## Facts

- Germain Katanga, alleged commander in the Forces de Résistance Patriotique d’Ituri (FRPI), was tried for crimes arising from the 24 February 2003 attack on Bogoro, Democratic Republic of the Congo.
- Katanga and Mathieu Ngudjolo Chui were jointly tried before Trial Chamber II; the trial began in November 2009 and the presentation of evidence closed in February 2012.
- After the close of evidence, Trial Chamber II issued a decision giving notice under Regulation 55(2) that it might change the legal characterization of Katanga’s mode of liability from Article 25(3)(a) (principal/perpetrator liability) to Article 25(3)(d) (contribution to group crime).
- The same decision severed Katanga’s case from Ngudjolo’s, allowing Katanga’s proceedings to continue separately.
- Katanga brought an interlocutory appeal under Article 82(1)(d), challenging both the timing/scope of Regulation 55 notice and the severance decision.

## Issues

1. Whether a Trial Chamber may give Regulation 55(2) notice of a possible change in legal characterization after the close of evidence and during deliberations.
2. Whether providing such notice at that stage violates the accused’s fair-trial rights, including adequate notice, time and facilities to prepare, and the rights to silence and against self-incrimination.
3. Whether severing the proceedings at that stage constituted an error or caused unfair prejudice to Katanga.

## Decision

- The Appeals Chamber (by majority, with a dissent) dismissed the appeal and confirmed the Trial Chamber’s decision.
- It held that Regulation 55(2) notice may be issued during deliberations, provided the Trial Chamber ensures the proceedings remain fair.
- It found no established violation of Katanga’s rights at the notice stage because the decision initiated a process and contemplated additional protective measures as needed.
- It held the severance decision fell within the Trial Chamber’s discretion and Katanga did not show concrete, non-speculative prejudice.

## Legal Principles

- Regulation 55 permits changes to the legal characterization of facts already contained within the confirmed charges, but it does not permit expanding the factual basis beyond the “facts and circumstances” described in the charges as confirmed (and any permitted amendments).
- A Trial Chamber may issue Regulation 55(2) notice at any time before judgment, including after the close of evidence and during deliberations, if fairness protections are maintained.
- Fairness safeguards for late recharacterization may include additional time, further submissions, recalling witnesses, and admitting additional evidence where necessary to allow a meaningful defense response.
- A claim that late notice impaired defense strategy or affected a decision to testify requires a showing of concrete prejudice that is not curable through trial-level measures.
- Severance in a joint trial is a matter of trial management discretion and will be overturned only upon a showing of legal error, abuse of discretion, or demonstrable unfair prejudice.

## Conclusion

The Appeals Chamber upheld the Trial Chamber’s authority to issue Regulation 55(2) notice during deliberations and to sever jointly tried accused, emphasizing that any recharacterization must remain within the confirmed factual framework and must be accompanied by procedures that preserve a fair trial.


Prosecutor v. Katanga, Case No. ICC-01/04-01/07 OA 13 (Int’l Crim. Ct. App. Ch. 2013)