384. The Appeals Chamber recalls that, for a conviction as a superior pursuant to Article 6(3) of the Statute, it is not necessary for an accused to have had the same intent as the perpetrator of the criminal act; it suffices to prove that the accused knew or had reason to know that the subordinate was about to commit such act or had done so.[1] The Trial Chamber was therefore not required to establish that Nsengiyumva shared his subordinates’ intent to find that he could be held responsible as a superior. It follows that the Trial Chamber did not err in finding that Nsengiyumva was liable as a superior without considering evidence suggesting that he might not have had such intent.

510. The Appeals Chamber is concerned that the Trial Chamber failed to explicitly consider whether Bagosora had the material ability to punish culpable subordinates in the Trial Judgement. The Appeals Chamber considers that this amounts to a failure to provide a reasoned opinion. Nonetheless, the Appeals Chamber recalls that even where a superior personally lacks disciplinary or sanctioning powers, the duty can be fulfilled by reporting the crimes to the competent authorities to trigger investigation or disciplinary action.[1] In light of Bagosora’s senior position in the Ministry of Defence, and his access to senior military officers, as demonstrated by his attendance at meetings with them, even if he did not have direct sanctioning powers, he nonetheless had the ability to report the incidents to the relevant military officers to trigger investigations.

683. The Appeals Chamber recalls that the duty to punish will be fulfilled when necessary and reasonable measures to punish perpetrators have been taken.[2] What measures fulfil an accused’s duty to punish will be determined in relation to his material ability to take such measures.[3] In certain circumstances, although the necessary and reasonable measures may have been taken, the result may fall short of the punishment of the perpetrators.[4] Accordingly, the Appeals Chamber considers that the Trial Chamber’s statement that “[t]here is absolutely no evidence that the perpetrators were punished afterwards” was insufficient, in itself, to establish that Bagosora failed to fulfil his duty to punish the crimes of which he was convicted. The Appeals Chamber considers that, given the absence of any further reasoning supporting the conclusion that Bagosora failed to fulfil his duty to punish culpable subordinates, the Trial Chamber failed to provide a reasoned opinion. In these circumstances, the Appeals Chamber has reviewed the Trial Chamber’s factual findings and the relevant evidence on the record to determine whether a reasonable trier of fact could have found beyond reasonable doubt that Bagosora failed to take reasonable and necessary measures to punish his subordinates for the crimes committed.[…]

8. The Appeal Chamber further recalls that on appeal, a fact qualifying for judicial notice under Rule 94 of the Rules is not automatically admitted and must meet the requirements provided for by Rule 115 of the Rules.[1] The Appeals Chamber emphasizes in this regard that Rule 94 of the Rules is not a mechanism that may be employed to circumvent the general rules governing the admissibility of evidence.[2]

13. The Trial Chamber also erred in concluding that there was no need to amend the Amended Indictment because the Prosecution indicated in its Response to the Preliminary Motion that it intended to rely on the basic and extended forms of JCE and because additional details could be provided in the Pre-Trial Brief.[1] It is accepted that defects in the indictment can be cured later by timely, clear, and consistent information detailing the factual basis underpinning the charge.[2] However, the indictment is the primary accusatory instrument[3] and the Prosecution has been warned in the past that the practice of failing to allege known material facts in the indictment is unacceptable.[4] Consequently, in a case such as the present, where defects in the indictment surface at the pre-trial stage, the Prosecution cannot refrain from amending the indictment by arguing that it will correct existing defects through its Pre-Trial Brief.[5]

39. The Appeals Chamber rejects the Prosecution’s argument that the Trial Chamber properly denied Uwinkindi’s Preliminary Motion because additional details are contained in a disclosed witness statement and because the Prosecution suggested that paragraph 10 of the Amended Indictment could be further amended in light of this material. As stated above, the indictment is the primary accusatory instrument.[6] Furthermore, the Appeals Chamber has repeatedly held that the mere service of witness statements or potential exhibits by the Prosecution pursuant to disclosure requirements does not suffice to inform the Defence of material facts that the Prosecution intends to prove at trial.[7]

11. The Appeals Chamber recalls that JCE must be specifically pleaded in the indictment.[1] The Prosecution must plead the nature and purpose of the enterprise, the period over which the enterprise is said to have existed, the identity of the participants, and the nature of the accused’s participation therein.[2] In order for an accused to fully understand the acts for which he is allegedly responsible, the indictment should further clearly indicate which form of JCE is being alleged: basic, systemic, or extended.[3] Since the three forms of JCE vary with respect to the mens rea element, the indictment must also plead the mens rea element of each category on which the Prosecution intends to rely.[4]

12. While the Amended Indictment states that Uwinkindi “willfully [sic] and knowingly participated in a joint criminal enterprise”, it does not specify which form of JCE is charged and consequently also fails to plead Uwinkindi’s mens rea.[5] This renders the Amended Indictment defective and the Trial Chamber erred in failing to find so.

6. A trial chamber’s decision on defects in the form of the indictment is a matter which relates to the general conduct of trial proceedings and thus falls within the discretion of the trial chamber. In order to successfully challenge a discretionary decision, a party must demonstrate that the trial chamber has committed a “discernible error” resulting in prejudice to that party. The Appeals Chamber will only overturn a trial chamber’s discretionary decision where it is found to be: (i) based on an incorrect interpretation of governing law; (ii) based on a patently incorrect conclusion of fact; or (iii) so unfair or unreasonable as to constitute an abuse of the trial chamber’s discretion.

p. 4: CONSIDERING that Serbia should resolve any difficulties with respect to the issuance of a valid identification document for one of its citizens detained abroad

For the overview of the applicable law, please see paragraphs 6 – 12 of the Decision.

32. The Appeals Chamber notes that it is not disputed that the Report was made available to Popović in early 2010.[1] The Appeals Chamber recalls that the presentation of the Defence cases at trial started with Popović’s case, which commenced on 2 June 2008 and concluded on 8 July 2008.[2] The last Defence case concluded on 12 March 2009.[3] The cases of the Prosecution, Popović, Miletić, and Gvero were subsequently re-opened on several occasions.[4] In its Decision of 22 July 2009, the Trial Chamber rejected further evidence and submissions as it was not persuaded that those specific arguments and evidence warranted re-opening and admission, respectively.[5] It also issued a notice that it would “not entertain any further Motions seeking the introduction of additional evidence.”[6] Popović made his closing argument on 7 September 2009.[7]

33. In the Motion, Popović does not offer any argument as to why he did not attempt to have the Report admitted by the Trial Chamber, including through a motion to re-open the case as suggested by the Prosecution.[8] […] The Appeals Chamber rejects Popović’s argument that the Decision of 22 July 2009 categorically barred him from filing another request to re-open the case and have new evidence admitted at the risk of being sanctioned. The Appeals Chamber considers that Popović could have explored other avenues that were still open to him, including a request for certification to appeal against the Decision of 22 July 2009 or a request for reconsideration before or after he received the disclosed Report.[9] In this sense, Popović has not fulfilled his obligation to exercise due diligence in at least attempting to bring the evidence before the Trial Chamber.[10]

34. […] In the Blagojević Decision of 21 July 2005, the Appeals Chamber clarified that

evidence is “available at trial” if it becomes available at a stage when it is still reasonably possible for the relevant party to seek to introduce it before the Trial Chamber. Depending on the circumstances, evidence received after closing arguments in a case may meet this standard.[11]

The Appeals Chamber is of the view that this logic applies to any considerations of availability at trial in the sense of Rule 115 of the Rules, and in particular the due diligence requirement.[12] In light of its findings above, the Appeals Chamber concludes that it could have been reasonably possible for Popović to seek to introduce the Report before the Trial Chamber.[13]

36. In sum, the Appeals Chamber is not convinced that Popović has demonstrated that he fulfilled his duty to act with due diligence and made “the best case in the first instance”[14] by bringing the evidence that he considers crucial before the Trial Chamber.[15] Therefore, the Appeals Chamber finds that the Report was available at trial for the purposes of Rule 115 of the Rules. […]

25. As recalled in the Decision of 1 June 2011, the 30-day time-limit prescribed under Rule 115 of the Rules was to expire that very day.[1] Consequently, for all motions filed after this deadline, the moving party must “demonstrate that it was not able to comply with the time limit set out in the Rule, and that it submitted the motion in question as soon as possible after it became aware of the existence of the evidence sought to be admitted.”[2]

26. Popović filed his Motion with the Registry of the Tribunal on 2 June 2011 at 00:05 a.m.,[3] and thus five minutes after the expiration of the 30-day deadline imposed by the Rules.[4] Although the Motion contains no arguments in relation to the delayed filing, the Appeals Chamber accepts the Motion as validly filed in light of the lack of opposition by the Prosecution to the Motion on this basis, and the nominal delay occasioned by the late filing.

27. […] The Appeals Chamber […] reiterates that any party wishing to tender additional evidence after this deadline must show good cause or, if the filing is made after the appeals hearing, cogent reasons for the delay in order for the untimely motion to be considered validly filed.[5] It is a separate and further requirement to demonstrate that the tendered material was unavailable at trial or could be discovered through the exercise of due diligence.[6]

fn. 78: […] In this regard, the Appeals Chamber notes that the Reply contains no arguments as to the timeliness of Popović’s request to submit another document as additional evidence on appeal. As correctly noted by the Prosecution, Popović must – but failed to – show good cause for filing a motion under Rule 115 of the Rules after the expiration of the prescribed time-limit […]. The arguments on this matter contained in Popović’s Second Reply are unconvincing as Popović simply states that while the document was disclosed to him on 22 December 2010, his Defence team had no time to analyse it in light of the amount of material disclosed after trial and purported lack of resources for the supporting staff, combined with the need to complete the briefing of his appeal […]. The Appeals Chamber considers that these circumstances are the realities of practically any case on appeal and do not constitute good cause for the late filing. Consequently, even if the Appeals Chamber were to accept the second request for admission of additional evidence as a valid motion despite it being filed as part of the Reply, it would have rejected it as untimely.