Retention of evidence on the record

Notion(s) Filing Case
Decision on Death of Co-Accused - 24.09.2010 KAREMERA et al.

17. Turning to the issue of retaining the body of evidence adduced to date on the record, the Appeals Chamber also finds that Karemera and Ngirumpatse have failed to demonstrate that the Trial Chamber committed a discernible error in this regard.[1] Although the Trial Chamber retained all the evidence on the record, it specifically clarified that in its deliberations it would “separate the evidence that relates only to Nzirorera and that which relates to a joint criminal enterprise or conspiracy or aiding and abetting amongst Nzirorera and others”.[2] In adopting this approach, it correctly recalled that “[t]here is clear statutory language and jurisprudence which emphasize the individual nature of criminal responsibility in this Tribunal [and that] [e]ven if Accused persons are joined together into one trial, this in no way diminishes the Prosecution’s burden to prove each element of each crime individually against each of the co-Accused.”[3] The Appeals Chamber does not find this “streamlined approach”[4] unreasonable.

18. Furthermore, the Appeals Chamber recalls that a similar approach was adopted in the Brðanin case before the ICTY, in which Momir Talić was severed from the case eight months after the trial started.[5] Not only did Talić’s name continue to appear in the indictment,[6] but the evidence already on the record was retained.[7] In the Brðanin Trial Judgement, the Trial Chamber noted that “[it] ha[d] taken into consideration the evidence given against the former co-accused Momir Talić, whose case was severed from that of the Accused and who subsequently passed away, as far as it [was] relevant to the case against the Accused.”[8] Accordingly, the Trial Chamber in that case followed the same approach proposed by the Trial Chamber in the present case.

[1] See Impugned Decision; Reasons for Impugned Decision [The Prosecutor v. Édouard Karemera and Matthieu Ngirumpatse, Case No. ICTR-98-44-T, Reasons for Oral Decision of 23 August 2010 and on Oral Applications for Certification to Appeal, 26 August 2010 (“Reasons for Impugned Decision”)], p. 7.

[2] Reasons for Impugned Decision, para. 9.

[3] Reasons for Impugned Decision, para. 14.

[4] Reasons for Impugned Decision, para. 10.

[5] The trial started on 23 January 2002 and Talić was severed from the case on 20 September 2002. See Brðanin and Talić Decision of 20 September 2002, para. 2, p. 9.

[6] See Brðanin Sixth Amended Indictment, paras. 10, 12, 13, 19, 20, 20.1, 21, 23.1, 24-26, 27.2.

[7] Indeed the Brðanin and Talić Decision of 20 September 2002 provided that the severance would come into force following the completion of the cross-examination of a witness whose testimony had been suspended when Talić fell ill. Brðanin and Talić Decision of 20 September 2002, para. 29, p. 9.

[8] Prosecutor v. Radoslav Brðanin, Case No. IT-99-36-T, Judgement, 1 September 2004, para. 36.

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