Rutaganda, whose case had already been decided on appeal, applied for access to confidential material from another case. His request was denied by the relevant Trial Chamber (including the request for reconsideration)[1] and he seized the Appeals Chamber with a request for leave to appeal the Trial Chamber’s decision. On 22 January 2009, the Appeals Chamber found that the Applicant was entitled to appeal the Decision of 3 April 2008 (Rutaganda Order on Rule 75 Appeal):[2]

p. 2: CONSIDERING that Rule 75(G) of the Rules of Procedure and Evidence of the Tribunal (“Rules”) which allows for the possibility of seeking to rescind, vary, or augment protective measures ordered at trial does not provide for an appeal as of right, nor do the Rules address the issue of whether a decision rendered by a Trial Chamber after the close of trial and appeal proceedings is subject to appeal;

CONSIDERING that the Appeals Chamber has previously held that an applicant is entitled to lodge an appeal against a decision rendered by a Trial Chamber, pursuant to Rule 75(G) of the Rules, after the close of trial and appeal proceedings;[3]

FINDING therefore that the Applicant is entitled to appeal the Decision of 3 April 2008

Rule 75 of the Rules was subsequently amended to state that appeals in such cases lie as of right.[4] In light of the fact that the dead-lines established in the new Rule had expired at the time of the motion, the Appeals Chamber established case-specific dead-lines for Rutaganda’s appeal (“Rutaganda Decision on Leave to Appeal”).[5]

15. The Appeals Chamber recalls that, while Rule 89 of the Rules grants Trial Chambers a broad discretion in assessing admissibility of evidence they deem relevant, this discretion is not unlimited, considering that the test to be met before ruling evidence inadmissible is rigorous.[1] A piece of evidence may be so lacking in terms of the indicia of reliability that it is not probative and is therefore inadmissible. This principle should not be interpreted to mean that definite proof of reliability must necessarily be shown for evidence to be admissible. Prima facie proof of reliability on the basis of sufficient indicia is enough at the admissibility stage.[2] This indicium of reliability is in turn “a factor in the assessment of its relevance and probative value”.[3] Furthermore, as the Appeals Chamber has held, “evidence is admissible only if it is relevant and […] it is relevant only if it has probative value”.[4] The determination as to whether the proffered material conforms to the criteria of Rule 89 has to be made on a case-by-case basis.[5]

19. With respect to the nine remaining documents falling within the scope of the Appeal, the Appeals Chamber notes that they were rejected on the ground that the witnesses could not comment on the reliability, relevance or probative value of the exhibits.[6] Under the first ground of appeal, the Appellant does not present any arguments with respect to the Trial Chamber’s alleged errors in this evaluation, apart from some general submissions according to which the final assessment of the relevance, reliability or probative value should be done at the end of the trial rather then during its course.[7] The Appeals Chamber reiterates that these are the established criteria of admissibility of evidence and emphasizes that they should not be confused with the assessment of the evidence performed at the stage of deliberations on the judgement.[8]

22. With respect to the Appellant’s references to the previous statements made by the Pre-Trial and Trial Chambers in relation to the admission of evidence,[9] the Appeals Chamber similarly finds that the Appellant misconstrues them. Indeed, the Trial Chamber explained that the final assessment of the relevance, reliability and probative value of the admitted exhibits (i.e. weight to be given to the evidence on the record) would be performed at the end of the trial. This can in no way be interpreted as suggesting that the criteria for admissibility of tendered material may not be assessed during the trial when ruling on the admission. Moreover, when admitting the documents into evidence – subject to the assessment of weight to be given to them at a later stage – the Trial Chamber explicitly concluded that they bore “sufficient indicia of relevance, probative value and reliability”,[10] thus consistently applying the criteria of Rule 89 of the Rules.

17. The Appellant’s submission according to which relevance can only be assessed after conclusion of the trial contradicts the logic of Rule 89(C) of the Rules which refers to relevance as one of the main criteria of admissibility of evidence throughout the trial.[1] This submission therefore stands to be rejected. The evaluation of relevance at the stage of admissibility of evidence has been defined by the Appeals Chamber as a consideration of “whether the proposed evidence sought to be admitted relates to a material issue”.[2] When the relevance is assessed during the course of a trial, the material issues of the case are found in the indictment.[3] The Appeals Chamber is further of the view that it is for the party tendering the material to show that it has the required indicia of relevance in order to be admissible under Rule 89(C) of the Rules. Finally, the criteria for admission of evidence are cumulative, which means that the given evidence cannot be admitted if all the criteria are not fulfilled. Therefore, the Appellant’s argument that the Trial Chamber could not reject the admission on the sole basis that the tendered material lacked relevance, without inviting him to clarify the issue, cannot prosper.

The Appeals Chamber considered whether the Trial Chamber erred in law when it concluded that, pursuant to Rwandan law, Hategekimana may face life imprisonment in isolation without adequate safeguards, in violation of his right not to be subjected to cruel, inhumane and degrading treatment. The Appeals Chamber noted Rwanda’s submission that its Parliament had recently passed a new law which modifies the Abolition of Death Penalty Law,[1] and that in accordance with Article 1 of this law, life imprisonment with special provisions, which includes solitary confinement, shall not apply to cases transferred from the Tribunal to Rwanda under the Transfer Law.[2]  The Appeals Chamber further noted[3] that Article 1 of the said law provides:

[L]ife imprisonment with special provision as provided for by paragraph one of this article shall not apply to cases transferred to Rwanda from the International Criminal Tribunal for Rwanda and from other States in accordance with the provisions of the [Transfer Law]…

The Appeals Chamber found that:

38.    The Appeals Chamber considers that, should this new law enter into force in its current form, the ambiguity as to the applicable punishment for transfer cases which it noted in the Munyakazi and Kanyarukiga decisions[4] would be resolved. However, there is no information before the Appeals Chamber to indicate that this law has entered into force. The Appeals Chamber is therefore unable to conclude that the ambiguity as to the applicable punishment under Rwandan law for transfer cases has been resolved. Accordingly, the Appeals Chamber finds no error in the Trial Chamber’s conclusion that under Rwanda’s current legal framework, Hategekimana may face life imprisonment in isolation without adequate safeguards, in violation of his right not to be subjected to cruel, inhumane and degrading treatment.[5] The Appeals Chamber therefore dismisses this ground of appeal.

The Appeals Chamber concluded by finding that:

40.    The Appeals Chamber acknowledges the steps which Rwanda has recently taken to clarify the issue of the applicable penalty for transfer cases. However, the Appeals Chamber notes its finding under Ground 2 that the Trial Chamber did not err in concluding that Hategekimana’s right to obtain the attendance of, and to examine, Defence witnesses under the same conditions as witnesses called by the Prosecution cannot be guaranteed at this time in Rwanda. The Appeals Chamber therefore finds that the Prosecution has not shown that the Trial Chamber abused its discretion in denying the request to transfer Hategekimana’s case to Rwanda on the basis that, under the present circumstances, it was not satisfied that he would receive a fair trial in that country.

The Appeals Chamber considered whether the Trial Chamber erred in law and in fact by (1) holding that Hategekimana will not obtain the attendance and examination of Defence witnesses residing inside Rwanda and abroad under the same conditions as witnesses against him; and (2) failing to give equal weight to the monitoring and revocation mechanisms available under Rwandan law as a means to deal with the availability of witnesses, despite doing so elsewhere in the Rule 11bis Decision in regard to other issues.

With regard to witnesses within Rwanda, the Appeals Chamber held:

21.    The Appeals Chamber considers that there was sufficient information before the Trial Chamber of harassment of witnesses testifying in Rwanda, and that defence witnesses who have given evidence before the Tribunal experienced threats, torture, arrests and detentions, and, in some instances, were killed.[1] The Trial Chamber noted that HRW, ICDAA and Hategekimana provided examples of witnesses who had been threatened or harassed after testifying before the Tribunal as well as ordinary and Gacaca courts in Rwanda.[2] It also noted that some witnesses were arrested or accused in Gacaca proceedings in Rwanda after testifying[3] and that, according to HRW, some witnesses were afraid to testify for fear of prosecution under Rwandan laws concerning genocidal ideology.[4]

22.    The Appeals Chamber observes that the information available to the Trial Chamber demonstrates that regardless of whether their fears are well-founded, witnesses in Rwanda may be unwilling to testify for the defence as a result of the fear that they may face serious consequences, including prosecution, threats, harassment, torture, arrest, or even murder.[5] The Appeals Chamber considers that it was therefore not necessary for the Trial Chamber to satisfy itself that individual Defence witnesses in this particular case are reluctant to testify for these reasons. It consequently finds that the Trial Chamber did not err in concluding that witnesses in Rwanda may be unwilling to testify for the Defence.

23.    The Appeals Chamber further considers that in making its finding on the availability of witnesses, the Trial Chamber did take into account the safeguards in Rwandan law to facilitate or if necessary enforce the attendance of witnesses living in Rwanda and abroad, including immunity and safe passage for defence witnesses. The Trial Chamber explicitly considered Article 14 of the Transfer Law which deals with the assistance and protection of witnesses, including defence witnesses.[6]

As for witnesses outside Rwanda, the Appeals Chamber found that

24.    […] the Trial Chamber did explicitly consider the provisions of Rwandan law relating to measures put into place to facilitate witness protection and safety, including Article 14 of the Transfer Law.[7] The Appeals Chamber further finds that the Trial Chamber did not err in accepting Hategekimana’s assertion that most of his witnesses reside outside Rwanda, as this is usual for cases before the Tribunal.[8] The Trial Chamber also expressly referred to the submissions from HRW in finding that witnesses residing outside Rwanda may be unwilling to travel to Rwanda to testify,[9] and that some Defence witnesses may be prevented from returning to Rwanda to testify, as a consequence of their refugee status.[10] The Appeals Chamber therefore finds that the Trial Chamber did not err in concluding, based on the information before it, that despite the protections available in Rwandan law, Hategekimana may face difficulties in obtaining the testimony of witnesses living outside Rwanda.

25.    With respect to Rwanda’s ability to compel witnesses to testify, the Appeals Chamber, recalling its findings in Munyakazi and Kanyarukiga, and noting Rwanda’s submissions in this case, finds that Rwanda has several mutual assistance agreements with States in the region and elsewhere in Africa, and that agreements have been negotiated with other States as part of Rwanda’s cooperation with the Tribunal and in the conduct of its domestic trials.[11] Further, the Appeals Chamber reiterates that United Nations Security Council Resolution 1503, calling on all States to assist national jurisdictions where cases have been referred, provides a clear basis for requesting and obtaining cooperation.[12] It therefore finds that the Trial Chamber erred in holding that Rwanda had not taken any steps to conclude conventions on mutual assistance in criminal matters, or to secure the attendance or evidence of witnesses from abroad.

26.    The Appeals Chamber considers that Rwanda has established that video-link facilities are available, and that video-link testimony would likely be authorized in cases where witnesses residing outside Rwanda genuinely fear to testify in person.[13] The Appeals Chamber further notes Rwanda’s submission that this procedure is intended to be an exceptional measure and that the possibility also exists for evidence to be taken abroad.[14] However, the Appeals Chamber is of the opinion that the Trial Chamber did not err in finding that the availability of video-link facilities is not a completely satisfactory solution with respect to the testimony of witnesses residing outside Rwanda, given that it is preferable to hear direct witness testimony,[15] and that it would be a violation of the principle of equality of arms if the majority of Defence witnesses would testify by video-link while the majority of Prosecution witnesses would testify in person.[16]

13. […] While stating that States are under a duty to cooperate with the Tribunal at all stages of the procedure under Article 28 of the Statute, the Trial Chamber considered that in the present case, the Registrar had a specific authority to request a State’s cooperation based on his mandate to execute the Tribunal’s decision,[1] and that it could “not conclude that an order requesting the cooperation of Canada is necessary, [finding] on the contrary, that the Canadian Government ha[d] complied with its obligations, in its relations with the Registrar”.[2] The Appeals Chamber thus finds no contradiction in the Decision of the President and the Decision of the Trial Chamber in respect of Article 28 of the Statute.

15. […] The Appeals Chamber finds that the diplomatic initiatives of the Registrar in relation to relocation do not fall within the ambit of the obligation of States to cooperate with the Tribunal under Article 28 of the Statute. Such an obligation pertains solely to the “investigation and prosecution of persons accused of committing serious violations of international humanitarian law”,[3] and hence does not extend to the relocation of acquitted persons. The Appeals Chamber thus finds that, contrary to the President’s Decision and the Trial Chamber’s Decision which both considered requests for cooperation – by a Trial Chamber in the former case and the Registrar in the latter case – with regard to the question whether relocation of acquitted persons fall within the scope of Article 28 of the Statute, there is no legal duty under Article 28 of the Statute for States to cooperate in the relocation of acquitted persons.

19 […] While the Tribunal does not have the ability to direct any State to accept the Appellant on its territory or to fully investigate whether the Appellant’s life or liberty would be at risk should he be returned to Rwanda or to another African country, it has nonetheless a duty to ensure the welfare of the acquitted person, and to that extent, to enquire whether the Appellant’s life or liberty would be at risk upon relocation to a given country. In this regard, the Appeals Chamber notes that, notwithstanding the limitations on the capacity of the Tribunal to secure relocation for the Appellant, the Registrar is continuing his efforts to find a solution to the present situation.[1] As part of such efforts, the Appeals Chamber requests the Registrar to make enquiries with the Office of the United Nations High Commissioner for Refugees and solicit its assistance in relocating the Appellant.

25. As for the proposed testimony of former co-counsel Ms. Chrissa Loukas, the Appellant does not provide any material stemming from her personally relating to the issue of alleged ineffective assistance of former counsel Mr. Nicholas Stewart QC. Nor does the Appellant submit any other documentation from her on the basis of which the Appeals Chamber can determine the potential impact of her possible testimony on the verdict. Rather, the Appellant’s position appears to be that, since Ms. Chrissa Loukas is mentioned in Documents 1–3, she should be given an opportunity to testify on the issues therein.[1] In the Appeals Chamber’s view, this amounts to a fishing expedition and as such falls outside the ambit of Rule 115 of the Rules.[2] The Appellant’s request to call Ms. Chrissa Loukas under Rule 115 of the Rules is therefore dismissed.

26. […] However, these assertions do not clarify whether, and how, the admission of Mr. Alexander Zahar’s proposed testimony is in the interests of justice as being of substantial importance to the success of the appeal to the extent that its exclusion would lead to a miscarriage of justice. Indeed, the Appellant fails to provide any documentation stemming from Mr. Alexander Zahar himself on the basis of which the Appeals Chamber can determine his anticipated testimony’s potential impact on the verdict. The Appellant’s request to call Mr. Alexander Zahar as a witness under Rule 115 of the Rules is accordingly dismissed.

The Appeals Chamber recalled the criteria applicable to the admission of additional evidence on appeal (paras 3-7).

With respect to the working conditions for the Defence in Rwanda, the Appeals Chamber held:

21.    The Appeals Chamber notes that it is unclear how the mechanisms of monitoring and revocation under the Rules would constitute sufficient safeguards for the defence with regard to obtaining documents in a timely manner and visiting detainees. The Appeals Chamber further notes that Article 15 of the Transfer Law, while ensuring Defence Counsel and staff the right to enter and move freely within Rwanda and freedom from search, seizure, arrest or detention in the performance of their legal duties, is silent on the issues of obtaining documents from the Rwandan authorities or visiting detainees. Article 13(4) of the Transfer Law, on the other hand, does provide the right of the Accused to adequate time and facilities to prepare his defence, which could constitute the basis for seeking a remedy before the Rwandan courts. As the Trial Chamber did not make any specific finding that such issues could not be so remedied, however, the Appeals Chamber finds no error in the Trial Chamber’s conclusion that defence teams have experienced impediments in obtaining documents from the Rwandan authorities and in meeting witnesses. The Appeals Chamber considers that these obstacles, whilst not sufficient in and of themselves to prevent referral of a case to Rwanda under Rule 11bis, do indicate that working conditions for the defence may be difficult in Rwanda, which in turn has a bearing on the fairness of the trial.

With regard to the issue of whether the Trial Chamber erred in finding that the Defence might face problems in obtaining witnesses residing inside Rwanda because they will be afraid to testify, the Appeals Chamber held:

26.    The Appeals Chamber considers that there was sufficient information before the Trial Chamber of harassment of witnesses testifying in Rwanda, and that witnesses who have given evidence before the Tribunal experienced threats, torture, arrests and detentions, and, in some instances, were killed.[1] There was also information before the Trial Chamber of persons who refused, out of fear, to testify in defence of people they knew to be innocent.[2] The Trial Chamber further noted that some defence witnesses feared that, if they testified, they would be indicted to face trial before the Gacaca courts, or accused of adhering to “genocidal ideology”.[3] The Appeals Chamber observes that the information available to the Trial Chamber demonstrates that regardless of whether their fears are well-founded, witnesses in Rwanda may be unwilling to testify for the Defence as a result of the fear that they may face serious consequences, including threats, harassment, torture, arrest, or even murder.[4] It therefore finds that the Trial Chamber did not err in concluding that Kanyarukiga might face problems in obtaining witnesses residing in Rwanda because they would be afraid to testify.

27.    The Appeals Chamber agrees with the Trial Chamber’s conclusion that the fact that the Rwandan witness protection service is administered by the Office of the Prosecutor General and that threats of harassment are reported to the police does not necessarily render it inadequate.[5] However, it finds that, based on the information before it,[6] the Trial Chamber did not err in finding that witnesses would be afraid to avail themselves of its services for these reasons.

The Appeals Chamber also considered whether the Trial Chamber erred in finding that the Defence will not be able to call witnesses residing outside Rwanda, to the extent and in the manner that will ensure a fair trial:[7]

31.    The Appeals Chamber finds that the Trial Chamber did not err in accepting Kanyarukiga’s assertion that most of his witnesses reside outside Rwanda, as this is usual for cases before the Tribunal,[8] and is supported by information from HRW.[9] The Appeals Chamber also finds that there was sufficient information before the Trial Chamber that, despite the protections available under Rwandan law, many witnesses residing outside Rwanda would be afraid to testify in Rwanda.[10] It therefore finds that the Trial Chamber did not err in concluding, based on the information before it, that despite the protections available in Rwandan law, it was not satisfied that Kanyarukiga would be able to call witnesses residing outside Rwanda to the extent and in a manner which would ensure a fair trial if the case were transferred to Rwanda.

32.    With respect to Rwanda’s ability to compel witnesses to testify, the Appeals Chamber recalls its finding in Munyakazi that Rwanda has several mutual assistance agreements with states in the region and elsewhere in Africa, and that agreements have been negotiated with other states as part of Rwanda’s cooperation with the Tribunal and in the conduct of its domestic trials.[11] It therefore finds that the Trial Chamber erred in holding that Rwanda had not taken any steps to conclude conventions on mutual assistance in criminal matters that would make it difficult to secure the attendance of witnesses. Further, the Appeals Chamber reiterates that United Nations Security Council Resolution 1503, calling on all states to assist national jurisdictions where cases have been referred, provides a clear basis for requesting and obtaining cooperation.[12] The Trial Chamber took note of the Resolution, but concluded that it was not convinced that it would be in itself sufficient to ensure the availability of Defence witnesses.[13] Given the finding made above as to the likely difficulty that Kanyarukiga would face in bringing witnesses outside Rwanda to testify in view of the genuine fear they harbour, the Appeals Chamber agrees with the Trial Chamber.

33.    The Appeals Chamber considers that Rwanda has established that video-link facilities are available, and that video-link testimony would likely be authorized in cases where witnesses residing outside Rwanda genuinely fear to testify in person. However, the Appeals Chamber is of the opinion that the Trial Chamber did not err in finding that the availability of video-link facilities is not a completely satisfactory solution with respect to the testimony of witnesses residing outside Rwanda, given that it is preferable to hear direct witness testimony,[14] and that it would be a violation of the principle of the equality of arms if the majority of Defence witnesses would testify by video-link while the majority of Prosecution witnesses would testify in person.[15]

34.    The Appeals Chamber finds that while the Trial Chamber erred in holding that Rwanda had not taken any steps to conclude conventions on mutual assistance in criminal matters, the totality of circumstances indicate that the Trial Chamber was correct in concluding that Kanyarukiga would still face significant difficulties in securing the attendance of witnesses who reside outside Rwanda to the extent and in a manner which would jeopardize his right to a fair trial.

35.    The Appeals Chamber therefore finds that, in light of the above, the Trial Chamber did not err in holding, based on the information before it, that if the case were to be transferred to Rwanda, Kanyarukiga might face difficulties in obtaining witnesses residing within Rwanda because they would be afraid to testify, and that he would not be able to call witnesses residing outside Rwanda, to the extent and in a manner that would ensure a fair trial. The Appeals Chamber therefore dismisses this sub-ground of appeal.