450. The Appeals Chamber notes that the requirement in Rule 50(A)(ii) of the Rules for granting leave to amend an indictment was only introduced in the Rules on 15 May 2004, following the 14th plenary session held on 23 and 24 April 2004.[1] According to this amendment, trial chambers shall examine each of the counts and any supporting materials the Prosecution may provide to determine, applying the standard set forth in Article 18 of the Statute, whether a case exists against the accused. The Appeals Chamber also observes that, prior to the enactment of Rule 50(A)(ii) of the Rules, the practice of the trial chambers of the Tribunal regarding the need to establish a prima facie case before granting leave to amend an indictment was not uniform. In several cases, trial chambers found that granting leave to amend an indictment was a matter for their discretion and only required the Prosecution to establish the factual and legal basis in support of its motion to amend.[2] In other cases, trial chambers examined whether prima facie evidence supported the motion to amend.[3] When seised with appeals against decisions related to the amendment of the indictment prior to the modification of Rule 50 of the Rules, the Appeals Chamber did not provide guidance on this issue.[4] Against this background, the Appeals Chamber, Judge Pocar and Judge Liu dissenting, finds Nyiramasuhuko’s allegation that the Trial Chamber erred in law by not requiring the Prosecution to present a prima facie case in support of the new counts to be without merit and deems it unnecessary to discuss Nyiramasuhuko’s remaining arguments premised on this alleged error of law.

468. As a preliminary matter, the Appeals Chamber clarifies that it considers that the Prosecution did not exceed the scope of its response brief by arguing that the Indictment was not defective regarding the count of conspiracy to commit genocide. The purpose of a response brief is to give a full answer to the issues raised in the relevant appeal brief[1] and there is nothing in the Rules or the relevant practice directions prohibiting a party from raising an allegation of error in the Trial Judgement in response to an issue raised by the other party. Therefore, the Appeals Chamber finds no merit in Nyiramasuhuko’s argument that the Prosecution should have requested leave to argue that the Trial Chamber erred in finding that the Indictment was defective as regards the charge of conspiracy to commit genocide.

561. The Appeals Chamber considers that a witness’s membership in an association of survivors alone does not imply a desire or motive to implicate the accused, nor does it render the witness’s evidence tainted or his accounts unreliable or partial. The Appeals Chamber therefore sees no reason to require, as a matter of principle, a trial chamber to apply particular caution in treating the evidence of witnesses who are members of such associations. The Appeals Chamber also recalls its position that a “statement by Professor Reynt[j]ens that the Ibuka Organization paid people to give false evidence cannot, per se, constitute a sufficient ground for excluding, in a general manner, the testimony of Prosecution witnesses”.[1]

3327.            The Appeals Chamber recalls that the actus reus of instigating is to prompt another person to commit an offence.[1] It is not necessary to prove that the accused was present when the instigated crime was committed[2] or that the crime would not have been perpetrated without the involvement of the accused; it is sufficient to demonstrate that the instigation was a factor substantially contributing to the conduct of another person committing the crime.[3]

3328.            […] The Appeals Chamber considers that Kanyabashi’s commitment to execute the directives and instructions announced by Kambanda and Sindikubwabo to identify and kill Tutsis does not necessarily amount to prompting the attendees or the people in Butare Prefecture to kill Tutsis.[4] In the absence of any evidence discussed by the Trial Chamber or pointed out by the Prosecution that Kanyabashi’s Speech was understood as instigating the killing of Tutsis or had any impact on the conduct of those who subsequently committed killings,[5] the Appeals Chamber finds that a reasonable trier of fact could have concluded that Kanyabashi did not instigate genocide through his speech.

42.    As regards Nyiramasuhuko’s request for an appropriate remedy for the violations found at trial, the Appeals Chamber observes that the only violations determined to have occurred were the violations of her rights to be informed of the charges against her and of initial appearance without delay recognised in the 12 October 2000 Decision [The Prosecutor v. Pauline Nyiramasuhuko and Arsène Shalom Ntahobali, Case No. ICTR-97-21-T, Decision on the Defence Motion for Exclusion of Evidence and Restitution of Property Seized, 12 October 2000 (originally filed in French, English translation filed on the same day)].[1] The Appeals Chamber recalls that “any violation, even if it entails a relative degree of prejudice, requires a proportionate remedy”.[2] The nature and form of the effective remedy should be proportional to the gravity of harm that is suffered.[3] In practice, “the effective remedy accorded by a Chamber for violations of an accused’s fair trial rights will almost always take the form of equitable or declaratory relief.”[4] The Appeals Chamber considers that, in situations where the violation has not materially prejudiced the accused, a formal recognition of the violation may be considered an effective remedy.[5] Nyiramasuhuko has not developed any argument to demonstrate that the recognition of the violations of her rights to be informed of the charges against her and of initial appearance without delay by Judge Kama in the 12 October 2000 Decision was not an effective remedy. Nyiramasuhuko’s claim is therefore dismissed.

See also para. 50.

108. As to whether the joinder created undue delay and thus required the severance of the cases, the Appeals Chamber finds no error in the Trial Chamber’s finding that the fact that a joint trial might last longer than that of a single accused does not necessarily encroach the co‑accused’s right to be tried without undue delay.[1] The Appeals Chamber recalls that Article 20(4)(c) of the Statute makes clear that the right to be tried without undue delay does not protect against any delay in the proceedings; it protects against undue delay.[2] […] The Appeals Chamber finds that, although the joinder added some degree of complexity to the proceedings, the mere allegation that separate trials would have proceeded faster is insufficient to substantiate a claim that undue delay occurred as a result of the joinder and that it was unreasonable for the Trial Chamber to deny the severance of Nyiramasuhuko’s case.[3]

See also para. 365.

331. Likewise, the Appeals Chamber finds no merit in Nyiramasuhuko’s and Ntahobali’s argument that the fact that the witnesses lied required that their testimonies be excluded. In support of this claim, Ntahobali refers to national jurisprudence.[1] However, the Appeals Chamber highlights that Rule 89(A) of the Rules specifically provides that the Tribunal is not bound by national rules of evidence,[2] and recalls that decisions on the admission or exclusion of evidence fall within the trial chambers’ discretion.[3] […]

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] […]