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]

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).

36. The Appeals Chamber recalls that charges against an accused and the material facts supporting those charges must be pleaded with sufficient precision in an indictment so as to provide notice to the accused. In reaching its judgement, a Trial Chamber can only convict the accused of crimes that are charged in the indictment.[2] The Appeals Chamber has further held that criminal acts that were physically committed by the accused personally must be set forth specifically in the indictment, including, where feasible, “the identity of the victim, the time and place of the events and the means by which the acts were committed.” An indictment lacking sufficient precision in the pleading of material facts 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 charges.

37. The Trial Chamber found that Munyakazi committed the crimes at Shangi and Mibilizi parishes “[o]n the basis of his leadership position at the crime sites”, which showed that “[he] was as much an integral part of the killings as those he enabled”.[5] As Munyakazi submits, the Indictment does not specifically state that he was the leader of the attacks at Shangi and Mibilizi parishes. However, the more general allegations in paragraphs 13 and 14 of the Indictment that “Yussuf MUNYAKAZI, with the Bugarama interahamwe, attacked and killed” Tutsis at the two parishes must be read in light of paragraph 1 of the Indictment, which alleges his role as “a leader” with “de facto authority” over that militia group.[6] Therefore, the Appeals Chamber is satisfied that the Indictment provided Munyakazi with notice that he had a leadership role and exercised de facto authority over the Bugarama Interahamwe during the attacks at Shangi and Mibilizi parishes. Contrary to Munyakazi’s submission, the fact that the Prosecution’s theory of the scope and basis of his leadership of the Bugarama Interahamwe was broader than that ultimately proven at trial does not mean that the notice of Munyakazi’s role in the crimes was deficient.

19. The Appeals Chamber recalls that charges against an accused and the material facts supporting those charges must be pleaded with sufficient precision in an indictment so as to provide notice to the accused. In reaching its judgement, a Trial Chamber can only convict the accused of crimes that are charged in the indictment.[2] The Appeals Chamber has already confirmed in its previous judgement in this case, as well as in an interlocutory appeal decision during the course of the retrial, that the Indictment was not defective.[3] The question, however, remains whether Muvunyi was convicted of the specific crime which was charged in the Indictment.

29. The final question therefore is whether Muvunyi lacked notice of the meeting for which he was convicted given the variance between the Indictment date range of early May 1994 and the finding that the meeting occurred in mid to late May 1994. The Appeals Chamber is not convinced that the difference between the language of the Indictment and the evidence is material since the variance is not significant,[4] and, as the Trial Chamber noted, there was only one meeting at the Gikore Trade Center in May 1994. Furthermore, Muvunyi in fact defended against the allegation that he incited the local population during a meeting at the Gikore Trade Center in mid to late May 1994 in both his first trial and the retrial, which shows that he had notice of the charge in the Indictment with respect to the May 1994 meeting.[5]

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]

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] […]

736. The vagueness of the Judgement, in itself an error on the part of the Trial Chamber,[1] compels the Appeals Chamber to examine the broadcasts between 1 January and 6 April 1994 referred to in the Judgement in order to determine whether one or more of them directly incited the commission of genocide. As recalled in the Introduction,[2] when the Trial Chamber errs in law, the Appeals Chamber must determine whether it is itself satisfied beyond reasonable doubt in regard to the disputed finding before it can affirm it on appeal.

770. However, the Appeals Chamber notes that the Trial Chamber did not clearly identify all the extracts from Kangura which, in its view, directly and publicly incited genocide, confining itself to mentioning only extracts from Kangura published before 1 January 1994 to support its findings.[3] […] Moreover, as explained previously,[4] the lack of particulars concerning the acts constituting direct and public incitement to commit genocide represented an error, and obliges the Appeals Chamber to examine the 1994 issues of Kangura mentioned in the Judgement in order to determine, beyond reasonable doubt, whether one or more of them constituted direct and public incitement to commit genocide.

48. Nevertheless, the Appeals Chamber agrees with Uwinkindi that the assertion in paragraph 15 of the Amended Indictment that he was “often present and/or aware” of crimes committed by Interahamwe does not sufficiently indicate on which form of responsibility the Prosecution intends to rely.[1] The Appeals Chamber recalls that the alleged nature of the responsibility of the accused should be stated unambiguously in the indictment and the Prosecution should therefore indicate precisely which form of liability is invoked based on the facts alleged.[2]

57. The second chapeau paragraph under Counts 1 and 2 of the Amended Indictment implicates Uwinkindi in planning, instigating, ordering, committing, or otherwise aiding and abetting in the preparation or execution of genocide and extermination as a crime against humanity. This enumeration mirrors Article 6(1) of the Statute. The Appeals Chamber recalls that, in order to ensure that an accused is unambiguously informed about the nature of the charges against him, the Prosecution has repeatedly been discouraged from simply restating Article 6(1) of the Statute, unless it intends to rely on all of the forms of individual criminal responsibility contained therein and specifically pleads the material facts relevant to each form.[3] Otherwise, the indictment will be defective.[4] Furthermore, as stated above, the Prosecution is required to identify the “particular acts” or the “particular course of conduct” on the part of the accused which forms the basis for the charges.[5] The Amended Indictment does not fulfil these requirements with respect to every form of individual criminal responsibility listed in the second chapeau paragraph under Counts 1 and 2. It is therefore defective in this respect.

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]

2270.            […] The Appeals Chamber repeatedly held that the Prosecution’s failure to state expressly that a paragraph in the indictment supports a particular count in the indictment is indicative that the allegation in the paragraph is not charged as a crime.[1] There is therefore merit in Nteziryayo’s contention that, by not indicating that the allegation in paragraph 6.34 supported any particular count, the Prosecution may have misled him in believing that the allegation was not charged as a crime.

2271.            The Appeals Chamber, however, stresses that the fundamental question when examining allegations of lack of notice is whether or not the accused was adequately informed of the nature and cause of the charges against him so as to be able to prepare a meaningful defence.[2] The Appeals Chamber’s case law on notice of the charges was developed in this spirit and was not intended to permit mere technicalities of pleading to intrude where it is clear that the accused was informed of the charges against him precisely and in a timely manner.

[…]

2274.            Against this background, Nteziryayo cannot reasonably claim that he did not understand at trial that the Prosecution intended to prove that he was guilty of direct and public incitement to commit genocide through his conduct at Ndayambaje’s Swearing-In Ceremony and that he was misled by the absence of reference to paragraph 6.34 in the charging section of the Indictment. […] in the situation at hand, it is obvious that the Prosecution mistakenly omitted to refer to paragraph 6.34 in the charging section of the Indictment and that it was the Prosecution’s consistent intention throughout the case to prosecute Nteziryayo for his utterances at Ndayambaje’s Swearing-In Ceremony.

[…]

2713.            Turning to Ndayambaje’s challenge to the Trial Chamber’s finding that the defect regarding the dates, location, and his general participation in the massacre was cured, the Appeals Chamber finds no merit in Ndayambaje’s argument that the summaries of the Prosecution witnesses’ anticipated evidence appended to the Prosecution Pre-Trial Brief could not inform him of the allegation against him as they were not explicitly linked to any paragraph of the Indictment.[3] […]