2891.            The Appeals Chamber notes that the Trial Chamber’s statement that “Ndayambaje’s testimony must be treated with appropriate caution as he has a personal interest in demonstrating that he was not present at Ngiryi Bridge on the morning of 20 April 1994”[1] followed the Trial Chamber’s assessment of Ndayambaje’s and Witness Tiziano’s evidence placing Ndayambaje at his home around 9.00 a.m.[2] The Trial Chamber did not find this aspect of Ndayambaje’s and Witness Tiziano’s testimonies credible as it was contradicted by Witness RV’s evidence.[3] The Appeals Chamber finds that a reasonable trier of fact could have considered the possibility of Ndayambaje’s incentive to provide exculpatory evidence in the context of all the relevant evidence and that the Trial Chamber’s consideration does not denote a violation of the presumption of innocence.[4]

See also para. 3226.

359. Turning to the merits of the submissions before it, the Appeals Chamber recalls that, as previously held, the length of an accused’s detention does not in itself constitute undue delay, and the fact that the co-Appellants had been detained for many years at the time of the issuance of the Trial Judgement is insufficient, in itself, to show that the Trial Chamber erred in its determination that there was no undue delay in the proceedings.[1] Because of the Tribunal’s mandate and of the inherent complexity of the cases before it, it is not unreasonable to expect that the judicial process will not always be as expeditious as before domestic courts.[2]

360.  It is well established in the Tribunal’s jurisprudence that the complexity of a case is one of the factors to be taken into account when assessing whether undue delay has occurred.[3] A number of factors are relevant to determining the level of complexity of a particular case, including the number of counts, the number of accused, the number of witnesses, the quantity of evidence, and the complexity of the facts and of the law.[4]

2270.            […] The Appeals Chamber repeatedly held that the Prosecution’s failure to state expressly that a paragraph in the indictment supports a particular count in the indictment is indicative that the allegation in the paragraph is not charged as a crime.[1] There is therefore merit in Nteziryayo’s contention that, by not indicating that the allegation in paragraph 6.34 supported any particular count, the Prosecution may have misled him in believing that the allegation was not charged as a crime.

2271.            The Appeals Chamber, however, stresses that the fundamental question when examining allegations of lack of notice is whether or not the accused was adequately informed of the nature and cause of the charges against him so as to be able to prepare a meaningful defence.[2] The Appeals Chamber’s case law on notice of the charges was developed in this spirit and was not intended to permit mere technicalities of pleading to intrude where it is clear that the accused was informed of the charges against him precisely and in a timely manner.

[…]

2274.            Against this background, Nteziryayo cannot reasonably claim that he did not understand at trial that the Prosecution intended to prove that he was guilty of direct and public incitement to commit genocide through his conduct at Ndayambaje’s Swearing-In Ceremony and that he was misled by the absence of reference to paragraph 6.34 in the charging section of the Indictment. […] in the situation at hand, it is obvious that the Prosecution mistakenly omitted to refer to paragraph 6.34 in the charging section of the Indictment and that it was the Prosecution’s consistent intention throughout the case to prosecute Nteziryayo for his utterances at Ndayambaje’s Swearing-In Ceremony.

[…]

2713.            Turning to Ndayambaje’s challenge to the Trial Chamber’s finding that the defect regarding the dates, location, and his general participation in the massacre was cured, the Appeals Chamber finds no merit in Ndayambaje’s argument that the summaries of the Prosecution witnesses’ anticipated evidence appended to the Prosecution Pre-Trial Brief could not inform him of the allegation against him as they were not explicitly linked to any paragraph of the Indictment.[3] […]

1280.            The Appeals Chamber is concerned by the practice of trial chambers in the exercise of their discretion, as in this case,[1] to postpone consideration of Defence objections to the admission of testimonial evidence on the ground of lack of notice to the phase of their final deliberations on the case. In the view of the Appeals Chamber, leaving the issue of whether facts could be relied upon as a potential basis for liability unresolved until the end of the trial, as the Trial Chamber did, creates uncertainty which can be a source of potential prejudice to the Defence.[2] While the Appeals Chamber considers that it would have been preferable for the Trial Chamber to rule on the Defence objections in a timely fashion to ensure clarity on the facts underpinning the charges on the basis of which it considered it could hold the accused responsible, it notes that Ntahobali, again, fails to substantiate his allegation of prejudice.

3345.            As an inchoate crime,[1] direct and public incitement to commit genocide is completed as soon as the discourse in question is uttered or published, even though the effects of incitement may extend in time,[2] and is punishable even if no act of genocide has resulted therefrom.[3] Accordingly, in order for Kanyabashi to be found responsible for aiding and abetting direct and public incitement to commit genocide, it would have to be established that he substantially contributed to Kambanda’s and Sindikubwabo’s inciting speeches themselves and not, as the Prosecution suggests, to the effects of their incitements by “reiterat[ing] and reinforc[ing] their message”.[4] The Appeals Chamber recalls that the Trial Chamber determined that Kanyabashi spoke after Kambanda and Sindikubabwo delivered their speeches.[5] The Prosecution points to no evidence or findings demonstrating that Kanyabashi’s conduct provided substantial assistance to Sindikubwabo or Kambanda in the commission of their direct and public incitement to commit genocide, either before, during, or after their respective speeches.

1043.            The Appeals Chamber observes that Rule 6(C) of the Rules provides that an amendment of the Rules shall enter into force immediately, but shall not operate to prejudice the rights of the accused in any pending case.[1] Accordingly, the pertinent question to be addressed when an amended rule becomes operative in on-going proceedings is whether the amendment will operate to prejudice the rights of the accused.[2] […]

3449.            The Appeals Chamber observes that the gravity of the crime of direct and public incitement to commit genocide derives from that of the crime of genocide, a crime of the most serious gravity.[1] The Trial Chamber found that Nteziryayo committed direct and public incitement to commit genocide on three separate occasions.[2] Accordingly, the Appeals Chamber considers that, regardless of whether or not deaths resulted from his statements, the imposition of a sentence of 30 years of imprisonment was not beyond the Trial Chamber’s sentencing discretion.

The Appeals Chamber recalled: (i) its findings that the Trial Chamber erred in finding that Nyiramasuhuko, Ntahobali, and Ndayambaje’s right to be tried without undue delay had not been violated, and that these violations caused them prejudice; and (ii) that it had reversed some of their convictions. The Appeals Chamber then held as follows:

3523.            In light of the above, the Appeals Chamber, Judge Agius dissenting as to the number of years, reduces Nyiramasuhuko’s sentence of life imprisonment to 47 years of imprisonment.

[…]

3526.            In light of the above, the Appeals Chamber, Judge Agius dissenting as to the number of years, reduces Ntahobali’s sentence of life imprisonment to 47 years of imprisonment.

[…]

3538.            In light of the above, the Appeals Chamber, Judge Agius dissenting as to the number of years, reduces Ndayambaje’s sentence of life imprisonment to 47 years of imprisonment.

78. The Appeals Chamber further recalls that pursuant to Article 23(2) of the Statute and Rule 98ter(C) of the Rules of Procedure and Evidence of the Tribunal (“Rules”), trial chambers are required to give a reasoned opinion in writing.[1] In order to provide a reasoned opinion, a trial chamber should set out in a clear and articulate manner “the legal and factual findings on the basis of which it reached the decision to convict or acquit an individual”.[2] In particular, a trial chamber is required to make findings on those facts which are essential to the determination of guilt on a particular count.[3] The absence of any relevant legal findings in a trial judgement also constitutes a manifest failure to provide a reasoned opinion.[4] A reasoned opinion in the trial judgement is essential, inter alia, for allowing a meaningful exercise of the right of appeal by the parties and enabling the Appeals Chamber to understand and review the trial chamber’s findings as well as its evaluation of the evidence.[5]

79. The Trial Chamber found neither Stanišić nor Simatović responsible for committing the crimes charged in the Indictment pursuant to JCE liability, on the ground that it was unable to conclude beyond reasonable doubt that Stanišić or Simatović shared the intent to further the common criminal purpose of the JCE.[6] Before arriving at this conclusion on their mens rea, the Trial Chamber did not first adjudicate whether the elements of the actus reus of JCE liability – namely, the existence of a common criminal purpose, a plurality of persons, and Stanišić’s and Simatović’s contribution – were fulfilled.[7]

80. For the reasons set out below, the Appeals Chamber, Judge Afanđe dissenting, finds that, in so doing, the Trial Chamber erred in law by failing to adjudicate, and to provide a reasoned opinion on, essential elements of JCE liability.

81. The Appeals Chamber observes that the Trial Chamber found that there was no direct evidence establishing Stanišić’s and Simatović’s intent.[8] However, the Appeals Chamber recalls that the requisite intent for a conviction under JCE liability can be inferred from circumstantial evidence, such as a person’s knowledge of the common criminal purpose or the crime(s) it involves, combined with his or her continuing participation in the crimes or in the implementation of the common criminal purpose.[9] In the circumstances of the present case, the Appeals Chamber, Judge Afanđe dissenting, is of the view that the Trial Chamber could only adjudicate, and provide a reasoned opinion on, Stanišić’s and Simatović’s mens rea under JCE liability after having established the existence and scope of the common criminal purpose shared by a plurality of persons and having assessed whether Stanišić’s and Simatović’s acts contributed to this common criminal purpose.

82. In the view of the Appeals Chamber, Judge Afanđe dissenting, determining the existence and scope of a common criminal purpose shared by a plurality of persons (including its geographical and temporal limits) was a necessary prerequisite to determining whether the acts performed by Stanišić and Simatović (including those not directly involving the commission of a crime) were related, and contributed, to the perpetration of the common criminal purpose. The Trial Chamber was therefore required to examine whether Stanišić’s and Simatović’s shared intent to further that common criminal purpose could be inferred from their knowledge combined with their acts as well as from their words and interactions with other individuals, after having established the existence and scope of the common criminal purpose shared by a plurality of persons. In other words, without making findings on the existence and scope of the common criminal purpose shared by a plurality of persons, the Trial Chamber could not assess Stanišić’s and Simatović’s words in the context of that purpose and whether their acts contributed to that purpose and, consequently, it could not properly adjudicate whether Stanišić’s and Simatović’s mens rea for JCE liability could be inferred from the circumstances.

[…]

87. In the absence of a thorough analysis and prior findings on the existence and scope of a common criminal purpose shared by a plurality of persons as well as on Stanišić’s and Simatović’s contribution to it, the Trial Chamber could not have properly adjudicated Stanišić’s and Simatović’s mens rea.

88. Accordingly, the Appeals Chamber, Judge Afanđe dissenting, finds that the Trial Chamber erroneously failed to make findings on the existence and scope of a common criminal purpose shared by a plurality of persons, prior to finding that the mens rea of Stanišić and Simatović for JCE liability was not met. In so doing, the Trial Chamber failed to adjudicate, and to provide a reasoned opinion on, essential elements of JCE liability. Without the circumstances provided by the findings on the existence and scope of a common criminal purpose shared by a plurality of persons as well as the assessment of Stanišić’s and Simatović’s words and acts in light of this purpose, the Trial Chamber could not have determined whether it was able to infer beyond reasonable doubt Stanišić’s and Simatović’s mens rea from these circumstances and whether it should ultimately convict or acquit them.

122. The Appeals Chamber recalls that it has found, Judge Afanđe dissenting, that the Trial Chamber erred in law in failing to make the necessary findings on the existence and scope of a common criminal purpose shared by a plurality of persons.[1] The Appeals Chamber further recalls that it has found, Judge Agius and Judge Afanđe dissenting, that the Trial Chamber erred in requiring that the acts of the aider and abettor be specifically directed to assist the commission of a crime.[2] In accordance with the well-established standard of appellate review, where the Appeals Chamber finds an error of law in the trial judgement arising from the application of a wrong legal standard, the Appeals Chamber will articulate the correct legal standard and review the relevant factual findings of the trial chamber accordingly.[3]

123. In light of the nature and scale of the errors of law identified by the Appeals Chamber in this case, Judge Agius dissenting with respect to the Error on Aiding and Abetting Liability and Judge Afanđe dissenting with respect to the Error on JCE Liability and the Error on Aiding and Abetting Liability, were the Appeals Chamber to conduct its own review of the relevant factual findings of the Trial Chamber, applying the correct legal standards, it would first have to turn to the Error on JCE Liability and make findings on the existence and scope of a common criminal purpose shared by a plurality of persons and then proceed to assess Stanišić’s and Simatović’s contribution and intent for JCE liability. Depending on the result of such an analysis, the Appeals Chamber might then have to turn to the Error on Aiding and Abetting Liability.

124. However, the Appeals Chamber, Judge Afanđe dissenting, is of the view that it would be inappropriate to conduct this analysis as it would have to analyse the entire trial record without the benefit of having directly heard the witnesses in order to determine whether it is itself satisfied with respect to the requirements of JCE liability and, depending on the result of such an analysis, with respect to the requirements of aiding and abetting liability. Indeed, the evidence on which the Prosecution relies to establish the common criminal purpose and the mens rea for JCE liability is of a circumstantial nature[4] and it would not be sufficient for the Appeals Chamber to focus on limited pieces of evidence or the existent findings in the Trial Judgement, which do not thoroughly address the evidence relevant to the common criminal purpose or the plurality of persons.[5] In this regard, the Appeals Chamber also notes the scale and complexity of the case, with a trial record containing 4,843 exhibits[6] and the testimony and/or written statements of 133 witnesses,[7] the contents of which span wide swaths of Croatia and Bosnia and Herzegovina over a four and a half year time period (April 1991 – 31 December 1995) and pertain to multiple statutory crimes, numerous armed groups, and various high-ranking alleged JCE members.[8] Assessing this trial record in its entirety without having directly heard the witnesses would not allow the Appeals Chamber to fairly and accurately determine Stanišić’s and Simatović’s criminal responsibility.

125. In light of the above, in determining the subsequent course of action, the Appeals Chamber may exercise a certain discretion.[9] In accordance with Rule 117(C) of the Rules, the Appeals Chamber may order a retrial in appropriate circumstances.[10] In addition, the Appeals Chamber also has an inherent power to control its proceedings in such a way as to ensure that justice is done by remitting limited issues to be determined by either the original or a newly composed trial chamber.[11]

126. The Appeals Chamber notes that, of the three judges of the original Trial Chamber, who directly heard the witnesses at trial, Judge Picard and Judge Gwaunza no longer hold office at the Tribunal. Therefore, it is impractical to remit the case to the original Trial Chamber composed of the same three Judges, who would have been best placed to make the necessary findings on the basis of the original trial record. Should the case be remitted to a newly composed trial chamber to do this exercise solely on the basis of the original trial record, it would encounter similar difficulties to those which would be encountered by the Appeals Chamber as a result of not having directly heard the witnesses.

127. Accordingly, and recalling that an appeal is not a trial de novo,[12] the Appeals Chamber, Judge Afanđe dissenting, finds that this case gives rise to appropriate circumstances for a retrial pursuant to Rule 117(C) of the Rules. The Appeals Chamber stresses that an order for retrial is an exceptional measure to which resort must necessarily be limited. While the Appeals Chamber is well aware that Stanišić and Simatović have spent nearly five years and four years and eight months, respectively, in detention, it is of the view that the alleged offences are of the utmost gravity and considers, Judge Afanđe dissenting, that, in the circumstances of this case, the interests of justice would not be well served if a retrial were not ordered.