O
SPECIAL COURT FOR SIERRA LEONE
JOMO KENYATTA ROAD • FREETOWN • SIERRA LEONE
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TRIAL CHAMBER I

REASONED MAJORITY DECISION ON PROSECUTION MOTION FOR A RULING
ON THE ADMISSIBLITY OF EVIDENCE

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

SEIZED of the Urgent Prosecution Motion for a Ruling on the Admissibility of Evidence filed by the Prosecution on the 15th of February, 2005;

NOTING the Response of First Accused to Prosecution’s “Urgent Prosecution Motion for a Ruling on the Admissibility of Evidence” and Objection to Other Crimes Evidence, filed by Court Appointed Counsel for the First Accused on the 18th of February, 2005;

NOTING the Prosecution Reply to ‘Response of First Accused to Prosecution’s “Urgent Prosecution Motion for a Ruling on the Admissibility of Evidence” and Objection to Other Crimes Evidence’, filed on the 23rd of February 2005;

NOTING the Response of the Second Accused to Urgent Prosecution Motion for Ruling on the Admissibility of Evidence, filed on the 25th of February, 2005;

NOTING the Response of Third Accused to Prosecution’s Urgent Motion for a Ruling on the Admissibility of Evidence, filed on the 28th of February, 2005;

NOTING Prosecution Reply to “Response of the Second Accused to Urgent Prosecution Motion for Ruling on the Admissibility of Evidence”, filed on the 2nd of March, 2005;

NOTING the Prosecution Reply to “Response of Third Accused to Prosecution’s Urgent Motion for a Ruling on the Admissibility of Evidence”, filed on the 4th of March, 2005;

RECALLING the Decision of this Chamber delivered on the 23rd of May 2005;

PURSUANT TO Rule 54 of the Rules of Procedure and Evidence of the Special Court for Sierra Leone (“Rules”);

HEREBY ISSUES THIS REASONED WRITTEN DECISION:

1. SUBMISSIONS OF THE PARTIES

Prosecution Motion and Supporting Submissions

1. As regards this Motion, in respect of which a Decision was rendered on 23rd May 2005, the Prosecution sought a ruling as to the effect of the Trial Chamber’s Decision of Prosecution Request for Leave to Amend the Indictment, issued on the 20th of May, 2004, concerning a request by the Prosecution to add four new counts containing allegations of sexual offences to the Indictment against the three Accused. Specifically, the Prosecution requested clarification from the Chamber “as to the extent to which the Decision limits the adduction of particular relevant and admissible evidence, under existing counts of the Consolidated Indictment”. The Prosecution averred that such a ruling was required because the Trial Chamber had “suggested that the subject evidence may not be admissible as a consequence of the Decision and a ruling would avoid unnecessary arguments prior to the testimony of a number of witnesses”.
2. The Chamber notes, at the outset, that the supporting arguments and opposing submissions by the parties in respect of the Motion are intensely prolix in character due to the diversity of perspectives from which the issue was being viewed. However, the Chamber will endeavour to reproduce the contentions in their correct legal perspective in summary form as follows:
3. To begin with the Prosecution’s submissions, they may be summarised as follows:
   • (i) that the particular evidence can be categorised as falling under inhumane acts as a crime against humanity, punishable under Article 2(i) of the Statute, and/or violence to life, health and physical or mental well-being of persons, in particular cruel treatment, as a violation of Article 3 Common to the Geneva Conventions and of Additional Protocol II, punishable under Article 3(a) of the Statute;
   • (ii) that the crime of cruel treatment under Article 3(a) of the Statute is defined in the jurisprudence of the International Tribunals as “an intentional act or omission which causes serious physical and mental suffering or injury or constitutes a serious attack on human dignity” and that the case law from the International Tribunals has found sexual offences to fall into this category of crimes;[1]
   • (iii) that “where acts of sexual violence have been perpetrated against a civilian as part of a widespread and systematic attack on the civilian population, the ICTR Trial Chamber has routinely found that such acts properly fall within the ambit of crimes against humanity (other inhumane acts)” (sic);[2]
   • (iv) that the particulars contained in the Indictment are of an inclusive nature and do not exclude the broad range of unlawful acts which can lead to serious physical and mental harm and that the administration of justice would be brought into disrepute if evidence relating to unlawful acts which potentially fall under more than one category of offences was not adduced based on a “definitional distinction”;
   • (v) that this Motion is in the interests of judicial economy and in the interests of a fair trial, and that the adduction of the subject evidence will not cause any delay in the trial as the material has already been disclosed “in some form” for over 12 months;
   • (vi) that the evidence has at all times remained relevant and admissible as relating to the infliction of serious physical harm and serious mental harm, and that the proper test is whether the evidence is relevant and admissible on the existing counts, in particular Counts 3 and 4;
   • (vii) that the admission of this evidence would cause no unfairness to the Accused.

Response of First Accused

4. Objecting to the admission of the subject evidence, Counsel for the First Accused advanced these arguments:
   • (i) that the evidence is outside the Indictment and too vague to be included within the scope of the Indictment, and that the offences set forth in Counts 3 and 4 of the Indictment are being used by the Prosecution as “catch all” language, without having to specify in the Indictment the conduct it is relying upon;
   • (ii) that the Motion violates the Accused’s right to a fair hearing enshrined in Article 17(2) of the Statute;
   • (iii) that the motion is “an attempt to back door the Trial Chamber’s prior ruling that the indictment could not be amended to include sex crimes”, and that the purpose of an indictment is to put the Accused person on notice of what they should defend themselves against, as required by Rule 47(C) of the Rules;
   • (iv) that allowing this evidence as proof of “other inhumane acts” would “be a virtual free amendment of the indictment, amounting to new charges, without any specifics in the indictment whatsoever”, thereby violating fundamental fairness to the Accused and denying them a fair trial;
   • (v) that admitting the evidence and trial on a vague indictment would make it impossible to defend fairly and that the new charges would need to be investigated to prepare a defence on these new allegations;
   • (vi) that the evidence is more prejudicial than probative or relevant to the existing charges, in that evidence of a sex offence has to be more prejudicial than relevant;
   • (vii) that in the alternative, the admission of such evidence is objectionable as inadmissible character evidence.

Prosecution’s Reply to First Accused

5. Replying to the submissions on behalf of the First Accused, the Prosecution contended as follows:
   • (i) that the subject evidence is not outside the existing Indictment and relates directly to Counts 3 and 4 of the Indictment and therefore does not require any amendment to the Indictment, and that cumulative charging is a standard practice at the International Tribunals and that if evidence is relevant to existing counts in the Indictment it is admissible;
   • (ii) that the evidence is relevant and probative and that the probative value outweighs any potential prejudicial effect, and that the Accused will not be unfairly prejudiced by the adduction of this evidence since they had received “the bulk” of disclosure on the subject evidence a year ago;
   • (iii) that the Defence claim that “a sex offence simply has to be more prejudical than relevant” is entirely unfounded and demonstrates a misunderstanding of the evidence and the law, there being no authority for this, sex crimes being no different from other crimes.

Response of Second Accused to Prosecution’s Motion

6. The Response of the Second Accused to the Prosecution’s Motion was as follows:
   • (i) that the alleged sexual offences were not pleaded with specificity in the Consolidated Indictment and accordingly, such evidence is outside the scope of the existing indictment, having regard to Rule 47(c) of the Rules;
   • (ii) that the proper test to be applied in this case “is whether the evidence is relevant and admissible on the existing counts”[3] and that the evidence on the alleged sexual offences is irrelevant to the offences charged in the Consolidated Indictment;
   • (iii) that it is generally accepted that evidence is relevant “if its effect is to make more or less probable the existence of any fact which is in issue”;[4]
   • (iv) that it is a generally accepted principle of law that an Accused is guaranteed the right to be informed promptly of the charges against him in the Indictment as provided for in Article 17(4)(a) of the Statute;
   • (v) that it is not disputed that “gender crimes” may be pleaded in an Indictment as “inhumane acts” or “cruel treatment” and that the jurisprudence is clear on this point;
   • (vi) that the dispute is over whether the factual basis for allegations of gender crimes has been specified;
   • (vii) that were the Chamber to admit the proposed evidence, the proceedings would be unduly delayed “to the detriment of the Second Accused’s right to be tried without undue delay”, and that the presentation of evidence outside the scope of the Consolidated Indictment was not anticipated by the Defence and that they have been operating “under the reasonable assumption that no evidence of the type proposed in the Motion would be presented, as no allegations of gender offences were pleaded in the Consolidated Indictment”;
   • (viii) that the Defence would need an adjournment to train their investigator in the sensitive matter of sex crimes investigation and to re-conduct investigations on this matter;
   • (ix) that at this late stage in the proceedings, such an adjournment would amount to undue delay, and that the Prosecution should have sought this clarification immediately following the Indictment Decision of the 20th of May, 2004 and that the Accused would be prejudiced if this Motion were to be granted at this late stage of the proceedings.

Prosecution Reply to Second Accused[5]

7. The Prosecution’s Reply to the submissions on behalf of the Second Accused may be summarised thus:
   • (i) that the subject evidence is relevant and admissible as it falls within the existing counts in the Consolidated Indictment;
   • (ii) that the allegations were not pleaded with specificity in the Indictment, but that this does not take the evidence outside the Indictment;
   • (iii) that the Accused was informed of the allegations against him by means of the individual statements served on him “over a year ago”, and has not suffered any prejudice in his ability to prepare his defence, in that the initial disclosure was in July 2003 and further statements were disclosed in February 2004;
   • (iv) that it outlined the evidence it intended to call in relation to the sexual allegations against the Second Accused in its Pre-Trial Brief of the 22nd of April 2004.

Response of Third Accused

8. The Response of the Third Accused was as follows:
   • (i) “the acts described in the Motion” could form the basis for a conviction for inhumane acts and violence to life, pursuant to Counts 3 and 4 of the Consolidated Indictment, but that the Prosecution has failed to set forth these allegations in the Indictment;
   • (ii) that the Third Accused faces an Indictment which lacks precision with regard to “the time period alleged; the geographical location(s) involved; the number of victims; the identity of victims; and the identity of perpetrators”;
   • (iii) that the discovery materials that contain reference to crimes of sexual violence are not the means through which the Accused is informed of the case against him, as submitted by the Prosecution;
   • (iv) that the Accused is not prepared to confront and cross-examine evidence of sexual violence and that given that the Indictment contained no reference to crimes of sexual violence, and the fact that the request for amendment on the Indictment to include such crimes was denied, there was no reasonable basis for the Accused to prepare to defend himself on such charges;
   • (v) that their investigators have no training or experience in handling cases of sexual violence and cannot reasonably be expected to undertake their investigation “without adequate footing”, and to respond adequately to this evidence the Accused would need additional time which would result in an undue delay in the trial;
   • (vi) that the defence of the Accused would be prejudiced by unduly delaying the proceedings.

Prosecution’s Reply to Third Accused

9. The Prosecution’s Reply to the submissions of the Third Accused may be summarised as follows:
   • (i) that the Decision of the Trial Chamber declining leave for the Prosecution to amend the Consolidated Indictment to include crimes of sexual violence did not “have the consequence of eliminating relevant and admissible evidence”, and that the proposed evidence is relevant and admissible as it falls within the scope of the existing counts in the Consolidated Indictment;
   • (ii) that allegations of lack of specificity in the Consolidated Indictment cannot support any claim that relevant and admissible evidence must be excluded, but agrees that the Indictment could have been pleaded with more specificity;
   • (iii) that the central consideration is whether the Accused’s ability to prepare his case has been materially impaired;
   • (iv) that the Accused has been on notice for a considerable time with respect to the nature of the evidence against him, and that witness statements that described acts of sexual violence were disclosed to the Defence over a year ago and that the initial disclosure took place in July 2003;
   • (v) that its Supplementary Pre-Trial Brief filed on the 22nd of April, 2004 outlined the evidence it intended to call in relation to the sexual allegations against the Third Accused;
   • (vi) that the Prosecution Chart Indicating Documentary and Testimonial Evidence by Paragraph of the Consolidated Indictment Pursuant to the Trial Chamber Order Dated 1 April 2004 that was filed on the 4th of May, 2004 also linked the proposed evidence with Counts 3 and 4;
   • (vii) that in the Prosecution Motion for Modification of Protective Measures for Witnesses filed on the 4th of May, 2004, it created a distinct category for Sexual Assault Witnesses and Victims who would be called at trial;
   • (viii) that the adduction of the proposed testimony will not cause undue delay as the Defence has been in possession of the relevant material for over a year and has accordingly had time to conduct investigations, and that even if the Defence were granted more time to prepare their defence there would be no undue delay;
   • (ix) that any prejudice to the Accused must be considered “in the context of the overall interest of justice”.

2. PRIMARY DECISION RECALLED

10. During the trial of this case on the 23rd of May 2005, this Trial Chamber issued the following short written published Decision disposing of the present Motion:

“1. Having carefully considered the merits of the Urgent Motion filed by the Prosecution on the 15th of February 2005 for a Ruling on the Admissibility of Evidence seeking clarification on (i) the extent to which the Trial Chamber’s Decision of the 20th of May, 2004 limits the adduction of particular relevant and admissible evidence, under existing counts in the Indictment, and (ii) the extent to which those portions of certain witnesses’ testimonies relating to certain unlawful acts can be adduced under existing Counts, as such Counts 3 and 4;

2. And having further carefully considered the Response of the Defence to the aforesaid Motion; and the Prosecution’s Reply thereto;

3. The Chamber, by a Majority Decision, denies the Motion.”

At the end of the Decision it was stated that:

“A reasoned written Decision will be published in due course to which shall be appended the Dissenting Opinion by the Hon. Justice Pierre Boutet.”

3. SUBSIDIARY RULINGS RECALLED

11. Based on the aforementioned Decision, the Chamber delivered three secondary rulings consistent with the said Primary Decision.
12. The First Ruling was given on the 1st of June, 2005 denying, by a Majority Decision (Hon. Justice Pierre Boutet, Presiding Judge, dissenting) the Prosecution’s application to permit prosecution witness, TF2-187, to testify in relation to certain acts of sexual violence. Based on its Majority Decision set out in paragraph 10 herein, the Chamber observed that “it has not been able to find any new and convincing legal logic to change its original position taken on this issue in its ruling dated the 23rd of May 2005 rendering such evidence inadmissible, as being, as it were, forbidden evidentiary territory.”
13. The second delivered on the 2nd of June, 2005, by a Majority Decision, (Hon. Justice Pierre Boutet, Presiding Judge, dissenting), was that evidence in relation to certain aspects of the testimony of prosecution witness TF2-135 dealing with sexual violence are inadmissible, consistent with the Chamber’s Decision of 23rd of May, 2005.
14. The third given on the 3rd of June, 2005 related to an objection by the Defence to a question by the Prosecution to prosecution witness TF2-189, the answer to which would have elicited evidence about forced marriage. By a majority (Hon. Justice Pierre Boutet, Presiding Judge, dissenting) the Chamber upheld the objection and ruled the question put by the Prosecution to be impermissible.
    4. DELIBERATION REINFORCING PRIMARY DECISION OF 23RD MAY 2005
15. Due to the prolixity of the parties’ submissions and arguments, already alluded to the Chamber deems it obligatory to frame what, in its opinion, is the key issue for determination with precision and conciseness, and to state, with like precision and conciseness, what the issues are not in order (i) (to coin a legal metaphor) to separate the legal woods from the legal trees and (ii) to articulate fully its reasons in support of the Decision of the 23rd of May, 2005.

A. Key Issue for Determination

16. In the Chamber’s opinion, the key issue for determination is whether or not the Article 17(4)(a),(b),(c) statutory due process rights of the accused persons guaranteed them by this tribunal will be prejudiced or unfairly or adversely impacted upon by the exercise of a prosecutorial discretion or latitude to adduce evidence of sexual violence under existing counts 3 and 4 of the Consolidated Indictment under the crimogenic category of “other inhumane acts” as provided by Article 2(i) of the Statute of the Court, or as acts indictable under Article 3 Common to the Geneva Conventions and of Additional Protocol II punishable under Article 3(a) of the Court’s Statute, without any specific pleading to that effect in the aforesaid Indictment, against the background of a denial by the Chamber of a prior Motion for amendment of the said indictment to include counts of forced marriage on the grounds (as the Prosecution submitted) that the existing jurisprudence of other international criminal tribunals supports the proposition that sexual offences do fall within the broad category of “other inhumane acts” as crimes against humanity.

B. Non-Issues

17. Firstly, the Chamber opines that the issue for determination is certainly not whether, as a matter of international criminal law, acts of sexual violence do fall or do not fall within the proscriptive ambit of “other inhumane acts” as crimes against humanity under Article 2(i) of the Statute of the Special Court for Sierra Leone. Secondly, in the Chamber’s view, it is, likewise not the issue that the jurisprudence of other international criminal tribunals supports or does not support the proposition of law that acts of sexual violence do fall within the proscriptive ambit of “other inhumane acts” as crimes against humanity under the statutes establishing those tribunals. Thirdly, from the Chamber’s judicial perspective, the issue is not whether or not the administration of justice would be brought into disrepute if evidence relating to unlawful acts which potentially fall under more than one category of offences was not adduced based on, according to the Prosecution, a “definitional distinction.” These are not, at this crucial phase of the trial proceedings, the critical issues, we opine, for the purposes of determining the merits of the present application. In a nutshell, they do not really constitute the pith and marrow of the substance of the Motion which, as already noted, strikes at the very root of the procedural due process rights of the accused persons.

C. Basic Applicable Principle

18. Keeping the key issue for determination as formulated in paragraph 16 in proper judicial focus, the Chamber now proceeds to articulate its reasons by way of significant findings for denying the Prosecution’s Motion, and for specifically holding that it is impermissible for the evidence in question to be adduced at this stage. It is trite law that an indictment as the fundamental accusatory instrument which sets in motion the criminal adjudicatory process, must be framed in such a manner as not to offend the rule against multiplicity, duplicity, uncertainty or vagueness, and that where specific factual allegations are intended to be relied upon or proven in support of specific counts in the indictment they ought to be pleaded with reasonable particularity.[6]

V. SIGNIFICANT FINDINGS

19. Applying this principle to the instant Motion, the Chamber finds significantly as follows:
    • (i) that nowhere in Counts 3 and 4 of the Consolidated Indictment as amended are there any specific factual allegations of sexual violence under the respective statements of the offences of “Inhumane Acts” as a crime against humanity, punishable under Article 2(i) of the Court’s Statute, in respect of which the proposed evidence may be perceived as building blocks;
    • (ii) that based upon the recognised logical nexus that must exist between factual allegations and evidence designed to prove the former as alluded to in (i) above, it cannot be validly posited that the proposed evidence can properly be adduced to support Counts 3 and 4 of the Consolidated Indictment without the underlying factual allegations having been specifically pleaded;
    • (iii) (a) that the particulars embodied in the Consolidated Indictment in respect of Counts 3 and 4 cannot be validly interpreted to be of an inclusive nature and as not excluding the broad range of unlawful acts which can lead to serious physical and mental harm, especially having proper regard to the formula, “and any other form of sexual violence” in Article 2(g) creating a separate specific residual category of sexual violence, of the same kind as rape, sexual slavery, enforced prostitution, and forced pregnancy;

(b) that in the light of the separate and distinct residual category of sexual offences under Article 2(g), it is impermissible to allege acts of sexual violence (other than rape, sexual slavery, enforced prostitution, forced pregnancy) under Article 2(i) since “other inhumane acts”, even if residual, must logically be restrictively interpreted as covering only acts of a non-sexual nature amounting to an affront to human dignity;

(c) that the clear legislative intent behind the statutory formula “any other form of sexual violence” in Article 2(g) is the creation of a category of offences of sexual violence of a character that do not amount to any of the earlier enumerated sexual crimes, and that to permit such other forms of sexual violence to be charged under “other inhumane acts” offends the rule against multiplicity and uncertainty;

(iv) that it would gravely undermine the procedural due process rights of accused persons and thereby bring the administration of justice into disrepute if, at every stage during the conduct of their trial, they are confronted with new pieces of evidence designed to prove factual allegations not specifically pleaded in the Indictment, under the guise of a prosecutorial latitude to broaden the definitional scope of the statutory categories of offences chargeable, the effect of which is to bring about an alignment between such expanded category of criminality and evidence in respect of which no factual allegations have been specifically pleaded, on the grounds of a prosecutorial imperative to prosecute the entire range or spectrum of alleged culpable criminal acts;
(v) that nothing in the records seems to support the Prosecution’s assertion that the evidentiary material under reference had been disclosed to the Defence “in some form” over 12 months ago and even if there were, there is nothing in the Consolidated Indictment, the principal accusatory instrument, to sustain such an assertion;
(vi) that the Chamber finds plausible the Defence submission that the Motion is “an attempt to back door the Trial Chamber prior ruling that the indictment could not be amended to include sex crimes”;
(vii) that it is a legal misconception that once a determination is made that evidence sought to be adduced is relevant and of probative value, such a finding automatically triggers off its reception in evidence, even though the Indictment may not contain any specific factual allegations underlying that evidence;
(viii) that admitting the disputed evidence, at this very late and crucial stage of the trial, when the Prosecution is about to close its case is not only not fair to the Accused persons but does derogate significantly from their Article 17 due process rights especially, the Article 17(4) (a) which guarantees every Accused person 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.

VI. CONCLUSION

20. Based on the foregoing considerations and the significant findings, the Chamber denies the Prosecution’s Motion consistent with its Decision of the 23rd of May 2005.

Hon. Justice Bejamin Mutanga Itoe appends a Separate Concurring Opinion to this Majority Decision; and Hon. Justice Pierre Boutet appends a Dissenting Opinion to the aforesaid Majority Decision.

Done in Freetown, Sierra Leone, this 24th day of May, 2005

[Seal of the Special Court for Sierra Leone]

[1] Krstic Trial Judgment, 2 August 2001, para. 513; Akayesu Trial Judgment, 2 September 1998; para. 688; Delalic Trial Judgment, 16 November 1998, para. 1066.
[2] Kayishema and Ruzindana Trial Judgment, 21 May 1999, para. 936; Niyetegeka Trial Judgment, paras 463-467; Akayesu Trial Judgment, 16 May 2003, paras 688-69; Kajelijeli Trial Judgment, 1 December 2003, para. 936.
[3] Motion, para. 36.
[4] Richard May and Marieke Wierda, INTERNATIONAL CRIMINAL EVIDENCE at 4.23, Transnational (2000) Quoting Richard May, CRIMINAL EVIDENCE at 1-13 (Sweet & Maxwell 1999).
[5] The Prosecution inadvertently in its Reply refers in various paragraphs to the First Accused, intended as a reference to the Second Accused.
[6] In the Sierra Leone jurisdiction, the Court of Appeal deplored the idea of an indictment framed in such a way as to create duplicity, multiplicity or uncertainty in a count or counts both as to the offences or supporting factual allegations – See Lansana and Eleven Others v. Reginam, ALR. SL. 186 (1970-71) discussed in The Criminal Law of Sierra Leone by Bankole Thompson, published by the University Press of America Inc., Maryland, 1999 at pages 177-207.