Vagueness

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

736. The vagueness of the Judgement, in itself an error on the part of the Trial Chamber,[1] compels the Appeals Chamber to examine the broadcasts between 1 January and 6 April 1994 referred to in the Judgement in order to determine whether one or more of them directly incited the commission of genocide. As recalled in the Introduction,[2] when the Trial Chamber errs in law, the Appeals Chamber must determine whether it is itself satisfied beyond reasonable doubt in regard to the disputed finding before it can affirm it on appeal.

770. However, the Appeals Chamber notes that the Trial Chamber did not clearly identify all the extracts from Kangura which, in its view, directly and publicly incited genocide, confining itself to mentioning only extracts from Kangura published before 1 January 1994 to support its findings.[3] […] Moreover, as explained previously,[4] the lack of particulars concerning the acts constituting direct and public incitement to commit genocide represented an error, and obliges the Appeals Chamber to examine the 1994 issues of Kangura mentioned in the Judgement in order to determine, beyond reasonable doubt, whether one or more of them constituted direct and public incitement to commit genocide.

[1] As recalled in the Naletilić and Martinović Appeal Judgement, paragraph 603, and in the Limaj et al. Appeal Judgement, paragraph 81, a trial judgement must be sufficiently reasoned to allow the parties to exercise their right of appeal and the Appeals Chamber to assess the Trial Chamber’s conclusions.

[2] See supra I. E.

[3] Ibid., paras. 1036-1038.

[4] See supra XIII. B. 2 (c).

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