Arusha, 2 September, 2008n(FH)-The International Criminal Tribunal for Rwanda (ICTR) Appeals Court has exhorted  Trial Chambers and the Prosecution to ensure that charges against an  accused and the material facts supporting those charges must be pleaded with sufficient  precision in the indictment  so as to avoid any miscarriage of justice or prejudices.

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"The prosecution is expected to know its case before proceeding to trial and cannot mould the case against the accused in the course of the trial depending on the how the evidence unfolds,'' stated Appeal Court President  Fausto Pocar, when delivering an appeals judgement in the case of former Commander of the Non-Commissioned Soldiers (ESO) College, Tharcisse Muvunyi on Friday.

In the ruling, the Appeals Court quashed Muvunyi's 25-year-sentence imposed by Trial Chamber and ordered a partial retrial of one count.

"Defects in an indictment may come to light during the proceedings because the evidence turns out differently than expected; this calls for the Trial Chamber to consider whether a fair trial requires an amendment of the indictment, an adjournment of proceedings, or the exclusion of evidence outside the scope of the indictment,'' noted Judge Pocar, in a judgement which was unanimously backed by his four-other bench colleagues.

For example, Muvunyi challenged the Trial Chamber's ruling in an attack at the Butare University Hospital during the 1994 genocide where between 20 and 30 Tutsis were killed, the Trial Appeal observed that the dates did not collaborate with the event. "...the indictment and the evidence with respect to the dates of the attack reflect a different criminal event than the one for which he was convicted."

While the Appeals Chamber has previously held that a pre-trial brief can, in certain circumstances, cure a defect in an indictment, the circumstances presented in the Muvunyi instance are different, stated Judge Pocar, explaining that the pre-trial brief and the annexed witness summaries expand the charges "specifically pleaded in the indictment...this does not amount to clear and consistent notice adding specificity to a vague paragraph; rather it is a de facto amendment of the indictment, citing another appeals judgment of Mikaeli Muhimana [ex-Councillor of Gishyita Sector, confirmed imprisonment for life on appeal in 2007] where it determined that a witness summary annexed to a pre-trial brief did not simply add greater detail with more general allegation, materially altered key facets of it.

In the case of Muvunyi, the Appeal Chamber noted that by convicting the suspect for abductions and killings at the Butare University Hospital, the lower court erred in law by expanding the charges against the accused to "encompass unpleaded crimes."

The ICTR upper court also explained that an aider and abettoir carries out acts specifically directed to assist, encourage or lend moral support to the perpetration of a certain specific crime, which have a substantial effect on the perpetration of the crime.

"An accused may be convicted of aiding and abetting when it is established that his conduct amounted to tacit approval and encouragement...'' according to Judge Pocar, observing that the Appeals Chamber's factual findings revealed that Muvunyi had no tacit knowledge of or tacitly approved the attack of Tutsis civilians at Groupe Scolaire on 29 April, 1994. "The Trial Chamber did not make any explicit or detailed factual findings on the killings of these refugees," he said, adding that a Trial Chamber as a matter law can base conviction on circumstantial or hearsay evidence but caution was warranted in such circumstances.

The supreme UN Court also gave another example of the attack at the Mukura Forest for which Muvunyi was convicted by the lower court. Muvunyi challenged this convinction on ground the indictment does not mention the attack and thus he lacked notice of the material fact.

"The Appeals Chamber considers that Muvunyi could not have known, on the basis of the indictment alone, that he was being charged in connection with the attack at the Mukura Forest because this attack is not mentioned in the indictment...if the prosecution had intended to establish Muvunyi's liability for the Mukura Forest attack, both the occurrence of this attack and the details of his liability should been pleaded in the indictment,'' stressed Judge Pocar.

On road blocks in Butare town, the Appeals Court again observed that the indictment was defective in relation to Muvunyi's conviction for genocide based on crimes committed by ESO Camp soldiers at roadblocks.

"Even accepting the Prosecution's argument that the indictment, when read as a whole, connects Muvunyi and ESO Camp soldiers to events at roadblocks, there remains fundament problem with the indictment in this respect: It does not allege that ESO Camp soldiers engaged in killings at roadblocks...it refers only to beatings,'' the Appeals Court explained, underlining that the prosecution did not point to no timely, clear and consistent information  that the accused would be held responsible for killings perpetrated by ESO Camp soldiers at roadblocks.

The Appeal Court judges also faulted the alleged speech made by Muvunyi in Gikonko, Mugusa Commune which incited killings.

Noting that in certain circumstances, the sheer scale of alleged crimes makes it impracticable to require a high degree of specificity in such matters as the identity of the victims and dates of the commission of the crimes, however, they stated that this was not the case with respect to Muvunyi's address in Gikonko at the end of May or June, 1994. "The indictment was thus defective because it did not adequately plead the material facts related to the approximate time or place of this crime."

The Appeals Chamber judgement also cautioned on credibility of witnesses and collaborating the evidence. "It is within the Trial Chamber's discretion to assess any inconsistencies in the testimony of witnesses, and to determine whether, in the light of the overall evidence, the witnesses were nonetheless reliable and credible." However, the Trial Chamber also has an obligation to provide a reasoned opinion when rejecting evidence of witness (es), ruled Judge Pocar.

For example, the Appeals Court judges were puzzled why Trial Chamber preferred testimony of protected witnesses YAI and CCP over that of witness MO78 regarding Muvunyi's speech at GikoreTrade Centre. "The Trial Chamber appears to have deemed witness MO78 unreliable solely on the basis that his evidence differed from that of witness YAI and CCP,"concluded the judges.


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