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]

The Appeals Chamber ordered a retrial for one count of direct and public incitement to commit genocide:

148. These aggregate errors in addressing the apparently inconsistent testimony of Witnesses YAI, CCP, and MO78 prevent the Appeals Chamber from determining whether the Trial Chamber assessed the entire evidence on this point exhaustively and properly. In such circumstances, the Appeals Chamber is forced to conclude that Muvunyi’s conviction for direct and public incitement to commit genocide on the basis of his alleged speech at the GikoreTradeCenter is not safe and, accordingly, quashes it. The Appeals Chamber further finds that the present situation gives rise to appropriate circumstances for retrial pursuant to Rule 118(C) of the Rules, limited to the allegations considered under this ground of appeal. The Appeals Chamber stresses that an order for retrial is an exceptional measure to which resort must necessarily be limited. In the present situation, the Appeals Chamber is well aware that Muvunyi has already spent over eight years in the Tribunal’s custody. At the same time, the alleged offence is of the utmost gravity and interests of justice would not be well served if retrial were not ordered to allow the trier of fact the opportunity to fully assess the entirety of the relevant evidence and provide a reasoned opinion. 

With respect to the exercise of the applicant’s and counsel’s duty to act with due diligence in relation to the availability of evidence at trial, the Appeals Chamber recalled:

 5. For additional evidence to be admissible under Rule 115 of the Rules it must satisfy the following requirements. The applicant must first demonstrate that the additional evidence tendered on appeal was not available to him at trial in any form, or discoverable through the exercise of due diligence.[1] The applicant’s duty to act with reasonable diligence includes making “appropriate use of all mechanisms of protection and compulsion available under the Statute and the Rules of the International Tribunal to bring evidence on behalf of an accused before the Trial Chamber.”[2] With respect to the exercise of counsel’s due diligence during trial the Appeals Chamber recalls its finding in Tadić that

[c]ounsel may have chosen not to present the evidence at trial because of his litigation strategy or because of the view taken by him of the probative value of the evidence. The determination which the Chamber has to make, except in cases where there is evidence of gross negligence, is whether the evidence was available at the time of trial. Subject to that exception, counsel’s decision not to call evidence at trial does not serve to make it unavailable.[3]

The Applicant argued that a number of documents he sought to be admitted on appeal were not tendered into evidence at trial due to oversight by his former Counsel. When considering whether these documents were unavailable to the Applicant at trial, the Appeals Chamber first analysed documents which could demonstrate Counsel’s incompetence to conduct the defence:

12. With respect to the alleged unavailability at trial of the statements in document 69-K-0005, the Appeals Chamber recalls that a defence counsel has the duty to act with reasonable diligence to bring evidence on behalf of an accused before the Trial Chamber.[4] The information contained in the four statements could be considered as having been available at trial, because it could have been gathered with reasonable diligence.[5] However, failure of Counsel to exercise due diligence in order to obtain documents which could demonstrate his own incompetence to conduct the defence should not be to the detriment of the Appellant.[6] Moreover, whether or not the Appellant himself had a duty to act with reasonable diligence to make the Trial Chamber aware of the information contained in the four statements, the Appeals Chamber considers that in his oral request for self-representation at trial, the Appellant stated that his Defence team was unable to assist him because of the conditions prevailing at the time, adding that if the Trial Chamber wished that he provide more detailed explanations, he would gladly do so.[7] However, he was never requested to do so. In light of these circumstances, the Appeals Chamber finds that the information contained in the four statements was unavailable to the Appellant at trial. Consequently, they can be admitted if they are relevant, credible and could have had an impact on the verdict had they been considered at trial.

        […]

18. In addition, it appears that the Trial Chamber was never fully informed of the Appellant’s complaints regarding his former Counsel. […]

19. The Appeals Chamber considers that, as a general principle, an accused’s right to a fair trial is infringed when counsel admittedly does not understand the case of his client and fails to prepare a proper defence strategy. […]

 The Appeals Chamber then analysed the documents which were not aimed at proving the alleged incompetence of Counsel to conduct the defence:

21. As previously noted, the Appellant argues in relation to a number of documents that his former Counsel failed to tender them as evidence at trial, although for many of them the Appellant told him to do so.[8] The Appeals Chamber will only consider these documents as being unavailable at trial where the Appellant can show gross negligence of Counsel.[9]

22. The Appeals Chamber considers that […].it does not necessarily follow that former Counsel acted with gross negligence in all the respects now alleged. Indeed, “[c]ounsel may have chosen not to present the evidence at trial because of his litigation strategy or because of the view taken by him of the probative value of the evidence”.[10] Moreover, the Appellant does not substantiate his assertion that the documents at issue were unavailable at trial beyond bare assertions that former Counsel failed to tender them. Therefore, he fails to sufficiently demonstrate that these documents were unavailable at trial. As such, the other admissibility criteria being met, they will only be admitted if the Appellant can show that they would have affected the verdict.

The Appeals Chamber found that a statement made by Radovan Karadžić and given to one of the Applicant’s investigators lacked credibility for the purposes of Rule 115:

108. With respect to the statement’s credibility, the Appeals Chamber notes that according to the Appellant, “it was impossible to get in direct contact with Mr Karadžić”.[1] Apart from this reference, the Appellant provides no further information as to the circumstances under which this document was produced and how it was communicated to him. As a result, the Appeals Chamber finds that 33-K-0088 is still of dubious credibility. The Appeals Chamber notes that it is yet unknown whether Radovan Karadžić will provide evidence in relation to the credibility of his alleged statement. Therefore, the Appeals Chamber dismisses the request to have the statement admitted at this juncture. This is, however, without prejudice to any renewed request to admit it in the context of a potential motion under Rule 115 of the Rules relating to evidence by Radovan Karadžić.[2]

16. The Appeals Chamber considers that in finding that it did not have sufficient elements “to determine” whether Vučič committed contempt of the Tribunal, based on the conclusions of the amicus curiae that the mental element of contempt had not been “establish[ed]” and that it would have to be “proven” that Vučič had effective knowledge that [redacted] was a protected witness, the Trial Chamber required a final finding of contempt. The Appeals Chamber recalls, however, that the “sufficient grounds” standard under Rule 77(D) of the Rules requires the Trial Chamber only to establish whether the evidence before it gives rise to a prima facie case of contempt of the Tribunal and not to make a final finding on whether contempt has been committed.[1] The Appeals Chamber accordingly finds that the Trial Chamber applied an incorrect legal standard when considering the Prosecution Request, which amounts to a discernible error.

The Appeals Chamber granted the Appeal in part and remanded the Impugned Decision to consider whether sufficient grounds existed to proceed against Vučič for contempt in light of the correct legal standard.

326. The Trial Chamber defined the crime of devastation not justified by military necessity (Count 4) as follows: (a) destruction or damage of property on a large scale; (b) the destruction or damage was not justified by military necessity; and (c) the perpetrator acted with the intent to destroy or damage the property or in the knowledge that such destruction or damage was a probable consequence of his acts.[1] The Trial Chamber further determined that the elements of the crime of unlawful attacks on civilian objects (Count 5) were: (a) an attack directed against civilian objects; (b) causing damage to the civilian objects; and (c) conducted with the intent of making the civilian objects the object of the attack.[2] Finally, regarding the crime of destruction of, or willful damage to cultural property (Count 6), the Trial Chamber ruled that an act fulfills the elements of this crime if (a) it has caused damage or destruction to property which constitutes the cultural or spiritual heritage of peoples; (b) the damaged or destroyed property was not used for military purposes at the time when the acts of hostility directed against these objects took place; and (c) the act was carried out with the intent to damage or destroy the property in question.[3] The Appeals Chamber notes that the Trial Chamber’s definitions of the elements of the crimes are not contested by either of the Parties.[4]

[…]

328. The Appeals Chamber holds that the Trial Chamber’s application of the Čelebići test is correct. First, the Appeals Chamber finds that the definition of the crime of unlawful attacks on civilian objects (Count 5) contains a materially distinct element not present in either the crime of devastation not justified by military necessity (Count 4) or the crime of destruction of, or willful damage to cultural property (Count 6): the requirement of proof of an attack directed against civilian objects.[5] Although the commission of the latter two crimes may, as suggested by Strugar, imply an attack, this is not a legal element of either crime, which is the proper focus of the Čelebići test on cumulation.[6] Therefore, the Trial Chamber rightly concluded that Count 5 contains a materially distinct element not present in the two other Counts.

329. Second, the Appeals Chamber agrees with the Trial Judgement that Count 6 is the only one to contain the element that the damage or destruction must have been carried out against property which constitutes the cultural or spiritual heritage of peoples. In this regard, the Trial Chamber followed the approach taken in previous cases, that

[t]he offence of destruction or willful damage to institutions dedicated to religion overlaps to a certain extent with the offence of unlawful attacks on civilian objects except that the object of the offence of destruction or willful damage to institutions dedicated to religion is more specific.[7]

Whereas cultural property is certainly civilian in nature,[8] not every civilian object can qualify as cultural property. Therefore, the Trial Chamber rightly concluded that Count 6 contains a materially distinct element not present in the two other Counts.

330. Third, the Trial Chamber stated that the non-justification by military necessity is only an element of the crime of devastation not justified by military necessity (Count 4). The Appeals Chamber agrees that, in line with previous jurisprudence,[9] the element of the non-justification by military necessity present in the crime of devastation not justified by military necessity (Count 4) is indeed not present in the crime of attack against civilian objects (Count 5). The Appeals Chamber also agrees that military necessity is not an element of the crime of destruction of, or damage to cultural property (Count 6). While the latter’s requirement that the cultural property must not have been used for military purposes may be an element indicating that an object does not make an effective contribution to military action in the sense of Article 52(2) of Additional Protocol I, it does not cover the other aspect of military necessity, namely the definite military advantage that must be offered by the destruction of a military objective. Therefore, the Trial Chamber rightly concluded that military necessity was a materially distinct element distinguishing Count 4 from Counts 5 and 6.

331. Finally, the Appeals Chamber agrees with the Trial Chamber’s finding that Count 4 was the only one requiring proof that the devastation must have occurred on a large scale.

332. In light of the above, the Appeals Chamber finds that the Trial Chamber correctly concluded that the offences charged under Counts 4, 5 and 6 each contain materially distinct elements from one another, but erred in failing to enter cumulative convictions for Counts 4, 5 and 6 of the Indictment against Strugar. The Appeals Chamber revises the Trial Judgement accordingly and enters a conviction under Counts 4 and 5 respectively.

58. Considering that it is for the Trial Chamber to accept or reject, in whole or in part, the contribution of an expert witness, the Appeals Chamber concludes that a Trial Chamber’s decision with respect to evaluation of evidence received pursuant to Rule 94 bis of the Rules is a discretionary one.[1] When assessing an expert report, a Trial Chamber generally evaluates whether it contains sufficient information as to the sources used in support of its conclusions and whether those conclusions were drawn independently and impartially.[2] […]

34. The Appeals Chamber is of the opinion that the issue of an accused’s fitness to stand trial is of such importance that it may generally be regarded as “an issue that would significantly affect the fair and expeditious conduct of the proceedings or the outcome of the trial” under Rule 73(B) of the Rules.[1] Absent certain exceptions, such as when an accused’s submissions in support of his inability to stand trial are frivolous or manifestly without merit, the immediate resolution by the Appeals Chamber of any question of fitness would appear to be essential in that any decision that an accused is not fit to stand trial would necessarily materially advance the proceedings. Correspondingly, the prejudice to the accused resulting from continuing the trial while he or she is unfit to stand would amount to a miscarriage of justice.[2]

391. The Appeals Chamber recalls its previous finding in Jelisić that it “will not substitute its sentence for that of a Trial Chamber unless the Trial Chamber […] has failed to follow applicable law”.[1] In the case at hand, the Trial Chamber committed such an error with respect to the scope of Strugar’s criminal liability from 12:00 a.m. to 7:00 a.m. on 6 December 1991. Although this legal error has not been found to have had an impact on the sentence, the criminal conduct for which the Trial Chamber convicted Strugar has changed, as it now also comprises his failure to prevent the unlawful shelling of the Old Town before it had ever begun. As such, taking into consideration this legal error of the Trial Chamber, the Appeals Chamber considers that it is resentencing Strugar for his failure to prevent and punish the unlawful shelling of the Old Town on 6 December 1991 and that it thus has the mandate to revise the sentence without remitting it to the Trial Chamber.[2]

392. With respect to the evidence relating to the deterioration of Strugar’s health since the Trial Judgement, the Appeals Chamber admits the relevant material before it[3] in evidence pursuant to Rules 89 and 98 of the Rules. Having considered this evidence the Appeals Chamber accepts that Strugar’s health has deteriorated since the rendering of the Trial Judgement and will take this into account as a mitigating circumstance in its revision of the sentence imposed on him.

348. The Appeals Chamber has held that sentences of like individuals in like cases should be comparable.[1]While similar cases do not provide a legally binding tariff of sentences, they can be of assistance in sentencing if they involve the commission of the same offences in substantially similar circumstances.[2] The relevance of previous sentences is however often limited as a number of elements, relating, inter alia, to the number, type and gravity of the crimes committed, the personal circumstances of the convicted person and the presence of mitigating and aggravating circumstances, dictate different results in different cases such that it is frequently impossible to transpose the sentence in one case mutatis mutandis to another.[3] This follows from the principle that the determination of the sentence involves the individualisation of the sentence so as to appropriately reflect the particular facts of the case and the circumstances of the convicted person.[4]

349. As a result, previous sentencing practice is but one factor among a host of others which must be taken into account when determining the sentence. Nonetheless, as held by the Appeals Chamber in Jelisić, a disparity between an impugned sentence and another sentence rendered in a like case can constitute an error if the former is out of reasonable proportion with the latter. This disparity is not in itself erroneous, but rather gives rise to an inference that the Trial Chamber must have failed to exercise its discretion properly in applying the law on sentencing:

The Appeals Chamber agrees that a sentence should not be capricious or excessive, and that, in principle, it may be thought to be capricious or excessive if it is out of reasonable proportion with a line of sentences passed in similar circumstances for the same offences. Where there is such disparity, the Appeals Chamber may infer that there was disregard of the standard criteria by which sentence should be assessed, as prescribed by the Statute and set out in the Rules. But it is difficult and unhelpful to lay down a hard and fast rule on the point; there are a number of variable factors to be considered in each case.[6]