Kanyarukiga - JUDGEMENT AND SENTENCE - Refworld

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Judgement and Sentence 1 November 2010 31. Whether particular facts are “material” depends on the nature of the Prosecution case. 16 The Prosecution’s characterisation of the alleged criminal conduct and the proximity of the accused to the underlying offence are decisive factors in determining the degree of specificity with which the Prosecution must plead the material facts in order to provide the accused with adequate notice. 17 32. The Appeals Chamber has held, for example, that criminal acts that were physically committed by the accused must be set forth in the indictment specifically, including, where feasible, “the identity of the victim, the time and place of the events and the means by which the acts were committed.” 18 In certain circumstances, the sheer scale of the alleged crimes makes it impracticable to require a high degree of specificity in matters such as the identity of the victims and the dates of the commission of the crimes. 19 33. Where it is alleged that the accused planned, instigated, ordered or aided and abetted in the planning, preparation or execution of the alleged crimes, the Prosecution is required to identify the “particular acts” or “particular course of conduct” on the part of the accused that forms the basis for the charges in question. 20 34. If the Prosecution intends to rely on a theory of joint criminal enterprise, it must specifically plead this mode of liability in the indictment. 21 Although joint criminal enterprise is understood as a means of “committing” under the Statute, it is insufficient for an indictment to make broad reference to Article 6(1). 22 Rather, the Prosecution must indicate in the indictment whether it is alleging physical commission by the accused, participation in a joint criminal enterprise or both. 23 If the Prosecution relies on a theory of JCE, the purpose of the enterprise, the identity of its participants, the nature of the accused’s participation in the enterprise and the period of the enterprise must be pleaded in the indictment. 24 Additionally, the indictment should clearly indicate which form of JCE is specifically being alleged: basic, systemic, or extended. 25 35. Finally, an indictment may also be defective when the material facts are pled without sufficient specificity, for example, when the times mentioned refer to broad date ranges, the places are only vaguely indicated and the victims are only generally identified. 26 36. An indictment lacking the requisite precision is defective. However, the defect may be cured in exceptional circumstances if the Prosecution provides the accused with timely, clear and 16 Karera v. Prosecutor, Case No. ICTR-01-74-A, Judgement (AC), 2 February 2009, para. 292; Ntagerura et al., Judgement (AC), para. 23; Naletilić and Martinović, Judgement (AC), para. 24. 17 Ntagerura et al., Judgement (AC), para. 23. See also Karera Judgement (AC), para. 292. 18 Muvunyi v. Prosecutor, Case No. ICTR-2000-55A-A, Judgement (AC), 29 August 2008, para. 120;. Seromba, Judgement (AC), para. 27; Muhimana, Judgement (AC), para. 76; Ndindabahizi, Judgement (AC), para. 16; Gacumbitsi, Judgement (AC), para. 49; Ntakirutimana and Ntakirutimana, Judgement (AC), para. 32, quoting Kupreškić et al., Judgement (AC), para. 89. 19 Muvunyi, Judgement (AC), para. 94; Muhimana, Judgement (AC), para. 79; Gacumbitsi, Judgement (AC), para. 50; Kupreškić et al., Judgement (AC), para. 89. 20 Karera, Judgement (AC), para. 292; Seromba, Judgement (AC), paras. 27, 100; Ntagerura et al., Judgement (AC), para. 25. 21 Ntagerura et al., Judgement (AC), para. 24; Kvočka et al., Judgement (AC), para. 42. 22 Ntagerura et al., Judgement (AC), para. 24; Kvočka et al., Judgement (AC), para. 42. 23 Simić, Judgement (AC), para. 22. 24 Simba, Judgement (AC), para. 63; Simić, Judgement (AC), para. 22 (this case refers to “the nature and purpose”); Ntagerura et al., Judgement (AC), para. 24; Kvočka et al., Judgement (AC), para. 42. 25 Prosecutor v. Rukundo, Case No. ICTR-2001-70-T, Judgement (TC), 27 February 2009, para. 24; Simba, Judgement (AC), para. 63; Simić, Judgement (AC), para. 22; Ntagerura et al., Judgement (AC), para. 24. See generally Ntakirutimana and Ntakirutimana, Judgement (AC), paras. 478-484. 26 Ntagerura et al., Judgement (AC), para. 27; Kvočka et al., Judgement (AC), para. 31 (this case adds “unless there are special circumstances). The Prosecutor v. Gaspard <strong>Kanyarukiga</strong>, Case No. ICTR-2002-78-T 7
Judgement and Sentence 1 November 2010 consistent information detailing the factual basis underpinning the charge. 27 Such information may be provided through means such as a pre-trial brief and annexed witness summaries, the opening statement and motions to vary witness lists. 28 However, the principle that a defect in an indictment may be cured is not without limits. In this respect, the Appeals Chamber has emphasised: [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. 29 37. The Chamber also recalls that it is to be assumed that “an Accused will prepare his defence on the basis of material facts contained in the indictment, not on the basis of all the material disclosed to him that may support any number of additional charges, or expand the scope of existing charges.” 30 Thus, the Appeals Chamber has held that mere service of witness statements pursuant to disclosure obligations does not suffice to inform the accused of the material facts that the Prosecution intends to prove at trial. 31 38. Also, as explained by the Appeals Chamber in Karera, a clear distinction must be drawn between vagueness in an indictment and an indictment omitting certain charges altogether. 32 While it may be possible to cure a vagueness in the indictment, omitted charges can only be incorporated into the indictment by a formal amendment pursuant to Rule 50 of the Rules. 33 A Trial Chamber can convict an accused only of crimes that are charged in the indictment. 34 39. The Chamber has considered whether sufficient notice was given for various pieces of Prosecution allegations and evidence. The Chamber discusses its findings with regard to notice in its factual and legal findings, prior to considering these allegations in its deliberations. 35 1.2. Decision on the Defence Motion for Exclusion of Evidence 40. On 15 January 2010, the Trial Chamber issued its decision on the Defence request for a stay of the proceedings or the exclusion of several pieces of Prosecution evidence, which the Defence 27 Muvunyi, Judgement (AC), para. 20; Seromba, Judgement (AC), para. 100; Simba, Judgement (AC), para. 64; Muhimana, Judgement (AC), paras. 76, 195, 217; Gacumbitsi, Judgement (AC), para. 49. See also Ntagerura et al., Judgement (AC), paras. 28, 65. 28 See, e.g., Prosecutor v. 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 (AC), 18 September 2006, para. 35; Niyitegeka, Judgement (AC), para. 197. See also Muhimana, Judgement (AC), para. 82. 29 Muvunyi, Judgement (AC), para. 20, quoting Bagosora et al., 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 (AC), para. 30 (internal citations omitted). 30 Muvunyi, Judgement (AC), para. 100; Prosecutor v. Muvunyi, Case No. ICTR-00-55A-AR73, Decision on the Prosecution Interlocutory Appeal against Trial Chamber II Decision of 23 February 2005 (AC), 12 May 2005, para. 22. 31 Ntakirutimana and Ntakirutimana, Judgement (AC), para. 27, quoting Prosecutor v. Brðanin and Talić, Case No. IT- 99-36-PT, Decision on Form of Further Amended Indictment and Prosecution Application to Amend (TC), 26 June 2001, para. 62. See also Simić, Judgement (AC), para. 24; Naletilić and Martinović, Judgement (AC), para. 27. 32 Karera, Judgement (AC), para. 293. 33 Karera, Judgement (AC), para. 293. 34 Muvunyi, Judgement (AC), para. 18; Ntagerura et al., Judgement (AC), para. 28; Kvočka et al., Judgement (AC), para. 33. See also Nahimana et al. v. Prosecutor, Case No. ICTR-99-52-A, Judgement (AC), 28 November 2007, para. 326. 35 See paragraphs 197, 240, 241, 242, 322-323, 445, 446, 447, 448, 466, 573, 627-630, 631-632. The Prosecutor v. Gaspard <strong>Kanyarukiga</strong>, Case No. ICTR-2002-78-T 8
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