Omitting material facts
| Notion(s) | Filing | Case |
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| Appeal Judgement - 20.10.2010 |
RUKUNDO Emmanuel (ICTR-2001-70-A) |
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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] [1] 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 (“Bagosora et al. Appeal Decision”), para. 18. See also Furund‘ija Appeal Judgement, para. 61. [2] Bagosora et al. Appeal Decision, para. 18. [3] Arsène Shalom Ntahobali & Pauline Nyiramasuhuko v. The Prosecutor, Case No. ICTR-97-21-AR73, Decision of the Appeals by Pauline Nyiramasuhuko and Arsène Shalom Ntahobali on the “Decision on Defence Urgent Motion to Declare Parts of the Evidence of Witnesses RV and QBZ Inadmissible”, 2 July 2004, para. 15 (“[A]]lthough on the basis of the present indictment it is not possible to convict Nyiramasuhuko in respect of her presence at the installation of Ndayambaje, evidence of this meeting can be admitted to the extent that it may be relevant to the proof of any allegation pleaded in the Indictment.”). See also Kanyarukiga Appeal Decision, para. 11; Bagosora et al. Appeal Decision, n. 40. |
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| Notion(s) | Filing | Case |
| Appeal Judgement - 08.06.2021 |
MLADIĆ Ratko (MICT-13-56-A) |
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36. [...] [T]he charges against Mladić did not implicate him as a physical perpetrator, concerned a vast amount of territory of Bosnia and Herzegovina, and spanned over three years. Relevant jurisprudence dictates that, while an indictment is required to plead material facts through which the Prosecution seeks to establish an accused’s criminal liability, as the proximity of the accused person to those events becomes more distant, less precision is required in relation to those particular details, and greater emphasis is placed upon the conduct of the accused person himself upon which the Prosecution relies to establish his responsibility as an accessory or a superior to the persons who personally committed the acts giving rise to the charges against him. Indeed, in cases concerning extensive and continuous criminality, specificity with respect to the timing, victims, and location of “representative” incidents of criminality may satisfy the obligation of providing sufficient notice of the nature of the crime to effectively prepare his defence. [1] [Footnote omitted]. [2] Kvočka et al. Appeal Judgement, para. 65. [3] Cf. Galić Appeal Judgement, paras. 3, 222, 223, nn. 636, 637 (noting that in a case charging an accused with conducting a campaign of shelling and sniping for nearly two years, the Prosecution was bound to provide details about some of the sniping and shelling incidents in the indictment but was under no obligation to list all the specific incidents in order to satisfy its obligation in pleading material facts so as to provide the accused notice of the nature of the case he had to meet). |
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