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

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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