III. THE RIGHT TO A FAIR TRIAL (SECOND, FOURTH AND FIFTH GROUNDS OF APPEAL)
331. In the Appellant’s view, the 2nd, 4th and 5th grounds of Appeal form part of the general argument that the Trial Chamber failed to ensure that the right of the accused to a fair trial was respected.[541] Musema submits that the grounds of appeal set out below relate to the fundamental rights of the accused, namely, the right to be informed promptly and in detail of the nature of the charges against him, the right to have adequate time for the preparation of his defence and lastly the right to be tried without undue delay.[542]
A. Second Ground of Appeal: Late notice of Witnesses [543]
1. Arguments of the parties
332. Musema submits that the Trial Chamber erred on a point of law by granting the Prosecution leave, in its Decision of 20 April 1999, to call Witnesses J, P, S, M, N, AB, AD and Guichaoua. In his view, the testimonies of the above-mentioned witnesses should be excluded from the record and all findings based thereon quashed (in particular, the guilty verdict in respect of Count 7 of the Indictment).[544]
333. Two main arguments have been advanced by the Appellant. Firstly, he argues that the Trial Chamber should not have allowed the Prosecution to vary its list of witnesses pursuant to Rule 73bis (E) of the Rules. He points out that he has never been served with the initial witness list that was submitted to the Tribunal and was therefore unaware that Witnesses S, P and J were included in this list.[545] It is Musema’s contention that, the Prosecution should be granted leave to add witnesses to its list in the course of the trial only if the interests of justice so require.[546] Furthermore, the Appellant submits that the Prosecutor should not have been granted leave to call the aforesaid witnesses on the grounds that their statements had not been disclosed within 60 days prior to the date set for trial, and that further provisions of Rule 66 (A) (ii) were not complied with.[547] Musema explains that, in the first place, the witness statements were disclosed piecemeal and secondly, in its motion, the Prosecution did not state the reasons why the witness statements could not have been obtained and disclosed within the time-limit to the Defence. He further submits that the Trial Chamber did not give reasons for its decision and that the correct interpretation of Rule 66 of the Rules, in light of the provisions of the Statute, is that which is stated in a decision rendered by Trial Chamber I in Bagilishema[548], where the said Chamber held that the Prosecution could rely on witness statements disclosed after the expiration of the time-limit only where it considered that good cause had been shown.[549] Lastly, Musema argues that Witnesses P, S, and AB should have been included in the initial list of witnesses and their statements disclosed to the Defence, and also, that Witnesses J, M, N and AD should not have been allowed to give evidence without good cause being shown as to why their statements were obtained so belatedly.[550] Musema adds that, in any case, he does not need to establish prejudice in order to succeed in his arguments before the Appeals Chamber.[551]334. The Prosecution submits that the Appellant has suffered no prejudice as a result of the fact that it was allowed to call eight material witnesses. The Prosecution recalls that at trial, the Appellant did not raise any issue as to prejudice suffered in the preparation of its defence, as a result of the non-disclosure of the list of Prosecution witnesses, nor did it object to the Prosecution’s requests to be allowed to vary its initial list of witnesses.[552] As regards the allegations of the Appellant on the belated disclosure of the statements of eight witnesses, the Prosecution submits that the Appellant did not raise at trial any questions of "good cause" for such disclosure and that its only concern, at the time, seemed to have been the possible delay in the trial schedule.[553] The Prosecution submits finally that, even if the Appeals Chamber were to find that the Prosecution failed to discharge its obligations, the Appellant has not demonstrated how the belated disclosure of witness statements affected his ability to prepare his defence.[554]
2. Discussion
335. On 13 April 1999, the Prosecutor filed a motion for leave to vary her initial list of Prosecution witnesses, together with her pre-trial Brief pursuant to Rule 73 bis (E) of the Rules.[555] In that motion, the Prosecution sought leave of the Trial Chamber to: (1) delete from her initial witnesses list filed on 19 November 1998, the particulars of 11 witnesses; (2) add to the initial witness list the particulars of three witnesses who had already testified at trial, but whose names did not appear in the said list (J, P and S); (3) add to the initial witnesses list the particulars of three witnesses whose witness statements had previously been disclosed, but who did not appear in the initial list of witnesses (M, N and AB); (4) add to the initial witness list, the particulars of two new witnesses that she proposed to call in the instant case (AD and AE) and; (5) add to the initial witness list, the particulars of one expert witness, that she proposed to call in the instant case (Andr� Guichaoua).[556]
336. The Defence responded to this motion on 15 April 1999. On 20 April 1999, the Trial Chamber rendered its decision, granting leave to the Prosecutor to vary the initial list of witnesses by adding Witnesses N, M, AB and AD, denying the Prosecutor’s request for leave to vary her initial witness list by adding Witness AE and also denying her request for leave to call the expert witness or to tender his statement into evidence.[557] In a second Decision rendered orally on 28 April 1999, the Trial Chamber granted the Prosecutor leave to call expert witness Guichaoua.[558]
337. In general, the Appellant submits that the right of the Accused to a fair trial, in particular, the right to have adequate time and facilities for the preparation of his defence, was prejudiced by the Prosecution’s failure to comply with the Rules relating to disclosure of materials and to notice of the list of witnesses to the Defence in sufficient time. The Appellant advances several reasons therefor: (1) since he had never received the Prosecution’s initial witness list, he did not know that Witnesses J, P and Y were not on the list; (2) the inclusion in the initial list of four additional witnesses (N, M, AB and AD), as well as the leave granted by the Trial Chamber to call an expert Witness, Andr� Guichaoua, prejudiced the preparation of his defence; (3) the Prosecutor disclosed the witness statements in question after the expiration of the 60-day time-limit prescribed by the Rules, without showing any good cause for such an action.
338. Therefore, the Appellant submits before the Appeals Chamber that his right to have adequate time and facilities for the preparation of his defence as provided for under Article 20(4)(b) of the Statute[559] was violated. Indeed, in his Brief in Reply, Musema denies that they (the Defence):
[…] Suffered no prejudice as a result of the late notice of witnesses. The temporal provisions within the procedures for trial permit opportunity and time to deal with matters that may reveal evidence favourable to the defence. The reduction in the period notice prevents a reasonable period of time for scrutiny of the allegations within the Prosecution case. [560]
339. The Appeals Chamber notes that the Appellant did not raise this issue before the Trial Chamber. In his Response to the Prosecutor’s motion, he challenges the merit of the motion by claiming his right to be tried without undue delay under Article 20(4)(c) of the Statute.[561] At no time was the issue of adequate time and facilities for the preparation for his defence (under Article 20(4)( c) of the Statute ) raised before the Trial Chamber. Thus, in its Decision of 20 April 1999, the Trial Chamber held that "[T]he Tribunal has noted the submission of the parties in light of their right to both a fair and an expeditious trial."[562] The Trial Chamber also specified that: "[T]he issue of the time necessary for the presentation of the Prosecutor’s case shall be dealt with during a status conference held to that end." [563] The Appeals Chamber observes that during the said status conference held on 21 April 1999 to establish a schedule of hearings, Musema did not request additional time for the preparation of his defence, nor did he even raise the issue of adequate facilities for the preparation of his defence. [564] Again, on 27 April 1999, the Presiding Judge reminded the parties that the Trial Chamber was going to propose a new schedule of hearings, but the Appellant did not deem it necessary to respond.
340. Furthermore, on the Appellant’s argument regarding disclosure of witness statements by the Prosecution under Rule 66 of the Rules, the Appeals Chamber is of the view that Musema should have raised that issue before the Trial Chamber. However, it appears that this was not done, not even in the Defence Response to the Prosecutor’s motion.
341. It should be noted that the Appellant presents arguments on appeal which he should have submitted before the Trial Chamber. However, as already stated by the Appeals Chamber, an appeal is not, from the point of view of the Statute, a de novo review. [565] Consequently, "[…] [T]he obligation is on the complaining party to bring the difficulties to the attention of the Trial Chamber forthwith so that the latter can determine whether any assistance could be provided under the Rules or the Statute to relieve the situation. The party cannot remain silent on the matter only to return on appeal to seek a trial de novo."[566] The Appeals Chamber recalls its findings in Kambanda: "The fact that the Appellant made no objection before the Trial Chamber to the Registry’s decision means that, in the absence of special circumstances, he has waived his right to adduce the issue as a valid ground of appeal."[567] In light of the foregoing, and in the absence of exceptional circumstances warranting consideration of the ground of appeal, the Appeals Chamber dismisses the ground of appeal.
B. Fourth Ground of Appeal: Amendment of the Indictment[568]
342. Musema submits that the Trial Chamber erred in law in granting the Prosecution leave, in its Decision of 6 May 1999 (the "Decision of 6 May 1999"), to amend its Indictment, and requests that the guilty verdict in respect of Count 7 be quashed.
343. Given that the guilty verdict in respect of Count 7 has been quashed, the Appeals Chamber does not deem it necessary to rule on the merits of the leave to amend the Indictment. However, the Appeals Chamber wishes to underscore the particularly belated filing of the Prosecution’s Motion of 29 April 1999 (in fact, more than three months after the taking of the witness statements by the Prosecution on 13 January 1999). The Appeals Chamber is of the view that, prior to granting leave for amendment of an Indictment, the Trial Chamber must pay special attention to respect for the fundamental rights of the Accused, as provided for in Articles 19 and 20 of the Statute. To that end, the Trial Chamber must ask itself whether the amendment would unjustly penalize the Accused in the conduct of his defence, bearing in mind that the more belatedly the amendment is effected, the more it is likely to penalize the Accused.
C. Fifth Ground of Appeal: Service of the Indictment[569]
344. Musema submits that the Prosecutor did not serve the Amended Indictment on the Defence and that the Prosecutor’s failure to formally serve the Indictment must be punished. Musema is referring to paragraph 341 of the Trial Judgement where the Trial Chamber found that the failure to formally serve the Accused with the Amended Indictment did not infringe his rights under Articles 19 and 20 of the Statute. The Appellant submits that the Trial Chamber’s finding endorses the erroneous principle that the Prosecutor does not have the duty to comply with the Rules except where failure to do so caused prejudice to the Accused.[570] He requests that the guilty verdict entered in respect of Count 7 be set aside.[571]
345. Since the guilty verdict in respect of Count 7 has been quashed, the Appeals Chamber does not deem it necessary, as for the previous ground of appeal, to rule on the issue as to whether, in the circumstances of the case, the Appellant was substantially deprived of his right to be informed of the nature and cause of the charges against him, as provided for under Articles 19 and 20 of the Statute.
[541] T (A), 28 May 2001, pp. 111 and 112.
[542] Ibid., pp. 112 and 113.
[543] As stated in the Notice of Appeal: "Late Notice of Witnesses (Counts 1,4 and 7): The Trial Chamber erred in its Decision of 20 April 1999, allowing the Prosecution to call evidence of witnesses whose statements had not been served on the Defence 60 days before the date set for trial. The evidence of the following witnesses should therefore have been excluded from the Trial Chamber’s deliberations: J, P, S, M, N, AB, AD and Guichaoua" (Notice of Appeal, p. 4).
[544] Appellant’s Brief, para. 418.
[545] Ibid., para.377.
[546] Ibid., para. 383.
[547] Ibid., para. 384.
[548] Oral Decision rendered on 2 December 1999.
[549] Appellant’s Brief, para. 402.
[550] Appellant’s Brief, para. 408.
[551] Ibid., para. 26.
[552] Prosecution’s Response, paras. 5.11 and 5.12.
[553] Ibid., para. 5.20.
[554] Ibid., para. 5.23.
[555] Motion by the Prosecutor for leave to vary her initial list of witnesses, and for extension of time within which to conclude the presentation of her case, The Prosecutor v. Alfred Musema, Case No. ICTR – 96- 13- T, filed on 13 April 1999.
[556] Motion by the Prosecutor for leave to vary her initial list of witnesses and for an extension of time within which to conclude the presentation of her case, The Prosecutor v. Alfred Musema, Case No. ICTR-96-13-T, filed on 13 April 1999, p. 2.
[557] Decision on the Prosecutor’s request for leave to call six new witnesses, The Prosecutor v. Alfred Musema, Case No. ICTR-96-13-T, 20 April 1999, p. 5.
[558] T, 28 April 1999, p. 85.
[559] In fact, in his Appellant’s Brief, Musema makes the following allegations: "[…] the reason for this rule is to allow the Defence and the Court to have adequate notice of the Prosecution case. This is further reflected by Rule 69 ( C) of the Rules, which deals with the protection of witnesses […]. This is entirely consonant with the spirit of the Statute, Articles 19 and 20 which deal with the right to a fair trial. In particular, Article 20 (4)(b) states that as a minimum guarantee the accused shall be entitled ‘to have adequate time and facilities for the preparation of his or her defence’ It is submitted that adequate time and facilities include adequate notice of witnesses for the Prosecution. The adequacy of notice permits the Defence to conduct investigations, which they would otherwise be prejudiced from doing. Apart from the obvious prejudice caused to the Defence by late notice of Prosecution witnesses, justice must not only be done but must be seen to be done. Justice is not seen to be done if the Prosecutor is allowed to add new witnesses during the course of trial without a consideration of the effect of this on the Defence."
[560] Appellant’s Brief in Reply, para.26.
[561] Musema’s Response to the Prosecution’ s Motion is worded as follows: "[…] the Defence has urged the Trial Chamber to ensure that the Prosecution conducts the trial against the defendant expeditiously, with the interests of justice in mind, a time limit as to how much court time could be used in evidence. […]. Notwithstanding these efforts by the Defence and the Trial Chamber to speed the trial process with the minimum of delay and inconvenience, the Prosecution have sought to call additional witnesses, obtain further Court time which could be at the expense of time available to the Defence, and to involve the Court in issues not pertinent to the indictment against the accused. The proposed commencement of the Defence will not be effective on 3 May 1999, but at a much later date. The Defence have been preparing for the 3 May date upon which to call the accused and scheduling witnesses in the subsequent weeks available. Those arrangements are at an advanced stage and a member of the Defence team is currently in Europe attending to them. The Defence submits that the Prosecution should be ordered to call only the 5 witnesses originally scheduled by them to be called, as detailed in March, or only sufficient witnesses that will occupy one more week of Court time – whichever is the shorter. This will thereby permit the Defence case to commence on 3 May as previously agreed." ("Defence Reply to Prosecutor’s Request for Leave to Call Additional Witnesses and Call Expert Evidence", The Prosecutor v. Alfred Musema, Case No. ICTR 96-13-I, 15 April 1999, p. 3). In its Decision of 20 April 1999, the Trial Chamber summed up the Appellant’s arguments as follows: "In response, the Defence contests that the addition of five witnesses would unduly delay the proceedings in this case and prejudice the presentation of the case of the Defence which is scheduled to commence on 3 May 1999. The Defence submits that the Trial Chamber should order the Prosecutor to call only the five previously scheduled witnesses or sufficient witnesses to occupy one more week of court time, whichever is shortest." ("Decision on the Prosecutor’s Request for Leave to Call Six New Witnesses", The Prosecutor v. Alfred Musema, Case No. ICTR-96-13-I, 20 April 1999, para. 7).
[562] "Decision on the Prosecutor’s Request for Leave to Call Six New Witnesses", The Prosecutor v. Alfred Musema, Case No. ICTR 96-13-I, 20 April 1999, para. 18.
[563] Ibid., para. 18.
[564] To the question posed by the Presiding Judge as to whether other issues should be addressed during the status conference after hearing the Prosecution, the Defence did not deem it necessary to respond or to object to any issue raised by the Prosecution (T, 21 April 1999, pp. 36 and 37).
[565] Akayesu Appeal Judgement, para. 177 echoing the findings of ICTY Appeals Chamber in the Tadic Decision (additional evidence), para 41 and in the Furundzija Appeal Judgement, para. 40.
[566] Tadic Appeal Judgement, para. 55.
[567] Kambanda Appeal Judgement, para. 25. See also Akayesu Appeal Judgement, para. 113. The doctrine of waiver has been asserted many times by ICTY Appeals Chamber in the Celebici Appeal Judgement (para. 640), Furundzija (para. 174), Tadic (para. 55).
[568] As worded in the Grounds of appeal Against Conviction and Sentence: Amendment of Indictment (Count 7): The Trial Chamber erred in its decision of 6 May 1999 allowing the Prosecution to amend the Indictment by adding three extra counts (Grounds of Appeal, p. 3).
[569] As worded in the Grounds of Appeal Against Conviction and Sentence: "Service of Indictment (Count 7): The Trial Chamber erred in finding that the Defendant was required to respond to Counts 7, 8 and 9 of the Indictment, given that it was never served on the Defence."