231. […] [T]he Appeals Chamber finds that [the Trial Chamber] erred in failing to find that his detention in Benin for a total of 85 days without charge and without being brought promptly before a Judge was clearly unlawful and was in violation of his rights under the Tribunal’s Statute and Rules as well as international human rights law. The Appeals Chamber finds that the Prosecution is responsible for these violations because it failed to make a request within a reasonable time under Rules 40 and 40bis for the Appellant’s provisional arrest and transfer to the Tribunal. Moreover, its request would have included the provisional charges, which would then have been served on the Appellant.[1] Although Rules 40 and 40bis do not explicitly state how long a suspect may permissibly remain in the provisional custody of a cooperating State pursuant to a Rule 40 request, the Appellant’s prolonged detention in Benin was unreasonable. The evidence on the record indicates that the Appellant was never informed by a Judge of the charges against him, even provisionally, until sometime between 29 August 1998 and 7 September 1998, when he was formally served with an arrest warrant and a copy of the redacted indictment against him from the Tribunal.[2] The Appeals Chamber does not accept that 85-days’ delay after a suspect’s arrest may be considered “prompt” or “immediate” within the meaning of this Tribunal’s Statute or Rules.[3] Additionally, although 90 days may be permissible for the finalizing of a formal indictment, 85 days of provisional detention without even an informal indication of the charges to be brought against the suspect is not reasonable under international human rights law, given that nothing less than an individual’s fundamental right to liberty is at issue. While it is true that the Appellant was served with the arrest warrant and redacted indictment within days of their issuance by a Judge of this Tribunal on 29 August 1998, at a minimum, the Appellant should have been informed as soon as possible after his arrest on 5 June 1998 of any reliable information possessed by the Prosecution with regard to why he was considered a suspect and as to any provisional charges against him.[4] The Appeals Chamber considers that the Prosecution was able to directly request the Benin authorities to do so on its behalf, given that it stated that when it sent its request letter of 6 June 1998 to the Benin authorities, it had compelling and consistent evidence of the Appellant’s participation in the commission of crimes in Rwanda.[5]

232. Furthermore, the Appeals Chamber finds that as a result of the Prosecution’s failure to make a Rule 40bis transfer and provisional detention request within a reasonable period of time, the Appellant was not promptly brought before a Judge, either of this Tribunal or in Benin during the first period of his detention of 95 days. The Appeals Chamber notes that there are important purposes underlying the right to be promptly brought before a Judge in the requested State, inter alia: to allow for the suspect to be informed of the provisional charges against him or her; to ascertain the identity of the detained suspect;[6] to ensure that the suspect’s rights are being respected while in detention; and to give the suspect an opportunity to voice any complaints. The Appeals Chamber considers that this violation of the Appellant’s right is not solely attributable to the Prosecution. The Appeals Chamber notes in this context that the Benin Constitutional Court found, in response to a motion filed by the Appellant before it on 24 August 1998, that his detention from 5 June 1998 to 7 September 1998 by the Benin Director of Police and the Benin General Public Prosecutor Office, was in violation of the Constitution of Benin.[7] Nevertheless, although the violation is not solely attributable to the Tribunal, it has to be recalled that it was the Prosecution, thus an organ of the Tribunal, which was the requesting institution responsible for triggering the Appellant’s apprehension, arrest and detention in Benin.

233. The Appeals Chamber emphasizes that “it is important that Rule 40 and Rule 40bis be read together” and restrictively interpreted.[8] The purpose of Rule 40 and Rule 40bis is to place time limits on the provisional detention of a suspect prior to issuance of an indictment[9] and to ensure that certain rights of the suspect are respected during that time. The Appeals Chamber considers that it is not acceptable for the Prosecution, acting alone under Rule 40, to get around those time limits or the Tribunal’s responsibility to ensure the rights of the suspect in provisional detention upon transfer to the Tribunal’s custody under Rules 40 and 40bis, by using its power under Rule 40 to keep a suspect under detention in a cooperating State.[10] The Appeals Chamber notes the Prosecution’s submission, made at the Appeal Hearing, that the 95-days’ delay in the Appellant’s transfer to the custody of this Tribunal was due to the fact that the period in which the Appellant was arrested was an extremely busy one for the Prosecution with numerous ongoing investigations against dozens of suspects and numerous indictments being drafted simultaneously.[11] While the Appeals Chamber is sympathetic to the workload carried by the Prosecution at that time, in no way does this fact justify the Appellant’s arbitrary provisional detention in Benin without charge for 85 days, and detention in Benin without appearance before a Judge for a total of 95 days.

251. […] the Appeals Chamber concludes that […] the Appellant was arbitrarily detained in Benin for 85 days without an arrest warrant and a transfer order from the Tribunal being submitted to the Benin authorities by the Prosecution within a reasonable time and without being promptly informed of the charges against him in violation of Rule 40 of the Rules and Articles 9(2) and 14(3)(a) of the ICCPR. Finally, the Appellant was detained in Benin for a total of 95 days without being brought before a Judge or an official acting in a judicial capacity in clear violation of Article 9 of the ICCPR.

248. The Appeals Chamber does not agree with the Trial Chamber in this regard. The difficulties in assigning the Appellant counsel in this case should not have been an obstacle for the Tribunal to ensure that the Appellant’s initial appearance was scheduled without delay. The Appeals Chamber agrees with the Prosecution that it is important and indeed ideal for an accused to have the assistance of counsel at the initial appearance to provide guidance, in particular, for entering a plea. Furthermore, the Appeals Chamber considers that Rule 62(A)(i) states that at the initial hearing, the Trial Chamber or Judge shall “[s]atisfy itself or himself that the right of the accused to counsel is respected.” In addition, the Trial Chamber or Judge could ordered assignment of duty counsel to the Appellant for purposes of representation at the initial appearance and would have had the opportunity to facilitate the Registry’s further attempts to assign the Appellant counsel.

249. Furthermore, the Appeals Chamber notes that apart from the assignment of counsel issue and the Appellant’s role in creating delay, the Registry conceded that in this case, the initial appearance was also delayed in part due to the fact that the Appellant had been jointly indicted with several other accused. It was difficult at the time for the Tribunal’s Court Management Section to find a date acceptable to all, with all being duly represented by counsel.[1]

250. The Appeals Chamber emphasizes that Rule 62 is unequivocal that an initial appearance is to be scheduled without delay. There are other purposes for an initial appearance apart from entering a plea including: reading out the official charges against the accused, ascertaining the identity of the detainee,[2] allowing the Trial Chamber or Judge to ensure that the rights of the accused while in detention are being respected, giving an opportunity for the accused to voice any complaints, and scheduling a trial date or date for a sentencing hearing, in the case of a guilty plea, without delay.[3] The Appeals Chamber therefore finds that, under the plain meaning of Rule 62, the 211-day delay between the Appellant’s transfer to the Tribunal and the initial appearance before a Judge of this Tribunal constitutes extreme undue delay.

42. […] The Appeals Chamber has recently confirmed that when a defendant pleads an alibi, he is denying that he was in a position to commit the crimes with which he is charged because he was elsewhere than at the scene of the crime at the time of its commission.[1] The Appeals Chamber recalls that:

It is settled jurisprudence before the two ad hoc Tribunals that in putting forward an alibi, a defendant need only produce evidence likely to raise a reasonable doubt in the Prosecution’s case. The burden of proving beyond reasonable doubt the facts charged remains squarely on the shoulders of the Prosecution. Indeed, it is incumbent on the Prosecution to establish beyond reasonable doubt that, despite the alibi, the facts alleged are nevertheless true.[2]

43. Nothing in the foregoing requires the Prosecution, however, specifically to disprove each alibi witness’s testimony beyond reasonable doubt. Rather, the Prosecution’s burden is to prove the accused’s guilt as to the alleged crimes beyond reasonable doubt in spite of the proffered alibi.

202. The parties have addressed the effects of these prior interlocutory appeals decisions by reference to the doctrine of res judicata. This doctrine refers to a situation when “a final judgement on the merits” issued by a competent court on a claim, demand or cause of action between parties constitutes an absolute bar to “a second lawsuit on the same claim” between the same parties.[1] The doctrine of res judicata is not directly applicable to this case, because it applies not to the effects of prior interlocutory appeals decisions on further proceedings in the same case, but instead to the effects of final judgements in one case on proceedings in a subsequent and different case.[2] However, a similar principle applies to cases like this one: the Appeals Chamber ordinarily treats its prior interlocutory decisions as binding in continued proceedings in the same case as to all issues definitively decided by those decisions. This principle prevents parties from endlessly relitigating the same issues, and is necessary to fulfil the very purpose of permitting interlocutory appeals: to allow certain issues to be finally resolved before proceedings continue on other issues.

203. There is an exception to this principle, however. In a Tribunal with only one tier of appellate review, it is important to allow a meaningful opportunity for the Appeals Chamber to correct any mistakes it has made.[3] Thus, under the jurisprudence of this Tribunal, the Appeals Chamber may reconsider a previous interlocutory decision under its “inherent discretionary power” to do so “if a clear error of reasoning has been demonstrated or if it is necessary to do so to prevent an injustice.”[4]

336. It is true that the Trial Chamber found “that the evidence of the Accused’s influence in this case [did] not sufficiently demonstrate that he was a superior in some formal or informal hierarchy with effective control over the known perpetrators.”[1]  But that finding is not inconsistent with the finding that his “prominence and influence made it more likely that others would follow his negative example.”[2] […] The question of criminal responsibility as a superior is analytically distinct from the question of whether an accused’s prominent status should affect his or her sentence.  It was within the Trial Chamber’s competence and reasonable for it to conclude that the Appellant did not hold a hierarchical position sufficient to render him liable for criminal responsibility as a superior while also finding that his influence was substantial enough to constitute an aggravating factor.

269. […] [T]he Prosecution did not have to prove the existence of an armed conflict: contrary to Article 5 of the ICTY Statute, Article 3 of the ICTR Statute does not require that the crimes be committed in the context of an armed conflict.[1]  This is an important distinction.

318. A conviction for genocide or complicity in genocide is not impermissibly cumulative with the convictions for crimes against humanity.  A conviction for genocide under Article 2 of the Statute requires proof of an “intent to destroy, in whole or in part, a national, ethnical, racial, or religious group.”[1]  That is a wholly different legal and factual showing from the finding of a “widespread or systematic attack against any civilian population on national, political, ethnic, racial or religious grounds” that must support a conviction for crimes against humanity.[2]  Upon this basis, the Appeals Chamber has held that convictions for genocide and convictions for crimes against humanity, based on the same facts, are permissible.[3]

303. The purpose of expert testimony is to supply specialized knowledge that might assist the trier of fact in understanding the evidence before it.  Expert witnesses are ordinarily afforded wide latitude to offer opinions within their expertise; their views need not be based upon firsthand knowledge or experience.  Indeed, in the ordinary case the expert witness lacks personal familiarity with the particular case, but instead offers a view based on his or her specialized knowledge regarding a technical, scientific, or otherwise discrete set of ideas or concepts that is expected to lie outside the layperson’s ken.    

259. The Appeals Chamber notes that it has long been the practice of the Prosecution to merely quote the provisions of Article 6(1) of the Statute in the charges, leaving it to the Trial Chamber to determine the appropriate form of participation under Article 6(1) of the Statute. The Appeals Chamber reiterates that, to avoid any possible ambiguity, it would be advisable to indicate in relation to each individual count precisely and expressly the particular nature of the responsibility alleged.[1] Nevertheless, even if an individual count of the indictment does not indicate precisely the form of responsibility pleaded, an accused might have received clear and timely notice of the form of responsibility pleaded, for instance in other paragraphs of the indictment. […]

192. The Statute of the Tribunal provides that “[t]he accused shall be presumed innocent until proven guilty according to the provisions of the . . . Statute.”[1] The Trial Chamber in this case was careful to note that it could take judicial notice of facts of common knowledge under Rule 94 of the Rules, but that it could not “take judicial notice of inferences to be drawn from the judicially noticed facts.”[2] The Chamber emphasized that the “burden of proving the Accused’s guilt, therefore, continue[d] to rest squarely upon the shoulders of the Prosecutor for the duration of the trial proceeding,” and it stated that “the critical issue [was] what part, if any, . . . the Accused play[ed] in the events that took place.”[3] As these passages suggest, the Trial Chamber struck an appropriate balance between the Appellant’s rights under Article 20(3) and the doctrine of judicial notice by ensuring that the facts judicially noticed were not the basis for proving the Appellant’s criminal responsibility. Instead, the Chamber took notice only of general notorious facts not subject to reasonable dispute, including, inter alia: that Rwandan citizens were classified by ethnic group between April and July 1994; that widespread or systematic attacks against a civilian population based on Tutsi ethnic identification occurred during that time; that there was an armed conflict not of an international character in Rwanda between 1 January 1994 and 17 July 1994; that Rwanda became a state party to the Convention on the Prevention and Punishment of the Crime of Genocide (1948) on 16 April 1975; and that, at the time at issue, Rwanda was a state party to the Geneva Conventions of 12 August 1949 and their additional Additional Protocol II of 8 June 1977.[4] The Appeals Chamber finds that these judicially noted facts did not relieve the Prosecution of its burden of proof; they went only to the manner in which the Prosecution could discharge that burden in respect of the production of certain evidence which did not concern the acts done by the Appellant. When determining the Appellant’s personal responsibility, the Trial Chamber relied on the facts it found on the basis of the evidence adduced at trial.