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CHAPTER II

FACTUAL FINDINGS

1.         Introduction

39.      This Chapter contains an assessment of the evidence adduced by the Prosecution in support of its case. The Chamber will consider the specific events alleged in the Mugonero and Bisesero Indictments in approximate chronological order (see II.3 and 4, respectively). In connection with its discussion of the Prosecution evidence the Chamber will take into account the submissions of the Defence concerning the credibility of witnesses who testified against the two Accused. It will also discuss the Accused’s alibi in relation to the events in the Indictments.

40.      Before doing so, the Chamber will consider whether the Indictments provide the Accused with sufficient information on the nature of the charges against them, as required by the Statute and the Rules of the Tribunal (II.2). This issue was not included in the closing briefs submitted by the parties. The Chamber therefore invited the parties to address the issue during their closing arguments. [44]

41.      The remaining components of the Defence case are considered in section II.5 and the following sections. After a brief section on the alibi submissions (II.5) comes the Chamber’s assessment of the contention that the allegations against the Accused are totally inconsistent with their previous life and character (II.6). Furthermore, the Defence argues that there was a political campaign against the Accused (II.7).

2.         Specificity of the Indictments

2.1       Introduction

42.      According to Article 17 (4) of the Statute, an indictment shall contain "a concise statement of the facts and the crime or crimes with which the accused are charged". Similarly, Rule 47 (C) of the Rules provides that an indictment, apart from the name and particulars of the suspect, shall set forth "a concise statement of the facts of the case". It follows from case law that the Prosecution’s obligation to set out concisely the facts of its case in the indictment must be interpreted in conjunction with Articles 20 (2) and (4)(a) and (b) of the Statute. These provisions state that, in the determination of any charges against him, an accused is entitled to a fair hearing and, more particularly, to be informed of the nature and cause of the charges against him and to have adequate time and facilities for the preparation of his defence. In the jurisprudence of the ad hoc Tribunals, this translates into an obligation on the part of the Prosecution to state the material facts underpinning the charges in the indictment, but not the evidence by which such material facts are to be proven. Hence, the question whether an indictment is pleaded with sufficient particularity is dependent upon whether it sets out the material facts of the Prosecution case with enough detail to inform an accused clearly of the charges against him so that he may prepare his defence. Reference is made to the ICTY Appeals Chamber’s Judgement in The Prosecutor v. Kupreskic et al. (henceforth Kupreskic), which was delivered on 23 October 2001, more than a month after the commencement of the trial in the present case. [45]

43.      In Kupreskic, the Appeals Chamber found that the convictions of two of the Accused were based on material facts not specifically pleaded in the Indictment. Furthermore, it concluded that the defects in the Indictment had not been cured, because timely, clear and consistent information had not been provided to the Accused. The trial was therefore considered unfair in relation to these Accused, and their convictions were overturned. In the present case, some paragraphs of the Mugonero and Bisesero Indictments are rather generally formulated. These paragraphs give rise to the question whether the Indictments were pleaded with sufficient particularity.

2.2       Prosecution

44.      Counsel for the Prosecution sought to distinguish the facts dealt with in Kupreskic from the facts in the present case. He submitted that the main paragraphs of the Bisesero Indictment allege, firstly, that the two Accused went to Bisesero in April, May and June; secondly, that they went there in convoys of attackers; and thirdly, that they participated in attacks in the Bisesero area. According to the Prosecution, the first two allegations are contained in the Indictment and the supporting material. [46] The Accused had the opportunity to challenge the Indictments at the pre-trial stage, as well as after the close of the Prosecution’s case (by way of a motion for acquittal under Rule 98bis), but failed to do so. Certain specific allegations, such as the killings at Murambi Church alleged by Witness YY, or the killing of Ignace Rugwizangoga at Murambi Hill alleged by Witness GG, [47] came to the Prosecution’s attention just prior to the testimony of the witnesses concerned. In the Prosecution’s view, the allegation should not have come as a surprise to the Defence because it follows from paragraph 4.14 of the Bisesero Indictment that the Accused allegedly participated in the killing of refugees. [48]

2.3.      Defence

45.      Counsel for Elizaphan Ntakirutimana argued that paragraph 91 of Kupreskic (which states that where it is practicable for the Prosecution to plead with specificity the identity of the victims, etc., it must do so) impacts on both Indictments, but especially on the Bisesero Indictment. No victims of the killings were identified by name and there was no particularization of the time and place of their commission. Consequently, the Indictment did not provide sufficient information. [49]

46.      Counsel for Gérard Ntakirutimana submitted that there is no difference in the principles governing ICTY and ICTR indictments. The statutory provisions of the two Tribunals are in this respect substantially the same. Citing particularly paragraphs 114 and 117 of Kupreskic, he argued that the Bisesero Indictment did not meet the high standard set for Indictments in Kupreskic, as it was vague, wholly lacking in particularity and did not mention places. Names and particulars were not included in either Indictment and were not given to the Defence in sufficient time to enable it to prepare its case. [50]

47.      According to Counsel for Gérard Ntakirutimana it follows from Kupreskic that the new allegations made by Witnesses YY and GG during their testimony must be excluded. That Judgement established that material facts on which the Prosecution’s case is based cannot be allowed to unfold during trial. The Prosecution has to proceed without them. Counsel submitted that the new information had prejudiced the Defence because incriminating evidence had been provided unexpectedly after the hearing of several Prosecution witnesses, who could not be cross-examined anew. The Defence stressed that both Indictments are silent about many events on which the Prosecution led evidence. [51]

48.      The Defence made similar observations in its closing brief, although without reference to Kupreskic. For example, it was argued that Witnesses YY, DD, KK, VV, and UU "withheld their most extreme testimony for trial to prevent the defense from preparing to counter it." [52] In relation to a certain part of the oral testimony of Witness MM the Defence stated that the introduction of new and critical information was highly improper, violated the Prosecution’s legal and ethical obligation to the Tribunal and the Accused, and thereby improperly prejudiced the administration of justice. [53] The Defence submitted that the testimony of every factual witness conflicted with or covered matters not mentioned in prior statements, and that this violated the rights of an accused to be given notice of the charges and the evidence to be presented against him so that he can challenge the charges and prepare his defence. [54]

2.4       Discussion

49.      As mentioned above, if follows from the Statute and the Rules that the Prosecution is under an obligation to state the material facts underpinning the charges in the Indictment, but not the evidence by which such material facts are to be proven. In Kupreskic, the Appeals Chamber interpreted the Prosecution’s obligation in the following way:

89. The Appeals Chamber must stress initially that the materiality of a particular fact cannot be decided in the abstract. It is dependent on the nature of the Prosecution case. A decisive factor in determining the degree of specificity with which the Prosecution is required to particularise the facts of its case in the indictment is the nature of the alleged criminal conduct charged to the accused. For example, in a case where the Prosecution alleges that an accused personally committed the criminal acts, the material facts, such as the identity of the victim, the time and place of the events and the means by which the acts were committed, have to be pleaded in detail. Obviously, there may be instances where the sheer scale of the alleged crimes "makes it impracticable to require a high degree of specificity in such matters as the identity of the victims and the dates for the commission of the crimes" [footnote omitted].

90. Such would be the case where the Prosecution alleges that an accused participated, as a member of an execution squad, in the killing of hundreds of men. The nature of such a case would not demand that each and every victim be identified in the indictment.Similarly, an accused may be charged with having participated as a member of a military force in an extensive number of attacks on civilians that took place over a prolonged period of time and resulted in large numbers of killings and forced removals. In such a case the Prosecution need not specify every single victim that has been killed or expelled in order to meet its obligation of specifying the material facts of the case in the indictment. Nevertheless, since the identity of the victim is information that is valuable to the preparation of the defence case, if the Prosecution is in a position to name the victims, it should do so.

92. It is of course possible that an indictment may not plead the material facts with the requisite degree of specificity because the necessary information is not in the Prosecution’s possession. However, in such a situation, doubt must arise as to whether it is fair to the accused for the trial to proceed. In this connection, the Appeals Chamber emphasises that the Prosecution is expected to know its case before it goes to trial. It is not acceptable for the Prosecution to omit the material aspects of its main allegations in the Indictment with the aim of moulding the case against the accused in the course of the trial depending on how the evidence unfolds. There are, of course, instances in criminal trials where the evidence turns out differently than expected. Such a situation may require the indictment to be amended, an adjournment to be granted, or certain evidence to be excluded as not being within the scope of the indictment.

114. The Appeals Chamber notes that, generally, an indictment, as the primary accusatory instrument, must plead with sufficient detail the essential aspect of the Prosecution case. If it fails to do so, it suffers from a material defect. A defective Indictment, in and of itself, may, in certain circumstances cause the Appeals Chamber to reverse a conviction. The Appeals Chamber, however, does not exclude the possibility that, in some instances, a defective indictment can be cured if the Prosecution provides the accused with timely, clear and consistent information detailing the factual basis underpinning the charges against him or her. Nevertheless, in light of the factual and legal complexities normally associated with the crimes within the jurisdiction of this Tribunal, there can only be a limited number of cases that fall within that category. … [55]

50.      The Chamber notes that the allegations under consideration by the Appeals Chamber in Kupreskic related to the attack on the house of a victim and formed the basis of the verdict of crimes against humanity (persecution). Had the Trial Chamber in that case not concluded that the Prosecution had successfully proven that allegation, the two convictions could not have been sustained. The Appeals Chamber found that the attack constituted a material fact in the Prosecution case against two of the Accused and should have been specifically pleaded in the Indictment. [56] It is further noted that the conviction was made on the basis of the testimony of a single witness.

51.      The Indictments in the case concerning Elizaphan and Gérard Ntakirutimana are distinguishable from Kupreskic. The allegations include charges of genocide, complicity in genocide, conspiracy to commit genocide and crimes against humanity (murder). The general principles laid down by the Appeals Chamber in Kupreskic are, of course, still applicable to the present case. 

52.       In this connection the Chamber does not accept the Prosecution’s submission that the Defence sat on its rights and did not challenge the lack of specificity in the Indictments. Such challenges were in fact made, albeit to an earlier version of the Mugonero Indictment, by a Defence motion filed on 17 April 1997 and decided upon by Trial Chamber II, which included references to a similar decision by Trial Chamber I (differently constituted) concerning the Bisesero Indictment. [57] Moreover, irrespective of previous challenges, the Chamber must apply principles expressed subsequently by the Appeals Chamber.

53.      The concise statement of facts of the Mugonero Indictment contains three paragraphs concerning the attack on the Mugonero Complex on 16 April 1994. These paragraphs allege that the two Accused went together in a convoy with armed individuals to the Complex on the morning of that day (4.7) and that the Accused, along with others, participated in the attack which continued throughout the day (4.8). The equivalent provision in the Bisesero Indictment (4.8) adds that the attack continued into the night. Both Indictments allege (4.9) that the attack resulted in hundreds of dead and wounded.

54.      According to the first allegation, the two Accused were part of a convoy of armed individuals heading for the Complex in the morning of 16 April 1994. The Chamber considers this description sufficiently precise. The second allegation states that the Accused participated in the attack on that date. This is less precise. It is not alleged that they killed or wounded anyone, nor does it otherwise specify the way in which they allegedly participated in the attack. However, the Chamber does not consider this part of the Indictment vague or so broadly formulated as to hinder the preparation of the Defence case. The attack was particularized to have occurred on a particular date (16 April 1994) and at a specified location (the Mugonero Complex). Large numbers of persons were killed and wounded during the attack. It is the view of the Chamber that the factual allegations in the Indictment, read in conjunction with the charges, provide the Accused with reasonable notice of the Prosecution’s case against them. This being said, it follows from Kupreskic that if the Prosecution was, when it drew up the Indictment, in a position to provide details, it should have done so. [58]

55.      The Chamber recalls that, according to Kupreskic, the degree of specificity required in indictments depends on the nature of the alleged criminal conduct charged to the accused. There may be instances where "the sheer scale of the alleged crimes" makes it "impracticable" to require a high degree of specificity in such matters as the identity of the victims, the time and place of the events, and the means by which the acts were committed. According to the Appeals Chamber, one example is where the accused participated as a member of a military force "in an extensive number of attacks on civilians that took place over a prolonged period of time and resulted in large numbers of killings". [59]

56.      The statement of facts in the Bisesero Indictment contains six paragraphs (4.11-4.16) concerning attacks in the Bisesero area. According to paragraphs 4.13 and 4.15, the Accused participated in convoys and searched for, attacked, and killed Tutsi persons. However, there is no specification of time, date, location, victims, or other material details concerning any single attack.

57.      Previous judgements of the Tribunal have established that there were regular attacks in the Bisesero region from April 1994 through June 1994. The victims were men, women and children who were predominantly Tutsi and who had sought refuge in the Bisesero region. Thousands of Tutsi were killed, injured and maimed. [60] Similar findings follow from the evidence in the present case. In a situation with frequent attacks in the same area it may be difficult for the Prosecution to provide precise evidence, several years after the events, about specific attacks on particular dates against named victims in precise locations. Survivors, who during three months were under great distress and subject to numerous attacks, may have difficulties in recalling the time and place of the alleged crimes as well as the identity of the victims. In such situations the sheer scale of the alleged crimes may well make it impracticable to require a high degree of specificity.

58.      As stated above, it follows from Kupreskic that if the Prosecution is in a position to provide details, it should do so. In the present case, witness statements containing specific allegations were available to the Prosecution well before the trial. Already on 18 March 1997, the Prosecution disclosed 30 witness statements to Gérard Ntakirutimana. On 10 April 2000, following the co-Accused’s surrender, it disclosed 34 witness statements to Elizaphan Ntakirutimana. On 29 August 2000, it disclosed to each Accused 67 statements from 41 witnesses. By 20 February 2001, the Prosecution had disclosed at least 83 statements from 51 witnesses. [61] Understandably, the Accused were not in a position to know precisely which statements were being relied upon by the Prosecution. However the central point is that the Prosecution had in its possession a wealth of detailed evidence, which it had disclosed to the Defence in a timely fashion, concerning times, locations, and victims, from which to draw for the purpose of reducing the imprecision in the Indictments.

59.      The question as to whether the Indictments in the present case are defective depends on a concrete assessment of each allegation and involves a comparison of the material that was available to the Prosecution before the trial and the evidence adduced at trial. The Chamber will address this question further by way of a careful examination of the particularity of each specific allegation in connection with the events where this issue arises. It is also important to recall that even if an indictment is considered defective, this may, in some cases, be cured by provision to the Defence of timely, clear, and consistent information detailing the factual basis of the charges. It follows from Kupreskic that in light of the factual and legal complexities normally associated with the crimes within the jurisdiction of the Tribunal, there can only be a limited number of cases that fall within that category. In Kupreskic, in order to assess whether the Accused were sufficiently informed of the charges, the Appeals Chamber considered disclosed evidence, the information conveyed in the Prosecution’s Pre-trial Brief and knowledge acquired during trial. [62] The Trial Chamber is of the view that a similar approach should be adopted in the present case. It recalls that the Kupreskic Judgement, which clarified the legal situation, was handed down after the commencement of the trial and almost at the end of the Prosecution’s case.

60.      The Prosecution’s Pre-trial Brief was submitted on 26 July 2001. The trial commenced on 18 September 2001. The Brief contains three paragraphs on the Mugonero Complex attack of 16 April 1994. The first alleges that a convoy of attackers went to the Complex "in vehicles belonging to Pastor Ntakirutimana and others". It does not specifically allege that either Accused was in the convoy. Of particular interest is the third paragraph, which claims that the two Accused were present during the attack, that Elizaphan Ntakirutimana was "present" at the killing of Pastor Sebihe, and that Gérard Ntakirutimana "personally killed" several Tutsi persons, of whom Ukobizaba and Kajongi are the two referred to by name. The approximate time, location, and manner in which the named persons were allegedly killed are not discussed. The Chamber notes that in some respects the Brief provides more details than the Mugonero Indictment.

61.      The events in Bisesero are covered by four paragraphs in the Pre-trial Brief. It is alleged that convoys of armed attackers including the two Accused regularly went to Bisesero; that Elizaphan Ntakirutimana ordered two persons to kill an unnamed witness, who was later spared; and that the same Accused "pointed out hiding Tutsi for the attackers to kill". In contrast with the Bisesero Indictment (para. 4.15), these paragraphs do not allege that either Accused killed anyone in Bisesero. In the Chamber’s opinion, the Brief provides only limited supplementary details.

62.      Annex B to the Pre-trial Brief was filed on 15 August 2001, one month prior to commencement of the trial. It consists of summaries of the statements of 21 witnesses whom the Prosecution intended to call at trial. Sixteen of those persons testified. The Chamber observes that the Prosecution, in drawing up these summaries, selected from each witness statement the material allegations it hoped to elicit during testimony, cross-referenced them to paragraphs of the Indictments, and appended the Annex to its Pre-trial Brief. The Defence was entitled to conclude that the allegations in the Annex were the allegations it would have to meet at trial.

63.      The information provided by Annex B illustrates that it was not impracticable for the Prosecution to have been more specific. However, bearing in mind that the details were excerpted from statements long disclosed to the Defence, the Chamber holds the view that any defects in the Indictments were cured by the notice given in Annex B of the Pre-trial Brief, and that no unfairness will be suffered by allowing the Prosecution’s allegations at the date on which Annex B was filed. Consequently, the Chamber will consider material allegations, supplementing those in the Indictments, which have been provided through the Pre-trial Brief and knowledge acquired during trial, in order to determine the criminal liability of the Accused, but will be cautious in considering allegations where no, or late, notice was given to the Defence. A final determination will be made below in connection with the specific events where the issue of prior notice arises. In this context, the Chamber recalls that in Kupreskic the Appeals Chamber did not accept disclosure of new allegations that was made approximately one and a half weeks prior to trial and less than a month prior to the witness’s testimony in court. According to the Appeals Chamber, it could not be excluded that the ability of the two Accused in the case to prepare their defence, in particular the cross-examination of the witness, was prejudiced by the fact that disclosure took place so close to the commencement of the trial and to the testimony of the witness in court. [63]

cont ...


[44] T. 21 August 2002 p. 98 and T. 22 August 2002 p. 122.

[45] Kupreskic (AC).

[46] T. 22. August 2002 pp. 134-135.

[47] This is not entirely correct. The killing of a certain “Ignace” appears in Annex B to the Pre-trial Brief.

[48] T. 22 August 2002 pp. 135-137.

[49] Id. p. 50.

[50] Id. pp. 59-60.

[51] Id. pp. 155-158.

[52] Defense Closing Brief filed 22 July 2002 p. 44; concerning Witness YY see also pp. 122-123.

[53] Id. p. 52. The Brief contains similar statements regarding Witnesses FF (p. 62), HH (pp. 78, 83, 85), and GG (pp. 96, 97).

[54] Id. pp. 163-164.

[55] Kupreskic (AC) paras. 89, 90, 92 and 114.

[56] Id. paras. 99 and 113.

[57] Trial Chamber II, Decision of 30 June 1998 on a Preliminary Motion Filed by Defence Counsel for an Order to Quash Counts 1, 2, 3, and 6 of the Indictment. See also Trial Chamber I, Decision of 23 March 1998 on a Preliminary Motion Filed by Defence Counsel for an Order to Quash Counts 1, 2, 3, 6 and 7 of the Indictment. These decisions predate the clarification provided in Kupreskic (AC).

[58] Kupreskic (AC) paras. 89, 90 and 95.

[59] Id. para. 90 (quoted above).

[60] See Kayishema and Ruzindana (TC) paras. 405 et seq., and Musema (TC) para. 363 with further references.

[61] Annex A to Prosecution’s Response to Defence Motions for Dismissal or for Disclosure and Investigations by the Prosecution, 20 March 2001.

[62] Kupreskic (AC) para. 124. See also paras. 114-120. The Appeals Chamber considered to what extent the Accused was given appropriate notice by prior disclosure of witness statements or through the Prosecution’s opening statement.

[63] Id. para. 120.


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