The Appeals Chamber did not reconsider the sentence pronounced in first instance on 7 December 2007, considering that the crimes for which the appellant was declared guilty "are extremely grave" and led to the death of an important number of civilian victims.
Nevertheless, the appeal judges raised two errors in the indictment which should have led, in first instance, to a partial reconsideration of the responsibility of the defendant, relating to certain facts.
They considered that the addition of the distribution of weapons in the locality of Rushashi to the number of the charges against the defendant while it was not mentioned in the indictment constitutes an inadmissible de facto modification of the indictment.
They, finally, proprio motu, in other words, of their own initiative, without the appellant calling upon it, quashed the conviction of Karera for genocide and extermination, linked to the murder of Murekezi. Even if for other facts, his guilt for these two charges was confirmed.
In fact, this qualification, for this fact, does not appear in the amended indictment. As it was quite present in the initial version, it disappeared to the benefit of a charge for murder as a crime against humanity.
The Appeals Chamber then considered that the defendant could legitimately believe that he was no longer prosecuted for this charge, which could have led to consequences in the preparation of his defence.
Jean-Pierre Fofe Djofia Malewa, a lawyer at the ICTR and Professor at the University of Kinshasa, described the indictment as "the showpiece of the trial" in his book "The Question of Evidence before the ICTR, "The Cyangugu Case" published in 2006.
It is by this act that "the facts and the rights subjected to discussion (before the ICTR) are exposed" he explains. Especially, it is following the confirmation of the indictment that the suspect officially acquires the statute of defendant.
The prosecutor establishes an indictment "if he decides that within the presumptions, it is necessary to engage prosecution". He then exposes "briefly the facts and the crime or the crimes which are reproached to the accused under the terms of the Statute".
Article 47 (C) of the Rules of Procedure and Evidence (RPE) of the Tribunal mentions a "concise description of the facts about the case and crime".
The indictment, thereafter, will be confirmed or rejected by a judge of the First Instance Chamber.
In the Karera case, the ICTR Appeals Chamber affirms, as it already did notably in the Tharcisse Muvunyi ruling, that "the charges against an accused and the material facts supporting those charges must be pleaded with sufficient precision in an indictment so as to provide notice to an accused".
In fact, it is on the basis of these charges that the defendant will build their defence.
The prosecutor has the possibility of modifying the indictment which he delivered under the terms of Article 50 of the RPE. The modifications must be approved by a judge, except if the initial indictment was not yet confirmed, so that the act is amended.
The judge or the Chamber which is seized by the case, then checks each count of the indictment and any element in relation, and can ask for additional elements before validating the modifications presented (Article 47 paragraphs E and F of the RPE).
The defendant will again plead guilty or not guilty if new charges against him are adopted.
Malewa considers that the importance of this part of the trial "justifies the strict regulation of its modification" and that the attempts to correct the imperfections apart from this framework are proscribed.
The prosecutor has, indeed, regularly argued that he had the possibility of correcting his errors notably at the time of the filing of his preliminary report at the trial in which he recapitulates the strategy that he will adopt.
This question was on several occasions decided by the two ad hoc Tribunals which considered that a preliminary report at the trial can repair a defect in an indictment only in certain circumstances (the Muhimana and Gacumbitsi rulings before the ICTR and the Naletilic and Martonivic rulings before the ICTY).
Those are limited according to the judges if the document "provides greater detail that is consistent with a general allegation pleaded in the indictment".
In the Karera case, the prosecutor considered that he repaired his errors by "subsequent timely, clear, and consistent information".
But the Appeals Chamber reminds and concludes that the addition of a charge can be built-in the indictment only by following the procedure planned in Article 50 of RPE.
In the Muvunyi case, also remarkable for the errors committed in the indictment, the Appeals Chamber had not failed to remind that "a Trial Chamber can only convict the accused of crimes that are charged in the indictment".
AV/ER/MM/SC/GF
© Hirondelle News Agency