DECISION ON THE PROSECUTOR'S REQUEST FOR LEAVE TO ...

International Criminal Tribunal for Rwanda
Tribunal pénal international pour le Rwanda
UNITED NATIONS
NATIONS UNIES
TRIAL CHAMBER III
OR: ENG
Before Judges:
Dennis C. M. Byron, Confirming Judge
Registrar:
Mr. Adama Dieng
Date: 13 April 2011
THE PROSECUTOR
v.
FELICIEN KABUGA
Case No. ICTR-98-44B-PT
CONFIDENTIAL
DECISION ON THE PROSECUTOR’S REQUEST FOR LEAVE TO FILE AN
AMENDED INDICTMENT
(Pursuant to Rules 50(A) and 73 of the Rules of Procedure and Evidence)
Office of the Prosecutor:
Mr. Hassan B. Jallow
Mr. Richard Karegyesa
Mr. Bill Egbe
Mr. Peter Tafah
Mr. Disengi Mugeyo
Mr. Sharifah Adong

Decision on Prosecutor’s Request for Leave to File an Amended Indictment 13 April 2011
INTRODUCTION
1. The initial Indictment against Félicien Kabuga was confirmed by Judge Lennart
Aspegren on 26 November 1997. 1 On 29 August 1998, Judge Navanethem Pillay confirmed a
new joint Indictment against Kabuga and seven other persons. 2 On 1 September 2003, Trial
Chamber III granted the Prosecution’s request to sever Kabuga’s case from the others and to
file an Amended Indictment against him alone. 3 Following a review of the proposed
amendments, the Trial Chamber ordered the Prosecution to provide further details and
additional supporting materials and to file a corrected Amended Indictment by 28 June 2005. 4
On 12 October 2005, Judge Dennis Byron confirmed the current Amended Indictment, noting
that “the pleading in the Amended Indictment will require the attention of the Trial Chamber
in due course.” 5
2. The Prosecution now requests leave to further amend the Indictment against the
fugitive Accused, Félicien Kabuga. 6 The proposed amendment adds two new counts (attempt
to commit genocide and persecution as a crime against humanity) to the previous five,
making a total of seven counts. Attached to the Motion are supporting materials which, the
Prosecution asserts, underpin the material facts pleaded in the Indictment and more
accurately capture the totality of Kabuga’s alleged criminal conduct. 7
Applicable Law
DELIBERATIONS
3. Pursuant to Rule 50 (A) of the Rules of Procedure and Evidence, the Prosecution may
amend a previously confirmed indictment, prior to the initial appearance of the accused, only
with leave of the Judge who confirmed the indictment. In deciding whether to grant leave to
amend the indictment, the Confirming Judge shall examine each of the counts in the proposed
amended indictment and any supporting materials, and determine whether a prima facie case
exists against the accused. 8
4. The Appeals Chamber has held that nothing in Rule 50 prevents the Prosecution, as a
general matter, from offering substantial amendments, and that the Prosecution is entitled to
1 The Prosecutor v. Félicien Kabuga, Case No. ICTR-97-22-I, Decision Confirming the Indictment, 26
November 1997.
2 The Prosecutor v. Augustin Bizimana, Edouard Karemera, Callixte Nzabonimana, André Rwamakuba,
Mathieu Ngirumpatse, Joseph Nzirorera, Félicien Kabuga and Juvénal Kajelijeli, Case No. ICTR-98-44-I,
Confirmation and Non Disclosure of the Indictment, 29 August 1998.
3 Le Procureur c. Augustin Bizimana, Edouard Karemera, Callixte Nzabonimana, André Rwamakuba, Mathieu
Ngirumpatse, Joseph Nzirorera et Félicien Kabuga, Décision relative à la requête du Procureur aux fins de
disjonction de l’instance contre Félicien Kabuga et de modification de l’Acte d’accusation (Article 82 (B) du
Règlement de procédure et de preuve, 1 er septembre 2003.
4 The Prosecutor v. Félicien Kabuga, Case No. ICTR-98-44B-PT, Decision on the Amended Indictment, 24
June 2005.
5 The Prosecutor v. Félicien Kabuga, Case No. ICTR-98-44B-PT, Decision on the Amended Indictment (Rules
47, 50 and 73 of the Rules of Procedure and Evidence), 12 October 2005.
6 The Prosecutor v. Félicien Kabuga, Case No. ICTR-98-44B-I, Prosecutor’s Request for Leave to File an
Amended Indictment (Pursuant to Rules 50 (A) and 73 of the Rules of Procedure and Evidence), 17 March 2011
(the “Motion”). [Filed under strictly confidential cover and ex parte.]
7 Motion, para. 14.
8 Article 18 of the Statute of the Tribunal; Sub-Rules 47 (E) and 47 (F) of the Rules of Procedure and Evidence.
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Decision on Prosecutor’s Request for Leave to File an Amended Indictment 13 April 2011
decide that its theory of an accused’s criminal liability would be better expressed by an
amended indictment. 9 Rule 50 does not require the Prosecution to amend an indictment
immediately it discovers new evidence in support of an amendment, but neither may the
Prosecution delay giving notice of the changes to the Defence in order to earn a strategic
advantage. 10 Additionally, the Prosecution is required to show that it acted with diligence in
securing the new information and in bringing it to the Confirming Judge’s attention. 11
5. According to the jurisprudence of this Tribunal, the Confirming Judge or Trial
Chamber must consider a number of factors in determining whether to grant leave to amend
an indictment. These include: (i) the ameliorating effect of the changes on the clarity and
precision of the case to be met; (ii) the diligence of the Prosecution in making the amendment
in a timely manner that avoids creating an unfair tactical advantage; and (iii) the likely delay
or other possible prejudice to the Defence, if any, caused by the amendment. 12 The
Confirming Judge must also consider whether a prima facie case exists with respect to each
of the new charges, if any, in the proposed amendment. 13
6. Furthermore, Article 20 (4)(a) of the Statute of the Tribunal stipulates that the accused
must be informed promptly, in detail and in a language he understands, of the nature and
cause of the charge against him. The jurisprudence also requires the Prosecution to specify in
the indictment the material facts underpinning the charges. 14 It is, therefore, the responsibility
of the Confirming Judge to also consider whether the proposed amended indictment is
sufficiently specific and provides the accused with adequate details to prepare his defence.
Do the proposed amendments ameliorate and clarify the case against Kabuga?
7. The Prosecution submits that the proposed amendments to the current Indictment
ameliorate and clarify the case against Kabuga by particularising the material facts that
underpin the charges against him. It further submits that the Indictment has a new structure
and now contains sections on Definitions, General Allegations, Context to Crimes, Narrative,
and Aggravating Circumstances. 15 According to the Prosecution, the amendments sought are
9 The Prosecutor v. Edouard Karemera, Mathieu Ngirumpatse, Joseph Nzirorera and André Rwamakuba, Case
No. ICTR-98-44-AR73, Decision on Prosecutor’s Interlocutory Appeal against Trial Chamber III Decision of 8
October 2003 Denying Leave to File an Amended Indictment, 19 December 2003, paras. 11-12.
10 The Prosecutor v. Kovačević, Case No. IT-97-24-AR73, Decision Stating Reasons for Appeals Chamber’s
Order of 29 May 1998, dated 2 July 1998, para. 32.
11 The Prosecutor v. Edouard Karemera, Mathieu Ngirumpatse, Joseph Nzirorera and André Rwamakuba, Case
No. ICTR-98-44-AR73, Decision on Prosecutor’s Interlocutory Appeal against Trial Chamber III Decision of 8
October 2003 Denying Leave to File an Amended Indictment, 19 December 2003, para. 22, (citing Kovačević,
para. 31).
12 The Prosecutor v. Ephrem Setako, Case No. ICTR-04-81-I, Decision on the Prosecutor’s Request to Amend
the Indictment, 18 September 2007, para. 6; The Prosecutor v. Jean-Baptiste Gatete, Case No. ICTR-00-61-I,
Decision on the Prosecution’s Request for Leave to File an Amended Indictment, 21 April 2005, para. 3; The
Prosecutor v. Casimir Bizimungu et al., Case No. ICTR-00-50-AR5, Decision on Prosecutor’s Interlocutory
Appeal against Trial Chamber II Decision of 6 October 2003 Denying Leave to File Amended Indictment, 12
February 2004, para. 16; The Prosecutor v. Édouard Karemera et al., Case No. ICTR, 98-44-AR73, Decision on
Prosecutor’s Interlocutory Appeal Against Trial Chamber III Decision of 8 October 2003 Denying Leave to File
an Amended Indictment, 19 December 2003, paras. 15, 20, 28; The Prosecutor v. Renzaho, Case No. ICTR-97-
31-I, Decision on the Prosecutor’s Application for Leave to Amend the Indictment Pursuant to Rule 50 (A) of
the Rules of Procedure and Evidence, 13 February 2006, para. 10 citing further case law.
13 Rule 50 (A)(ii) of the Rules.
14 See The Prosecutor v. Elizaphan Ntakirutimana and Gérard Ntakirutimana, Case Nos. ICTR-96-10-A and
ICTR-96-17-A, Appeal Judgement, 13 December 2004.
15 The Motion, para. 13.
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Decision on Prosecutor’s Request for Leave to File an Amended Indictment 13 April 2011
partly based on additional evidence which has come to light as a result of ongoing
investigations. It maintains that the cumulative effect of these changes is that there is an
improved pleading of material facts in the Indictment and a better particularisation of the
theory of criminal responsibility. The Prosecution also argues that the evidence in support of
the existing charges more fully reflects the scope of Kabuga’s alleged criminal conduct. 16
8. In the view of the Confirming Judge, the proposed amendments represent an
improvement of the current Indictment. One of the most striking features is the structure of
the new document, which presents the statement of facts in a single coherent narrative from
which all the counts flow, rather than repeating the same set of facts under each count.
Furthermore, subheadings in appropriate places indicate the level of criminal responsibility
the Prosecution is alleging for each set of facts. The Confirming Judge notes that allowing the
proposed amendments will also bring the current indictment in line with the jurisprudence of
the Tribunal and the current charging practices of the Prosecution as it allows the Prosecution
to state with more specificity the modes of liability that give rise to Kabuga’s individual
criminal responsibility. Additionally, the Confirming Judge considers that while the proposed
amendments include new counts, they also add details about underlying incidents which were
not at all or only vaguely mentioned in the original indictment and which did not specify
Kabuga’s involvement in them.
9. In accordance with Article 18 of the Statute and Rule 47 (E), the Confirming Judge
has reviewed the supporting materials provided by the Prosecution to determine whether a
case exists in relation to each count in the Indictment. These are mainly in the form of written
statements and records of interviews with potential witnesses made by interviewers from the
Office of the Prosecutor. Some of the statements were prepared by the Rwandan judicial
authorities and were taken under oath from the potential witnesses and bear their signature.
The information in these statements and the judicial records tends to implicate Kabuga in
relation to the crimes charged in the proposed Amended Indictment. The Confirming Judge
has reviewed these and other supporting materials submitted by the Prosecution and is
satisfied that a prima facie case exists against Kabuga for all of the counts and charges in the
proposed Amended Indictment.
Will the proposed amendments create an unfair tactical advantage?
10. According to the Prosecution, the new factual allegations in the proposed amendments
are “similar in character and proximate in time and place to incidents previously alleged in
the current indictment.” 17 The Prosecution further submits that since Kabuga is still at large
and no trial is imminent, there is no tactical advantage to be gained from the proposed
amendments. On the contrary, argues the Prosecution, if Kabuga is eventually arrested and
brought to trial, “the proposed amendments will assist, rather than hinder him, in the
preparation and conduct of his defence.” 18 The Prosecution further asserts that the new
evidence will also assist the Tribunal in the conduct of a fairer and more expeditious trial
consistent with the rights of the accused.
11. The Confirming Judge sees no reason to question the diligence of the Prosecution in
making the amendments in a timely manner and considers that bringing such amendments at
this time avoids creating an unfair tactical advantage. Kabuga is still at large and has not been
16 The Motion, para. 14.
17 The Motion, para. 16.
18 The Motion, para. 17.
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Decision on Prosecutor’s Request for Leave to File an Amended Indictment 13 April 2011
served with a copy of the current Indictment. It cannot be said that he has already expended
resources preparing his defence on the basis of the current Indictment.
Will the proposed amendments cause a delay or any other prejudice to the Defence?
12. The Prosecution submits that, since Kabuga is still at large and a trial is not imminent,
the proposed amendments to the current Indictment will not result in any undue delay in the
proceedings. It further submits that the question of prejudice also does not arise because the
Defence is not yet under any time limits in regard to case preparation. 19
13. In assessing whether any delay will result from the amendment of an indictment, the
Confirming Judge must examine the effect that the Amended Indictment would have on the
overall proceedings. The Confirming Judge is of the view that a clearer, more specific and
more streamlined indictment benefits the Accused not only because it may reduce the
duration of the proceedings, but also because the Accused can tailor his preparations to an
indictment that more accurately reflects the case against him, thus resulting in a more
effective defence. 20 In the instant case, because the Accused is still at large and no date has
been set for trial, the amendment will not result in any delay or prejudice to the Accused.
FOR THESE REASONS, THE CONFIRMING JUDGE
I. GRANTS the Prosecutor’s Motion to Amend the Indictment;
II.
CONFIRMS the Amended Indictment as presented by the Prosecutor; and
III.
ORDERS that Annex “C” to the Amended Indictment attached to the Motion and
all the supporting materials shall remain under seal until otherwise ordered.
Arusha, 13 April 2011
Dennis C. M. Byron
Confirming Judge
[Seal of the Tribunal]
19 The Motion, para. 18.
20 The Prosecutor v. Karemera et al, Case No. ICTR-98-44-AR73, Decision on Prosecutor’s Interlocutory
Appeal against Trial Chamber III Decision of 8 October 2003 denying Leave to File an Amended Indictment, 19
December 2003, para. 15; The Prosecutor v. Ndindiliyimana et al., Case No. ICTR-2000-56-I, Decision on
Prosecutor's Motion under Rule 50 for Leave to Amend the Indictment (TC), 26 March 2004, para. 42.
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