32. The Appeals Chamber recalls its prior conclusion that “the impact of the Panić New Fact, if proved, is such that to ignore it would lead to a miscarriage of justice”.[1] In this respect, the Appeals Chamber notes that the Additional Conviction was premised on both a delineation of Šljivančanin’s duty to protect the Prisoners,[2] and the Appeals Chamber’s finding that Šljivančanin possessed the mens rea to aid and abet murder as a violation of the laws or customs of war.[3] The Appeals Chamber further observes that its finding concerning Šljivančanin’s mens rea rested on the conclusion that the only reasonable interpretation from the available circumstantial evidence was that Mrkšić informed Šljivančanin of the Withdrawal Order during the Conversation. The Panić New Fact renders this latter inference untenable, and thus undermines the Mrkšić and Šljivančanin Appeal Judgement’s finding that Šljivančanin was guilty of aiding and abetting murder as a violation of the laws or customs of war.[4] Accordingly, the Appeals Chamber vacates the Additional Conviction.[5]

See also para. 31.

7. Rule 94(B) of the Rules provides that, at a request of a party or proprio motu, a Trial Chamber may decide to take judicial notice of adjudicated facts from other proceedings of the Tribunal relating to the matter at issue in the current proceedings.[1] The Appeals Chamber previously held that adjudicated facts are “facts that have been established in a proceeding between other parties on the basis of the evidence the parties to that proceeding chose to introduce, in the particular context of that proceeding.”[2] Only facts which are not under challenge before the Appeals Chamber or, if challenged, have been upheld by the Appeals Chamber can be deemed “adjudicated” within the meaning of Rule 94(B) of the Rules.[3] By taking judicial notice of an adjudicated fact, a Chamber establishes a well-founded presumption for the accuracy of this fact, which therefore does not have to be proven again at trial.[4]

10. Nsengiyumva requests that judicial notice be taken of portions of a sentencing judgement based on a guilty plea. In this respect, the Appeals Chamber notes that Trial Chambers of this Tribunal and of the International Criminal Tribunal for the former Yugoslavia have held that in order to be judicially noticed, facts must not be based on an agreement between the parties to the original proceedings,[1] and that, as such, facts shall not be deemed “adjudicated” if they are based on guilty pleas or admissions voluntarily made by an accused during the proceedings.[2] This position is based on the consideration that such facts are not proper sources of judicial notice because they have not been subjected to the same level of scrutiny as in other trial situations where one of the parties has the burden of proof,[3] and that the accused’s admissions “speak neither to the general currency of the fact nor to its indisputable character.”[4]

11. The Appeals Chamber agrees that facts based on an agreement between parties in previous proceedings cannot be deemed “adjudicated facts” within the meaning of Rule 94 of the Rules because they have not been established by the Trial Chamber on the basis of evidence. Rather, such facts are merely accepted by the Trial Chamber upon a less burdensome level of scrutiny than the one applied to instances where the Prosecution must prove the facts upon which convictions are based beyond reasonable doubt. In light of this reasoning, the Appeals Chamber finds that the facts admitted by Michel Bagaragaza as set out in paragraphs 24 and 25 of the Bagaragaza Sentencing Judgement are not subject to judicial notice under Rule 94(B) of the Rules.

250. The Appeals Chamber recalls that it is settled jurisprudence of the Tribunal that the abuse of a position of influence and authority in society can be taken into account as an aggravating factor in sentencing.[1] The Appeals Chamber considers that Rukundo has not demonstrated that it was unreasonable for the Trial Chamber to conclude that, as a military chaplain and priest, he would be viewed as a person of influence. Furthermore, a review of the Trial Chamber’s findings on this point reveals that it not only took into account Rukundo’s influence but also the use to which he put that influence.

53. With regard to the mens rea required for aiding and abetting, the Appeals Chamber has held that “[t]]he requisite mental element [...]] is knowledge that the acts performed assist the commission of the specific crime of the principal perpetrator.”[1] Specific intent crimes such as genocide also require that “the aider and abettor must know of the principal perpetrator’s specific intent.”[2]

92. […] It further recalls that aiding and abetting as a form of responsibility pursuant to Article 6(1) of the Statute does not require that the accused be in a position of authority.[3] […]

76. The Appeals Chamber recalls its holding in the Nahimana et al. Appeal Judgement that:

two testimonies corroborate one another when one prima facie credible testimony is compatible with the other prima facie credible testimony regarding the same fact or a sequence of linked facts. It is not necessary that both testimonies be identical in all aspects or describe the same fact in the same way. Every 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. It follows 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.[1] See also para. 201.

86. The Appeals Chamber recalls that a Trial Chamber has the discretion to accept a witness’s evidence, notwithstanding inconsistencies between the said evidence and his or her previous statements, as it is up to the Trial Chamber to determine whether an alleged inconsistency is sufficient to cast doubt on the evidence of the witness concerned.[1] […]

207. The Appeals Chamber recalls that the Trial Chamber has the main responsibility to resolve any inconsistencies that may arise within or amongst witnesses’ testimonies.[2] 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.[3]

29. The Appeals Chamber has previously emphasized that “[t]he 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”.[1] An indictment which fails to duly set forth the specific material facts underpinning the charges against the accused is defective.[2] The defect may be cured if the Prosecution provides the accused with timely, clear, and consistent information detailing the factual basis underpinning the charge. However, a clear distinction has to be drawn between vagueness in an indictment and an indictment omitting certain charges altogether.[4] While it is possible, as stated above, to remedy the vagueness of an indictment, omitted charges can be incorporated into the indictment only by a formal amendment pursuant to Rule 50 of the Rules.[5] Finally, in reaching its judgement, a Trial Chamber can only convict the accused of crimes that are charged in the indictment.[6]

119. […] When the Defence is of the view that the Prosecution introduces evidence of material facts of which it had no notice, it can make an objection to the admission of such evidence for lack of notice.[1] If the Trial Chamber agrees with the Defence that insufficient notice was given, the Trial Chamber may exclude the challenged evidence in relation to the unpleaded material facts, require the Prosecution to amend the indictment, grant an adjournment to allow the Defence adequate time to respond to the additional allegations, or take other measures to preserve the rights of the accused to a fair trial.[2] With respect to this last measure, the Appeals Chamber recalls that a Trial Chamber can also find the particular evidence inadmissible to prove a material fact of which the accused was not on notice, but admissible with respect to other allegations sufficiently pleaded.[3]

160. As the Trial Chamber correctly observed, where the number of victims is large, each and every victim need not be identified in the indictment.[1] While the Trial Chamber noted that there was no evidence adduced regarding the specific number of deaths resulting from the abductions from the Saint Léon Minor Seminary, the repetitive nature of the abductions and the fact that at least one bus was used to remove the identified refugees suggests that there was a significant number of victims.[2] In this context, the Appeals Chamber considers that the identification of the victims as Tutsi refugees taken from the Saint Léon Minor Seminary was sufficiently precise to allow Rukundo to prepare his defence.