Material facts

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
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 - 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)

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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Notion(s) Filing Case
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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Notion(s) Filing Case
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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Notion(s) Filing Case
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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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 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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Notion(s) Filing Case
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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Notion(s) Filing Case
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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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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