identify the “particular acts” or “the particular course of conduct” on the part of the accused which forms the basis for the charges in question.

293. An indictment which fails to set forth the specific material facts underpinning the charges against the accused is defective.[4] The defect may be cured if the Prosecution provides the accused with timely, clear, and consistent information detailing the factual basis underpinning the charge. However, a clear distinction has to be drawn between vagueness in an indictment and an indictment omitting certain charges altogether.[6] While it is possible, as stated above, to remedy the vagueness of an indictment, omitted charges can be incorporated into the indictment only by a formal amendment pursuant to Rule 50 of the Rules. [7]

[1] Muvunyi Appeal Judgement, para. 18; Seromba Appeal Judgement, paras. 27, 100. See also Simba Appeal Judgement, para. 63, referring to Muhimana Appeal Judgement, paras. 76, 167, 195; Gacumbitsi Appeal Judgement, para. 49.

[2] Nahimana et al. Appeal Judgement, para. 322; Ndindabahizi Appeal Judgement, para. 16; Ntagerura et al. Appeal Judgement, para. 23.

[3] Seromba Appeal Judgement, para. 27, citing Ntagerura et al. Appeal Judgement, para. 25.

[4] Ntagerura et al. Appeal Judgement, para. 22; Niyitegeka Appeal Judgement, para. 195; Kupreškić et al. Appeal Judgement, para. 114.

[5] Muvunyi Appeal Judgement, para. 20, referring to Seromba Appeal Judgement, para. 100; Simba Appeal Judgement, para. 64; Muhimana Appeal Judgement, paras. 76, 195, 217; Gacumbitsi Appeal Judgement, para. 49. See also Ntagerura et al. Appeal Judgement, paras. 28, 65.

[6] Ntagerura et al. Appeal Judgement, para. 32. See also Muvunyi Appeal Judgement, para. 20, citing Bagosora et al., 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, para. 30.

[7] Ntagerura et al. Appeal Judgement, para. 32. See also Muvunyi Appeal Judgement, para. 20, citing Bagosora et al., 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, para. 30.

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Appeal Judgement - 02.02.2009 KARERA François
(ICTR-01-74-A)

296. Therefore, in alleging the distribution of weapons in Rushashi, the Prosecution Pre-Trial Brief, the annexed witness summaries, and the Prosecution’s Opening Statement did not simply add greater detail to a more general allegation already pleaded in the Amended Indictment. Rather, these submissions expanded the charges specifically pleaded in the Amended Indictment by charging an additional incident of weapons distribution at a new location. This is an impermissible, de facto amendment of the Amended Indictment.

297. For the foregoing reasons, the Appeals Chamber finds that the Trial Chamber erred in finding that, as a matter of law, the Prosecution’s post-indictment communications could cure the failure to include the allegation of the Rushashi weapons distribution in the Amended Indictment and that they in fact did so. […]

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Notion(s) Filing Case
Appeal Judgement - 02.02.2009 KARERA François
(ICTR-01-74-A)

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).[1] 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”.[2] 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.’”[3]

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.[4] 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.[5]

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.[6] 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,[7] 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.

[1] Karera Appeal Judgement, paras. 360-364.

[2] Muvunyi Appeal Judgement, para. 156.

[3] Ntakirutimana Appeal Judgement, para. 25 (quoting Kupreškić et al. Appeal Judgement, para. 90).

[4] 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. 

[5] See Ntakirutimana Appeal Judgement, para. 27.

[6] Compare The Prosecutor v. François Karera, Amended Indictment, 19 December 2005, with Prosecution Pre-Trial Brief, 12 December 2005.

[7] 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.

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Appeal Judgement - 18.12.2014 NGIRABATWARE Augustin
(MICT-12-29-A)

249.     The Appeals Chamber recalls that, in determining whether an accused was adequately put on notice of the nature and cause of the charges against him, the indictment must be considered as a whole.[1] Ngirabatware was charged with participation in a joint criminal enterprise with the common purpose to exterminate the Tutsis under Count 5 of the Indictment.[2] Count 6 of the Indictment charges Ngirabatware with rape as a natural and foreseeable consequence of the execution of the common purpose to exterminate the Tutsi civilian population.[3] Accordingly, despite the minor nuances in the language,[4] the nature of the common purpose under Count 5 of the Indictment is identical to that under Count 6. In fact, Count 5 and Count 6 are the only counts in the Indictment alleging that the common purpose of the joint criminal enterprise was the crime of extermination. A plain reading of the Indictment thus indicates that the common purpose of exterminating the Tutsi civilian population pleaded under Count 6 of the Indictment was linked to the charge of extermination contained in Count 5 of the Indictment. In these circumstances, the mention in the chapeau of Count 6 of the particulars concerning Ngirabatware’s participation in the joint criminal enterprise “as set forth above”[5] can be interpreted to refer solely to Ngirabatware’s alleged contribution to the joint criminal enterprise to commit extermination as set forth in Count 5 of the Indictment.

[1] Bagosora and Nsengiyumva Appeal Judgement, para. 182; Seromba Appeal Judgement, para. 27. The Appeals Chamber observes that the Trial Chamber was cognizant of the law in this regard: “In assessing an indictment, each paragraph should not be read in isolation but rather should be considered in the context of other paragraphs in the indictment”. The Prosecutor v. Augustin Ngirabatware, Case No. ICTR-99-54-T, Decision on Defence Motion to Dismiss Based Upon Defects in Amended Indictment, 8 April 2009 (“Decision on Motion to Dismiss the Indictment”), para. 21, referring to Rutaganda Appeal Judgement, para. 304.

[2] Indictment [The Prosecutor v. Augustin Ngirabatware, Case No. ICTR-99-54-T, Amended Indictment, 13 April 2009], pp. 12-13.

[3] Indictment, p. 15.

[4] Count 5 of the Indictment describes the common criminal purpose as “the extermination of the Tutsi” (Indictment, p. 12), whereas Count 6 of the Indictment describes the common criminal purpose as “the extermination of the Tutsi civilian population” (Indictment, p. 15).

[5] Indictment, p. 15.

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Appeal Judgement - 21.07.2000 FURUNDŽIJA Anto
(IT-95-17/1-A)

61. Article 18(4) of the Statute and Rule 47(C) of the Rules require that an indictment contain a concise statement of the facts of the case and of the crime with which the suspect is charged.  That requirement does not include an obligation to state in the indictment the evidence on which the Prosecution has relied.  Where evidence is presented at trial which, in the view of the accused, falls outside the scope of the indictment, an objection as to lack of fair notice may be raised and an appropriate remedy may be provided by the Trial Chamber, either by way of an adjournment of the proceedings, allowing the Defence adequate time to respond to the additional allegations, or by excluding the challenged evidence. 

See also para. 147.

The Appeals Chamber further found:

153. […] the Appeals Chamber considers as correct the distinction made in Krnojelac between the material facts underpinning the charges and the evidence that goes to prove those material facts.  In terms of Article 18 of the Statute and Rule 47, the indictment need only contain those material facts and need not set out the evidence that is to be adduced in support of them.  In the instant case, the Appeals Chamber can find nothing wrong in the Trial Chamber’s admission of this evidence which supports the charge of torture, even though it was not specified in the Amended Indictment.  It would obviously be unworkable for an indictment to contain all the evidence that the Prosecutor proposes to introduce at the trial.

See also para. 162.

[1] Prosecutor v. Milorad Krnojelac, Case No. IT-97-25-PT, Decision on the Defence Preliminary Motion on the Form of the Indictment, 24 Feb. 1999, para. 12.  See also Prosecutor v. Kvočka et al., Case No. IT-98-30-PT, Decision on Defence Preliminary Motions on the Form of the Indictment, 12 Apr. 1999, para. 14.

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ICTR Statute Article 17(4) ICTY Statute Article 18(4) ICTR Rule Rule 47(C) ICTY Rule Rule 47(C)
Notion(s) Filing Case
Appeal Judgement - 17.09.2003 KRNOJELAC Milorad
(IT-97-25-A)

129.    The Appeals Chamber notes that, pursuant to Article 18(4) of the Statute, the indictment must set out “a concise statement of the facts and the crime or crimes with which the accused is charged”. Likewise, Rule 47(C) of the Rules provides that the indictment shall set out not only the name and particulars of the suspect but also “a concise statement of the facts of the case”.

130.    The Prosecution’s obligation to set out a concise statement of the facts of the case in the indictment must be interpreted in the light of the provisions of Articles 21(2), 21(4)(a) and 21(4)(b) of the Statute, which provide that, in the determination of charges against him, the accused shall be entitled to a fair hearing and, more specifically, to be informed of the nature and cause of the charges against him and to have adequate time and facilities for the preparation of his defence.

131.    In the case-law of the Tribunal, this translates into an obligation on the part of the Prosecution to state the material facts underpinning the charges in the indictment, but not the evidence by which such facts are to be proven.[1] Hence, the question of whether an indictment is pleaded with sufficient particularity is dependent upon whether it sets out the material facts of the Prosecution case with enough detail to inform a defendant clearly of the charges against him so that he may prepare his defence.

[1] Kupreškić Appeals Judgement quoting the Furundžija Appeals Judgement, para. 147;.

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Appeal Judgement - 17.09.2003 KRNOJELAC Milorad
(IT-97-25-A)

138.    […] With respect to the nature of the liability incurred, the Appeals Chamber holds that it is vital for the indictment to specify at least on what legal basis of the Statute an individual is being charged (Article 7(1) and/or 7(3)). Since Article 7(1) allows for several forms of direct criminal responsibility, a failure to specify in the indictment which form or forms of liability the Prosecution is pleading gives rise to ambiguity. The Appeals Chamber considers that such ambiguity should be avoided and holds therefore that, where it arises, the Prosecution must identify precisely the form or forms of liability alleged for each count as soon as possible and, in any event, before the start of the trial. Likewise, when the Prosecution charges the “commission” of one of the crimes under the Statute within the meaning of Article 7(1), it must specify whether the term is to be understood as meaning physical commission by the accused or participation in a joint criminal enterprise, or both. The Appeals Chamber also considers that it is preferable for an indictment alleging the accused’s responsibility as a participant in a joint criminal enterprise also to refer to the particular form (basic or extended) of joint criminal enterprise envisaged. However, this does not, in principle, prevent the Prosecution from pleading elsewhere than in the indictment - for instance in a pre-trial brief - the legal theory which it believes best demonstrates that the crime or crimes alleged are imputable to the accused in law in the light of the facts alleged. This option is, however, limited by the need to guarantee the accused a fair trial. 

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

88. An indictment shall, pursuant to Article 18(4) of the Statute, contain “a concise statement of the facts and the crime or crimes with which the accused is charged”.  Similarly, Rule 47(C) of the Rules provides that an indictment, apart from the name and particulars of the suspect, shall set forth “a concise statement of the facts of the case”.  The Prosecution’s obligation to set out concisely the facts of its case in the indictment must be interpreted in conjunction with Articles 21(2) and (4)(a) and (b) of the Statute.  These provisions state that, in the determination of any charges against him, an accused is entitled to a fair hearing and, more particularly, to be informed of the nature and cause of the charges against him and to have adequate time and facilities for the preparation of his defence.  In the jurisprudence of the Tribunal, this translates into an obligation on the part of the Prosecution to state the material facts underpinning the charges in the indictment, but not the evidence by which such material facts are to be proven.[1]  Hence, the question whether an indictment is pleaded with sufficient particularity is dependent upon whether it sets out the material facts of the Prosecution case with enough detail to inform a defendant clearly of the charges against him so that he may prepare his defence.

[1] Furundžija Appeal Judgement, para. 147.  See also Krnojelac Decision of 24 February 1999, paras 7 and 12 [Prosecutor v Milorad Krnojelac, Case No. IT-97-25-PT, Decision on the Defence Preliminary Motion on the Form of the Indictment, 24 February 1999];  Krnojelac Decision of 11 February 2000, paras 17 and 18 [Prosecutor v Milorad Krnojelac, Case No. IT-97-25-PT, Decision on Preliminary Motion on Form of Amended Indictment, 11 February 2000]; and Brđanin Decision of 20 February 2001, para.18 [Prosecutor v. Radoslav Brđanin and Momir Talić, Case No. IT-99-36-PT, Decision on Objections by Momir Talić to the Form of the Amended Indictment, 20 February 2001].

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Notion(s) Filing Case
Appeal Judgement - 28.02.2005 KVOČKA et al.
(IT-98-30/1-A)

41. […] The Appeals Chamber reaffirms that the Prosecution should only plead those modes of responsibility which it intends to rely on. Although the Indictment relies on all modes of individual criminal responsibility found in Article 7(1) of the Statute, the Prosecution has failed to plead the material facts necessary to support each of these modes. For example, despite pleading ordering as a mode of responsibility, the Indictment does not include any material facts which allege that any Accused ordered the commission of any particular crime on any occasion. Thus, the Appeals Chamber finds that in pleading modes of responsibility for which no corresponding material facts are pleaded, the Indictment is vague and is therefore defective.

42. The Appeals Chamber also considers that the Indictment is defective because it fails to make any specific mention of joint criminal enterprise, although the Prosecution’s case relied on this mode of responsibility. As explained above, joint criminal enterprise responsibility must be specifically pleaded. Although joint criminal enterprise is a means of “committing”, it is insufficient for an indictment to merely make broad reference to Article 7(1) of the Statute. Such reference does not provide sufficient notice to the Defence or to the Trial Chamber that the Prosecution is intending to rely on joint criminal enterprise responsibility. Moreover, in the Indictment the Prosecution has failed to plead the category of joint criminal enterprise or the material facts of the joint criminal enterprise, such as the purpose of the enterprise, the identity of the participants, and the nature of the accused’s participation in the enterprise.[1]

[1] See, e.g., Prosecutor v. Stanišić, Case No. IT-03-69-PT, Decision on Defence Preliminary Motions, 14 November 2003, p. 5; Prosecutor v. Meakić et al., Case No. IT-02-65-PT, Decision on Duško Kne‘ević’s Preliminary Motion on the Form of the Indictment, 4 April 2003, p. 6; Prosecutor v. Momčilo Krajišnik & Biljana Plavšić, Case No. IT-00-39&40-PT, Decision on Prosecution’s Motion for Leave To Amend the Consolidated Indictment, 4 March 2002, para. 13.

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Notion(s) Filing Case
Appeal Judgement - 07.07.2006 GACUMBITSI Sylvestre
(ICTR-2001-64-A)

Para. 50: when an accused is charged with personally committing a crime, the Prosecution must plead the material facts of that incident:

50. The Indictment, taken alone, does not allege the killing of Mr. Murefu. In the Statement of Facts (“Statement”) related to the genocide count, it states that “Sylvestre Gacumbitsi killed persons by his own hand”, but provides no further details. The Statement goes on to describe the massacre at Nyarubuye Parish, but does not mention Mr. Murefu and does not suggest that the Appellant participated personally in the killing there. Count 4 of the Indictment (Murder) does allege that the Appellant killed a number of individuals in several separate incidents, but Mr. Murefu is not among them. The Appellant could not reasonably have known, on the basis of the Indictment alone, that he was being charged with the killing of Mr. Murefu. While in certain cases, “the sheer scale of the alleged crimes ’makes it impracticable to require a high degree of specificity in such matters as the identity of the victims and the dates for the commission of the crimes’”, this is not such a case. The Prosecution should have expressly pleaded the killing of Mr. Murefu, particularly as it had this information in its possession before the Indictment was filed. The Appeals Chamber thus finds by majority, Judge Shahabuddeen and Judge Schomburg dissenting, that the Indictment was defective in this respect. (internal citation omitted).

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Appeal Judgement - 07.07.2006 GACUMBITSI Sylvestre
(ICTR-2001-64-A)

In the present case, the Prosecution contended that the Appellant had waived his right to challenge on appeal any vagueness of the Indictment in respect of the murder of Mr. Murefu as he did not object at trial to the testimony concerning that event. At para. 51, the Appeals Chamber recalled its previous finding in Niyitegeka on whether and under which conditions an appellant can raise an indictment defect for the first time on appeal:

In general, “a party should not be permitted to refrain from making an objection to a matter which was apparent during the course of the trial, and to raise it only in the event of an adverse finding against that party.” Failure to object in the Trial Chamber will usually result in the Appeals Chamber disregarding the argument on grounds of waiver. 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. [...]

The importance of the accused's right to be informed of the charges against him under Article 20(4)(a) of the Statute and the possibility of serious prejudice to the accused if material facts crucial to the Prosecution are communicated for the first time at trial suggest that the waiver doctrine should not entirely foreclose an accused from raising an indictment defect for the first time on appeal. Where, in such circumstances, there is a resulting defect in the indictment, an accused person who fails to object at trial has the burden of proving on appeal that his ability to prepare his case was materially impaired. Where, however, the accused person objected at trial, the burden is on the Prosecution to prove on appeal that the accused's ability to prepare his defence was not materially impaired. All of this is of course subject to the inherent jurisdiction of the Appeals Chamber to do justice in the case.[1]

In the present case, the Appeals Chamber held the following:

54. Although the Niyitegeka Appeal Judgement referred to the accused’s obligation to interpose a timely objection to a pleading defect when evidence is introduced at trial, it did so in the context of deciding whether and under what conditions it was appropriate for an appellant to challenge such a defect for the first time on appeal. This case presents a different situation. The Appellant repeatedly brought the issue to the Trial Chamber’s attention in its briefing, and the Prosecution never suggested that he had waived his objection by not raising it earlier. And the Trial Chamber actually decided the issue, albeit in the context of murder alone and not genocide. In Ntakirutimana, the Appeals Chamber recognized that where the Trial Chamber has treated a challenge to an indictment as being adequately raised, the Appeals Chamber should not invoke the waiver doctrine.[2] In light of these circumstances, the Appeals Chamber holds that the Appellant did not waive his objection to the pleading defect. It therefore remains the Prosecution’s burden to prove that the Appellant’s defence was not materially impaired by the defect.

[1] Niyitegeka Appeal Judgement, paras. 199, 200 (internal citations omitted).

[2] See Ntakirutimana Appeal Judgement, para. 23.

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Appeal Judgement - 07.07.2006 GACUMBITSI Sylvestre
(ICTR-2001-64-A)

At para. 122, the Appeals Chamber recalled its previous finding that, even when the Prosecution quotes in full the provisions of Article 6(1) of the Statute in the Indictment, the Indictment can be sufficiently pleaded in other paragraphs of the indictment.[1]

The Appeals Chamber considered “the reference to aiding and abetting in the preamble to Count 4 [by repeating the language of Article 6(1)], taken in combination with the allegations of material facts sufficient to support a conviction under that mode of liability, was sufficient to put the Appellant on notice that he was charged with aiding and abetting”.[2]

[1] “[I]t has long been the practice of the Prosecution to merely quote the provisions of Article 6(1) of the Statute in the charges, leaving it to the Trial Chamber to determine the appropriate form of participation under Article 6(1) of the Statute. The Appeals Chamber reiterates that, to avoid any possible ambiguity, it would be advisable to indicate in relation to each individual count precisely and expressly the particular nature of the responsibility alleged. Nevertheless, even if an individual count of the indictment does not indicate precisely the form of responsibility pleaded, an accused might have received clear and timely notice of the form of responsibility pleaded, for instance in other paragraphs of the indictment.” (Semanza Appeal Judgement, para. 259, referring to Ntakirutimana Appeal Judgement, para. 473; Aleksovski Appeal Judgement, fn. 319).

[2] Appeal Judgement, para. 123. Judges Güney and Meron both issued a Partially Dissenting Opinion.

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Appeal Judgement - 07.07.2006 GACUMBITSI Sylvestre
(ICTR-2001-64-A)

At para. 161, the Appeals Chamber recalled its previous case-law in Ntakirutimana, based on the Krnojelac Appeal Judgement:

With respect to the nature of the liability incurred, the Appeals Chamber holds that it is vital for the indictment to specify at least on what legal basis of the Statute an individual is being charged (Article 7(1) and/or 7(3)). Since Article 7(1) allows for several forms of direct criminal responsibility, a failure to specify in the indictment which form or forms of liability the Prosecution is pleading gives rise to ambiguity. The Appeals Chamber considers that such ambiguity should be avoided and holds therefore that, where it arises, the Prosecution must identify precisely the form or forms of liability alleged for each count as soon as possible and, in any event, before the start of the trial. Likewise, when the Prosecution charges the “commission” of one of the crimes under the Statute within the meaning of Article 7(1), it must specify whether the term is to be understood as meaning physical commission by the accused or participation in a joint criminal enterprise, or both. The Appeals Chamber also considers that it is preferable for an indictment alleging the accused’s responsibility as a participant in a joint criminal enterprise also to refer to the particular form (basic or extended) of joint criminal enterprise envisaged. However, this does not, in principle, prevent the Prosecution from pleading elsewhere than in the indictment--for instance in a pre-trial brief--the legal theory which it believes best demonstrates that the crime or crimes alleged are imputable to the accused in law in the light of the facts alleged. This option is, however, limited by the need to guarantee the accused a fair trial.[1]

At para. 162, the Appeals Chamber then relied on the ICTY Appeals Chamber’s holding in Kvocka to find that “failure to plead a JCE theory, including the category of JCE and the material facts supporting the theory, constitutes a defect in the indictment” which can however be cured by the Prosecution’s subsequent submissions.[2] It then held:

163. The Appeals Chamber adopts the holding and rationale of the ICTY Appeals Chamber in Kvočka. The mode of liability under Article 6(1) (including the JCE theory) must be pleaded in the indictment, or the indictment is defective. As Krnojelac makes clear, however, such defects may be cured by the provision of timely, clear, and consistent information -- for example, in a pre-trial brief.[3] This approach is consistent with the Appeals Chamber’s approach to all other pleading failures.[4]

For example, while the words “joint criminal enterprise” need not be contained in the indictment, other wordings may be used:

165. The words “joint criminal enterprise” are not contained in the Indictment. This absence does not in and of itself indicate a defect. As the Appeals Chamber noted in Ntakirutimana, the Tadić Appeal Judgement used interchangeably the expressions “joint criminal enterprise”, “common purpose”, and “criminal enterprise”.[5] It is possible that other phrasings might effectively convey the same concept.[6] The question is not whether particular words have been used, but whether an accused has been meaningfully “informed of the nature of the charges” so as to be able to prepare an effective defence.[7]

In the present case, however, the Appeals Chamber noted that such language was not sufficient because other language in the indictment dispelled the clarity that language could have provided.  (paras 171-172).

[1] Krnojelac Appeal Judgement, para. 138. See also Ntakirutimana Appeal Judgement, para. 475.

[2] Kvočka et al. Appeal Judgement, paras 28, 42-54.

[3] Krnojelac Appeal Judgement, para. 138.

[4] See supra section II.B.2.

[5] Ntakirutimana Appeal Judgement, n. 783.

[6] See Ntakirutimana Appeal Judgement, n. 783.

[7] Ntakirutimana Appeal Judgement, para. 470. The Appeals Chamber notes, however, that because today ICTY and ICTR cases routinely employ the phrase “joint criminal enterprise”, that phrase should for the sake of maximum clarity preferably be included in future indictments where JCE is being charged.

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Decision on Death of Co-Accused - 24.09.2010 KAREMERA et al.
(ICTR-98-44-AR50)

15. The Appeals Chamber finds that Karemera and Ngirumpatse have failed to demonstrate a discernible error in the Trial Chamber’s order in relation to the amendment of the Indictment. It is clear from the Indictment of 23 August 2010, which implements the Impugned Decision, that Nzirorera is no longer an accused in the case. While his name continues to appear in the Indictment of 23 August 2010, his name has been removed from the title and the counts, and his status is now no different from other alleged members of the joint criminal enterprise who are not charged in this case. […]

16. The Appeals Chamber recalls that where joint criminal enterprise is pleaded as a mode of liability, the Prosecution must plead the identity of the alleged members of the joint criminal enterprise.[1] While Nzirorera is no longer an accused in the case, it is still open for the Prosecution to allege that he was a member of the joint criminal enterprise. This being the case, it is proper for the Prosecution to name him in the Indictment while making clear that he is not one of the accused. In this regard, the Appeals Chamber notes that, contrary to Ngirumpatse’s submission, in other cases where proceedings have been terminated in relation to one accused due to that accused’s death but where joint criminal enterprise was pleaded, the deceased accused’s name has continued be referred to in the Indictment.[2]

[1] Prosecutor v. Blagoje Simić, Case No. IT-95-9-A, Judgement, 28 November 2006, para. 22; The Prosecutor v. André Ntagerura et al., Case No. ICTR-99-46-A, Judgement, 7 July 2006, para. 24.

[2] See, e.g., Prosecutor v. Radoslav Brðanin, Case No. IT-99-36-T, in which Momir Talić was separated from the case and later died, but his name continued to appear in the Indictment (see Prosecutor v. Radoslav Brðanin and Momir Talić, Case No. IT-99-36-T, Decision on Prosecution’s Oral Request for the Separation of Trials, 20 September 2002 (“Brðanin and Talić Decision of 20 September 2002”); Brðanin Sixth Amended Indictment [Prosecutor v. Radoslav Brðanin, Case No. IT-99-36-T, Sixth Amended Indictment, 9 December 2003]); Prosecutor v. Milan Milutinović et al., Case No. IT-05-87-T, in which Vlajko Stojiljković died but his name continued to appear in the Indictment (see Prosecutor v. Milan Milutinović et al., Case No. IT-99-37-PT, Third Amended Indictment, 19 July 2002, p. 1; Prosecutor v. Milan Milutinović et al., Case No. IT-05-87-PT, Third Amended Joinder Indictment, 21 June 2006, paras. 14, 20, 48, 61). See also Prosecutor v. Vidoje Blagojević and Dragan Jokić, Case No. IT-02-60-T, in which charges against Momir Nikolić and Dragan Obrenović were dismissed following their guilty pleas and both their names continued to appear in the amended indictment (see Prosecutor v. Vidoje Blagojević and Dragan Jokić, Case No. IT-02-60-T, Decision on Prosecution’s Motion for Leave to File Third Amended Indictment, 17 June 2003; Prosecutor v. Vidoje Blagojević and Dragan Jokić, Case No. IT-02-60-T, Amended Joinder Indictment, 26 May 2003).

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Decision on Death of Co-Accused - 24.09.2010 KAREMERA et al.
(ICTR-98-44-AR50)

16. The Appeals Chamber recalls that where joint criminal enterprise is pleaded as a mode of liability, the Prosecution must plead the identity of the alleged members of the joint criminal enterprise.[1] […]

[1] Prosecutor v. Blagoje Simić, Case No. IT-95-9-A, Judgement, 28 November 2006, para. 22; The Prosecutor v. André Ntagerura et al., Case No. ICTR-99-46-A, Judgement, 7 July 2006, para. 24.

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Appeal Judgement - 30.11.2006 GALIĆ Stanislav
(IT-98-29-A)

Galić was charged under Count 1 under the heading “Actual Infliction of Terror” and was convicted of acts of violence with the intent to spread terror among the civilian population. He argued that the Trial Chamber impermissibly departed from the charges stated in his Indictment (Judgement, para. 70). The Appeals Chamber, after pointing to the differences between the duties of a Judge confirming an indictment and those of the Trial Chamber (para. 71), found that the Trial Chamber was “acting within the confines of its jurisdiction in determining that the elements of this crime do not comprise the actual infliction of terror on that population” (para. 73). However, it made clear that the “[t]he core issue remains […] that the accused has to be properly informed of the nature and cause of the charges against him so that he can adequately prepare his defence[1]” and decided upon Galić’s argument in light of this finding (para. 74).

[1] The obligation of the Prosecution to set out concisely the facts of its case in the indictment must be interpreted in conjunction with Articles 21(2) and 21(4)(a) and (b) of the Statute, which state that, in the determination of the charges against him, an accused is entitled to a fair hearing and, more particularly, has to be informed of the nature and cause of the charges against him and to have adequate facilities for the preparation of his defence. See Prosecutor v. Ivan Čermak and Mladen Markac., Case No. IT-03-73-PT, Decision on Ivan Čermak and Mladen Markač’s Motion on Form of Indictment, 8 March 2005, para. 5; Kupreškić et al. Appeal Judgement, para. 88; Blaškić Appeal Judgement, para. 209.

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

14. […] If statements in an indictment are to be altered, either a completely new document must be filed in which the alterations are incorporated or (with the leave of the Chamber) the indictment itself must be altered by some means, such as writing the alteration into the document or crossing out something in that document.  No-one is permitted to alter a document filed in the Registry of the Tribunal (a fortiori an indictment) without leave being granted by the appropriate authority.  Whatever the nature of the alteration made, it would therefore necessarily be an amendment to the indictment itself. […]  

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

14. [A]n indictment must necessarily, in the absence of a special order, consist of the one document.  Its contents cannot properly or practicably be identified by reference to a number of documents in which statements made in one document are altered by statements made in another document. […]

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

15. In any event, the argument by the prosecution that the whole of the altered contents of the two schedules related only to matters of evidence is not made out.  An indictment is required to plead the material facts upon which the prosecution relies, but not the evidence by which those material facts are to be proved.  Whether or not a fact is material depends upon the proximity of the accused person to the events for which that person is alleged to be criminally responsible.[1]  If the accused person is alleged to have personally committed the acts giving rise to the charges against him, the material facts would include such details as the identity of the victim, the place and the approximate date of the events in question, and the means by which the offence was committed.[2]  As the proximity of the accused person to those events becomes more distant, less precision is required in relation to those particular details, and greater emphasis is placed upon the conduct of the accused person himself upon which the prosecution relies to establish his responsibility as an accessory or as a superior to the persons who personally committed the acts giving rise to the charges against him.[3]

[1]     First Talić Decision [Prosecution v Brđanin and Talić, Decision on Objections by Momir Talić to the Form of Amended Indictment, 20 Feb 2001], par 18;  Prosecutor v Kupreškić et al, IT-95-16-A, Appeal Judgment, 23 Oct 2001 (“Kupreškić Appeal Judgment”), at pars 88-90.

[2]     First Talić Decision, par 22.

[3]     Ibid, pars 19-20.

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Appeal Judgement - 16.11.2012 GOTOVINA & MARKAČ
(IT-06-90-A)

48. The Appeals Chamber is also not persuaded that the Trial Chamber’s assessment of the accuracy of the HV’s weaponry and its application of these findings to each identifiable impact site involved information which should have been pled in the Indictment. The Trial Chamber’s approach to assessing the evidence is not a material fact of the crimes charged.[1] It was also not incumbent on the Trial Chamber to make findings on relevant evidence during the course of the trial or to put any such findings to various witnesses for comment.

[1] Cf. Renzaho Appeal Judgement, para. 53; Kayishema and Ruzindana Appeal Judgement, para. 119. See also Aleksovski Appeal Judgement, para. 63.

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Decision on Joinder - 25.10.2006 GOTOVINA et al.
(IT-01-45-AR73.1, IT-03-73-AR73.1, IT-03-73-AR73.2)

Čermak argued that by considering the amendment of the indictment together with the issue of joinder the Trial chamber skipped the indictment amendment procedure, preventing the defence from being heard and opposing the process of the amendment, and therefore violates the principle of a fair trial. The Appeals Chamber, however, held at para. 11:

11. […] First, Čermak fails to provide a basis in the Rules or in the jurisprudence of the International Tribunal in support of the proposition that it is required procedure for a Trial Chamber to consider amendments to the indictment first, separate from deciding on the issue of joinder. Furthermore, Čermak fails to demonstrate how addressing both issues together in one decision inevitably leads to a Trial Chamber skipping the appropriate analysis under Rule 50 of the Rules for determining whether proposed amendments to an indictment should be granted under the principle of a fair trial. […] 

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Decision on Joinder - 25.10.2006 GOTOVINA et al.
(IT-01-45-AR73.1, IT-03-73-AR73.1, IT-03-73-AR73.2)

At para. 12, the Appeals Chamber held that the Trial Chamber originally assigned to a case must not necessarily be the Trial Chamber authorized to consider any proposed amendments to the indictment:

12. […] A Trial Chamber is fully capable of properly applying the principles of Rule 50 and determining whether amendments to the indictment should be granted, and it is irrelevant to that purpose whether or not the Trial Chamber considering proposed amendments was the Trial chamber originally assigned to the case.

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Appeal Judgement - 07.07.2006 GACUMBITSI Sylvestre
(ICTR-2001-64-A)

Having found that the indictment was vague, the Appeals Chamber considered whether that vagueness was cured by the Prosecution’s other filings (paras 55-58). It confirmed the finding of the ICTY Appeals Chamber in Naletilić and Martinović that an indictment defect can be cured by the provision of timely, clear and consistent information in the form of a Chart of Witnesses, disclosed before trial, setting forth the allegations of the relevant material facts and specifically identifying the charges to which those allegations relate.[1]

[1] See Naletilić and Martinović Appeal Judgement, para. 45. Judges Liu and Meron issued a Joint Separate Opinion.

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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 - 29.09.2014 KAREMERA & NGIRUMPATSE
(ICTR-98-44-A)

370.   […] Under certain circumstances, referring to an alleged subordinate by category can constitute sufficient notice of his or her identity.[1] However, where the Prosecution has specific information in its possession pertaining to the material facts of its case, it should expressly provide these facts in the indictment.[2]

[1] Hategekimana Appeal Judgement, para. 166 (considering that “a soldier from the Ngoma Military Camp” provided a reasonable identification of the alleged subordinate); Ntabakuze Appeal Judgement, para. 127 (upholding a finding that there was sufficient notice for crimes allegedly committed by “members of the Para-Commando Battalion” at specific locations); Muvunyi I Appeal Judgement, para. 55 (finding sufficient notice that alleged superior responsibility extended to the criminal acts of “ESO Camp soldiers” at a specific location); Ntagerura et al. Appeal Judgement, paras. 140, 141, 153 (establishing that sufficient notice was provided when the alleged subordinates were identified as soldiers from the camp under the accused’s control). See also Simba Appeal Judgement, paras. 71, 72 (confirming the Trial Chamber’s statement, in relation to notice of members of an alleged joint criminal enterprise, that it was sufficient to identify the general perpetrators “by broad category, such as Interahamwe or gendarmes” along with other geographic and temporal details). Notably, in the Simba case on which the Prosecution relies, the Trial Chamber also stated that it was “not satisfied that the Prosecution could have provided more specific identification”. Simba Trial Judgement, para. 393, quoted in Simba Appeal Judgement, para. 71, cited by Prosecution Response Brief (Ngirumpatse), para. 351.

[2] Bagosora and Nsengiyumva Appeal Judgement, paras. 131, 132; Muvunyi I Appeal Judgement, para. 94; Muhimana Appeal Judgement, para. 197. See also Renzaho Appeal Judgement, para. 128. 

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Decision Regarding Leave to Amend Indictment - 19.12.2003 KAREMERA et al.
(ICTR-98-44-AR73 )

11. […] [T]he difference between an “amended” indictment and a “new” indictment is not useful.  It is true that if an amended indictment includes new charges, it will require a further appearance by the accused in order to plead to the new charges under Rule 50(B). […] Nothing in Rule 50 prevents the prosecution, as a general matter, from offering amendments that are substantial.

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Decision Regarding Leave to Amend Indictment - 19.12.2003 KAREMERA et al.
(ICTR-98-44-AR73 )

12.  [] The Prosecution is entitled to decide that its theory of the accused’s criminal liability would be better expressed by an amended indictment.  Even if the trial can proceed on the basis of the Current Indictment, the Prosecution is not thereby precluded from seeking to amend it.

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Decision Regarding Leave to Amend Indictment - 19.12.2003 KAREMERA et al.
(ICTR-98-44-AR73 )

13. The third point considered by the Trial Chamber was delay.  This factor arises from Article 20(4)(c) of the Statute of the International Tribunal, which entitles all accused before the International Tribunal to be “tried without undue delay,” and is unquestionably an appropriate factor to consider in determining whether to grant leave to amend an indictment.  Guidance in interpreting Article 20(4)(c) can be found in the ICTY case of Prosecutor v. Kovačević,[1] in which the Trial Chamber refused amendment of an indictment on grounds that included undue delay.  The ICTY Appeals Chamber framed the question as “whether the additional time which the granting of the motion for leave to amend would occasion is reasonable in light of the right of the accused to a fair and expeditious trial.”[2]  The ICTY Appeals Chamber noted that the requirement of trial without undue delay, which the Statute of the ICTY expresses in language identical to Article 20(4)(c) of the Statute of the International Tribunal,[3] “must be interpreted according to the special features of each case.”[4]  Additionally, the specific guarantee against undue delay is one of several guarantees that make up the general requirement of a fair hearing, which is expressed in Article 20(2) of the Statute of the International Tribunal and Article 21(2) of the ICTY Statute.[5]  “[T]he timeliness of the Prosecutor’s request for leave to amend the Indictment must thus be measured within the framework of the overall requirement of the fairness of the proceedings.”[6] 

14. Kovačević stands for the principle that the right of an accused to an expeditious trial under Article 20(4)(c) turns on the circumstances of the particular case and is a facet of the right to a fair trial.  This Appeals Chamber made a similar point recently when it stated, albeit in a different context, that “[s]peed, in the sense of expeditiousness, is an element of an equitable trial.”  Trial Chambers of the International Tribunal have also used a case-specific analysis similar to that of Kovačević in determining whether proposed amendments to an indictment will cause “undue delay.”

15 […] [A] Trial Chamber must also examine the effect that the Amended Indictment would have on the overall proceedings.  Although amending an indictment frequently causes delay in the short term, the Appeals Chamber takes the view that this procedure can also have the overall effect of simplifying proceedings by narrowing the scope of allegations, by improving the Accused’s and the Tribunal’s understanding of the Prosecution’s case, or by averting possible challenges to the indictment or the evidence presented at trial.  The Appeals Chamber finds that a clearer and more specific indictment benefits the accused, not only because a streamlined indictment may result in shorter proceedings, but also because the accused can tailor their preparations to an indictment that more accurately reflects the case they will meet, thus resulting in a more effective defence.

[1] No. IT-97-24-AR73, Decision Stating Reasons for Appeals Chamber’s Order of 29 May 1998, dated 2 July 1998 (“Kovačević”).

[2] Ibid., para. 28.

[3] Statute of the ICTY, Art. 21(4)(c).

[4] Kovačević, para. 30.

[5] Ibid., para. 30.

[6] Ibid., para. 31.

[7] Prosecutor v. Nyiramasuhuko, Joint Case No. ICTR-98-42-A15bis, Decision in the Matter of Proceedings Under Rule 15bis (D), 24 September 2003, para. 24.

[8] E.g., Prosecutor v. Kanyabashi, No. ICTR-96-15-T, Reasons for the Decision on the Prosecutor’s Request for Leave to Amend the Indictment, 10 September 1999,  paras. 23-25; Prosecutor v. Musema, No. ICTR-96-13-T, Decision on the Prosecution’s Request for Leave to Amend the Indictment, 6 May 1999, para. 17.

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Decision Regarding Leave to Amend Indictment - 19.12.2003 KAREMERA et al.
(ICTR-98-44-AR73 )

20. […] [A]lthough Rule 50 does not require the Prosecution to amend the indictment as soon as it discovers evidence supporting the amendment, neither may it delay giving notice of the changes to the Defence without any reason.  The Prosecution cannot earn a strategic advantage by holding an amendment in abeyance while the defence spends time and resources investigating allegations that the Prosecution does not intend to present at trial.  In this regard, it is worth recalling that a substantial delay will be considered undue “if it occur[s] because of any improper tactical advantage sought by the prosecution.”   Strategic efforts to undermine the conduct of proceedings cannot be tolerated, especially if designed to disadvantage the ability of the Defence to respond to the Prosecution’s case.  

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Decision Regarding Leave to Amend Indictment - 19.12.2003 KAREMERA et al.
(ICTR-98-44-AR73 )

17. […][T]he determination whether proceedings will be rendered unfair by the filing of an amended indictment must consider the risk of prejudice to the accused. 

See also para. 28.

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Decision Regarding Leave to Amend Indictment - 12.02.2004 BIZIMUNGU et al. (Government II)
(ICTR-99-50-AR50)

16.     The Prosecution is certainly correct that the Trial Chamber must consider all of the circumstances bearing on a motion to amend the indictment.  Interference with the orderly scheduling of trial, however, is one such circumstance.  The Appeals Chamber stated in Karemera that “a postponement of the trial date and a prolongation of the pretrial detention of the Accused” are “some, but not all”[1] of the considerations relevant to determining whether a proposed amendment would violate the right of the accused to a trial “without undue delay,”[2] which in turn bears on the broader question whether the amendment is justified under Rule 50 of the Rules. The Trial Chamber should also consider such factors as the nature and scope of the proposed amendments, whether the Prosecution was diligent in pursuing its investigations and in presenting the motion, whether the Accused and the Trial Chamber had prior notice of the Prosecution’s intention to seek leave to amend the indictment, when and in what circumstances such notice was given, whether the Prosecution seeks an improper tactical advantage,[3]and whether the addition of specific allegations will actually improve the ability of the Accused to respond to the case against them and thereby enhance the overall fairness of the trial.[4] Likewise, the Trial Chamber must also consider the risk of prejudice to the Accused and the extent to which such prejudice may be cured by methods other than denying the amendment, such as granting adjournments or permitting the Accused to recall witnesses for cross-examination.[5] The above list is not exhaustive; particular cases may present different circumstances that also bear on the proposed amendments.

 17.     […] [T]he Trial Chamber is not required to enumerate and dispose of all of the arguments raised in support of a motion.  Absent a showing that the Trial Chamber actually refused to consider any factors other than the determination that the amendment would delay the start of trial, or a showing that the Trial Chamber’s conclusion was so unreasonable that it cannot have considered all pertinent factors, the Appeals Chamber must conclude that the Trial Chamber took account of all of the arguments put to it.

[…]

19. […] Although the Prosecution may seek leave to expand its theory of the Accused’s liability after the confirmation of the original indictment, the risk of prejudice from such expansions is high and must be carefully weighed. On the other hand, amendments that narrow the indictment, and thereby increase the fairness and efficiency of proceedings, should be encouraged and usually accepted.

[1] [Prosecutor v. Karemera et al., No. ICTR-98-44-AR73, Decision on Prosecutor’s Interlocutory Appeal Against Trial Chamber III Decision of 8 October 2003 Denying Leave to File an Amended Indictment, 19 December 2003 (“Karemera”)]], para. 19.

[2] Ibid., para. 13 (quoting Statute of the International Tribunal, Art. 20(4)(c)).

[3] See ibid., paras. 15, 20-30; Prosecutor v. Kovačević, No. IT-97-24-AR73, Decision Stating Reasons for Appeals Chamber’s Order of 29 May 1998, dated 2 July 1998, paras 29, 31.

[4] See Karemera, para. 27.

[5] See ibid., para. 28. 

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ICTR Statute Article 20(4)(c) ICTY Statute Article 21(4)(c) ICTR Rule Rule 50 ICTY Rule Rule 50
Notion(s) Filing Case
Decision Regarding Leave to Amend Indictment - 12.02.2004 BIZIMUNGU et al. (Government II)
(ICTR-99-50-AR50)

23.     The rule against duplicity generally forbids the charging of two separate offences in a single count, although a single count may charge different means of committing the same offence.[1]  […]

[1] See, e.g., 4 LaFave, Israel & King, Criminal Procedure § 19.3(c) (2d ed. 1999).

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

1099.            […] The Appeals Chamber recalls that a decisive factor in determining the degree of specificity with which the Prosecution is required to particularise the facts of its case in the indictment is the nature of the alleged criminal conduct with which the accused is charged.[1] The Appeals Chamber considers that when the Prosecution intends to prove that an accused ordered particular crimes, it must identify in the indictment, at least by category, to whom the accused is alleged to have given orders[2] and all detail it possesses regarding the location of the incidents.

[1] Bagosora and Nsengiyumva Appeal Judgement, para. 150; Ntagerura et al. Appeal Judgement, para. 23; Kupreškić et al. Appeal Judgement, para. 89.

[2] Cf. Uwinkindi Appeal Decision [Jean Uwinkindi v. The Prosecutor, Case No. ICTR-01-75-AR72(C), Decision on Defence Appeal Against the Decision Denying Motion Alleging Defects in the Indictment, 16 November 2011], para. 36 (“When the Prosecution pleads a case of ‘instigation’, it must precisely describe the instigating acts and the instigated persons or groups of persons”), referring to Blaškić Appeal Judgement, para. 226. See also Ndindiliyimana et al. Appeal Judgement, para. 174.

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

450. The Appeals Chamber notes that the requirement in Rule 50(A)(ii) of the Rules for granting leave to amend an indictment was only introduced in the Rules on 15 May 2004, following the 14th plenary session held on 23 and 24 April 2004.[1] According to this amendment, trial chambers shall examine each of the counts and any supporting materials the Prosecution may provide to determine, applying the standard set forth in Article 18 of the Statute, whether a case exists against the accused. The Appeals Chamber also observes that, prior to the enactment of Rule 50(A)(ii) of the Rules, the practice of the trial chambers of the Tribunal regarding the need to establish a prima facie case before granting leave to amend an indictment was not uniform. In several cases, trial chambers found that granting leave to amend an indictment was a matter for their discretion and only required the Prosecution to establish the factual and legal basis in support of its motion to amend.[2] In other cases, trial chambers examined whether prima facie evidence supported the motion to amend.[3] When seised with appeals against decisions related to the amendment of the indictment prior to the modification of Rule 50 of the Rules, the Appeals Chamber did not provide guidance on this issue.[4] Against this background, the Appeals Chamber, Judge Pocar and Judge Liu dissenting, finds Nyiramasuhuko’s allegation that the Trial Chamber erred in law by not requiring the Prosecution to present a prima facie case in support of the new counts to be without merit and deems it unnecessary to discuss Nyiramasuhuko’s remaining arguments premised on this alleged error of law.

[1] See Amendments – 14th Plenary Session (23-24 April 2004), pp. 6, 7.

[2] See, e.g., The Prosecutor v. Juvénal Kajelijeli, Case No. ICTR-98-44A-T, Decision on Prosecutor’s Motion to Correct the Indictment Dated 22 December 2000 and Motion for Leave to File an Amended Indictment, 25 January 2001, paras. 26, 40; The Prosecutor v. Éliezer Niyitegeka, Case No. ICTR-96-14-I, Decision on Prosecutor’s Request for Leave to File an Amended Indictment, 21 June 2000, paras. 43-45; The Prosecutor v. Jean Bosco Barayagwiza, Case No. ICTR-97-19-I, Decision on the Prosecutor’s Request for Leave to File an Amended Indictment, 11 April 2000, pp. 3, 4; The Prosecutor v. Ferdinand Nahimana, Case No. ICTR-96-11-T, Decision on the Prosecutor’s Request for Leave to File an Amended Indictment, signed 5 November 1999, filed 10 November 1999, paras. 7, 14, 15; The Prosecutor v. Gratien Kabiligi and Aloys Ntabakuze, Case Nos. ICTR-97-34-I & ICTR-97-30-I, Decision on the Prosecutor’s Motion to Amend the Indictment, 8 October 1999 (“Kabiligi8 October 1999 Decision”), paras. 42, 43.

[3] See, e.g., The Prosecutor v. Édouard Karemera et al., Case No. ICTR-98-44-T, Decision on the Prosecutor’s Motion for Leave to Amend the Indictment, 13 February 2004, para. 35 (originally filed in French, English version filed on 14 May 2004); The Prosecutor v. Alfred Musema, Case No. ICTR-96-13-T, Decision on the Prosecutor’s Request for Leave to Amend the Indictment, dated 6 May 1999, signed 24 May 1999, filed 25 May 1999, para. 19. See also Prosecutor v. Fatmir Limaj et al., Case No. IT-03-66-PT, Decision on Prosecution’s Motion to Amend the Amended Indictment, signed 12 February 2004, filed 13 February 2004, para. 8; Prosecutor v. Enver Hadžihasanović and Amir Kubura, Case No. IT-01-47-PT, Decision on Form of Indictment, 17 September 2003, paras. 35, 36.

[4] See The Prosecutor v. Édouard Karemera et al., Case No. ICTR-98-44-AR73, Decision on Prosecutor’s Interlocutory Appeal Against Trial Chamber III Decision of 8 October 2003 Denying Leave to File an Amended Indictment, 19 December 2003; The Prosecutor v. Casimir Bizimungu et al., Case No. ICTR-99-50-AR50, Decision on Prosecutor’s Interlocutory Appeal Against Trial Chamber II Decision of 6 October 2003 Denying Leave to File Amended Indictment, 12 February 2004 (“Bizimungu et al. 12 February 2004 Appeal Decision”). See also Nahimana et al. Appeal Judgement, paras. 390-393. This issue was subject to disagreement among the judges of the Tribunal. See Bizimungu et al. 12 February 2004 Appeal Decision, Individual Opinion of Judge Pocar.

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ICTR Statute Article 18 ICTY Statute Article 19 ICTR Rule Rule 50 ICTY Rule Rule 50
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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Appeal Judgement - 14.12.2015 NYIRAMASUHUKO et al. (Butare)
(ICTR-98-42-A)

469. The Appeals Chamber recalls that when an accused is charged with conspiracy to commit genocide pursuant to Article 2(3)(b) of the Statute, the Prosecution must plead in the indictment: (i) an agreement between individuals aimed at the commission of genocide; and (ii) the fact that the individuals taking part in the agreement possessed the intent to destroy in whole or in part, a national, ethnical, racial, or religious group, as such.[1] […]

[…]

473. The Appeals Chamber is of the view that, contrary to the Trial Chamber’s determination,[2] there is no requirement for the Prosecution to specify in the Indictment when the conspiracy ended. The crime of conspiracy to commit genocide is an inchoate offence, the actus reus of which is “a concerted agreement to act for the purpose of committing genocide”,[3] and does not require evidence of the time range and end of the conspiracy. Of significance is when the agreement was formed, not when it ended. Therefore, the Appeals Chamber finds that the Trial Chamber erred in determining that the Indictment was defective because it failed to specify “when the conspiracy ended”.

474. […] Moreover, contrary to Nyiramasuhuko’s assertion, the Appeals Chamber considers that the specific individuals with whom the accused is alleged to have reached the agreement aimed at the commission of genocide do not necessarily have to be identified by name and that identification by general category in the Indictment can be sufficient to provide adequate notice to the accused.[4]

[1] Nzabonimana Appeal Judgement, para. 255; Nahimana et al. Appeal Judgement, para. 344.

[2] See Trial Judgement, para. 5661.

[3] See Karemera and Ngirumpatse Appeal Judgement, para. 643, quoting Nahimana et al. Appeal Judgement, para. 896. See also Nzabonimana Appeal Judgement, para. 391; Gatete Appeal Judgement, para. 260; Nahimana et al. Appeal Judgement, para. 894.

[4] Cf. Nzabonimana Appeal Judgement, para. 400; Karemera and Ngirumpatse Appeal Judgement, para. 370. The Appeals Chamber further finds that the fact that other members of the Interim Government were not convicted for conspiracy before the Tribunal is irrelevant to the question of whether Nyiramasuhuko was put on notice of the charges against her and is not inconsistent with the fact that Nyiramasuhuko was charged with having conspired with other members of the Interim Government. Cf. Bagosora and Nsengiyumva Appeal Judgement, para. 121.

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

2270.            […] The Appeals Chamber repeatedly held that the Prosecution’s failure to state expressly 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.[1] There is therefore merit in Nteziryayo’s contention that, by not indicating that the allegation in paragraph 6.34 supported any particular count, the Prosecution may have misled him in believing that the allegation was not charged as a crime.

2271.            The Appeals Chamber, however, stresses that the fundamental question when examining allegations of lack of notice is whether or not the accused was adequately informed of the nature and cause of the charges against him so as to be able to prepare a meaningful defence.[2] The Appeals Chamber’s case law on notice of the charges was developed in this spirit and was not intended to permit mere technicalities of pleading to intrude where it is clear that the accused was informed of the charges against him precisely and in a timely manner.

[…]

2274.            Against this background, Nteziryayo cannot reasonably claim that he did not understand at trial that the Prosecution intended to prove that he was guilty of direct and public incitement to commit genocide through his conduct at Ndayambaje’s Swearing-In Ceremony and that he was misled by the absence of reference to paragraph 6.34 in the charging section of the Indictment. […] in the situation at hand, it is obvious that the Prosecution mistakenly omitted to refer to paragraph 6.34 in the charging section of the Indictment and that it was the Prosecution’s consistent intention throughout the case to prosecute Nteziryayo for his utterances at Ndayambaje’s Swearing-In Ceremony.

[…]

2713.            Turning to Ndayambaje’s challenge to the Trial Chamber’s finding that the defect regarding the dates, location, and his general participation in the massacre was cured, the Appeals Chamber finds no merit in Ndayambaje’s argument that the summaries of the Prosecution witnesses’ anticipated evidence appended to the Prosecution Pre-Trial Brief could not inform him of the allegation against him as they were not explicitly linked to any paragraph of the Indictment.[3] […]

[1] See Ntabakuze Appeal Judgement, para. 106; Karera Appeal Judgement, para. 365; Muvunyi Appeal Judgement of 29 August 2008, para. 156.

[2] Cf. Ntakirutimana Appeal Judgement, paras. 27, 28, 58; Kvočka et al. Appeal Judgement, paras. 28, 32-34; Kupreškić et al. Appeal Judgement, paras. 88, 122.

[3] The Appeals Chamber observes that the jurisprudence Ndayambaje points to does not require that the witness’s summaries appended to a Prosecution’s pre-trial brief be linked to the relevant paragraphs of an indictment in order to provide timely, clear, and consistent information detailing the factual basis underpinning the charge. It also notes that Rule 73bis(B)(iv)(c) of the Rules relied upon by Ndayambaje only states that, at the pre-trial conference, the trial chamber may order the Prosecutor to file “[t]he points in the indictment on which each witness will testify” and that, in paragraph 108 of the Trial Judgement, the Trial Chamber merely recalled the well-established jurisprudence that the summaries appended to a Prosecution’s pre-trial brief may in some cases serve to put the accused on notice of the allegations against him. See Ndayambaje Notice of Appeal, para. 18, referring to Rule 73bis(B)(iv)(c) of the Rules, Trial Judgement, para. 108; Ndayambaje Appeal Brief, paras. 14, 33, 34, 37, 38.

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

2516.            […] [I]t is apparent that the key source of Kanyabashi’s knowledge and the conduct by which he was alleged to have failed to prevent or punish the crimes on the basis of which he was convicted was materially different from the acts expressly pleaded in the Indictment. As such, the Appeals Chamber considers that the Trial Chamber’s findings were based upon a set of material facts different from those that were specifically pleaded in the Indictment, set forth in the Prosecution Pre-Trial Brief, and pursued throughout the trial. The Appeals Chamber finds that the Trial Chamber erred in convicting Kanyabashi based on material facts that were not pleaded by the Prosecution in the Indictment and at trial.

See also para. 2518.

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Notion(s) Filing Case
Decision on Motions for Acquittal - 11.03.2005 HADŽIHASANOVIĆ & KUBURA
(IT-01-47-AR73.3)

A. Pleading Practices of the Prosecution

9. The interlocutory appeal of the Appellants does relate to issues that should have been raised in a preliminary motion filed pursuant to Rule 72 of the Rules. The first complaint is directed to the pleading practices of the Prosecution. In relation to each of the Counts challenged on this Appeal, the Appellants argue that the Prosecution failed to satisfy the first requirement of the Tadić Jurisdiction Decision by not identifying the rule of international humanitarian law alleged to have been breached, or indicating whether the legal basis for that count was the laws of war (conventional) or customary international law (customs of war).[1]

10. While the Appeals Chamber agrees that an accused is entitled to know the jurisdictional basis for the charge against him, the Appellants in this case did not complain of the Prosecution’s pleading prior to the commencement of this trial pursuant to Rule  72 of the Rules.[2] Given that it was clear at that time that the Prosecution was not expressly pleading the nature of the armed conflict, and that the Prosecution was proceeding on the basis that Article 3 applied to both international and non-international conflicts, it might be inferred that the Appellants saw a tactical advantage in waiting until this time. While the Appellants say that, during the pre-trial stage, they made no challenge to the pleading because of the holding of the Tadić Jurisdiction Decision regarding the application of Article 3 offences to both types of conflict, they also say that the Tadić Jurisdiction Decision did not establish the applicability of all Article 3 offences to non-international armed conflicts, because Tadić was not charged with any property offences under Article 3.[3] Hence, the Appellants’ reliance on the Tadić Jurisdiction Decision as a reason for not bringing a pre-trial motion challenging the Prosecution’s pleading is not persuasive. The Appellants knew at the time of the issuing of the Indictment that their argument would be that the Tadić Jurisdiction Decision did not establish the application of the Article 3 offences subject of Counts 5, 6 and 7 to non-international armed conflicts, and that complaint should have been made pre-trial.

11. The Appellants further complain that the Prosecution did not identify the legal basis for the Counts charged because it did not want to commit itself to proving that the armed conflict was either international or non-international.[4] This is also a complaint about the pleading practice of the Prosecution that should have been brought by the Appellants during the pre-trial stage. By not pleading the nature of the armed conflict in the Indictment, the Prosecution left the issue to the Trial Chamber to determine. The Prosecution also made it clear to the Appellants that it did not consider the Tribunal’s jurisdiction over Counts 5, 6, and 7 to be dependent on a finding that an international armed conflict occurred. If the Appellants required greater clarification than this, they should have filed a pre -trial motion pursuant to Rule 72.

[1]           Defence Appeal [Prosecutor v. Enver Hadžihasanović and Amir Kubura, Case No. IT-01-47-T, Joint Defence Interlocutory Appeal of Trial Chamber Decision on Enver Hadžihasanović and Amir Kubura’s Rule 98bis Motions for Acquittal, 2 November 2004], para. 45.

[2]           Prosecutor v Pavle Strugar, et al., IT-01-42-AR72, 22 November 2002, para. 13.

[3]           Defence Appeal, para. 56.

[4]           Ibid., paras. 50, 66, 72, 78.

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ICTY Statute Article 3 ICTR Rule Rule 72 ICTY Rule Rule 72