14. Finally, the Appeals Chamber notes that it is the Appellant’s burden to demonstrate that each amendment should be permitted under the standards outlined above, including establishing lack of prejudice to the Prosecution.[1]

54. The Appeals Chamber recalls that “a party may, without requesting leave from the Appeals Chamber, file a corrigendum to their previously filed brief or motion whenever a minor or clerical error in said brief or motion is subsequently discovered and where correction of the error is necessary in order to provide clarification”.[1] Consequently, while the Appeals Chamber is cognizant of the lateness of such filing, there was no need for the Appellant to seize it with a Motion in this respect.

55. Having reviewed the proposed corrections, the Appeals Chamber notes that most of the submitted amendments indeed correct grammatical or typing errors, or inaccurate references. While corrections 5, 11, 15, 29, 54, 65, 66, 76 seem to go slightly beyond clerical corrections, the Appeals Chamber considers that they, while usefully providing clarifications to the respective sentences, do not amount to any substantial changes of the Appellant’s Brief and can thus be equally permitted.

9. Pursuant to Rule 108 of the Rules, the Appeals Chamber “may, on good cause being shown by motion, authorise a variation of the grounds of appeal” contained in the notice of appeal. Such motions should be submitted “as soon as possible after identifying the new alleged error”[1] of the Trial Chamber to be included in the notice of appeal or after discovering any other basis for seeking a variation to the notice of appeal. Generally, “a request to amend a notice of appeal must, at least, explain precisely what amendments are sought and why, with respect to each such amendment, the 'good cause’ requirement of Rule 108 is satisfied”.[2]

13. In sum, variations to the notice of appeal will only be allowed (i) for good cause reasons within the meaning of Rule 108, as defined by the above-discussed principles; (ii) if they remedy the counsel’s negligence or inadvertence and are of substantial importance to the success of the appeal; or (iii) if they otherwise correct ambiguity or error made by counsel and do not unduly delay the appeal proceedings, as, for example, in the case of minor and non-substantive modifications. With respect to the revisions to the appeal brief (or, in the alternative, supplemental briefing), they will be permitted only (i) as necessary to reflect the amendments to the notice of appeal; or (ii) as necessary to correct ambiguity or error in the counsel’s filings, without unduly delaying the appeal proceedings.[3]

21. As a preliminary matter, the Appeals Chamber notes that the Appellant seeks to have his Notice of Appeal modified only as a consequence of including the newly submitted grounds of appeal into his Appellant’s Brief. Rule 108 of the Rules clearly applies to seeking a variation of the notice of appeal and, where leave is granted to amend the notice of appeal, the appellant may be granted leave to amend the appeals brief to reflect the amendment to the notice of appeal. Nevertheless, the Appeals Chamber will consider the Motion of 6 March 2006 as requesting the variation of grounds of appeal contained in both the Notice of Appeal and the Appellant’s Brief simultaneously. Since the variations of the Appellant’s Notice of Appeal sought by his Motion of 5 July 2006 are of a broader scope than the newly submitted grounds of appeal, the Appeals Chamber will address the former in a separate section of the present decision.[4]

At paras 21-32, the Appeals Chamber recalled its previous case-law regarding the necessary elements of an indictment. It confirmed that, in exceptional cases, defects in an indictment can be “cured” if the Prosecution provides the accused with timely, clear and consistent information (para. 28). In an obiter dictum, the Appeals Chamber expressed concern about the extent to which the Prosecution tried to rely on this jurisprudence in the present case, and stressed that this jurisprudence applies only in a limited number of cases (para. 114):

114.    The Appeals Chamber wishes to express its concern regarding the Prosecution’s approach in the present case. The Appeals Chamber recalls that the indictment is the primary accusatory instrument and must plead the Prosecution case with sufficient detail. Although the Appeals Chamber allows that defects in an indictment may be “remedied” under certain circumstances, it emphasizes that this should be limited to exceptional cases. In the present case, the Appeals Chamber is disturbed by the extent to which the Prosecution seeks to rely on this exception. Even if the Prosecution had succeeded in arguing that the defects in the Indictments were remedied in each individual instance, the Appeals Chamber would still have to consider whether the overall effect of the numerous defects would not have rendered the trial unfair in itself.

The Appeals Chamber confirmed that a Trial Chamber is entitled to reconsider previous decisions after the closing arguments of the parties. However, in such a case the Trial Chamber has to carefully consider the impact of its reconsideration on the aspects of the procedure which were affected by its initial decision. In the present case, the Trial Chamber was obliged to reopen the debate to give the parties the opportunity to present their view on the issue (para. 55):

55.     It is apparent from the foregoing that the Trial Chamber reconsidered in the Trial Judgement some of the findings it had made in certain pre-trial decisions on the form of the Indictments. This does not in itself constitute an error, as it is within the discretion of a Trial Chamber to reconsider a decision it has previously made if a clear error of reasoning has been demonstrated or if it is necessary to do so to prevent an injustice. However, the Appeals Chamber emphasises that “where such a decision is changed, there will be a need in every case for the Trial Chamber to consider with great care and to deal with the consequences of the change upon the proceedings which have in the meantime been conducted in accordance with the original decision”. In the present case, the Appeals Chamber considers that, once the Trial Chamber decided to reconsider its pre-trial decisions relating to the specificity of the Indictments at the stage of deliberations, it should have interrupted the deliberation process and reopened the hearings. At such an advanced stage of the proceedings, after all the evidence had been heard and the parties had made their final submissions, the Prosecution could not move to amend the Indictment. On the other hand, reopening the hearings would have allowed the Prosecution to try to convince the Trial Chamber of the correctness of its initial pre-trial decisions on the form of the Indictment, or to argue that any defects had since been remedied. The Appeals Chamber finds that the Trial Chamber erred in remaining silent on its decision to find the abovementioned parts of the Indictments defective until the rendering of the Trial Judgement.

At paras 174 and 175, the Appeals Chamber recalled that, when facts upon which a finding of guilt or the sentence depend are under consideration, such finding must be made beyond reasonable doubt.

See also :

-          Stakić Appeal Judgement, para. 219: “A Trial Chamber may only find an accused guilty of a crime if the Prosecution has proved each element of that crime (as defined with respect to the relevant mode of liability) beyond a reasonable doubt.[1]”

-          Čelebići Appeal Judgement, para. 763: “[O]nly those matters which are proved beyond reasonable doubt against an accused may be the subject of an accused’s sentence or taken into account in aggravation of that sentence.”

The Appeals Chamber affirmed that the Prosecution has to prove each element essential for a conviction. It is not sufficient to apply the standard of proof only at the very last stage of the decision-making process, when considering the “ultimate issue of guilt or innocence” (paras 169-175):

169.    As to the first argument, the Prosecution relies on a decision of the Supreme Court of Canada, R. v. Morin, to support its position that the standard of proof has to be applied at the verdict stage only, but not to the individual facts of the case. However, this decision does not support the contention that the individual facts of the case do not have to be proven beyond a reasonable doubt:

During the process of deliberation, the jury must consider the evidence as a whole and determine whether guilt is established by the prosecution beyond a reasonable doubt. This of necessity requires that each element of the offence or issue be proved beyond a reasonable doubt.

In fact, Judge Sopinka, speaking for the majority, endorsed the conclusion in another case of the Supreme Court of Canada, Nadeau v. The Queen:

The jurors cannot accept his [a ‘Crown witness’] version, or any part of it, unless they are satisfied beyond all reasonable doubt, having regard to all the evidence, that the events took place in this manner; otherwise, the accused is entitled, unless a fact has been established beyond a reasonable doubt, to the finding of fact the most favourable to him, provided of course that it is based on evidence in the record and not mere speculation.

In addition, the Appeals Chamber notes that some of the language used in R. v. Morin, which could be construed to support the Prosecution’s position at first view, is due to the fact that the issue in R. v. Morin was the instruction given to the jury by the trial judge. When considering this case in the context of the Tribunal, it has to be borne in mind that here the trier of fact is not a jury, but a panel of professional judges. In the case of the jury, the one question which has to be answered is the question of guilty or not guilty, and the factual findings supporting this conclusion are neither spelled out nor can they be challenged by one of the parties. The instruction given to the jury concentrates on this “ultimate issue” of the case. In this Tribunal, on the other hand, Trial Chambers cannot restrict themselves to the ultimate issue of guilty or not guilty; they have an obligation pursuant to Article 22(2) of the Statute, translated into Rule 88(C) of the Rules, to give a reasoned opinion.

170.    The Appeals Chamber recalls that Article 20(3) of the Statute provides that an accused shall be presumed innocent until proven guilty. This Article embodies a general principle of law, that the Prosecution bears the onus of establishing the guilt of the accused beyond reasonable doubt. With respect to the Trial Chamber’s Judgement, Rule 87(A) of the Rules clearly states that a finding of guilt may be reached only when a majority of the Trial Chamber is satisfied that guilt has been proved beyond reasonable doubt. Although the Rules are silent as to whether the same standard applies at the fact-finding stage, and, if so, with respect to which facts, the ICTY Appeals Chamber has left no doubt that the standard of proof “beyond reasonable doubt” is not limited to the ultimate question of guilt: […]

171.    To support its argument that the Trial Chamber erroneously adopted a piecemeal approach to the evidence, the Prosecution refers to the Musema Appeal Judgement. There, the Appeals Chamber endorsed the view of the ICTY Appeals Chamber in the Tadić Judgement on Allegations of Contempt:

[A] tribunal of fact must never look at the evidence of each witness separately, as if it existed in a hermetically sealed compartment; it is the accumulation of all the evidence in the case which must be considered. The evidence of one witness, when considered by itself, may appear at first to be of poor quality, but it may gain strength from other evidence in the case. The converse also holds true.

172.    In the Appeals chamber’s view, the case law referred to by the Prosecution does not address the issue of the standard of proof applicable to any particular fact. The duty of the Trial Chamber to consider all the evidence does not relieve it from the duty to apply the required standard of proof to any particular fact.

173.    The Prosecution quotes as one of the examples for the alleged error of law by applying the standard of proof to individual items of evidence the Trial Chamber’s conclusions in paragraph 118 of the Trial Judgement. The Appeals Chamber notes that the Trial Chamber did not look at the testimony of the different witnesses in isolation, but considered it in the light of other evidence. It took into account the testimony of a Defence witness (Witness BLB), which created doubts as to the credibility of Witness LAH in general, and also that of Prosecution Witness NL, but found that it did not corroborate the testimony of Witness LAH. The Trial Chamber’s approach clearly follows the principle enunciated in the Tadić Judgement on Allegations of Contempt. Only at the end of this analysis does the Trial Chamber apply the standard of proof and determine whether the fact in question was proved beyond a reasonable doubt.

174.    It appears to the Appeals Chamber that the Prosecution’s argument does not clearly distinguish between the different stages of the fact-finding process which a Trial Chamber undertakes before it can enter a conviction: […]

In light of the above analysis, the Appeals Chamber agrees with the Prosecution that “applying the criminal standard of proof piecemeal to individual items of evidence” would amount to an error.

175.    The Appeals Chamber recalls that the presumption of innocence requires that each fact on which an accused’s conviction is based must be proved beyond a reasonable doubt. The Appeals Chamber agrees with the Prosecution’s argument that “if facts which are essential to a finding of guilt are still doubtful, notwithstanding the support of other facts, this will produce a doubt in the mind of the Trial Chamber that guilt has been proven beyond a reasonable doubt”. Thus, if one of the links is not proved beyond a reasonable doubt, the chain will not support a conviction.

The Appeals Chamber, after an analysis of earlier jurisprudence, affirmed that a Trial Chamber can consider evidence given by an accomplice, but must be cautious in doing so (paras 203-205). However, in such a case, the Trial Chamber has to analyse the possible motives of the witness to lie; the mere fact that a witness is an accomplice is not sufficient to reject his or her testimony (para. 206). This applies to witnesses who are suspected of taking part in the same criminal activities as the accused; a Trial Chamber does not err if it does not take the same cautious approach to witnesses who are suspect of criminal activities of a similar legal nature as the accused, but without a factual relation to the charges against the accused (paras 233-234):

233.    In Niyitegeka, the Defence submitted that one of the witnesses, Witness KJ, was an accomplice and that the Trial Chamber should treat his evidence with suspicion. The Trial Chamber, addressing this submission, noted that, although the witness was detained in a Rwandan military camp, he had not been charged with any crime. The Trial Chamber further stated: “Moreover, no evidence has been adduced of criminal involvement on his part in the events giving rise to the charges faced by the Accused”. Thus, the Trial Chamber concluded, the witness was not an accomplice whose uncorroborated testimony was subject to special caution. On appeal, the Appeals Chamber endorsed the Trial Chamber’s conclusion. Reviewing the jurisprudence cited in the first section of this chapter, the Appeals Chamber finds that it exclusively relates to accomplices in the “ordinary meaning” of the term. In Čelebići, the witness whom the Trial Chamber considered an accomplice was employed in the same prison camp as the accused and participated in the offences against the detainees. In Kordić and Čerkez, the witness was convicted by the ICTY for his participation in one attack with which the accused was also charged.

234.    The Appeals Chamber recalls that the reason for applying “caution” to the testimony of accomplice evidence is that accomplice witnesses may have motives or incentives to implicate the accused person before the Tribunal. Obviously, these motives or incentives are much stronger when the witness is charged with the same criminal acts as the accused. It may be necessary, depending on the circumstances of the case, also to employ a critical approach towards witnesses who are merely charged with crimes of a similar nature. But in most cases, they will not have the same tangible motives for giving false evidence like a witness who was allegedly involved in the same criminal acts as the accused. Therefore, as long as no special circumstances have been identified, it is reasonable not to employ the same cautious approach towards the testimony of witnesses charged with similar crimes as to the testimony of accomplices in the ordinary sense of the word.

At para. 26, the Appeals Chamber recalled in a comprehensive manner what the elements of command responsibility under Article 6(3) are:

26. In relation to an allegation of superior responsibility under Article 6(3) of the Statute, the material facts which must be pleaded in the indictment are: (1) that the accused is the superior of certain persons sufficiently identified, over whom he had effective control – in the sense of a material ability to prevent or punish criminal conduct – and for whose acts he is alleged to be responsible;[1] (2) the criminal acts of such persons, for which he is alleged to be responsible;[2] (3) the conduct of the accused by which he may be found to have known or had reason to know that the crimes were about to be committed or had been committed by his subordinates;[3] and (4) the conduct of the accused by which he may be found to have failed to take the necessary and reasonable measures to prevent such acts or to punish the persons who committed them.[4]

Para. 50: when an accused is charged with personally committing a crime, the Prosecution must plead the material facts of that incident:

50. The Indictment, taken alone, does not allege the killing of Mr. Murefu. In the Statement of Facts (“Statement”) related to the genocide count, it states that “Sylvestre Gacumbitsi killed persons by his own hand”, but provides no further details. The Statement goes on to describe the massacre at Nyarubuye Parish, but does not mention Mr. Murefu and does not suggest that the Appellant participated personally in the killing there. Count 4 of the Indictment (Murder) does allege that the Appellant killed a number of individuals in several separate incidents, but Mr. Murefu is not among them. The Appellant could not reasonably have known, on the basis of the Indictment alone, that he was being charged with the killing of Mr. Murefu. While in certain cases, “the sheer scale of the alleged crimes ’makes it impracticable to require a high degree of specificity in such matters as the identity of the victims and the dates for the commission of the crimes’”, this is not such a case. The Prosecution should have expressly pleaded the killing of Mr. Murefu, particularly as it had this information in its possession before the Indictment was filed. The Appeals Chamber thus finds by majority, Judge Shahabuddeen and Judge Schomburg dissenting, that the Indictment was defective in this respect. (internal citation omitted).