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).

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] […]

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.”