Curing vagueness

Notion(s) Filing Case
Appeal Judgement - 08.10.2008 MARTIĆ Milan
(IT-95-11-A)

Martić was convicted in relation to the beating of Croats in detention in Benkovac and the detaining of children in a kindergarten. The Appeals Chamber reversed these convictions as they were not included in indictment.

162. The Appeals Chamber recalls that, in accordance with Article 21(4)(a) of the Statute, an accused has the right “to be informed promptly and in detail in a language which he understands of the nature and cause of the charge against him”. The Prosecution is required to plead in an indictment all the material facts underpinning the charges in an indictment, but not the evidence by which the material facts are to be proven.[1]

163. The prejudicial effect of a defective indictment may only be “remedied” if the Prosecution provided the accused with clear, timely and consistent information that resolves the ambiguity or clarifies the vagueness, thereby compensating for the failure of the indictment to give proper notice of the charges.[2] Whether the Prosecution has cured a defect in an indictment and whether the defect has caused any prejudice to the accused are questions aimed at assessing whether the trial was rendered unfair.[3] In this regard, the Appeals Chamber reiterates that a vague indictment not cured by timely, clear and consistent notice causes prejudice to the accused. The defect may only be deemed harmless through demonstrating that the accused’s ability to prepare his defence was not materially impaired.[4]

[1] Simić Appeal Judgement, para. 20; Muvunyi Appeal Judgement, para. 18; Naletilić and Martinović Appeal Judgement, para. 23; Kvočka et al. Appeal Judgement, para. 27; Kupreškić et al. Appeal Judgement, para. 88.

[2] Simić Appeal Judgement, para. 23; Muvunyi Appeal Judgement, para. 20; Gacumbitsi Appeal Judgement, para. 163; Ntagerura et al. Appeal Judgement, para. 29; Naletilić and Martinović Appeal Judgement, para. 26; Kvočka et al. Appeal Judgement, paras 33-34; see also Kupreškić et al. Appeal Judgement, para. 114. 

[3] See Ntagerura et al. Appeal Judgement, para. 30. On the applicable burden of proof in relation to this issue, see Simić Appeal Judgement, para. 25.

[4] Ntagerura et al. Appeal Judgement, para. 30; Ntakirutimana Appeal Judgement, paras 27-28 and 58; Kupreškić et al. Appeal Judgement, paras 119-122. Simić Appeal Judgement, para. 24; Kordić and Čerkez Appeal Judgement, para. 169; Kupreškić et al. Appeal Judgement, paras 117-118.     

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Notion(s) Filing Case
Appeal Judgement - 21.05.2007 MUHIMANA Mikaeli
(ICTR-95-1B-A)

The Appeals Chamber recalled that vagueness in an indictment may be cured by appropriate notice found in a summary of witness’s anticipated testimony annexed to a Prosecution pre-trial brief. However, in the present case, the Appeals Chamber rejected such notice as insufficient where the relevant summary did not provide clear and consistent information to the Appellant:

223. In the Gacumbitsi Appeal Judgement, the Appeals Chamber held that a summary of an anticipated testimony in an annex to the Prosecution’s pre-trial brief could, in certain circumstances, cure a defect in an indictment.[1] In that case, the indictment alleged generally that “Gacumbitsi killed persons by his own hands”.[2] The Appeals Chamber found this allegation to be vague, in particular as it referred to the physical commission of murder of a particular person.[3] However, a summary of anticipated testimony contained in an annex to the pre-trial brief referred to a specific killing and connected it to the crime of genocide.[4] The Appeals Chamber also observed that the summary did not conflict with any other information that was provided to the accused and was provided in advance of trial.[5] The information in the annex to the pre-trial brief was thus found to be timely, clear, and consistent and to provide sufficient notice of the allegation of the specific murder mentioned in the summary.[6]

224. The circumstances presented in this instance, however, are different. The summary of Witness AW’s anticipated testimony does not simply add greater detail in a consistent manner with a more general allegation already pleaded in the Indictment. Rather, the summary modifies the time, location, and physical perpetrator, matters that were already specifically pleaded in the Indictment, albeit in a materially different manner. In such circumstances, the summary of Witness AW’s anticipated testimony in the annex of the Pre-Trial Brief and the disclosure of his witness statement do not provide clear and consistent information sufficient to put the Appellant on notice that he was being charged with physically committing the murder of Pascasie Mukaremera on Rugona Hill in mid-May 1994. The summary of Witness AW’s testimony does not supplement or provide greater detail, but materially alters key facets of this paragraph. This discrepancy should have been immediately apparent to the Prosecution as it prepared its Pre-Trial Brief and listed the anticipated testimony of Witness AW in support of a paragraph of the Indictment that materially conflicted with it, in particular given that the Prosecution had shortly prior to that added this allegation to the Indictment for the purpose of providing specificity to the Accused. (footnotes omitted).

[1] Gacumbitsi Appeal Judgement, paras. 57, 58. See also Ntakirutimana Appeal Judgement, para. 48 (holding that witness statements, when taken together with “unambiguous information” contained in a pre-trial brief and its annexes may be sufficient to cure a defect in an indictment). This is consistent with ICTY jurisprudence. See Naletilić and Martinović Appeal Judgement, para. 45.

[2] Gacumbitsi Appeal Judgement, para. 58.

[3] Gacumbitsi Appeal Judgement, para. 50.

[4] Gacumbitsi Appeal Judgement, paras. 57, 58.

[5] Gacumbitsi Appeal Judgement, para. 58.

[6] Gacumbitsi Appeal Judgement, para. 58.

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Notion(s) Filing Case
Appeal Judgement I - 29.08.2008 MUVUNYI Tharcisse
(ICTR-2000-55A-A)

20. An indictment lacking this precision 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 charge. However, the principle that a defect in an indictment may be cured is not without limits. In this respect, the Appeals Chamber has previously emphasized:

[T]he “new material facts” should not lead to a “radical transformation” of the Prosecution’s case against the accused. The Trial Chamber should always take into account the risk that the expansion of charges by the addition of new material facts may lead to unfairness and prejudice to the accused. Further, if the new material facts are such that they could, on their own, support separate charges, the Prosecution should seek leave from the Trial Chamber to amend the indictment and the Trial Chamber should only grant leave if it is satisfied that it would not lead to unfairness or prejudice to the Defence.[2]

While the Appeals Chamber has previously held that a pre-trial brief can, in certain circumstances, cure a defect in an indictment,[3] the circumstances presented in this instance are different. The Pre-Trial Brief and the annexed witness summaries do not simply add greater detail in a consistent manner with a more general allegation already pleaded in the Indictment. Rather, the Pre-Trial Brief and the annexed witness summaries expand the charges specifically pleaded in the Indictment by charging additional attacks involving ESO Camp soldiers, based on superior responsibility, other than the one specifically mentioned in paragraph 3.29 of the Indictment. This does not amount to clear and consistent notice adding specificity to a vague paragraph; rather it is a de facto amendment of the Indictment.

26. The Prosecution’s contention that the variances between the Indictment and the evidence at trial are minor or that any resulting defect was cured fails to address the fundamental problem with paragraph 3.29 of the Indictment and the related conviction: the paragraph is not vague; it specifically alleges a different event and form of criminal conduct from the one for which Muvunyi was convicted by the Trial Chamber. The differences in the dates as well as the nature of the attack (abductions from the hospital and killings elsewhere versus separations and killings at the hospital), in addition to Muvunyi’s alleged role, underscore this point. Paragraph 3.29 of the Indictment, therefore, did not properly inform Muvunyi of the material facts for the crime for which he was ultimately convicted.

155. The Prosecution’s contention that any defect in the Indictment was cured by the Schedule of Particulars and the summaries of anticipated testimony annexed to its Pre-Trial Brief fails to address the fundamental problem with Count 5 of the Indictment: the count is not vague; it is narrowly tailored and charges the crime of other inhumane acts as a crime against humanity based on one specific event which is described in paragraph 3.44 of the Indictment. By adding paragraph 3.47 of the Indictment as support for Count 5 in the Schedule of Particulars, the Prosecution essentially amended the Indictment and expanded the charge of other inhumane acts as a crime against humanity from a single event alleged in paragraph 3.44 where ESO Camp soldiers allegedly prevented wounded refugees from going to the Butare University Hospital to acts of cruel treatment by ESO and Ngoma Camp soldiers during every event alleged in the Indictment as pleaded in paragraph 3.47.

156. As noted above, the Indictment does not list paragraph 3.47 in support of any count. The Appeals Chamber has previously observed in this case that the Prosecution’s failure to expressly state that a paragraph in the Indictment supports a particular count in the Indictment is indicative that the allegation is not charged as a crime.[4] The Appeals Chamber therefore considers that the mistreatment underlying Muvunyi’s conviction for other inhumane acts as a crime against humanity was not charged in his Indictment. The omission of a count or charge from an indictment cannot be cured by the provision of timely, clear, and consistent information.[5]

[1] Seromba Appeal Judgement [The Prosecutor v. Athanase Seromba, Case No. ICTR-2001-66-A, Judgement, 12 March 2008], para 100; Simba Appeal Judgement, para. 64; Muhimana Appeal Judgement [Mikaeli Muhimana v. The Prosecutor, Case No. ICTR-95-1B-A, Judgement, 21 May 2007], paras. 76, 195, 217; Gacumbitsi Appeal Judgement [Sylvestre Gacumbitsi v. The Prosecutor, Case No. ICTR-2001-64-A, Judgement, 7 July 2006], para. 49. See also Ntagerura et al. Appeal Judgement, paras. 28, 65.

[2] Bagosora et al., Decision on Aloys Ntabakuze’s Interlocutory Appeal on Questions of Law Raised by the 29 June 2006 Trial Chamber I Decision on Motion for Exclusion of Evidence, para. 30 (internal citations omitted).

[3] Muhimana Appeal Judgement, paras. 82, 201, 223, citing Gacumbitsi Appeal Judgement, paras. 57, 58; Naletilić and Martinović Appeal Judgement [Prosecutor v. Mladen Naletilić and Vinko Martinović, Case No. IT-98-34-A, Judgement, 3 May 2006], para. 45; Ntakirutimana Appeal Judgement [The Prosecutor v. Elizaphan Ntakirutimana and Gérard Ntakirutimana, Cases Nos. ICTR-96-10-A and ICTR-96-17-A, Judgement, 13 December 2004], para. 48.

[4] Muvunyi, Decision on Prosecution Interlocutory Appeal against Trial Chamber II Decision of 23 February 2005 [The Prosecutor v. Tharcisse Muvunyi, Case No. ICTR-00-55A-A, Decision on Prosecution Interlocutory Appeal against Trial Chamber II Decision of 23 February 2005, 12 May 2005], para. 33 (“The Appeals Chamber is satisfied that the allegation of the Accused’s involvement in the detention and disappearance of Habyalimana could constitute a new charge against the Accused. In the current indictment, the relevant paragraph is contained in the section titled “Concise Statement of Facts” and not in the section of specific allegations against the Accused. Further, the Prosecution does not reference this paragraph of the current indictment as a material fact underpinning any of the charges made in the indictment. If the proposed amendment is allowed, it is presumed that the Prosecution would include this allegation under Counts 1 and 2 of the indictment, in support of the charges of genocide, or alternatively complicity to genocide. But this does not change the fact that this fresh allegation could support a separate charge against the Accused.”) (emphasis added).

[5] Ntagerura et al. Appeal Judgement [The Prosecutor v. André Ntagerura et al., Case No. ICTR-99-46-A, Judgement, 7 July 2006], para. 32; Bagosora et al., Decision on Aloys Ntabakuze’s Interlocutory Appeal on Questions of Law Raised by the 29 June 2006 Trial Chamber I Decision on Motion for Exclusion of Evidence [The Prosecutor v. Théoneste Bagosora et al., Case No ICTR 98-41-AR73, Decision on Aloys Ntabakuze’s Interlocutory Appeal on Questions of Law Raised by the 29 June 2006 Trial Chamber I Decision on Motion for Exclusion of Evidence, 18 September 2006], para. 29.

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Notion(s) Filing Case
Appeal Judgement - 28.11.2007 NAHIMANA et al. (Media case)
(ICTR-99-52-A)

325. Where the Appeals Chamber finds that the Trial Chamber tried the accused on the basis of a defective indictment, it must consider whether the accused has nevertheless been accorded a fair trial, in other words, whether the defect noted caused prejudice to the Defence.[1] In some cases, a defective indictment can indeed be “cured” and a conviction handed down if the Prosecutor provided the accused with timely, clear and consistent information detailing the factual basis underpinning the charges against him.[2] This information could, inter alia and depending on the circumstances, be supplied in the Prosecutor’s pre-trial brief or opening statement.[3] The Appeals Chamber would nonetheless emphasize that the possibility of curing defects in the indictment is not unlimited. A clear distinction has to be drawn between vagueness or ambiguity in the indictment and an indictment which omits certain charges altogether. While it is possible to remedy ambiguity or vagueness in an indictment by providing the defendant with timely, clear and consistent information detailing the factual basis underpinning the charges, omitted charges can be incorporated into the indictment only by formal amendment under Rule 50 of the Rules.[4]

326. The Appeals Chamber reaffirms that a vague or imprecise indictment which is not cured of its defects by providing the accused with timely, clear and consistent information constitutes a prejudice to the accused. The defect can be deemed harmless only if it is established that the accused's ability to prepare his defence was not materially impaired.[5] Where the failure to give sufficient notice of the legal and factual reasons for the charges against him violated the right to a fair trial, no conviction can result.[6]

460. […] However, as the Appeals Chamber has emphasized, when the Prosecutor relies on material facts which are not stated in the Indictment and, which on their own, could constitute distinct charges, which is the case here, the Prosecutor must seek leave to amend the Indictment in order to add the new material facts:

the Appeals Chamber stresses that the possibility of curing the omission of material facts from the indictment is not unlimited. Indeed, the “new material facts” should not lead to a “radical transformation” of the Prosecution’s case against the accused. The Trial Chamber should always take into account the risk that the expansion of charges by the addition of new material facts may lead to unfairness and prejudice to the accused. Further, if the new material facts are such that they could, on their own, support separate charges, the Prosecution should seek leave from the Trial Chamber to amend the indictment and the Trial Chamber should only grant leave if it is satisfied that it would not lead to unfairness or prejudice to the Defence.[7] […]

[1] Article 24(1)(a) of the Statute.

[2]Muhimana Appeal Judgement, paras. 76, 195 and 217;  Simić Appeal Judgement, para. 23; Ntagerura et al. Appeal Judgement, para. 28.

[3] Ntagerura et al. Appeal Judgement, para. 130. See also Naletilić and Martinović Appeal Judgement, para. 27; Ntakirutimana Appeal Judgement, para. 34; Niyitegeka Appeal Judgement, para. 219.

[4] Ntagerura et al., para. 32.

[5] Simić Appeal Judgement, para. 24; Ntagerura et al. Appeal Judgement, para. 30; Ntakirutimana Appeal Judgement, para. 58.

[6] Ntagerura et al. Appeal Judgement, para. 28; Naletilić and Martinović Appeal Judgement, para. 26; Ntakirutimana Appeal Judgement, para. 58.

[7] The Prosecutor v. Théoneste Bagosora et al, Case No. ICTR-98-41-AR 73, Decision on Aloys Ntabakuze’s Interlocutory Appeal on Questions of Law Raised by the 29 June 2006 Trial Chamber I Decision on Motion for Exclusion of Evidence, 18 September 2006, para. 30 (footnotes omitted). See also Rutaganda Judgement, para. 303:

Indeed, the Appeals Chamber is of the opinion that the right of the accused to be informed of the nature of the charge against him and the right to have adequate time for the preparation of his defence imply that an accused must be able to identify the criminal acts and conduct alleged in the indictment in all circumstances. Before holding that an event charged is immaterial or that there are minor discrepancies between the indictment and the evidence presented at trial, a Chamber must normally satisfy itself that no prejudice shall, as a result, be caused to the accused. An example of such prejudice is the existence of inaccuracies likely to mislead the accused as to the nature of the charges against him (footnotes omitted). 

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Notion(s) Filing Case
Appeal Judgement - 07.07.2006 GACUMBITSI Sylvestre
(ICTR-2001-64-A)

Having found that the indictment was vague, the Appeals Chamber considered whether that vagueness was cured by the Prosecution’s other filings (paras 55-58). It confirmed the finding of the ICTY Appeals Chamber in Naletilić and Martinović that an indictment defect can be cured by the provision of timely, clear and consistent information in the form of a Chart of Witnesses, disclosed before trial, setting forth the allegations of the relevant material facts and specifically identifying the charges to which those allegations relate.[1]

[1] See Naletilić and Martinović Appeal Judgement, para. 45. Judges Liu and Meron issued a Joint Separate Opinion.

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Notion(s) Filing Case
Decision on Interlocutory Appeal on Questions of Law - 18.09.2006 BAGOSORA et al. (Military I)
(ICTR-98-41-AR73)

Para. 21(“curing” is likely to occur only in a limited number of cases):

21. The ICTY Appeals Chamber has explained that

in some instances, a defective indictment can be cured if the Prosecution provides the accused with timely, clear and consistent information detailing the factual basis underpinning the charges against him or her. Nevertheless, in light of the factual and legal complexities normally associated with the crimes within the jurisdiction of this Tribunal, there can only be a limited number of cases that fall within that category.[1] 

Thus, “curing” is likely to occur only in a limited number of cases. In this connection, the Appeals Chamber is not convinced by the Trial Chamber’s suggestion, at paragraph 4 of the Impugned Decision, that a distinction should be made between cases “where the Prosecution knows of material facts at the time the indictment is filed, but fails to plead them” (in which cases curing would be exceptional) and cases where the material facts “are subsequently discovered” (in which cases curing would not be characterized as exceptional). Indeed, the risk of prejudice to the accused is the same in both types of cases.[2] In both types of cases, the defect in the indictment may be deemed cured only by the provision of timely, clear and consistent information to the accused.

Para. 26 (when numerous defects found to have been “cured”):

The Appeals Chamber agrees that when the indictment suffers from numerous defects, there may still be a risk of prejudice to the accused even if the defects are found to be cured by post-indictment submissions. In particular, the accumulation of a large number of material facts not pled in the indictment reduces the clarity and relevancy of that indictment, which may have an impact on the ability of the accused to know the case he or she has to meet for purposes of preparing an adequate defence. Further, while the addition of a few material facts may not prejudice the Defence in the preparation of its case, the addition of numerous material facts increases the risk of prejudice as the Defence may not have sufficient time and resources to investigate properly all the new material facts. Thus, where a Trial Chamber considers that a defective indictment has been subsequently cured by the Prosecution, it should further consider whether the extent of the defects in the indictment materially prejudice an accused’s right to a fair trial by hindering the preparation of a proper defence. The Appeals Chamber finds that the Trial Chamber failed to do so in the Impugned Decision and therefore, instructs the Trial Chamber to reconsider the Impugned Decision on this basis.

Paras 29-30 (type of defects that can be cured):

29. The Appeals Chamber is not convinced by the arguments of the Appellant on this point. The Appeals Chamber first recalls the distinction between counts or charges (“accusations” in French) and “material facts”:

The count or charge is the legal characterisation of the material facts which support that count or charge.  In pleading an indictment, the Prosecution is required to specify the alleged legal prohibition infringed (the count or charge) and the acts or omissions of the Accused that give rise to that allegation of infringement of a legal prohibition (material facts).[3]

It is clear that the omission of a count or charge from the indictment cannot be “cured” by the provision of timely, clear, consistent information.[4] Indeed, since the indictment is the only charging instrument,[5] the addition of counts or charges is possible only through amendment, as set out in Rule 50 of the Rules. However, it is also clear that the omission of a material fact underpinning a charge in the indictment can, in certain cases, be cured by the provision of timely, clear and consistent information.[6]

30. In this connection, the Appeals Chamber stresses that the possibility of curing the omission of material facts from the indictment is not unlimited. Indeed, the “new material facts” should not lead to a “radical transformation” of the Prosecution’s case against the accused.[7] The Trial Chamber should always take into account the risk that the expansion of charges by the addition of new material facts may lead to unfairness and prejudice to the accused. Further, if the new material facts are such that they could, on their own, support separate charges,[8] the Prosecution should seek leave from the Trial Chamber to amend the indictment and the Trial Chamber should only grant leave if it is satisfied that it would not lead to unfairness or prejudice to the Defence.[9]

Para. 35: The Appeals Chamber found that a defect in indictment could be cured by information conveyed in Prosecution motion to add a witness, which clearly states the material facts on which the witness would testify.

35. The Appeals Chamber reiterates that, while the addition of a charge must necessarily be done through an amendment to the indictment, the omission of material facts from the indictment can in certain circumstances be cured without having to amend the indictment.[10] As to whether notice of a new material fact could be conveyed through a Prosecution motion to add a witness, the Appeals Chamber recalls that, as a general rule:

Whether the Prosecution cured a defect in the indictment depends, of course, on the nature of the information that the Prosecution provides to the Defence and on whether the information compensates for the indictment’s failure to give notice of the charges asserted against the accused. Kupreškić considered that adequate notice of material facts might be communicated to the Defence in the Prosecution’s pre-trial brief, during disclosure of evidence, or through proceedings at trial. The timing of such communications, the importance of the information to the ability of the accused to prepare his defence, and the impact of the newly-disclosed material facts on the Prosecution’s case are relevant in determining whether subsequent communications make up for the defect in the indictment. As has been previously noted, “mere service of witness statements by the [P]rosecution pursuant to the disclosure requirements” of the Rules does not suffice to inform the Defence of material facts that the Prosecution intends to prove at trial.[11]

In determining whether a defective indictment was cured by timely, clear and consistent information, the Appeals Chamber has looked to the Prosecution pre-trial brief (together with its annexes and chart of witnesses)[12] or the Prosecution’s opening statement.[13] However, the Appeals Chamber never suggested that defects in the indictment could only be cured through the Prosecution pre-trial brief or its opening statement. The Appeals Chamber cannot exclude the possibility that a defect in the indictment could be cured through a Prosecution motion for addition of a witness, provided any possible prejudice to the Defence was alleviated by, for example, an adjournment to allow the Defence time to prepare for cross-examination of the witness. Accordingly, the Appeals Chamber is not convinced that the Trial Chamber erred in stating that although disclosure of witness statements or potential exhibits are generally insufficient to put an accused on reasonable notice, a defect in the indictment could be cured by the information conveyed in a Prosecution motion to add a witness, which clearly states the material facts on which the witness would testify.

Para. 37: The Appeals Chamber found that an accused can be put on reasonable notice of material facts omitted from indictment where an adjournment is ordered by the Trial Chamber for the express purpose of allowing the Defence to meet newly discovered material facts.

37. In Kupreškić, the Appeals Chamber emphasized that

the Prosecution is expected to know its case before it goes to trial.  It is not acceptable for the Prosecution to omit the material aspects of its main allegations in the indictment with the aim of moulding the case against the accused in the course of the trial depending on how the evidence unfolds.  There are, of course, instances in criminal trials where the evidence turns out differently than expected.  Such a situation may require the indictment to be amended, an adjournment to be granted, or certain evidence to be excluded as not being within the scope of the indictment.[14] 

Thus, when a new material fact is discovered at trial, the Trial Chamber should determine which measure(s) are required in the circumstances of the case to preserve the fairness of the proceedings. If the Trial Chamber decides that an adjournment is warranted, it could also order the Prosecution to amend the indictment for greater clarity, but this might not be required in every case. Accordingly, the Appeals Chamber does not find that the Trial Chamber erred in stating at paragraph 10 of the Impugned Decision that the accused was put on reasonable notice of material facts omitted from the indictment where “a lengthy adjournment was ordered by the Chamber for the express purpose of allowing the Defence to meet newly discovered material facts.”

[1] Kupreškić et al. Appeal Judgement, para. 114. See also Cyangugu Appeal Judgement, para. 114.

[2] The only difference concerns the “level of blame” on the Prosecution: As stated in the Ntakirutimana Appeal Judgement (para. 125), “the practice of failing to allege known material facts in an indictment is unacceptable.”  

[3] [The Prosecution v. Tharcisse Muvunyi, Case No. ICTR-00-55A-AR73, “Decision on Prosecution Interlocutory Appeal Against Trial Chamber II Decision of 23 February 2005”, 12 May 2005], para. 19.

[4] Cyangugu Appeal Judgement, para. 32.

[5] Cyangugu Appeal Judgement, para. 114.

[6] Kupreškić et al. Appeal Judgement, para. 88; Kvočka et al. Appeal Judgement, para. 28; Naletilić & Martinović Appeal Judgement, para. 23; Cyangugu Appeal Judgement, para. 22.

[7] See Kupreškić et al. Appeal Judgement, para. 121; Ntakirutimana Appeal Judgement, para. 28.

[8] For examples of new material facts which could support separate charges against an accused, see Muvunyi Decision, paras 33 and 35.

[9] Karemera Decision, para. 28; Muvunyi Decision, para. 22. See also Kvočka et al. Appeal Judgement, para. 32.

[10] See supra paras 29-30.

[11] Niyitegeka Appeal Judgement, para. 197 (references omitted).

[12] Kupreškić et al. Appeal Judgement, para. 117; Ntakirutimana Appeal Judgement, paras 46-48; Kvočka et al. Appeal Judgement, paras 43-45 ; Naletilić & Martinović Appeal Judgement, paras 27, 45; Gacumbitsi Appeal Judgement, paras 57-58.

[13] Kupreškić et al. Appeal Judgement, para. 118; Kordić & Čerkez Appeal Judgement, para. 169; Kvočka et al. Appeal Judgement, paras 46-47.

[14] Kupreškić et al. Appeal Judgement, para. 92. See also Niyitegeka Appeal Judgement, para. 194; Blaškić Appeal Judgement, para. 220; Ntakirutimana Appeal Judgement, para. 26; Kvočka et al. Appeal Judgement, paras 30-31; Naletilić & Martinović Appeal Judgement, para. 25; Cyangugu Appeal Judgement, para. 27.

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