Court name
Special Court for Sierra Leone
Case number
SCSL 15 of 2004

Prosecutor v Issa Hassan Sesay & Ors - Order to Prosecution Concerning Renewed Witness List (SCSL 15 of 2004) [2004] SCSL 221 (03 December 2004);

Law report citations
Media neutral citation
[2004] SCSL 221


SPECIAL COURT FOR SIERRA LEONE
JOMO KENYATTA
ROAD • FREETOWN • SIERRA LEONE

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295996


THE TRIAL CHAMBER


Before:
Hon. Judge Benjamin Mutanga Itoe, Presiding Judge
Hon. Judge Bankole
Thompson
Hon. Judge Pierre Boutet
Registrar:
Robin Vincent
Date:
6th of December, 2004
PROSECUTOR
Against
SAM HINGA NORMAN
MOININA FOFANA
ALLIEU
KONDEWA

(Case No.SCSL-04-14-T)


DECISION ON THE SECOND ACCUSED’S MOTION FOR SERVICE
AND ARRAIGNMENT ON THE CONSOLIDATED INDICTMENT


Office of the Prosecutor:

Court Appointed Counsel for Sam Hinga
Norman
:
Luc Côté
James Johnson

Dr. Bu-Buakei Jabbi
John Wesley Hall, Jr.
Tim Owen, Q.C.


Court Appointed Counsel for Moinina
Fofana
:


Michiel Pestman
Arrow Bockarie
Victor Koppe


Court Appointed Counsel for Allieu
Kondewa:

Charles Margai
Yada Williams
Ansu Lansana


THE TRIAL CHAMBER (“Trial Chamber”) of the Special Court
for Sierra Leone (“Special Court”) composed of Hon. Judge Benjamin
Mutanga Itoe, Presiding Judge, Hon. Judge Bankole Thompson, and Hon. Judge
Pierre Boutet;

NOTING the Motion for Service and Arraignment on Consolidated
Indictment and a Second Appearance,
filed by the Second Accused, Moinina
Fofana, on the 21st of October, 2004;

NOTING the Prosecution Response to Fofana Motion for Service and
Arraignment on Consolidated Indictment and a Second Appearance,
filed by the
Prosecution on the 28th of October, 2004;


MINDFUL of the Decision and Order on Prosecution Motions for
Joinder,
delivered by the Trial Chamber on the 27th
of January, 2004;


NOTING the Consolidated Indictment against the Accused, Sam Hinga
Norman, Moinina Fofana, and Allieu Kondewa, approved on the
5th of February, 2004;


CONSIDERING Article 17 of the Statute of the Special Court
(“Statute”) and Rule 26bis, Rule 47, Rule 48, Rule 50 and
Rule 52 of the Rules of Procedure and Evidence of the Special Court for Sierra
Leone (“Rules”);

THE TRIAL CHAMBER ISSUES THE FOLLOWING DECISION:


I. BACKGROUND


1. On the 9th of October, 2003, the Prosecution
brought a Motion for Joinder. Written responses were received by the Third
Accused on the 20th of October, 2003, and the Second
Accused on the 12th of November, 2003. An oral
response was given by the First Accused at the joinder hearing held on the
4th of December, 2003. The Prosecution filed a Reply
to the Defence response on the 24th of October, 2003.
A Decision on the Motion for Joinder was delivered on the
27th of January, 2004, where the Trial Chamber ordered
that a single Consolidated Indictment be prepared as the Indictment on which the
joint trial would proceed and that the said Indictment be served on each Accused
in accordance with Rule 52 of the Rules. The Consolidated
Indictment was filed
on the 5th of February, 2004.


2. Prior to the consolidation of the Indictment, Counsel for Kondewa filed a
Preliminary Motion based on Defects on the Indictment
on the
7th of November, 2003. This Motion presented the
following arguments:


(i) The Prosecution failed to distinguish clearly and specify the alleged
acts for which the Accused incurs criminal responsibility
under Article 6(1).
Such failure inhibits the ability of the Accused to adequately conduct his
defence.


(ii) The inclusion of the phrases “included but not limited to”,
“about” and “but not limited to those
events” renders
the Indictment vague and imprecise thereby impeding the Accused in the proper
conduct of his defence.


3. A Decision and Order on this Motion was rendered on the
27th of November
2003,[1] together with
an Annex to the
Decision.[2] With
respect to the first argument made by the Defence, the Trial Chamber held that
the Prosecution had plead all the different heads
of responsibility, consistent
with its discretion, and that the Accused was in no way prejudiced by this
pleading. In terms of the
second argument, the Trial Chamber held, inter
alia,
that:


The other head of challenges brought by the Defence against the Indictment
concerns the inclusion of the phrases “included but not limited
to”, “about”,
and “but not limited to these
events”.
In this connection, the Defence submits that the use of
these phrases renders the Indictment vague and imprecise thereby impeding
the
Accused in the conduct of his defence. After a careful review of paragraphs
19-24 of the Indictment, the Chamber agrees with
the Defence that the
expressions “but not limited to these events” and
“included but not limited to”, except in so far as the phrase
“included but not limited to” relates only to dates and
locations simpliciter
are, consistent with the principle in Sesay,
“impermissibly broad and also objectionable in not specifying the
precise allegations against the Accused
.” The Chamber, therefore,
upholds the Defence challenge on this issue. The Prosecution is, accordingly,
put to its election:
either to delete the said phrases in every count or
wherever they appear in the Indictment or provide in a Bill of Particulars
specific additional events alleged against the Accused in each count
. The
Amended Indictment or Bill of Particulars should be filed within 7(seven) days
of the date of service of this Decision; and
also served on the Accused in
accordance with Rule 52 of the
Rules.[3]


4. The Prosecution filed the related Bill of Particulars on the
5th of December,
2003.[4] In the
introduction to the Bill of Particulars the Prosecution stated that it contained
“additional events in support of the
counts charged in the Indictment
against the Accused Allieu Kondewa dated 24th June
2003”. These additions included districts and towns within the territory
of Sierra Leone, and one reference to “road
ambushes” at various
locations.


  1. SUBMISSIONS
    OF THE PARTIES

Defence Motion:


5. By written Motion of the 21st of October, 2004,
the Second Accused, Moinina Fofana, seeks service of the Consolidated
Indictment, pursuant to Rules 50(A) and 52
of the Rules of Procedure and
Evidence (“Rules”), and to be properly arraigned on the new charges
against him and a further
appearance, pursuant to Rule 50(B)(i) of the
Rules.


6. The Defence for the Second Accused submit that the Trial Chamber, in its
Decision on Joinder of the 27th of January, 2004,
allowed the application for joinder of the three Accused, Sam Hinga Norman,
Moinina Fofana, and Allieu Kondewa,
in spite of the fact that it acknowledged
that the Consolidated Indictment contained “new allegations” in
respect of
the Accused. The Defence set out in a table the “new
allegations” against the Second Accused as contained in the Consolidated
Indictment (CI). These include:


(i) Paragraph 25(a) (CI) – and at or near the towns of Lalahun,
Kamboma, Konia, Talama, Panguma and Sembehun.


(ii) Paragraph 25(b) (CI) – and Blama.


(iii) Paragraph 25(d) (CI) – in locations in Bo District including
the District Headquarters town of Bo, Kebi Town, Kpeyama, Fengehun and
Mongere.


(iv) Paragraph 26(a) (CI) – Blama, Kamboma.


(v) Paragraph 27(a) (CI) – Kenema District, the towns of Kenema,
Tongo Field and surrounding areas.


7. The Defence refer to Presiding Judge Benjamin Mutanga Itoe’s
appended Separate Opinion to the Joinder Decision which stated
that the
Consolidated Indictment “was to all intents and purposes new” and
that “the indictment has been subjected
to the new procedures of Rules 47
and 61 in the form which it will take and will be presented” following the
Trial Chamber’s
decision.


Prosecution Response:


8. The Prosecution filed on the 28th of October,
2004, its Prosecution Response to Fofana Motion for Service and Arraignment
on Consolidated Indictment and a Second Appearance.
In this response the
Prosecution submit that the Consolidated Indictment was served on Defence
Counsel by an email dated the 5th of February, 2004 and
that the failure to personally serve the Accused was an administrative error
attributable to the Registry and
when considering all the circumstances of this
case there was no identifiable harm to the Accused. The Prosecution submit that
there
is no identifiable harm on account of service of the Consolidated
Indictment on the Defence Team and the demonstrated knowledge of
the Defence of
the charges contained in the Consolidated Indictment, through defending the
Accused against the charges contained
in the Indictment throughout the first and
second trial sessions.


9. The Prosecution further submits that the Consolidated Indictment contains
no new charges against the Accused and that, therefore,
no further arraignment
is required. The Prosecution cite the Majority Joinder Decision which concluded
that “the specific
crimes charged in those several counts are exactly the
same, except for the allegations in respect of additional time and locations
as
regards Accused Moinina Fofana and Allieu Kondewa, which is an issue of no
materiality for the instant
purpose”.[5] The
Prosecution submit that the Majority did not find it necessary to order a
further arraignment of the Second Accused [sic] at
this time and there is
equally now no need to do so. The Prosecution submit that reliance on the
Separate Opinion of Judge Itoe
is of no relevance as the Court is guided by the
majority opinion. The Prosecution reinforced the fact that the Defence did not
appeal any aspect of the Joinder Decision.


Defence Reply:


10. No reply was filed by the Defence.


III. APPLICABLE LAW


11. Prior to looking into the merits of this Motion, it is appropriate to
set out the applicable provisions of the Statue and the
Rules of the Special
Court, as well as certain provisions of the International Covenant on Civil and
Political Rights (ICCPR) and
the African Charter on Human and Peoples Rights
(ACHPR).


Statute


Article 17


1. All accused shall be equal before the Special Court.

2. The accused shall be entitled to a fair and public hearing, subject to
measures ordered by the Special Court for the protection
of victims and
witnesses.

3. The accused shall be presumed innocent until proved guilty according to
the provisions of the present Statute.

4. In the determination of any charge against the accused pursuant to the
present Statute, he or she shall be entitled to the following
minimum
guarantees, in full equality:

  1. To be
    informed promptly and in detail in a language which he or she understands of the
    nature and cause of the charge against him
    or her;
  2. To
    have adequate time and facilities for the preparation of his or her defence and
    to communicate with counsel of his or her own choosing;
  1. To
    be tried without undue delay;
  1. To be
    tried in his or her presence, and to defend himself or herself in person or
    through legal assistance of his or her own choosing;
    to be informed, if he or
    she does not have legal assistance, of this right; and to have legal assistance
    assigned to him or her,
    in any case where the interests of justice so require,
    and without payment by him or her in any such case if he or she does not have
    sufficient means to pay for it;
  2. To
    examine, or have examined, the witnesses against him or her and to obtain the
    attendance and examination of witnesses on his or
    her behalf under the same
    conditions as witnesses against him or her;
  3. To
    have the free assistance of an interpreter if he or she cannot understand or
    speak the language used in the Special Court;
  4. Not
    to be compelled to testify against himself or herself or to confess guilt.

Rules


Rule 26bis


The Trial Chamber and the Appeals Chamber shall ensure that a trial is fair
and expeditious and that proceedings before the Special
Court are conducted in
accordance with the Agreement, the Statute and the Rules, with full respect for
the rights of the accused
and due regard for the protection of victims and
witnesses.


Rule 47 – Review of Indictment


(A) An indictment submitted in accordance with the following procedure shall be
approved by the Designated Judge.

(C) The indictment shall contain, and be sufficient if it
contains, the name and particulars of the suspect, a statement of each specific
offence of which the named suspect is charged and a short description of the
particulars of the offence. It shall be accompanied
by a Prosecutor’s
case summary briefly setting out the allegations he proposes to prove in making
his case.


(E) The designated Judge shall review the indictment and the accompanying
material to determine whether the indictment should be approved.
The Judge
shall approve the indictment if he is satisfied that:


(i) the indictment charges the suspect with a crime or crimes within the
jurisdiction of the Special Court; and

(ii) that the allegations in the Prosecution’s case summary would, if
proven, amount to the crime or crimes as particularised
in the indictment.

Rule 48 – Joinder of Accused or
Trials


(A) Persons accused of the same or different crimes committed in the course
of the same transaction may be jointly indicted and tried.

(B) Persons who are separately indicted, accused of the same or different
crimes committed in the course of the same transaction,
may be tried together,
with leave granted by a Trial Chamber pursuant to Rule 73.

(C) A Trial Chamber may order the concurrent hearing of evidence common to
the trials of persons separately indicted or joined in
separate trials and who
are accused of the same or different crimes committed in the course of the same
transaction. Such a hearing
may be granted with leave of a Trial Chamber
pursuant to Rule 73.


Rule 50 – Amendment of Indictment


(A) The Prosecutor may amend an indictment without prior leave, at any time
before its approval, but thereafter, until the initial
appearance of the accused
pursuant to Rule 61, only with leave of the Designated Judge who reviewed it
but, in exceptional circumstances,
by leave of another Judge. At or after such
initial appearance, an amendment of an indictment may only be made by leave
granted
by a Trial Chamber pursuant to Rule 73. If leave to amend is granted,
Rule 47(G) and Rule 52 apply to the amended indictment.


(B) If the amended indictment includes new charges and the accused has already
made his initial appearance in accordance with Rule
61:



(i) A further appearance shall be held as soon as practicable to enable the
accused to enter a plea on the new charges;

(ii) Within seven days from such appearance, the Prosecutor shall disclose all
materials envisaged in Rule 66(A)(i) pertaining to
the new charges;

(iii) The accused shall have a further period of ten days from the date of such
disclosure by the Prosecutor in which to file preliminary
motions pursuant to
Rule 72 and relating to the new charges.

Rule 52 - Service of Indictment

(A)  Service of the indictment shall be effected personally on the
accused at the time the accused is taken into the custody
of the Special Court
or as soon as possible thereafter.

(B)  Personal service of an indictment on the accused is effected
by giving the accused a copy of the indictment approved
in accordance with Rule
47.

(C) An indictment that has been permitted to proceed by the Designated Judge
shall be retained by the Registrar, who shall prepare
certified copies bearing
the seal of the Special Court. If the accused does not understand English and if
the language understood
is a written language known to the Registrar, a
translation of the indictment in that language shall also be prepared. In the
case
that the accused is illiterate or his language is an oral language, the
Registrar will ensure that the indictment is read to the
accused by an
interpreter, and that he is served with a recording of the
interpretation.

(D) Subject to Rule 53, upon approval by the Designated Judge the indictment
shall be made public.


ICCPR


Article 9


1. Everyone has the right to liberty and security of persons. No one shall
be subjected to arbitrary arrest or detention. No one
shall be deprived of his
liberty except on such grounds and in accordance with such procedures as are
established by law.


2. Anyone who is arrested shall be informed, at the time of arrest, of the
reasons for his arrest and shall be promptly informed
of any charges against
him.


[...]


Article 14


[...]


3. In the determination of any criminal charge against him, everyone shall
be entitled to the following minimum guarantees, in full
equality:


(a) To be informed promptly and in detail in a language which he understands
of the nature and cause of the charge against him;


(b) To have adequate time and facilities for the preparation of his defence
and to communicate with counsel of his own choosing;


(c) To be tried without undue delay.


[...]


ACHPR


Article 7


1. Every individual shall have the right to have his cause heard. This
comprises: (a) the right to an appeal to competent national
organs against acts
of violating his fundamental rights as recognized and guaranteed by conventions,
laws, regulations and customs
in force; (b) the right to be presumed innocent
until proved guilty by a competent court or tribunal; (c) the right to defence,
including
the right to be defended by counsel of his choice; (d) the fright to
be tried within a reasonable time by an impartial court or tribunal.


2. No one may be condemned for an act or omission which did not constitute a
legally punishable offence at the time it was committed.
No penalty may be
inflicted for an offence for which no provision was made at the time it was
committed. Punishment is personal
and can be imposed only on the offender.


IV. THE MERITS OF THE APPLICATION


1. Service of Indictment


12. The first issue to be determined by the Trial Chamber is whether the
Second Accused was personally served with the Consolidated
Indictment, and if
not, whether this non-service would prejudice the Accused’s right to a
fair trial.


13. The Chief of Court Management has informed the Trial Chamber that the
Second Accused was not personally served with the Consolidated
Indictment.
According to this report, the said Indictment was only served on Counsel for the
Accused.


14. In accordance with Rule 52 of the Rules, the Trial Chamber ordered in its
Decision on Joinder, for the Consolidated Indictment
to be served on each
Accused person. This order was as follows:

  1. That
    a single consolidated indictment be prepared as the Indictment on which the
    joint trial shall proceed [...];
  2. [...]
  3. That
    the said Indictment be served on each Accused in accordance with Rule 52 of the
    Rules.

15. Based upon the foregoing, and as further elaborated by Hon.
Judge Thompson in his Separate and Concurring
Opinion,[6] the Trial
Chamber finds that the service of the Consolidated Indictment on Counsel for the
Accused does not comply with Rule 52 of
the Rules, or the Order of the Trial
Chamber. While such a failure to serve the Consolidated Indictment personally
on the Accused
constitutes a procedural error, this alone would not, however, in
and of itself, unfairly prejudice the Accused’s right to
a fair trial. In
making this finding, the Trial Chamber has reviewed the entire pre-trial and
trial process and has noted the following:


(1) The Accused was served on the 27th of June 2003,
with a copy of the Initial Indictment that was approved on the
26th of June, 2003, which outlines the charges against
him.


(2) His Assigned Counsel, who represented him at this time were formally
served with a copy of the Consolidated Indictment on the
5th of February, 2004, and their obligation consisted
of representing their client, which included to familiarise him with the charges
against him.


(3) The Accused did not raise this issue during the Pre-Trial Conference or
any of the Status Conferences.


(4) The Accused responded to the charges against him in his Pre-Trial Brief
filed on the 28th of May, 2004, and has defended the
charges against him in the first and second sessions of the CDF trial.


2. Arraignment on Indictment


16. With respect to arraignment on the Indictment, it is clear in the
practice of the International
Tribunals,[7] that a
consolidated indictment need not be confirmed by a Trial Chamber or Judge if the
initial indictments that were subject to
joinder were already confirmed, and the
charges in the consolidated indictment are essentially the same or similar to
the original
ones. This position is also clear in national systems. In the
United Kingdom case of R v. Fyffe, it was recognised that the general
rule that “[r]e-arraignment is unnecessary where the amended indictment
merely reproduces
the original allegations in a different form, albeit including
a number of new
counts”.[8]


17. When dealing with an amended indictment containing new charges, Rule
50(B) of the Rules provides in this respect that a further
appearance may be
held to enable the Accused to enter a plea on the new charges. This particular
Rule provides for a further appearance
in relation to the new charges only.
This provision would find application only when there have been new charges.


18. In accordance with the above-mentioned law, the Trial Chamber will now
proceed to determine whether or not the charges outlined
in the Consolidated
Indictment, are new, and as such, materially different from the charges listed
in the Initial Indictment which
was served on the Accused.


19. The Trial Chamber notes that when the Prosecution applied for joinder of
the trial of the three Accused persons, it did not exhibit
the proposed
Consolidated Indictment. The Prosecution submitted that the Consolidated
Indictment would not amend the Initial Indictments
but that it was confined to a
“mere putting together” of the three Initial Indictments. The
Prosecution submitted that
there was no need for further approval of the
Consolidated Indictment “given it will not involve any change in the
substance
of the original
Indictments”.[9]


20. The Trial Chamber takes cognisance of its finding in its Joinder
Decision, namely, that the counts are exactly the same in the
Initial
Indictments against the three Accused, “except for the allegations in
respect of additional time and locations as regards
Accused Moinina Fofana and
Allieu Kondewa, which is an issue of no materiality for the instant
purpose”.[10]


21. The Second Accused, by his Motion of the 21st of
October, 2004, characterised the above finding of the Trial Chamber in its
Joinder Decision as acknowledging that the Consolidated
Indictment
“contained new allegations in respect of the Accused”. The Trial
Chamber considers that there is absolutely
no basis for this submission of the
Defence, as is apparent from a plain reading of the Joinder Decision.


22. It is notable that the Trial Chamber in its Decision on the Third
Accused’s Motion on the form of the
indictment,[11] when
ordering that the “precise allegations against the Accused” be
included in a Bill of Particulars or Amended Indictment
against the Third
Accused, distinguished dates and locations simpliciter, from this
requirement. The Prosecution subsequently filed a Bill of Particulars with
additions that included towns within the territory
of Sierra Leone, and one
reference to “road ambushes” at various locations. The Trial
Chamber notes that the differences
between the Initial Indictment and the
Consolidated Indictment against the Second Accused are contained in the Bill of
Particulars
added to the Initial Indictment against the Third Accused, Allieu
Kondewa, which was served on his Counsel on the 5th of
December, 2003. The Trial Chamber will turn now to consider the differences
between the Initial Indictment and the Consolidated
Indictment against the
Second Accused.


a. Differences Between the Initial Indictment and Consolidated
Indictment


23. Upon reviewing this Motion filed by the Second Accused, and consequently
proceeding to specifically review the differences between
the Initial Indictment
against the Second Accused with the Consolidated Indictment, the Trial Chamber
notes that the following additions
have been made to the Consolidated
Indictment. These additions are underlined in the text below:


a). Paragraph 25(a) (CI) – and at or near the towns of Lalahun,
Kamboma, Konia, Talama, Panguma and Sembehun;


b.) Paragraph 25(b) (CI) – and Blama;


c.) Paragraph 25(d) (CI) – in locations in Bo District including
the District Headquarters town of Bo, Kebi Town, Kpeyama, Fengehun and
Mongere;


d.) Paragraph 25(e) (CI) – in Moyamba District including Sembehun,
Taiama, Bylagao, Ribbi and Gbangbatoke;


e.) Paragraph 25(f) (CI) – in Bonthe District, including Talia (Base
Zero), Mobayeh, Makose and Bonthe Town;


f.) Paragraph 25(g) (CI) – in road ambushes at Gumahun, Gerihun,
Jembeh and the Bo-Matotoka Highway;


g.) Paragraph 26(a) (CI) – Blama, Kamboma;


h.) Paragraph 27(a) (CI) – Kenema District, the towns of Kenema,
Tongo Field and surrounding areas.


24. The Trial Chamber turns now to consider whether these additions to the
Consolidated Indictment are material to the Indictment,
in which case an unfair
prejudice might enure to the Accused on account of him facing an indictment with
new charges, having not
been arraigned on those charges in the Indictment, or
alternatively, whether the additions simply provide greater specificity to
general allegations.

b. Pleading Principles for an Indictment

25. An Indictment, as the primary accusatory instrument against an Accused
person, must plead the essential aspects of the Prosecution
case with sufficient
detail. In accordance with Rule 47(c) of the Rules:

The indictment shall contain, and be sufficient if it contains, the name and
particulars of the suspect, a statement of each specific
offence of which the
named suspect is charged and a short description of the particulars of the
offence. It shall be accompanied
by a Prosecutor’s case summary briefly
setting out the allegations he proposes to prove in making his case.

26. If the Prosecution fails to plead the essential aspects of the
Prosecution Case in the Indictment, it will suffer from a material
defect.[12] As stated
by the Appeals Chamber of the International Criminal Tribunal for the Former
Yugoslavia (“ICTY”) in the Kupreskic case:

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.[13]

27. Pursuant to Article 17(4) of the Statute, the Accused must be informed of
the “nature and cause of the charge against him”.
There is a
distinction between the material facts upon which the prosecution relies, and
which must be pleaded in the Indictment,
and the evidence by which those
material facts will be proved, which do not need to be
pleaded.[14] The
materiality of the facts to be pleaded depend on the nature of the Prosecution
case and the alleged proximity of the Accused
to those events. As stated by the
Trial Chamber of the International Criminal Tribunal for the former Yugoslavia
in the Brdanin case, in a trial based upon, for example, superior
responsibility:

[W]hat is most material is the relationship between the accused and the
others who did the acts for which he is alleged to be responsible,
and the
conduct of the accused by which he may be found to have known or had reason to
know that the acts were about to be done,
or had been done, by those others, and
to have failed to take the necessary and reasonable measures to prevent such
acts or to punish
the persons who did them. However, so far as those acts of
the other persons are concerned, although the prosecution remains under
an
obligation to give all the particulars which it is able to give, the relevant
facts will usually be stated with less precision,
and that is because the detail
of those acts (by whom and against whom they are done) is often unknown –
and because the acts
themselves often cannot be greatly in
issue.[15]

28. The Trial Chamber in the Brdanin case further considered that in a
case based upon individual responsibility where the Accused is alleged to have
personally committed the
acts pleaded in the Indictment:

[T]he material facts must be pleaded with precision – the information
pleaded as material facts must, so far as it is possible
to do so, include the
identity of the victim, the places and the approximate date of those acts and
the means by which the offence
was committed. Where the prosecution is unable
to specify any of these matters, it cannot be obliged to perform the impossible.
Where the precise date cannot be specified, a reasonable range of dates
may be sufficient. Where a precise identification of the victim or victims
cannot be specified, a reference to their
category or position as a group may be
sufficient. Where the prosecution is unable to specify matters such as these,
it must make
it clear in the indictment that it is unable to do so and that it
has provided the best information it
can.[16]

29. In the Kupreskic case, the Appeals Chamber of the ICTY held
that “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 a defendant clearly of the charges
against him so that he
may prepare his
defence.”[17]
Trial Chambers of the ICTY have held that:

[a]ll legal prerequisites to the application of the offences charged
constitute material facts, and must be pleaded in the indictment.
The
materiality of other facts (facts not directly going to legal prerequisites),
which also have to be pleaded in the Indictment,
cannot be determined in the
abstract. Each of the material facts must usually be pleaded expressly, although
it may be sufficient
in some circumstances if it is expressed by necessary
implication. This fundamental rule of pleading, however, is not complied with
if
the pleading merely assumes the existence of a
pre-requisite.[18]


30. This Trial Chamber, in its Decision in the case of Sesay, held
that when framing an Indictment, the degree of specificity required:


[m]ust necessarily depend upon such variables as (i) the nature of the
allegations; (ii) the nature of the specific crimes charged;
(iii) the scale or
magnitude on which the acts or events allegedly took place (iv) the
circumstances under which the crimes were
allegedly committed; (v) the duration
of time over which the said acts or events constituting the crimes occurred;
(vi) the time
span between the occurrence of the events and the filing of the
indictment; (vii) the totality of the circumstances surrounding the
commission
of the alleged
crimes.[19]


31. In joint trials each Accused shall be accorded the same rights as if he
or she were being tried
separately.[20] The
rights of the Accused as enshrined in Articles 9 and 14 of the ICCPR and Article
7 of the ACHPR, and as outlined in Rule 26bis of the Rules, including the
right to a fair and expeditious trial, and in Article 17 of the Statute, which
include the right “to
be informed promptly and in detail in a language
which he or she understands of the nature and cause of the charge against him or
her,”[21] and
“to have adequate time and facilities for the preparation of his or her
defence,”[22]
apply equally to an Accused person tried separately on a single indictment as to
an Accused person tried jointly on a consolidated
indictment.[23] In
either instance, where new changes are sought to be added to an Indictment
against an Accused person, whether in a separate or
joint trial, the Prosecution
is obligated pursuant to Rule 50 of the Rules, to seek leave of the Trial
Chamber to amend the
Indictment.[24]


32. Applying the foregoing principles to the instant situation, the Trial
Chamber considers that given the alleged nature and scale
of the offences
charged, and the alleged mode of participation of the Accused in a position of
command responsibility, and as part
of a joint criminal enterprise with a common
plan to commit such offences, it would not be realistic to expect for these
offences
to be plead with “pin-point
particularity”.[25]
At the same time, however, greater specificity will be required for other modes
of participation in offences pursuant to Article
6(1) of the Statute, and the
alleged offences and material facts must be plead with enough precision to
inform the Accused clearly
of the charges against him so that he may prepare his
defence.


33. The Trial Chamber has carefully considered the added locations in the
Consolidated Indictment against the Second Accused and finds
that these involve
towns in the regions of Kenema, Bo and Moyamba. The Initial Indictment charged
that the “CDF, largely Kamajors”
engaged the RUF/AFRC forces in
armed conflict in various parts of Sierra Leone that included, but were not
limited to “the
towns of Tongo Field, Kenema, Bo, Koribundo and
surrounding areas and the Districts of Moyamba and
Bonthe”.[26]
The various counts of the Initial Indictment charge various offences that were
committed in Kenema and Bo, and in Moyamba District.
The charges in the various
counts of the Initial Indictment do not specify whether the references to Kenema
and Bo are to the actual
towns or to the districts, however, given that the
pleading in paragraphs 18 and 19 of the Initial Indictment refers solely to the
towns of Kenema and Bo, it would follow from this that the specific charges
relate specifically to these towns and not to the districts.
However, the
language of the Initial Indictment states that the offences “were not
limited to” the locations specified
in the counts of the Initial
Indictment. The Trial Chamber takes note that no new regions have been added to
the Consolidated Indictment
that were not included in the Initial Indictment
against the Accused, nor has there been any extension of timeframes for the
commission
of the offences in the Consolidated Indictment. The only additions
to the Indictment include the towns set forth in paragraph 21
of this Decision,
which are towns within the Districts of Kenema, Bo, and Moyamba.


34. Upon close analysis of the Consolidated Indictment in comparison to the
Initial Indictment, the Trial Chamber concludes that the
additions made to the
Consolidated Indictment are of no materiality as they simply provide details for
greater specificity to the
factual allegations included in the Initial
Indictment against the Accused. There are no new crimes or charges against the
Accused.


35. In the case at hand, the Accused entered a plea to the charges against
him at his initial appearance on the 1st of July, 2003.
These charges remained in force against him, and there have been no material
changes made to the Consolidated Indictment.
The Trial Chamber, therefore,
finds that there are no requirements or obligations in the Rules or in the
interests of justice to
afford the Accused the opportunity to make a plea on the
Consolidated Indictment. Consequently, it cannot be said that any unfair
prejudice would result from him not being arraigned on the Consolidated
Indictment.


5. Conclusions


36. The Trial Chamber finds that while the Second Accused, Moinina Fofana has
not been personally served with the Consolidated Indictment,
no unfair prejudice
would enure through this procedural error. Furthermore, the Trial Chamber
specifically finds that there are
no new crimes or charges against the Accused
contained in the Consolidated Indictment that were not contained in the Initial
Indictment.
There is neither an amended indictment nor a new indictment. The
additions made to the Consolidated Indictment are not material
as they simply
provide greater specificity to the factual allegations included in the Initial
Indictment against the Accused. In
accordance with Rule 50 of the Rules, there
is no requirement to arraign the Accused on the Consolidated Indictment, given
that there
are no new charges contained therein.


FOR THE ABOVE REASONS, THE TRIAL CHAMBER

DISMISSES the Motion of the Second Accused in its entirety.

Hon. Judge Bankole Thompson appends a separate concurring opinion to this
decision adopting his own reasoning and putting forward
his reasons in support
thereof;

Hon. Judge Benjamin Mutanga Itoe, Presiding Judge, appends his dissenting
opinion to this decision.


Done in Freetown, Sierra Leone, this 6th day of
December, 2004.



Hon. Judge Pierre Boutet


Hon. Judge Bankole Thompson


[Seal of the Special Court for Sierra Leone



[1] Prosecutor v.
Allieu Kondewa
, Decision and Order on Defence Preliminary Motion for Defects
in the Form of the Indictment, 27 November
2003.
[2]
Prosecutor v. Allieu Kondewa, Annexure to Decision and Order on Defence
Preliminary Motion for Defects in the Form of the Indictment, 27 November
2003.
[3]
Prosecutor v. Allieu Kondewa, Decision and Order on Defence Preliminary
Motion for Defects in the Form of the Indictment, 27 November 2003, para.
11.
[4] Prosecutor
v. Allieu Kondewa
, SCSL-2003-12-PT, Bill of Particulars, 5 December
2003.
[5] Joinder
Decision, para.
24.
[6] Separate
Concurring Opinion of Judge Bankole Thompson on Decision on Second
Accused’s Motion for Service and Arraignment on
the Consolidated
Indictment, 6 December,
2004.
[7] See for
example, case of Prosecutor v. Kvocka, IT-98-30/T; Prosecutor v.
Kvocka,
Decision on Prosecution Request for Leave to File a Consolidated
Indictment and to Correct Confidential Schedules, 13 October 2000;

Prosecutor v. Ademi, IT-04-74, Prosecutor v. Ademi, Decision on
Motion for Joinder of Accused, 30 July 2004; Prosecutor v. Krajisnik,
IT-00-39; These cases are distinguishable, for example, from the case of
Prosecutor v. Blagojevic, IT-02-60-PT, where the Indictment was
consolidated before the initial appearances; and the case of Prosecutor v.
Limaj,
IT-03-66, where a further appearance was held on 27 February 2004,
following new charges being added to the Second Amended Indictment;
and in the
case of Proseuctor v. Mrksic, IT-95-13/1, where a further plea was
entered on 16 February 2004, to added counts in the Consolidated Indictment.
For Rules governing
the arraignment of the Accused on an amended Indictment, see
Rule 50 of the Rules of Procedure and Evidence of the Special Court
and Rule 50
of the Rules of the ICTR and ICTY, which provide that a further arraignment will
be held where an amended indictment
contains new charges.

[8] R v.
Fyffe
[1992] Crim. L.R. 442,
C.A.
[9] Prosecution
Motion for Joinder, para.
10.
[10] Para.
24.
[11]
Prosecutor v. Allieu Kondewa, Decision and Order on Defence Preliminary
Motion for Defects in the Form of the Indictment, 27 November 2003, para.
11.
[12]
Prosecutor v. Kupreskic, Appeals Judgement, para.
114.
[13] Supra,
para. 92.
[14] See
Prosecutor v. Brdanin, Decision on Objections by Momir Talic to the Form
of the Amended Indictment, 20 February 2001, para.
18.
[15] Id,
para. 19.
[16]
Id, para.
22.
[17]
Prosecutor v. Kupreskic, Appeal Judgement, para.
88.
[18]
Prosecutor v. Enver Hadzihasanovic et al., Case No. IT-01-47-PT, Decision
on Form of Indictment, 7 December 2001 (“Hadzihasanovic Decision on
Form of the Indictment”), para. 10; see also Prosecutor v. Mile
Mrksic
, Case No. IT-95-13/1-PT, Decision on Form of the Indictment, 19 June
2003, para.
11.
[19]
Prosecutor v. Issa Hassan Sesay, Decision and Order on defence
Preliminary Motion for Defects in the Form of the Indictment, 13 October 2003,
para. 8.
[20] See
Rule 82(A) of
Rules.
[21] Para.
4(a).
[22] Para.
4(b).
[23] See
The Prosecutor v. Sam Hinga Norman, Moinina Fofana, Allieu Kondewa,
Decision and Order on Prosecution Motions for Joinder, 27 January 2004,
para. 4.
[24] Rule
50 of the
Rules.
[25]
Prosecutor v. Kanu, Decision and Order on Defence Preliminary Motion for
Defects in the Form of the Indictment, 19 November 2003, Para.
21.
[26]
Consolidated Indictment, para. 18.