11. The Appeals Chamber recalls that interlocutory appeals on jurisdiction lie as of right under Rule 72(B)(i) of the Rules only where they challenge an indictment on the ground that it does not relate to the Tribunal’s personal, territorial, temporal or subject-matter jurisdiction.[1] The Appellant challenges the Tribunal’s jurisdiction over him because of the alleged illegality of his arrest.[2] However, he does not challenge the Indictment on any of the above-listed grounds. Consequently, Rule 72(D) of the Rules “cannot provide a basis for appeal of the Impugned Decision”.[3]

12. The alternative relief sought by the Appellant concerns the establishment of the circumstances of his arrest and a declaration as to its unlawful nature. These submissions equally go outside the scope of a jurisdictional challenge and therefore are not properly before the Appeals Chamber.

13. In light of the above, the Appeals Chamber considers that the Appellant should have requested the Trial Chamber’s authorization to lodge an appeal against the Impugned Decision[[5]] under Rule 73(B). Absent certification to appeal under Rule 73(B) of the Rules, the Appeals Chamber has no jurisdiction to address the merits of the Appeal.

At the outset, the Appeals Chamber specified that its use of the term “fresh evidence”[1] referred, for the purposes of the present decision, to material that was not included in the Prosecution Rule 65 ter list, not admitted during the Prosecution’s case-in-chief but tendered by the Prosecution when cross-examining Defence witnesses. It further clarified that, in this decision, the term was not limited to the material that was not available to the Prosecution during its case-in-chief (para. 15).

23. The Appeals Chamber recalls that, “[a]s a general rule, the Prosecution must present the evidence in support of its case during its case in chief”.[2] This stems from the rights of the accused under Article 21(4)(b) and (e) of the Statute pursuant to which “when evidence is tendered by the Prosecution there must be a fair opportunity for the accused to challenge it”.[3] Consequently, when the Prosecution seeks to introduce fresh evidence, after the closure of its case-in-chief, it has to specifically justify its request.[4] The Trial Chamber may authorize the deviation from the said sequence if it is satisfied that it is in conformity with the other applicable provisions, notably Rule 89(D) of the Rules. The Impugned Decision is correctly premised on this principle noting that, pursuant to Rule 85(A) of the Rules, the sequence of the presentation of evidence may be changed if the Trial Chamber deems it to be in the interests of justice.[5] Therefore, the Appeals Chamber cannot agree with the Appellants that there is an absolute ban for the Prosecution to tender evidence once its case presentation has been closed (save for rebuttal and re-opening). In sum, the Trial Chamber has the discretion to admit fresh evidence under Rule 89(C) and (D) of the Rules, taking into account both the probative value of that evidence and the need to ensure a fair trial.[6] Where the admittance of this evidence constitutes a variation of the sequence of the presentation of evidence set out in Rule 85(A) of the Rules, the Trial Chamber may exercise its discretion to admit the evidence only where it is in the interests of justice.[7]

24. In order to clarify the circumstances under which it would allow admission of fresh evidence after the closure of the Prosecution case-in-chief, the Trial Chamber emphasized that it would do so only in exceptional circumstances where the interests of justice so require, such as “the importance of the ‘new document’”. It went on to specify that, with respect to material aimed at establishing the guilt of an accused, the Prosecution must also “explain to the Chamber when and by which means it obtained these documents, when it disclosed them to the Defence and why they are being offered only after the conclusion of its case”. Finally, the Trial Chamber stated that it would proceed with the assessment of such requests on a case-by-case basis, after having permitted the Defence to challenge the evidence, particularly bearing in mind the potential infringement on the rights of the accused caused by the sought admission. The Appeals Chamber is satisfied that this careful approach establishing a high threshold for the admission of fresh evidence duly mindful of Rule 89(C) and (D) of the Rules may be justified, depending on the specific circumstances of the case. The Appellants have thus not demonstrated any error in the Trial Chamber’s conclusions in this regard.

28. With reference to the Delić Decision, the Trial Chamber resolved that fresh evidence probative of the Appellants’ guilt may only be admitted during the presentation of their respective cases in exceptional circumstances.[11] While the Impugned Decision appears to be more lenient to the admission of the fresh evidence for the sole purpose of “impeaching a witness’s credibility or refreshing his/her memory”, it still specifies that the Trial Chamber will decide on the admission on the case-by-case basis in conformity with Rule 89 of the Rules.[12] In light of the above clarifications, the Appeals Chamber does not find that such approach is erroneous.

In its Rutaganda Decision on Leave to Appeal, the Appeals Chamber also considered the submissions of the Registrar and the Applicant relating to the Applicant’s ability to access to his file whilst in detention at the United Nationa Detention Facility in Arusha (“UNDF”), and held:

pp. 2-3: RECALLING that on 22 January 2009, the Appeals Chamber ordered the Registrar, pursuant to Rule 33(B) of the Tribunal’s Rules of Procedure and Evidence (“Rules”), to make a written submission to the Appeals Chamber explaining whether, at present and until his transfer to a third State, the Applicant continues to have access to the appropriate facilities and the files and documentation required to prepare his appeal against the Decision of 3 April 2008;[1]

CONSIDERING the correspondence from the Applicant to the Commander of the UNDF dated 23 January 2009, wherein the Applicant explains that, in anticipation of his imminent transfer, he packed his documents and therefore, whilst he still has possession of these materials, his access to them is more difficult;[2]

CONSIDERING that on 28 January 2009, the Registrar submitted that the Applicant continues to have access to the appropriate facilities, files, and documentation required to prepare his appeal against the Trial Chamber’s Decision of 3 April 2008;[3]

CONSIDERING therefore that since the Applicant has had continued access to his files, he has failed to demonstrate that for the filing of his appeal he needs additional time until after his transfer to the State in which his sentence is to be served[.]

11. […] The granting of an oral hearing is a matter for the discretion of a Chamber and an oral hearing may legitimately be regarded as unnecessary when, as in the present case, the information before the Appeals Chamber is sufficient to enable the Appeals Chamber to reach an informed decision.[1] […]

22. The Appellant submits that the Trial Chamber erred in law in failing to conclude that those portions of his testimony that the Prosecution did not cross-examine were established.[1] Referring to Rule 90(G)(ii) of the Rules, the Rutaganda Appeal Judgement,[2] and Canadian jurisprudence, he submits that the “failure to cross-examine a witness on an aspect of his testimony implies a tacit acceptance of the truth of the witness’s evidence on the matter”.[3]

24. The Appeals Chamber finds that Rule 90(G)(ii) of the Rules does not support the Appellant’s contention [. The rule merely states that “[i]n the cross-examination of a witness who is able to give evidence relevant to the case for the cross-examining party, counsel shall put to that witness the nature of the case of the party for whom that counsel appears which is in contradiction of the evidence given by the witness.” The ICTY Appeals Chamber has previously stated, regarding the similarly worded Rule 90(H)(ii) of the ICTY Rules, that it:

seeks to facilitate the fair and efficient presentation of evidence whilst affording the witness being cross-examined the possibility of explaining himself on those aspects of his testimony contradicted by the opposing party’s evidence, so saving the witness from having to reappear needlessly in order to do so and enabling the Trial Chamber to evaluate the credibility of his testimony more accurately owing to the explanation of the witness or his counsel.[4]

The central purpose of this rule is to “promote the fairness of the proceedings by enabling the witness […] to appreciate the context of the cross-examining party’s questions, and to comment on the contradictory version of the events in question”.[5]

26. For the requirements of this rule to be fulfilled, there is no need for the cross-examining party to explain every detail of the contradictory evidence. Furthermore, the rule allows for some flexibility depending on the circumstances at trial.[6] This therefore implies that if it is obvious in the circumstances of the case that the version of the witness is being challenged, there is no need for the cross-examining party to waste time putting its case to the witness.[7]

27. The Appeals Chamber notes that the term “witness” under Rule 90 of the Rules does not always equate to an accused who chooses to testify. There is a fundamental difference between the accused, who might testify as a witness if he so chooses, and a witness. The Tribunal “does not reflexively apply rules governing any other witness to an accused who decides to testify in his own case”.[8] When an accused testifies in his own defence, he is well aware of the context of the Prosecution’s questions and of the Prosecution’s case, insofar as he has received sufficient notice of the charges and the material facts supporting them.[9] Furthermore, the accused’s version of the events is for the most part challenged by the Prosecution, while his testimony is aimed at responding to Prosecution’s evidence and allegations. In these circumstances, it would serve no useful purpose to put the nature of the Prosecution’s case to the accused in cross-examination. The Appeals Chamber therefore does not find that Rule 90(G)(ii) of the Rules was intended to apply to an accused testifying as a witness in his own case. The Appeals Chamber notes that, in any event, Rule 90(G)(ii) of the Rules is silent on any inferences that may be drawn by a Trial Chamber from a witness’s testimony that is not subject to cross-examination.

28. The Appeals Chamber further notes that the relevant holding of the Appeals Chamber in Rutaganda reads: 

La Chambre d’appel estime que, d’une manière générale, une partie qui ne contre-interroge pas un témoin sur une déclaration donnée admet tacitement la véracité de la déposition dudit témoin sur ce point. La Chambre de première instance n’aurait donc pas commis une erreur de droit en l’espèce, en induisant du fait que l’Appelant n’avait pas contre-interrogé le témoin Q sur la distribution d’armes, que celui-ci ne contestait pas la véracité de la déposition dudit témoin sur ce point. Ceci étant dit, il ne ressort pas clairement du Jugement que la Chambre de première instance est effectivement parvenue à une telle conclusion. Il semble plutôt qu’elle se soit limitée à noter que l’Appelant n’avait pas contre-interrogé le témoin Q sur la question visée, sans toutefois en tirer quelques conséquences que ce soit dans ses conclusions factuelles. De l’avis de la Chambre d’appel, cet argument est dépourvu de fondement.[10]

29. The Appeals Chamber recalls that in Kamuhanda, the Appeals Chamber stated that this holding in Rutaganda “does not stand for the proposition that a trier of fact must infer that statements not challenged during cross-examination are true,” and that it is within the discretion of a Trial Chamber to decline to make such an inference.[11] Thus, the Appeals Chamber emphasizes that a Trial Chamber has the discretion to infer (or not) as true statements unchallenged during cross-examination, and to take into account the absence of cross-examination of a particular witness when assessing his credibility.[12]

30. The Appeals Chamber notes that in this instance, the Appellant, who testified at the end of the case, had consistently denied the allegations against him throughout the proceedings and claimed that he did not know anything about the crimes alleged.[13] The Prosecution cross-examined the Appellant on a number of issues.[14] Under this sub-ground of appeal, the Appellant has failed to point to any finding allegedly affected by the lack of cross-examination by the Prosecution but merely makes a general reference to his oral arguments at trial.[15] In these circumstances, the Appellant has not demonstrated that the Trial Chamber committed an error of law in not considering as established those portions of his testimony on which the Prosecution did not cross-examine him.[16]

See also, below under “Development of the existing case-law”.

19. Regarding the Appellant’s contention that special rules should apply when assessing an accused’s testimony, the Appeals Chamber recalls that the Tribunal’s Chambers are not bound by national rules of evidence or national case law.[1] While “[t]here is a fundamental difference between being an accused, who might testify as a witness if he so chooses, and a witness”,[2] this does not imply that the rules applied to assess the testimony of an accused are different from those applied with respect to the testimony of an “ordinary witness”. A trier of fact shall decide which witness’s testimony to prefer, without necessarily articulating every step of its reasoning in reaching this decision.[3] In so doing, as for any witness, a trier of fact is required to determine the overall credibility of an accused testifying at his own trial[4] and then assess the probative value of the accused’s evidence in the context of the totality of the evidence.[5] There is no requirement in the Tribunal’s jurisprudence that the accused’s credibility be assessed first and in isolation from the rest of the evidence in the case.

21. A review of the Trial Judgement reveals that the Trial Chamber did consider the Appellant’s testimony and made assessments of the probative value of that evidence.[6] It was not obliged to systematically justify why it rejected each part of that evidence. The Appellant’s claim that the Trial Chamber erred by failing to explain why it did not believe him is therefore dismissed.

317. The actus reus of “instigating” implies prompting another person to commit an offence.[1] It is not necessary to prove that the crime would not have been perpetrated without the involvement of the accused; it is sufficient to demonstrate that the instigation was a factor substantially contributing to the conduct of another person committing the crime.[2]

318. Contrary to the Appellant’s contention, the specific identification of the perpetrators, who were identified in the Trial Judgement as Interahamwe, was not required for a finding that the Appellant instigated the killing of Gakuru. In any event, the Trial Chamber did identify the perpetrators. […] While it would have been preferable for the Trial Chamber to explicitly state that it identified the perpetrators of Gakuru’s murder as being the Interahamwe to whom the Appellant indicated that Gakuru was an “Inyenzi” and who received the order to arrest him, this omission does not amount to an error.

319. However, based on the Trial Chamber’s factual findings, the Trial Chamber could not have reasonably concluded that the Appellant prompted the perpetrators to kill Gakuru. The Trial Chamber made no factual findings supporting such a conclusion. It merely concluded that the Appellant had informed the Interahamwe who later killed Gakuru that he was an “Inyenzi” and ordered them to arrest him. The Trial Chamber should have further explained how, on the basis of these factual findings, it inferred that the Appellant had prompted the Interahamwe to kill Gakuru.  In the absence of such an explanation, the Appeals Chamber finds that the Trial Chamber erred in convicting the Appellant for instigating Gakuru’s murder.

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

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

The Appeals Chamber considered proprio motu the question of whether the Trial Chamber erred in finding the Appellant responsible for the killings of individuals under Count 1 (genocide) and Count 3 (extermination as a crime against humanity), while these killings were only pleaded under Count 4 (murder as a crime against humanity).[1] It found

365. In Muvunyi, the Appeals Chamber observed that “the Prosecution’s failure to expressly state that a paragraph in the Indictment supports a particular count in the Indictment is indicative that the allegation is not charged as a crime”.[2] The Appeals Chamber considers that the same may be said where a particular allegation is charged under a particular count only. In the present case, the Amended Indictment put the Appellant on notice that the Prosecution was charging him for the murder of Murekezi only under Count 4. In view of this, there is some basis for argument that by reading the Amended Indictment alone, the Appellant would not have understood that he was also charged for the same fact under Counts 1 and 3. In regard to the Amended Indictment, the Prosecution knew the identity of a finite number of victims and was able, when it sought to amend the Indictment, to specify the circumstances of their murder.  It chose not to list Murekezi’s killing in the statements of facts pertaining to counts alleging genocide and extermination as a crime against humanity. The Appeals Chamber has previously held that “[e]ven in cases where a high degree of specificity is ‘impractical […] since the identity of the victim is information that is valuable to the preparation of the defence case, if the Prosecution is in a position to name the victims, it should do so.’”[3]

366. Turning to the Prosecution’s submission that the Amended Indictment has to be read as a whole, the Appeals Chamber notes that while the statement of facts supporting Count 4 incorporates the statements of facts supporting Counts 1 and 3, the reverse is not true. The statements of facts supporting Counts 1 and 3 do not incorporate the statement of facts supporting Count 4. This lack of reciprocity might have added to the impression that Murekezi’s murder was not incorporated in Counts 1 and 3 of the Amended Indictment.

367. The Appeals Chamber further notes that the process of amending the initial Indictment might have laid the groundwork for confusion on this issue. Originally, Murekezi’s killing was listed in a statement of facts pertaining to both Counts 3 and 4. However, this statement of facts was eventually severed, and Murekezi’s killing was subsequently mentioned only in the statement of facts applicable to Count 4. While the rationale for the severing of the original, combined statement of facts did not centre on Murekezi, the amendment may have given the message that Murekezi’s killing related only to Count 4 of the Indictment, rather than serving as a key basis for the gravest of the charges involved.[4] The Prosecution’s decision not to refer to Murekezi at all in Counts 1 and 3 of the Amended Indictment, especially in the context of the Indictment amendment process, resulted in vagueness with potentially serious consequences for the preparation of the Appellant’s defence.  In these circumstances, the Appeals Chamber considers that reversal of the affected convictions is appropriate.[5]

368. The Appeals Chamber further notes that the Amended Indictment was issued on 19 December 2005, seven days after the filing of the Prosecution Pre-Trial Brief.[6] As a result, while the Prosecution Pre-Trial Brief included a summary of anticipated witness testimony, the text of the Prosecution Pre-Trial Brief and the summaries referred to either the Indictment or the draft amended indictment annexed to the Prosecution Motion to Amend the Indictment,[7] but not to the Amended Indictment itself. Turning to the Prosecution’s contention that the Prosecution Pre-Trial Brief presented “the factual allegations by location, including Nyamirambo, rather than with respect to each count”, the Appeals Chamber does not see how this argument is capable of demonstrating that any defect in the Amended Indictment relating to the facts underlying Counts 1 and 3 was cured by the Prosecution Pre-Trial Brief.

369. In a world of limited legal resources, the Appellant’s counsel might have focused more attention on Murekezi’s killing had this key material fact been more specifically linked to a larger number of counts concerning crimes such as genocide and extermination as a crime against humanity, which on their face appear even more serious than murder. Instead, the Amended Indictment may have given the opposite impression. This error and the confusion it might have generated justify reversal of the Appellant’s convictions under Counts 1 and 3, insofar as they rely on the murder of Murekezi.

388. The Appellant made no sentencing submissions during closing arguments. In such circumstances, the Trial Chamber was not under an obligation to seek out information that counsel did not see fit to put before it at the appropriate time.[1] Rule 86(C) of the Rules clearly indicates that sentencing submissions shall be addressed during closing arguments, and it was therefore the Appellant’s prerogative to identify any mitigating circumstances instead of directing the Trial Chamber’s attention to the record in general.