Kanyarukiga - JUDGEMENT AND SENTENCE - Refworld

Judgement and Sentence 1 November 2010
relieve the Prosecution of its burden to prove any allegations with regard to these dates, beyond
reasonable doubt.
Notice
236. The Chamber recalls that in its 15 January 2010 decision on the Defence motion for
exclusion of evidence, the Trial Chamber reserved until the judgement its decision on whether to
exclude Prosecution evidence of certain meetings allegedly attended by the Accused. 572 Before
assessing the evidence on its merits, the Chamber therefore shall consider the Defence request, as
reiterated in its closing brief, that the Trial Chamber exclude the following Prosecution evidence for
lack of notice:
1) Prosecution Witness CBK’s testimony that Kanyarukiga attended a meeting
in the “bishop’s room” on 13 April 1994;
2) Prosecution Witness CBR’s testimony that Kanyarukiga attended a meeting
on 13 April 1994 at the communal office;
3) Prosecution Witness CDL’s testimony that Kanyarukiga attended a meeting
at the communal office on 13 April 1994 to verify weapons of “refugees”; 573
4) Prosecution Witness CBN’s testimony that Kanyarukiga attended a meeting
on 14 April 1994;
5) Prosecution Witness CDL’s testimony that Kanyarukiga attended a meeting
at Mutanoga Centre on 14 April 1994; and
6) Prosecution Witness CBS’s testimony that Kanyarukiga attended a meeting
on 14 April 1994. 574
237. The Defence submits that the Prosecution adduced evidence of material facts that were
included in the original indictment but withdrawn from the Amended Indictment in 2007. 575 The
Prosecution does not address this argument in its closing brief but asserted in its closing argument
that, “the Defence has suffered no prejudice because timely, clear and consistent disclosure … has
been effected.” 576 The Prosecution contends that defects in the Amended Indictment were cured
through witness statements, the witnesses’ testimony in the Seromba trial, disclosed confession
statements and paragraph 36 of the Prosecutor’s Pre-Trial Brief, which states that the Accused
attended meetings at “Seromba’s home” and elsewhere from 10 April through 16 April 1994. 577
238. The Chamber recalls that, in exceptional circumstances, a vague or ambiguous provision in
an indictment may be cured through timely, clear and consistent information detailing the factual
basis underpinning the charge. 578 The Appeals Chamber has found that defects in an indictment
may be cured through post-indictment submissions, such as the prosecution’s pre-trial brief,
572 Decision on Defence Motion for a Stay of the Proceedings or Exclusion of Evidence Outside the Scope of the
Indictment (TC), 15 January 2010, para. 17.
573 Defence Final Brief, para. 152.
574 Defence Final Brief, para. 175.
575 Defence Final Brief, paras. 434-447.
576 T. 24 May 2010, p. 23.
577 T. 24 May 2010, pp. 23-25.
578 Ntagerura et al., Judgement (AC), paras. 28, 114. See also Karera, Judgement (AC), para. 293; Muvunyi, Judgement
(AC), para. 20.
The Prosecutor v. Gaspard Kanyarukiga, Case No. ICTR-2002-78-T 54