293. The Prosecution submits that the Trial Chamber erred when it took into consideration, as an individual and mitigating factor, that the Prosecution had presented evidence during trial concerning allegations that it either had withdrawn or was not allowed to add to the indictment.[1] It argues that a reduction in the sentence for this reason would have required a finding that Setako was prejudiced by a specific pre-trial delay resulting from the Prosecution’s conduct.[2] The Prosecution submits that the Trial Chamber did not make such a finding and that this “flies in the face of fair trial principles” since the Prosecution needed to know how much delay it supposedly caused.[3] It further contends that the Trial Chamber itself contributed to the prolongation of the trial because, before and during trial, Setako requested the Trial Chamber to exclude all the evidence at issue, but the Trial Chamber did not act.[4] In the Prosecution’s view, the Trial Chamber could not “both allow […] the Prosecution [to] put in evidence over an objection and then later on fault the Prosecution for having put on that evidence.”[5]

295. In assessing Setako’s sentence, the Trial Chamber stated that “the Prosecution presented a substantial body of evidence based on allegations that it had either withdrawn from the Indictment, or which it was not allowed to add to it”.[6] While it noted that the trial had proceeded rapidly, the Trial Chamber considered that “this should be taken into account in sentencing.”[7]

296. The Appeals Chamber acknowledges that some of the evidence at issue was the subject of three Defence motions filed before trial requesting that the Prosecution be precluded from presenting evidence relating to pre-1994 allegations which the Trial Chamber deferred deciding upon until its final deliberations.[8] Nonetheless, the Appeals Chamber recalls that the Prosecution’s request to amend the 22 March 2004 Indictment in 2007 to add a count of conspiracy to commit genocide which would have been supported by pre-1994 allegations, was denied.[9] Accordingly, the Prosecution was well aware that the pre-1994 allegations were not permitted to form part of its case and it was therefore the Prosecution’s responsibility to limit the evidence it presented to the case it was permitted to pursue. Furthermore, as the Trial Chamber noted, the Prosecution presented evidence on a number of allegations which: (i) it had sought to add to the indictment but which were explicitly denied by the Trial Chamber;[10] (ii) it sought to have removed from the indictment;[11] (iii) it could have sought to add to the indictment but failed to do so;[12] or (iv) it explicitly stated it was not pursuing a conviction for.[13] The Appeals Chamber recalls that it is the Prosecution’s responsibility to know its case before proceeding to trial and to present its case accordingly.[14]

297. However, despite this, the Trial Chamber did not conclude that Setako’s right to a fair and expeditious trial had been violated by the presentation of the evidence at issue.[15] Instead, it decided to take into account this issue in sentencing, notwithstanding the fact that the trial “proceeded rapidly”.[16] In view of the fact that the Trial Chamber did not find that there was a violation of Setako’s fair trial rights, the Appeals Chamber finds that the Trial Chamber abused its discretion in considering this issue as a factor in the determination of Setako’s sentence. The Appeals Chamber will consider the impact of this error on the sentence, if any, in the section below.

257. To establish the culpability of an accused for the crime of violence to life, health, and physical or mental well-being of persons (murder) as a serious violation of Article 3 common to the Geneva Conventions and of Additional Protocol II, the Prosecution bears the onus of proving, in addition to the threshold elements of Article 4 of the Statute recalled above,[1] the following specific elements:

1. the death of a victim taking no active part in the hostilities;
2. that the death was the result of an act or omission of the accused or of one or more persons for whom the accused is criminally responsible;
3. the intent of the accused or of the person or persons for whom he is criminally responsible
1. to kill the victim; or
2. to wilfully cause serious bodily harm which the perpetrator should reasonably have known might lead to death.[2]

143. The Appeals Chamber notes that a trial chamber has the discretion to rely upon evidence of accomplice witnesses.[1] However, when weighing the probative value of such evidence, the trial chamber is bound to carefully consider the totality of the circumstances in which it was tendered. In particular, consideration should be given to circumstances showing that accomplice witnesses may have motives or incentives to implicate the accused person before the Tribunal or to lie.[2]

144. In the present case, the Trial Chamber was well aware of the criminal records of Witnesses SLA and SAT.[3] It also acknowledged that the witnesses were accomplices of Setako with regard to the killings on 25 April 1994 and, precisely for this reason, stated that it would view their evidence with caution.[4] It considered various credibility issues raised by the Defence, including allegations of fabrication and manipulation of evidence,[5] and, “out of an abundance of caution”, only accepted the witnesses’ evidence about the events at Mukamira camp where they corroborated each other.[6]

145. In these circumstances, the Appeals Chamber finds that it was not unreasonable for the Trial Chamber to rely on the evidence of Witnesses SLA and SAT. The Appeals Chamber discerns no error in the Trial Chamber’s conclusion that the witnesses, who had not previously confessed to crimes with respect to 25 April 1994, exposed themselves to the risk of being held accountable for them in future criminal proceedings before Rwandan judicial authorities. The fact that they testified as protected witnesses did not render this consideration unreasonable.

188. The Appeals Chamber recalls that it is primarily for the trier of fact to determine whether a particular witness may have an incentive to distort the truth.[1] However, the mere fact that the Defence witnesses lived or found refuge at Mukamira camp due to their relationships with soldiers does not in and of itself imply that they gave a tainted account in order to protect Setako from criminal responsibility. This Tribunal has considered that, under certain circumstances, the fact that a witness was saved by the accused may be relevant to the witness’s credibility assessment.[2] Setako does not appear to have played any role in the protection of the Defence witnesses. The trial record also does not reveal any other evidence that the Defence witnesses were biased in favour of Setako.[3]

189. Similarly, the fact that Witness NBO’s husband was related to an accused before this Tribunal does not necessarily indicate that she would have distorted her testimony to the benefit of Setako. In particular, the Appeals Chamber observes that her husband’s relative was not implicated in any charges concerning killings at Mukamira camp.

24. The Appeals Chamber recalls that an accused does not bear the burden of proving his alibi beyond reasonable doubt. When an alibi is properly raised, the Prosecution must establish beyond reasonable doubt that, despite the alibi, the facts alleged are nevertheless true. The Appeals Chamber observes that the Trial Chamber correctly recalled the law and burden of proof to be applied in the assessment of alibi.

25. Furthermore, the Appeals Chamber has held that “Trial Chambers are endowed with the discretion to require corroboration”.[4] In this respect, it was not unreasonable for the Trial Chamber to question the credibility of Munyakazi’s alibi in the absence of corroboration given the inherent self-interest of his testimony and the introduction of the alibi at the close of the case. Furthermore, the fact that the death of Kabungo and the mourning period were not specifically challenged during cross-examination does not prevent the Trial Chamber from doubting their veracity and taking the lack of corroboration into account when assessing the evidence. The Appeals Chamber has previously emphasized that a Trial Chamber is not required to accept as true statements unchallenged during cross-examination.[5] Therefore, the Trial Chamber has not shifted the burden of proof in assessing Munyakazi’s alibi; all that it has done, and this quite properly, is to note that there was no supporting evidence of the alibi.

185. The Appeals Chamber recalls that the determination of the gravity of the crime requires consideration of the particular circumstances of the case, as well as the form and degree of the participation of the accused in the crimes. […]

36. The Appeals Chamber recalls that charges against an accused and the material facts supporting those charges must be pleaded with sufficient precision in an indictment so as to provide notice to the accused. In reaching its judgement, a Trial Chamber can only convict the accused of crimes that are charged in the indictment.[2] The Appeals Chamber has further held that criminal acts that were physically committed by the accused personally must be set forth specifically in the indictment, including, where feasible, “the identity of the victim, the time and place of the events and the means by which the acts were committed.” An indictment lacking sufficient precision in the pleading of material facts 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 charges.

37. The Trial Chamber found that Munyakazi committed the crimes at Shangi and Mibilizi parishes “[o]n the basis of his leadership position at the crime sites”, which showed that “[he] was as much an integral part of the killings as those he enabled”.[5] As Munyakazi submits, the Indictment does not specifically state that he was the leader of the attacks at Shangi and Mibilizi parishes. However, the more general allegations in paragraphs 13 and 14 of the Indictment that “Yussuf MUNYAKAZI, with the Bugarama interahamwe, attacked and killed” Tutsis at the two parishes must be read in light of paragraph 1 of the Indictment, which alleges his role as “a leader” with “de facto authority” over that militia group.[6] Therefore, the Appeals Chamber is satisfied that the Indictment provided Munyakazi with notice that he had a leadership role and exercised de facto authority over the Bugarama Interahamwe during the attacks at Shangi and Mibilizi parishes. Contrary to Munyakazi’s submission, the fact that the Prosecution’s theory of the scope and basis of his leadership of the Bugarama Interahamwe was broader than that ultimately proven at trial does not mean that the notice of Munyakazi’s role in the crimes was deficient.

71. […] The Appeals Chamber recalls that the Trial Chamber has the main responsibility to resolve any inconsistencies that may arise within or among witnesses’ testimonies.[1] It is within the discretion of the Trial Chamber to evaluate any such inconsistencies, to consider whether the evidence taken as a whole is reliable and credible, and to accept or reject the fundamental features of the evidence.[2] The Appeals Chamber further recalls that “corroboration may exist even when some details differ between testimonies, provided that no credible testimony describes the facts in question in a way which is not compatible with the description given in another credible testimony.”[3]

103. […] Furthermore, corroboration does not require witnesses’ accounts to be identical in all aspects since “[e]very witness presents what he has seen from his own point of view at the time of the events, or according to how he understood the events recounted by others.” Rather, the main question is whether two or more credible accounts are incompatible.

118. […] The Appeals Chamber recalls that, when faced with competing versions of events, it is the duty of the Trial Chamber that heard the witnesses to determine which evidence it considers more probative. Based on the foregoing, the Appeals Chamber finds that it was reasonable for the Trial Chamber to accept the Prosecution evidence over Witness Nahimana’s account.

154. The Appeals Chamber recalls that the Trial Chamber has the main responsibility to resolve any inconsistencies that may arise within or among witnesses’ testimonies. […]

110. Finally, the Appeals Chamber recalls that the Trial Chamber has the primary discretion to decide whether or not a site visit is necessary or relevant for the assessment of evidence. […]

77. […] The Appeals Chamber recalls that the Trial Chamber has the discretion to cautiously consider and rely on hearsay evidence.[1] […]

160. The Appeals Chamber recalls that the actus reus for participation in a joint criminal enterprise requires: (i) a plurality of persons; (ii) the existence of a common purpose (or plan) which amounts to or involves the commission of a crime encompassed by the Statute; and (iii) the participation of the accused in this common purpose. The basic form of joint criminal enterprise, which is at issue in this case, requires that the accused must both intend the commission of the crime and intend to participate in a common plan aimed at its commission.

163. […] The Trial Chamber concluded that “Munyakazi was as much an integral part of [the] killings as those he enabled” and thus convicted him based on his role in the attacks at Shangi and Mibilizi parishes under Article 6(1) of the Statute for committing genocide and extermination as a crime against humanity. Participation in a joint criminal enterprise is a form of committing under Article 6(1) of the Statute. Therefore, a finding that Munyakazi participated in a joint criminal enterprise in connection with the crimes for which he was convicted would have no bearing on the verdict. Munyakazi’s conviction is based on his committing the crimes, which fully encapsulates his criminal conduct.