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]

195. The Appeals Chamber recalls that where the Indictment is found to be defective, an appellant who raises a defect in the indictment for the first time on appeal bears the burden of showing that his ability to prepare his defence was materially impaired. Where, however, an accused had already raised the issue of lack of notice before the Trial Chamber, the burden rests on the Prosecution to demonstrate on appeal that the accused’s ability to prepare a defence was not materially impaired.

196. With regard to the Trial Chamber’s finding that Sagahutu issued an operational instruction in relation to the Belgian peacekeepers’ access to the Prime Minister’s residence and sent an armoured unit and supplies to his subordinates on the ground, the Trial Chamber relied on the evidence of Prosecution Witnesses AWC, ALN, DA, and HP.[3] The Appeals Chamber notes that, in his closing arguments, Sagahutu made a general objection in relation to the pleading in the Indictment of the charge regarding the killing of the Prime Minister.[4] Nonetheless, Sagahutu did not take specific issue with the introduction of particular material facts during the testimony of Witnesses AWC, ALN, DA, and HP.[5] Therefore, the Appeals Chamber considers that Sagahutu did not make a specific and timely objection at trial to the lack of pleading in the Indictment of these material facts. In such circumstances, it falls on Sagahutu to demonstrate that the preparation of his defence was materially impaired by these omissions in the Indictment.[6]

197. 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.[1] 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.[2] 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.[3]

250.   Recalling that waiver “should not entirely foreclose” indictment defects from being raised for the first time on appeal by the defence,[1] the Appeals Chamber notes that it has not previously considered whether waiver should preclude the Prosecution from arguing for the first time on appeal that its Indictment should have been interpreted differently, when it had been put on notice at trial that the Trial Chamber considered the Indictment to be defective. The Appeals Chamber observes that the rationale for allowing the Defence to raise such objections for the first time on appeal does not apply to the Prosecution who bears the obligation of ensuring that the indictment adequately pleads its case against the accused.

13. The Trial Chamber also erred in concluding that there was no need to amend the Amended Indictment because the Prosecution indicated in its Response to the Preliminary Motion that it intended to rely on the basic and extended forms of JCE and because additional details could be provided in the Pre-Trial Brief.[1] It is accepted that defects in the indictment can be cured later by timely, clear, and consistent information detailing the factual basis underpinning the charge.[2] However, the indictment is the primary accusatory instrument[3] and the Prosecution has been warned in the past that the practice of failing to allege known material facts in the indictment is unacceptable.[4] Consequently, in a case such as the present, where defects in the indictment surface at the pre-trial stage, the Prosecution cannot refrain from amending the indictment by arguing that it will correct existing defects through its Pre-Trial Brief.[5]

39. The Appeals Chamber rejects the Prosecution’s argument that the Trial Chamber properly denied Uwinkindi’s Preliminary Motion because additional details are contained in a disclosed witness statement and because the Prosecution suggested that paragraph 10 of the Amended Indictment could be further amended in light of this material. As stated above, the indictment is the primary accusatory instrument.[6] Furthermore, the Appeals Chamber has repeatedly held that the mere service of witness statements or potential exhibits by the Prosecution pursuant to disclosure requirements does not suffice to inform the Defence of material facts that the Prosecution intends to prove at trial.[7]

77. […] Although the evidence at trial sometimes turns out to be different from the Prosecution’s expectations, the accused are generally entitled to proceed on the basis that the material facts disclosed to them are “exhaustive in nature” unless and “until given sufficient notice that evidence will be led of additional incidents.”[1] Given that “the Prosecution is expected to know its case before it goes to trial,” the question is whether it was fair to the Appellant to be tried and convicted based on an allegation as to which neither he nor the Prosecution had actual or specific notice.[2] On this question, as on the question of whether communications of information sufficed to cure an indictment defect, the Prosecution bears the burden of demonstrating that the new incidents that became known at trial caused no prejudice to the Appellant.

[…]

112. [I]n circumstances where the Prosecution relies on material facts that were revealed for the first time at trial, the Prosecution bears the burden of showing that there was no unfairness to the Accused.

113. […] As found above, the attack on Suhret Ahmić’s house and its consequences constituted a material fact in the Prosecution case and, as such, should have been pleaded in the Amended Indictment.  Absent such pleading, the allegation pertaining to this event should not have been taken into account as a basis for finding Zoran and Mirjan Kupreškić criminally liable for the crime of persecution.  Hence, the Trial Chamber erred in entering convictions on the persecution count because these convictions depended upon material facts that were not properly pleaded in the Amended Indictment. 

114.    The Appeals Chamber notes that, generally, an indictment, as the primary accusatory instrument, must plead with sufficient detail the essential aspect of the Prosecution case.  If it fails to do so, it suffers from a material defect.  A defective indictment, in and of itself, may, in certain circumstances cause the Appeals Chamber to reverse a conviction.  The Appeals Chamber, however, does not exclude the possibility 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.  […]

1276.            The Appeals Chamber rejects Ntahobali’s claim that the Trial Chamber applied the wrong legal criterion in evaluating the cumulative effect of the defects in the Indictment. Although the Trial Chamber mainly relied on its finding that the defects of the Indictment concerning allegations on which it made factual findings were cured, its analysis reflects that it did not limit its examination to this matter but, in accordance with the jurisprudence that it expressly recalled, examined whether the Defence had sufficient time and resources to investigate properly all the new material facts and that it was not prejudiced by the addition of numerous material facts. The Appeals Chamber refers in particular to the Trial Chamber’s reliance on the additional time allotted to the co-Accused to prepare their case[1] and its findings throughout the Trial Judgement that, where remedied, the original lack of notice had not caused prejudice.[2]

1277.            The Appeals Chamber also finds no merit in Ntahobali’s argument that the number of defects in an indictment that can be cured is limited. The Appeals Chamber considers that, in instances where it is found that defective charges have not only been cured but also that the initial lack of notice did not result in prejudice, the question of the number of defects cured becomes secondary. It is clear from the Appeals Chamber’s jurisprudence that the key question remains whether or not the accused was materially prejudiced in the preparation of his defence.[3]