108. It also follows from the above that the issue of whether there was a real risk to the administration of justice was not a jurisdictional matter. The Appeals Chamber is therefore of the view that the Trial Chamber did not err by refusing to treat this issue as such during the trial.

24. Haradinaj is mistaken in his contention that the Impugned Decision’s finding that the Prosecution may seek the admission of evidence beyond that of the two witnesses who were the focus of the Appeal Judgement undermines principles of law geared to “securing certainty and finality in criminal litigation”.[1] The Muvunyi Decision held that “a retrial […] inherently includes the possibility of hearing evidence that was not presented during the initial proceedings” and underscored that the scope of a retrial is determined “by the Appeals Chamber in a particular instance.”[2] Thus the Appeals Chamber is able to set out the appropriate parameters of a retrial, taking into account the specific context of each case, including whether the retrial follows conviction or acquittal, as well as relevant principles of law.

26. The Appeals Chamber underscores that whether a retrial follows acquittal or conviction is not necessarily insignificant. However the context of each retrial is unique, and the impact of a previous conviction or acquittal can only be addressed by taking into account this individual context. Any potential for undue prejudice to a defendant in a retrial following an acquittal should be addressed through both the Appeals Chamber’s careful delineation of a retrial’s parameters and the Trial Chamber’s continuing duty to apply fair trial principles.[1] In this context, the Appeals Chamber directs the Trial Chamber, when determining the admissibility of evidence in the retrial, to be particularly mindful of any potential prejudice that the admission of new evidence may cause to the fair trial rights of the Accused. Where the Prosecution seeks to introduce evidence that was excluded in prior proceedings, the Trial Chamber should explicitly consider whether re-litigation of this same issue in the retrial would be unduly prejudicial. If such is the case, the evidence must be excluded.

564. Although neither Party raised the issue, the Appeals Chamber notes that the Trial Chamber’s language in rendering its convictions against Renzaho may give the impression that it entered double convictions under Articles 6(1) and 6(3) of the Statute. The Appeals Chamber recalls that it is inappropriate to convict an accused for a specific count under both Article 6(1) and Article 6(3) of the Statute.[1] When, for the same count and the same set of facts, the accused’s responsibility is pleaded pursuant to both provisions and the accused could be found liable under both, the Trial Chamber should enter a conviction on the basis of Article 6(1) of the Statute alone and consider the superior position of the accused as an aggravating circumstance in sentencing.[2]

565. The Trial Chamber found Renzaho guilty of genocide under Article 6(1) of the Statute for aiding and abetting as well as ordering the killing of Tutsis at roadblocks throughout Kigali from April to July 1994; for aiding and abetting and ordering killings at CELA on 22 April 1994; and for his orders in relation to crimes committed at Sainte Famille on 17 June 1994.[3] The Trial Chamber also found Renzaho “liable” as a superior for these crimes,[4] indicating that it would take this liability into account in sentencing.[5]

566. The Trial Chamber also found Renzaho guilty of murder as a serious violation of Article 3 common to the Geneva Conventions and of Additional Protocol II under Article 6(1) of the Statute for ordering the killing of at least 17 Tutsi men at Sainte Famille church on 17 June 1994.[6] The Trial Chamber found Renzaho “liable” as a superior for these murders as well.[7] The Trial Chamber indicated that it would take Renzaho’s liability as a superior into account in sentencing.[8]

567. In addition, the Trial Chamber found Renzaho guilty of murder as a crime against humanity under Article 6(1) of the Statute for aiding and abetting and ordering the killing of Charles, Wilson, and Déglote Rwanga, who had been removed from CELA on 22 April 1994.[9] The Trial Chamber likewise found Renzaho “guilty” as a superior based on Article 6(3) of Statute, for the killing of Charles, Wilson, and Déglote Rwanga as well as the other mostly Tutsi men removed from CELA on that date.[10] The Trial Chamber indicated in connection with these crimes that it would take Renzaho’s liability as a superior into account in sentencing. [11]

568. While it is clear that the Trial Chamber considered Renzaho’s superior position as an aggravating circumstance,[12] the Appeals Chamber considers that the Trial Chamber should have refrained from using language which is suggestive of double convictions based on both Articles 6(1) and 6(3) of the Statute. Nevertheless, the Appeals Chamber is not convinced that the Trial Chamber impermissibly convicted Renzaho twice for the same facts where it found him to be “liable” as a superior. Likewise, and despite the unfortunate use of the term “guilty” when finding Renzaho liable as a superior for murder as a crime against humanity for the killings of Charles, Wilson, and Déglote Rwanga, the Appeals Chamber is not convinced that the Trial Chamber impermissibly convicted Renzaho twice for the same facts.[13]

120. To support its contention that “post-indictment communications” provided Renzaho with clear, consistent, and timely notice, the Prosecution relies on its Pre-Trial Brief and two written statements disclosed in February 2005.[1] However, these documents were filed before the Second Amended Indictment came into force on 16 February 2006.[2]

121. Renzaho contends that the Prosecution Pre-Trial Brief cannot cure a defect in the Indictment, relying on the Karera Appeal Judgement.[3] The Appeals Chamber recalls that in the Karera case, the pre-trial brief, which was filed seven days before the amended indictment, was found to be incapable of curing a particular defect therein relating to a murder charge because, among other things, it was unclear which version of the indictment the pre-trial brief was referring to,[4] creating further confusion.[5]

122. In the present case, the Appeals Chamber notes that the proposed Second Amended Indictment was attached to the Motion to Amend filed on 19 October 2005.[6] On 31 October 2005, the Prosecution filed its Pre-Trial Brief, specifying that “references to the ‘Indictment’ herein are to the proposed Second Amended Indictment”.[7] Further, the Prosecution Pre-Trial Brief and the attached summaries of anticipated witness testimony were clear about which paragraphs of the proposed Second Amended Indictment they referred to.[8] Once the Trial Chamber accepted the Second Amended Indictment on 16 February 2006, nearly one year before the commencement of Renzaho’s trial,[9] its link to the Prosecution Pre-Trial Brief was consolidated. Since there were no subsequent amendments to the Indictment or the Prosecution Pre-Trial Brief, the Appeals Chamber considers that the Prosecution Pre-Trial Brief in this case is capable of curing defects in the Indictment.

123. Turning to whether the Prosecution’s communications in fact cured the defect in the Indictment [in relation to the material facts which must be pleaded in an indictment charging superior responsibility pursuant to Article 6(3) of the Statute], the Appeals Chamber notes that the Prosecution Pre-Trial Brief emphasized that the receipt of reports of rapes from Renzaho’s subordinates constituted his reason to know about the rapes.[10] Although the Prosecution Pre-Trial Brief also noted Renzaho’s encouragement of rapes, it did so in respect of only two of the relevant Counts.[11] The Appeals Chamber further considers that this new element of the Prosecution’s case was not highlighted in a manner sufficient to give clear notice to Renzaho that his encouragement now formed the basis for his criminal liability as a superior.[12] The Prosecution Pre-Trial Brief notably failed to clarify that the Prosecution was relying on Renzaho’s acts of encouragement to infer his mens rea. Absent any indication that Renzaho’s encouragement was the basis for his reason to know about particular rapes, it is difficult to conclude that the Defence would have understood that this material fact was the key element of the Prosecution’s case.

124. Moreover, the Prosecution Pre-Trial Brief did not provide consistent notice that Renzaho’s encouragement of rapes constituted his reason to know, as conceded by the Prosecution on appeal.[13] While the summaries of Witnesses AWO’s and AWN’s anticipated testimony annexed to the Prosecution Pre-Trial Brief describe the circumstances of their rapes and those of Witness AWN’s sister in detail, Witness AWN’s summary attributed Renzaho’s statement encouraging rapes to another individual.[14] It was only during her testimony that Witness AWN clarified that it was Renzaho who made the statement.[15] The Prosecution Pre-Trial Brief and the summary of Witness AWN’s anticipated testimony therefore did not provide the “unambiguous information” required to cure a defect in the Indictment.[16] While the summary of Witness AWO’s anticipated evidence did allege that Renzaho stated that Tutsi women were food for the soldiers,[17] given the ambiguity contained in the Prosecution Pre-Trial Brief concerning the import of Renzaho’s encouragement, the Appeals Chamber finds this one witness statement insufficient to cure the defect in the Indictment.[18]

In footnote 7, the Appeal Chamber held that

[…] In paragraphs 11 and 12 of his Notice of Appeal, Muvunyi alleges that his sentence was not in accordance with established practice and further requests the Appeals Chamber to reduce his sentence in light of any findings which are set aside as not supported by facts or law. Muvunyi does not develop this argument in his Appeal Brief. Instead, he addresses this point in his Respondent’s brief. There, Muvunyi submits that his crime is less egregious than several cases in which the Tribunal has imposed a sentence at or below 15 years of imprisonment and that a sentence of time served adequately serves the ends of justice. See Muvunyi Response Brief, paras. 13-40. Generally, arguments made in support of the Notice of Appeal should be developed in the Appeal Brief. That said, this does not prevent the Appeals Chamber from considering arguments of substantial importance to the appeal developed elsewhere if their exclusion would lead to a miscarriage of justice. See, e.g., Ferdinand Nahimana et al. v. The Prosecutor, Case No. ICTR-99-52-A, Decision on the Prosecutor’s Motion to Pursue the Oral Request for the Appeals Chamber to Disregard Certain Arguments Made by Counsel for Appellant Barayagwiza at the Appeals Hearing on 17 January 2007, 5 March 2007, para. 15. In this case, however, Muvunyi’s submissions do not demonstrate any error in his sentence for the same reasons given in relation to the Prosecution’s challenge to the Trial Chamber’s comparative sentencing approach. See infra para. 72.

26. The Trial Chamber also noted the demeanour of the witnesses when confronted with the suggestion that Nteziryayo was not in fact the prefect in May 1994, which, in the Trial Chamber’s view, indicated that “they were confronted with an incorrect recollection rather than a lie.”[1] The assessment of the demeanour of witnesses in considering their credibility is one of the fundamental functions of a Trial Chamber to which the Appeals Chamber must accord considerable deference.[2] The Appeals Chamber has previously noted that it “is loathe to disturb such credibility assessments on review”.[3] The Appeals Chamber further recalls that it is not unreasonable for a trier of fact to accept some, but reject other parts of a witness’s testimony.[4] The Appeals Chamber, Judges Liu and Meron dissenting, is not convinced that it was unreasonable for the Trial Chamber, in the circumstances noted above, to have rejected the portion of the witnesses’ accounts relating to Nteziryayo’s position during the meeting as prefect. Consequently, Muvunyi has not shown that the Trial Chamber’s findings are wholly erroneous or that no reasonable trier of fact could have concluded that the meeting described by the Prosecution witnesses occurred in May 1994.[5]

125. […] The Appeals Chamber recalls that a defect in the Indictment, not cured by timely, clear, and consistent notice, constitutes a prejudice to the accused.[1] The defect may only be deemed harmless through a demonstration that the accused’s ability to prepare his or her defence was not materially impaired.[2] When an appellant raises a defect in the indictment for the first time on appeal, the appellant bears the burden of showing that his or her ability to prepare his or her defence was materially impaired.[3] When, however, an accused has previously raised the issue of lack of notice before the Trial Chamber, the burden rests on the Prosecution to prove on appeal that the ability of the accused to prepare his or her defence was not materially impaired. The Appeals Chamber therefore turns to consider this issue.

126. In the pre-trial stage, Renzaho challenged the Indictment on the basis of vagueness, a challenge that was dismissed by the Trial Chamber.[4] Although Renzaho did not object to Witnesses AWO’s and AWN’s evidence that he encouraged rapes upon the filing of the Prosecution Pre-Trial Brief or at the time of their testimony, the Appeals Chamber considers that Renzaho’s confusion regarding the import of this evidence, discussed below, reasonably explains his failure to object. Further, in his Closing Brief, Renzaho renewed his challenge to the Indictment on the basis that it failed to plead the material facts necessary to establish his superior responsibility.[5] Renzaho also contended that the charges alleging his responsibility for sexual violence were impermissibly vague, and noted that the evidence that he made encouraging statements about rapes was not included in the Indictment.[6] The Appeals Chamber therefore finds that Renzaho raised an adequate objection to the failure to properly plead his reason to know.[7] Consequently, the Prosecution has the burden of establishing that Renzaho’s defence was not materially impaired by the defect in the Indictment.[8]

127. The Appeals Chamber finds that the Prosecution has not met its burden. It notes that, when Witness AWN testified that it was Renzaho who encouraged rapes, rather than another individual, the Defence did not object to the introduction of the new material fact. At the Appeal Hearing, the Defence indicated that it failed to do so because it “did not make the link at that time”[9] and suffered prejudice from the introduction of this new material fact because it did not understand that this evidence was relevant to the charge under Article 6(3) of the Statute.[10] The strategy adopted at trial by the Defence and in particular the cross-examination of Witnesses AWO and AWN convinces the Appeals Chamber that Renzaho understood that he was to defend himself against knowledge of rapes through receipt of reports as pleaded in the Indictment.[11] He was therefore prejudiced by the Prosecution’s failure to cure the defect in the Indictment through adequate notice.

128. The Appeals Chamber also notes with concern that the relevant paragraphs of the Indictment are extremely broad, and fail to specify the dates and locations of the meetings at which Renzaho encouraged the rapes; the dates and locations of the rapes; and the names of the victims. The provision of these material facts only in post-indictment documents impacts upon the ability of the accused to know the case he or she has to meet and to prepare his or her defence,[12] and is particularly troubling when the Prosecution was in a position to include them in the Indictment.[13]

15. The Appeals Chamber notes that the Trial Chambers in both the Renzaho and Karera cases were composed of the same Judges, namely Erik Møse, Sergei Alekseevich Egorov, and Florence Rita Arrey. Judges Møse and Egorov also sat on the Bagosora et al. trial.[1]

43. Renzaho provides no support for his assertion that a Judge, hearing two cases, must recuse himself or herself when a witness in the first case gives evidence against the accused in the second case. Renzaho similarly fails to support the proposition that the accused in the second case must be given a chance to respond to the witness’s evidence in the first case. The Appeals Chamber recalls that the principles of fair trial require that both the prosecution and accused have knowledge of and the opportunity to comment on the evidence adduced by the other party.[2] However, this does not entail an accused’s right to participate in any other proceedings in which his or her name may be mentioned. Moreover, the Appeals Chamber recalls that Judges are not disqualified from hearing two or more cases arising out of the same series of events and involving similar evidence.[3] Consequently, Judges hearing similar evidence may hear the same witnesses in more than one trial. As previously recalled, in the absence of evidence to the contrary, Judges are presumed to be impartial when ruling on the issues before them, relying solely and exclusively on the evidence adduced in each particular case.[4]

196. When the Defence asserts that the trial was unfair because witnesses crucial to the Defence refused to testify due to interference, it is incumbent on the Defence to, first, demonstrate that such interference has in fact taken place and, second, exhaust all available measures to secure the taking of the witnesses’ testimony.[1] When a party alleges on appeal that the right to a fair trial has been infringed, it must prove that the violation caused such prejudice as to amount to an error of law invalidating the judgement.[2] Thus, the element of prejudice is an essential aspect of the proof required of an appellant alleging a violation of his or her fair trial rights.[3]

210. Recalling that when a party alleges on appeal that the right to a fair trial has been infringed, it must prove that the violation caused such prejudice as to amount to an error of law invalidating the judgement,[4] the Appeals Chamber will consider whether the Trial Chamber’s failure to ensure the timely completion of the Renzaho Investigation prior to the delivery of the Trial Judgement caused Renzaho prejudice of this gravity. […].