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

185. The Appeals Chamber recalls that the crime of extermination is the act of killing on a large scale.[1] The expression “on a large scale” does not, however, suggest a numerical minimum.[2] As a crime against humanity, the act of killing must occur within the context of a widespread or systematic attack against the civilian population on national, political, ethnic, racial, or religious grounds.[3]

[1] Ntakirutimana Appeal Judgement, para. 516.

[2] Ntakirutimana Appeal Judgement, para. 516.

[3] Ntakirutimana Appeal Judgement, para. 516.

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ICTR Statute Article 3(b) ICTY Statute Article 5(b)
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Appeal Judgement - 20.10.2010 RUKUNDO Emmanuel
(ICTR-2001-70-A)

76. The Appeals Chamber recalls its holding in the Nahimana et al. Appeal Judgement that:

two testimonies corroborate one another when one prima facie credible testimony is compatible with the other prima facie credible testimony regarding the same fact or a sequence of linked facts. It is not necessary that both testimonies be identical in all aspects or describe the same fact in the same way. Every witness presents what he has seen from his own point of view at the time of the events, or according to how he understood the events recounted by others. It follows that corroboration may exist even when some details differ between testimonies, provided that no credible testimony describes the facts in question in a way which is not compatible with the description given in another credible testimony.[1] See also para. 201.

[1] Nahimana et al. Appeal Judgement, para. 428. See also Karera Appeal Judgement, para. 173.

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

67. The Appeals Chamber recalls that a reasonable Trial Chamber must take into account the difficulties associated with identification evidence in a given case and must carefully evaluate any such evidence before accepting it as the basis for sustaining a conviction.[1] […] See also para195.

[1] Limaj et al. Appeal Judgement, para. 30; Kamuhanda Appeal Judgement, para. 234; Kupreškić et al. Appeal Judgement, para. 34.

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

86. The Appeals Chamber recalls that a Trial Chamber has the discretion to accept a witness’s evidence, notwithstanding inconsistencies between the said evidence and his or her previous statements, as it is up to the Trial Chamber to determine whether an alleged inconsistency is sufficient to cast doubt on the evidence of the witness concerned.[1] […]

207. The Appeals Chamber recalls that the Trial Chamber has the main responsibility to resolve any inconsistencies that may arise within or amongst witnesses’ testimonies.[2] It is within the discretion of the Trial Chamber to evaluate any such inconsistencies, to consider whether the evidence taken as a whole is reliable and credible, and to accept or reject the fundamental features of the evidence.[3]

[1] Kajelijeli Appeal Judgement, para. 96. See also Rutaganda Appeal Judgement, para. 443; Musema Appeal Judgement, para. 89.

[2] Simba Appeal Judgement, para. 103.

[3] Simba Appeal Judgement, para. 103.

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

62. The Appeals Chamber finds no error in the fact that the Trial Chamber took into consideration the judicially-noticed fact that “during 1994, there was a campaign of mass killing intended to destroy, in whole or at least in very large part, Rwanda’s Tutsi population”.[1] […]

63. As the Appeals Chamber’s jurisprudence underscores, Rukundo is correct in contending that judicial notice and evidence of the general context cannot be a substitute for specific findings on mens rea. However, the Trial Chamber’s analysis does not use the general context in Rwanda and in Gitarama Prefecture as the sole basis for finding that Rukundo possessed the mens rea for genocide. Instead, it appropriately used the judicially-noticed finding of widespread attacks against Tutsis in Rwanda, and the contextual evidence about the targeting of Tutsis in Gitarama Prefecture, as a frame or context in which to interpret numerous other indicators of Rukundo’s mens rea. […]

[1] Trial Judgement, para. 565, citing The Prosecutor v. Édouard Karemera et al., Case No. ICTR-98-44-AR73(c), Decision on Prosecutor’s Interlocutory Appeal of Decision on Judicial Notice, 16 June 2006 (“Karemera et al. Appeal of Decision on Judicial Notice”), para. 35.

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

255. Pursuant to Rule 101(B)(ii) of the Rules, a Trial Chamber is required to take into account any mitigating circumstances in determining a sentence.[1] However, the accused bears the burden of establishing mitigating factors by a preponderance of the evidence.[2] If an accused fails to put forward relevant information, the Appeals Chamber considers that, as a general rule, a Trial Chamber is not under an obligation to seek out information that counsel did not see fit to put before it at the appropriate time.[3] Rule 86(C) of the Rules clearly indicates that sentencing submissions shall be addressed during closing arguments, and it was therefore Rukundo’s prerogative to identify any mitigating circumstances at the time. The Appeals Chamber notes that Rukundo made no sentencing submissions at trial.[4] This in itself would suffice for the Appeals Chamber to dismiss his argument.

[1] See also Nchamihigo Appeal Judgement, para. 387; Muhimana Appeal Judgement, para. 231.

[2] Muhimana Appeal Judgement, para. 231; Kajelijeli Appeal Judgement, para. 294.

[3] Muhimana Appeal Judgement, para. 231; See also Nahimana et al. Appeal Judgement, para. 1103.

[4] Rukundo Final Trial Brief; T. 20 February 2008.

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

260. The Appeals Chamber is not persuaded by the Prosecution’s assertion that the Gacumbitsi Appeal Judgement stands for the proposition that where an accused is convicted for genocide and his participation is that of a primary perpetrator or a leader, the sentence ought to be imprisonment for life, except where there are significant mitigating circumstances. The Gacumbitsi Appeal Judgement merely noted that in most of the other cases in which those convicted for genocide have received less than a life sentence, there were significant mitigating circumstances.[1] It made no statement that this was a generalized rule to be followed. Rather, it recalled that the sentence should first and foremost be commensurate with the gravity of the offences and the degree of liability of the convicted person.[2] Just as there is no category of cases within the jurisdiction of the Tribunal where the imposition of life imprisonment is per se barred, there is also no category of cases where it is per se mandated. Each case remains to be examined on its own individual facts.

261. Furthermore, with respect to the Prosecution’s submission that the Trial Chamber erred in limiting life sentences to certain senior authorities and lower level authorities who committed crimes with particular zeal, the Appeals Chamber considers that the Prosecution misconstrues the Trial Judgement. The Trial Chamber did not limit the imposition of life sentences to these two groups of perpetrators. It merely noted that these were instances in which life sentences had been imposed.[3]

[1] Gacumbitsi Appeal Judgement, para. 204.

[2] Gacumbitsi Appeal Judgement, para. 204.

[3] Trial Judgement, para. 605.

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

81. The Appeals Chamber further recalls that minor inconsistencies commonly occur in witness testimony without rendering the testimony unreliable and that it is within the discretion of the Trial Chamber to evaluate such inconsistencies and to consider whether the evidence as a whole is credible, without explaining its decision in every detail.[1]

[1] Karera Appeal Judgement, para. 174; Kvočka et al. Appeal Judgement, para. 23.

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

133. The Appeals Chamber recalls that the Trial Chamber “shall exercise control over the mode and order of interrogating witnesses”[1] and that it therefore enjoys considerable discretion in setting the parameters of cross-examination.[2] Nonetheless, Article 20(4) of the Statute does provide the right to cross-examine a witness.

134. While Rukundo had the opportunity to cross-examine Witness BLP when he first gave testimony at trial, he was given no such opportunity to examine him upon the issue of his alleged recantation. The Appeals Chamber considers that, in light of the serious implications of recantation of testimony, the parties should have been given the opportunity to cross-examine Witness BLP on the issue of his alleged recantation. In this regard, the Appeals Chamber has previously noted the particular usefulness of cross-examination as a tool for discerning whether a witness’s testimony has been improperly influenced.[3] Furthermore, the Appeals Chamber recalls that the Trial Chamber indicated on a number of occasions that the parties would be given the opportunity to cross-examine Witness BLP, but ultimately no opportunity was afforded to them. Accordingly, the Appeals Chamber finds that the Trial Chamber erred in law in failing to allow Rukundo the opportunity to cross-examine Witness BLP upon the issue of his recantation.

147. The Appeals Chamber recalls that decisions relating to the general conduct of trial proceedings are matters within the discretion of Trial Chambers[4] and that they exercise control over the mode and order of interrogating witnesses.[5]

[1] Rule 90(F) of the Rules.

[2] See Nahimana et al. Appeal Judgement, para. 182; Prosecutor v. Jadranko Prlić et al., Case No. IT-04-74-AR73.2, Decision on Joint Defence Interlocutory Appeal Against the Trial Chamber’s Oral Decision of 8 May 2006 Relating to Cross-Examination by Defence and on Association of Defence Counsel’s Request for Leave to File an Amicus Curiae Brief, 4 July 2006 (“Prlić et al. Appeal Decision of 4 July 2006”), p. 3.

[3] The Prosecutor v. Édouard Karemera et al., Case No. ICTR-98-44-AR73.8, Decision on Interlocutory Appeal Regarding Witness Proofing, 11 May 2007, para. 13.

[4] Prlić et al. Appeal Decision of 4 July 2006, p. 3.

[5] Rule 90(F) of the Rules.

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

221. In its Decision of 11 September 2007, the Trial Chamber recalled:

the general principle articulated in Rule 90(A) [is] that “witnesses shall [...] be heard directly by the Chamber.” Nonetheless, the Chamber has the discretion to hear testimony by video-link in lieu of physical appearance for purposes of witness protection under Rule 75, or where it is in the interests of justice to do so. In determining the interests of justice, the Chamber has to assess the importance of the testimony, the inability or unwillingness of the witness to travel to Arusha, and whether a good reason has been adduced for that inability and unwillingness. The burden of proof lies with the party making the request.[1]

[…] This standard is consistent with the approach taken by the Appeals Chamber.[2]

[1] Decision of 11 September 2007 [The Prosecutor v. Emmanuel Rukundo, Case No. ICTR-2001-70-T, Decision on the Defence Motions for Additional Time to Disclose Witnesses’ Identifying Information, to Vary its Witness List and for Video-Link Testimony, and on the Prosecution’s Motion for Sanctions, 11 September 2007 ], para. 23 (internal citations omitted).

[2] See Prosecutor v. Miroslav Kvočka et al., Case No. IT-98-30/1-A, Decision on Prosecution’s Request for Testimony by Video-Conference Link and Protective Measures, filed confidentially on 2 July 2004, p. 3 (“the Appeals Chamber will ‘only allow video-link testimony if certain criteria are met, namely that testimony of a witness is shown to be sufficiently important to make it unfair to proceed without it and that the witness is unable or unwilling to come to the International Tribunal’”).

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Appeal Judgement - 20.10.2010 KALIMANZIRA Callixte
(ICTR-05-88-A)

18. Rule 68 of the Rules provides, inter alia, that the Prosecution “shall, as soon as practicable, disclose to the Defence any material, which in the actual knowledge of the Prosecutor may suggest the innocence or mitigate the guilt of the accused or affect the credibility of Prosecution evidence.”[1] The Appeals Chamber recalls that the Prosecution’s obligation to disclose exculpatory material is essential to a fair trial.[2] The Appeals Chamber has always interpreted this obligation broadly.[3] To establish a violation of the Rule 68 disclosure obligation, the defence must establish that additional material is in the possession of the Prosecution and present a prima facie case that the material is exculpatory.[4] If the defence satisfies the trial chamber that the Prosecution has failed to comply with its Rule 68 obligations, then the trial chamber must examine whether the defence has been prejudiced by that failure before considering whether a remedy is appropriate.[5]

19. The Trial Chamber determined that the material at issue was in the possession of the Prosecution, but that Kalimanzira did not demonstrate that it was exculpatory.[6] Although the Trial Chamber correctly articulated the test for assessing disclosure violations,[7] the Appeals Chamber finds that it inappropriately applied an elevated standard in assessing whether the material was exculpatory within the meaning of Rule 68 of the Rules. Specifically, the Trial Chamber noted that the witnesses in the Nyiramasuhuko et al. case did not mention seeing Kalimanzira at Kabuye hill.[8] It observed that no questions were asked about him, and the transcripts, thus, “[did] not contradict the evidence adduced in the Kalimanzira trial,”[9] asserting that the failure “to make mention of Kalimanzira’s presence at Kabuye hill during the period at issue does not mean that Kalimanzira could not have been there.”[10]

20. The Trial Chamber’s analysis appears to focus on the potentially low probative value of the Nyiramasuhuko et al. evidence. While that is certainly a relevant consideration in assessing whether an accused was prejudiced by late or non-disclosure of Rule 68 material, the Appeals Chamber recalls that the defence does not bear the burden of “contradict[ing]]” the Prosecution’s evidence.[11] It need only raise a reasonable doubt as to the accused’s participation in a crime.[12] In addition, in order to establish a violation of disclosure obligations under Rule 68 of the Rules, the defence need only show that the material is prima facie or “potentially” exculpatory.[13] The Appeals Chamber considers that Kalimanzira did demonstrate that the absence of any reference to him in the relevant Nyiramasuhuko et al. testimony is potentially exculpatory. Accordingly, the Appeals Chamber finds that the Trial Chamber erred in law in assessing whether the transcripts were in fact exculpatory in order to determine if a breach of the disclosure obligations under Rule 68 of the Rules occurred.

[1] Rule 68(A) of the Rules (emphasis added).

[2] The Prosecutor v. Édouard Karemera et al., Case No. 98-44-AR73.7, Decision on Interlocutory Appeal Regarding the Role of the Prosecutor’s Electronic Disclosure Suite in Discharging Disclosure Obligations, 30 June 2006, para. 9 (“Karemera et al. Appeal Decision of 30 June 2006”); The Prosecutor v. Édouard Karemera et al., Case No. 98-44-AR73.6, Decision on Joseph Nzirorera’s Interlocutory Appeal, 28 April 2006, para. 7 (“Karemera et al. Appeal Decision of 28 April 2006”); The Prosecutor v. Théoneste Bagosora et al., Case Nos. ICTR-98-41-AR73, ICTR-98-41-AR73(B), Decision on Interlocutory Appeals of Decision on Witness Protection Orders, 6 October 2005, para. 44; Kordić and Čerkez Appeal Judgement, paras. 183, 242; Blaškić Appeal Judgement, para. 264; Krstić Appeal Judgement, para. 180; Prosecutor v. Radoslav Brđanin, Case No. IT-99-36-A, Decision on Appellant’s Motion for Disclosure Pursuant to Rule 68 and Motion for an Order to the Registrar to Disclose Certain Materials, 7 December 2004, p. 3 (“Brđanin Appeal Decision of 7 December 2004”).

[3] Karemera et al. Appeal Decision of 30 June 2006, para. 9. See also Blaškić Appeal Judgement, paras. 265, 266; Krstić Appeal Judgement, para. 180.

[4] Kajelijeli Appeal Judgement, para. 262. See also Georges Anderson Nderubumwe Rutaganda v. The Prosecutor, Case No. ICTR-96-03-R, Decision on Requests for Reconsideration, Review, Assignment of Counsel, Disclosure, and Clarification, 8 December 2006, para. 36 (“Rutaganda Review Decision”); Karemera et al. Appeal Decision of 28 April 2006, para. 13.

[5] See Kajelijeli Appeal Judgement, para. 262; Krstić Appeal Judgement, para. 153.

[6] Trial Judgement [The Prosecutor v. Callixte Kalimanzira, Case No. ICTR-05-88-T, Judgement, 22 June 2009], paras. 57, 58.

[7] Trial Judgement, para. 56.

[8] Trial Judgement, para. 58.

[9] Trial Judgement, para. 58.

[10] Trial Judgement, para. 58.

[11] Cf. Zigiranyirazo Appeal Judgement, para. 19 (“The Appeals Chamber has recognized that language which suggests, inter alia, that an accused must ‘negate’ the Prosecution evidence, ‘exonerate’ himself, or ‘refute the possibility’ that he participated in a crime indicates that the Trial Chamber misapplied the burden of proof.”) (internal citations omitted); Muhimana Appeal Judgement, para. 18 (“An accused does not need to prove at trial that a crime ‘could not have occurred’ or ‘preclude the possibility that it could occur’.”).

[12] Cf. Zigiranyirazo Appeal Judgement, para. 17.

[13] Karemera et al. Appeal Decision of 28 April 2006, para. 13. Rule 68(A) of the Rules states (emphasis added): “The Prosecutor shall, as soon as practicable, disclose to the Defence any material, which in the actual knowledge of the Prosecutor may suggest the innocence or mitigate the guilt of the accused or affect the credibility of Prosecution evidence.” The Appeals Chamber routinely construes the Prosecution’s disclosure obligations under the Rules broadly in accord with their plain meaning. See Bagosora et al. Appeal Decision of 25 September 2006 [The Prosecutor v. Théoneste Bagosora et al., Case No. ICTR-98-41-AR73, Decision on Interlocutory Appeal Relating to Disclosure Under Rule 66(B) of the Tribunal’s Rules of Procedure and Evidence, 25 September 2006]], para. 8, citing Karemera et al. Appeal Decision of 30 June 2006, paras. 9-13, Krstić Appeal Judgement, para. 180, Blaškić Appeal Judgement, paras. 265, 266.

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Appeal Judgement - 20.10.2010 KALIMANZIRA Callixte
(ICTR-05-88-A)

40. The Appeals Chamber considers that the trial chamber is best placed to determine both the modalities for disclosure of material intended for use in cross-examination and also the amount of time that is sufficient for an accused to prepare his defence based on the specifics of such disclosure.[1] In this case, the Trial Chamber stated its preference for disclosure prior to cross-examination, and, when this did not occur, it assessed any possible prejudice to Kalimanzira.[2] The Appeals Chamber can identify no error in the Trial Chamber’s approach. […]

[1] See Bagosora et al. Appeal Decision of 25 September 2006, para. 12.

[2] Trial Judgement, paras. 38, 40, 41.

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Appeal Judgement - 20.10.2010 KALIMANZIRA Callixte
(ICTR-05-88-A)

32. The Appeals Chamber can identify no error in the Trial Chamber’s decision not to postpone the commencement of trial in the absence of Kalimanzira’s lead counsel. As the Trial Chamber noted, the purpose of a co-counsel is not only to assist the lead counsel but indeed to conduct the case in order to allow the proceedings to continue in the event of an unforeseeable absence of the lead counsel. A review of the record reflects that the Trial Chamber was mindful of the additional difficulties that this situation imposed on the Defence and accommodated these by, inter alia, postponing the cross-examination of the first five witnesses.[1]

33. Significantly, Kalimanzira does not allege that Ms. Guissé’s performance was ineffective. Indeed, as noted above, the Trial Chamber acknowledged her competence both at the outset of the session and after its conclusion. Furthermore, the record indicates that Ms. Guissé was in fact in consultation with Mr. Vercken during the first trial session and sought his instruction.[2] Kalimanzira also did not seek the recall of any of the witnesses for further cross-examination on the basis of Ms. Guissé’s performance after Mr. Vercken’s return.

34. As to the disparity between the Prosecution and the Defence teams during this period, the Appeals Chamber has held that “the equality of arms principle requires a judicial body to ensure that neither party is put at a disadvantage when presenting its case.”[3] This principle does not require, however, material equality between the parties in terms of financial or human resources.[4] Therefore, there is no merit in Kalimanzira’s submission that his rights were violated simply because the Prosecution had a larger team of lawyers during this period.

[1] See supra [Callixte Kalimanzira’s Appeal Brief, 1 February 2010 (“Kalimanzira Appeal Brief”)] paras. 28, 29.

[2] See T. 20 May 2008 p. 59 (“Mr. President, at this point, I have a motion. And it's almost 5 p.m. I know under what special circumstances I find myself, and I would like to make use of the break, between today and tomorrow, to forward the transcripts of the hearings to my lead counsel so that he can send his observations to me. This is a witness who is testifying to a number of facts about Mr. Kalimanzira. And given the importance of this testimony, I pray you to grant this motion. And on the second point, maybe on a humanitarian – from a humanitarian standpoint, and to consider the work that the Defence has done over the past two days, and, Mr. President, sir, to grant me this half hour that I'm asking from the Chamber, once more, in view of the exceptional circumstances in which Mr. Kalimanzira Defence team [sic] finds itself, and to get the observations of my lead counsel, who is the one who is heading Mr. Kalimanzira's Defence, to repeat myself.”).

[3] Nahimana et al. Appeal Judgement, para. 173.

[4] Nahimana et al. Appeal Judgement, para. 220. See also Kayishema and Ruzindana Appeal Judgement, para. 69.

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Appeal Judgement - 20.10.2010 KALIMANZIRA Callixte
(ICTR-05-88-A)

32. The Appeals Chamber can identify no error in the Trial Chamber’s decision not to postpone the commencement of trial in the absence of Kalimanzira’s lead counsel. As the Trial Chamber noted, the purpose of a co-counsel is not only to assist the lead counsel but indeed to conduct the case in order to allow the proceedings to continue in the event of an unforeseeable absence of the lead counsel. A review of the record reflects that the Trial Chamber was mindful of the additional difficulties that this situation imposed on the Defence and accommodated these by, inter alia, postponing the cross-examination of the first five witnesses.[1]

[1] See supra [Kalimanzira Appeal Brief] paras. 28, 29.

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Appeal Judgement - 20.10.2010 KALIMANZIRA Callixte
(ICTR-05-88-A)

56. Rule 67(A)(ii)(a) of the Rules requires the defence to notify the Prosecution before the commencement of trial of its intent to enter a defence of alibi. As the Trial Chamber noted, Kalimanzira intimated at his initial appearance and in his Pre-Trial Brief that he was in GitaramaPrefecture for much of the period covered by the Indictment.[1] However, as the Trial Chamber correctly determined,[2] this information did not conform to Rule 67(A)(ii)(a) of the Rules, which requires that “the notification shall specify the place or places at which the accused claims to have been present at the time of the alleged crime and the names and addresses of witnesses and any other evidence upon which the accused intends to rely to establish the alibi.” The Appeals Chamber has held that the manner in which an alibi is presented may impact its credibility.[3] Therefore, it was within the Trial Chamber’s discretion to take this into account in assessing the alibi evidence in this case.

[1] Trial Judgement, para. 62.

[2] Trial Judgement, paras. 62, 64.

[3] Rutaganda Appeal Judgement, para. 242; Musema Appeal Judgement, para. 201.

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ICTR Rule Rule 67(A)(ii)(a) ICTY Rule Rule 67(B)(i)(a)