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| Appeal Judgement - 14.12.2015 |
NYIRAMASUHUKO et al. (Butare) (ICTR-98-42-A) |
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126. The Appeals Chambers recalls that once a trial judgement is pronounced, any request for reconsideration of a decision taken within the framework of first instance proceedings must be raised through the notice of appeal and the appeal brief.[1] The Appeals Chamber therefore rejects the Prosecution’s argument that Ntahobali has improperly sought reconsideration of an interlocutory appeal decision through his appeal. 127. Under the settled jurisprudence of the Tribunal, the Appeals Chamber may reconsider a previous interlocutory decision under its inherent discretionary power to do so if a clear error of reasoning has been demonstrated or if it is necessary to do so to prevent an injustice.[2] The Appeals Chamber emphasises that the exercise of this reconsideration power is only designed to apply in exceptional circumstances.[3] Indeed, the Appeals Chamber recalls that reconsideration is an exception to the principle that prior interlocutory appeal decisions are binding in continued proceedings in the same case as to all issues definitively decided by those decisions.[4] This principle prevents parties from endlessly relitigating the same issues, and is necessary to fulfil the very purpose of permitting interlocutory appeals: to allow certain issues to be finally resolved before proceedings continue on other issues.[5] 128. The Appeals Chamber notes that Ntahobali waited nearly a decade, and until after the completion of the trial proceedings, to seek reconsideration of the Appeal Decision on Continuation of Trial through his appeal against the Trial Judgement, without explaining why he did not seek reconsideration earlier. The Appeals Chamber stresses that a “matter must be raised with the court at the time the problem is perceived in order to enable the problem to be remedied”.[6] As held in the Čelebići Appeal Judgement, “the requirement that the issue must have been raised during the proceedings is not simply an application of a formal doctrine of waiver, but a matter indispensable to the grant of fair and appropriate relief.”[7] By failing to raise this matter before the Appeals Chamber prior to the completion of the trial proceedings, Ntahobali deprived the Appeals Chamber of the opportunity to re-examine whether it was in the interests of justice to continue the trial with a substitute judge. 129. In these circumstances, the Appeals Chamber declines to exercise its discretionary power to consider Ntahobali’s request for reconsideration of the Appeal Decision on Continuation of Trial. Accordingly Ntahobali’s request for reconsideration is dismissed. [1] Ferdinand Nahimana et al. v. The Prosecutor, Case No. ICTR-99-52-A, Décision relative à la Requête de l’appelant Jean-Bosco Barayagwiza demandant l’examen de la requête de la Défense datée du 28 Juillet 2000 et réparation pour abus de procédure, 23 June 2006 (“Barayagwiza 23 June 2006 Appeal Decision”), para. 27. The Appeals Chamber has in the past reconsidered previous interlocutory decisions in an appeal judgement. See Kajelijeli Appeal Judgement, paras. 203-207. [2] See, e.g., Munyagishari Appeal Decision [Bernard Munyagishari v. The Prosecutor, Case No. ICTR-05-89-AR11bis, Decision on Bernard Munyagishari’s Motion for Reconsideration of the Decision on Appeals Against Referral Decision, 8 July 2013], para. 13; Kajelijeli Appeal Judgement, para. 203; Barayagwiza 4 February 2005 Appeal Decision [Ferdinand Nahimana et al. v. The Prosecutor, Case No. ICTR-99-52-A, Decision on Jean-Bosco Barayagwiza’s Request for Reconsideration of Appeals Chamber Decision of 19 January 2005, 4 February 2005], p. 2. [3] See, e.g., Prosecutor v. Zoran Žigić, Case No. IT-98-30/1-A, Decision on Zoran Žigić’s “Motion for Reconsideration of Appeals Chamber Judgement IT-98-30/1-A Delivered on 28 February 2005”, 26 June 2006, para. 5; Barayagwiza 23 June 2006 Appeal Decision, para. 22; Kajelijeli Appeal Judgement, para. 204. [4] See Barayagwiza 23 June 2006 Appeal Decision, para. 22; Kajelijeli Appeal Judgement, para. 202. [5] See Barayagwiza 23 June 2006 Appeal Decision, para. 22; Kajelijeli Appeal Judgement, para. 202. [6] See Čelebići Appeal Judgement, para. 641. It is settled jurisprudence that a party should not refrain from making an objection to a matter which was apparent during the course of the trial to raise it only on appeal in the event of an adverse finding against that party. See Nahimana et al. Appeal Judgement, para. 215; Niyitegeka Appeal Judgement, para. 199; Čelebići Appeal Judgement, para. 640; Tadić Appeal Judgement, para. 55. [7] See Čelebići Appeal Judgement, para. 641. |
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| Appeal Judgement - 14.12.2015 |
NYIRAMASUHUKO et al. (Butare) (ICTR-98-42-A) |
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140. Turning to Nyiramasuhuko’s contention that Judge Bossa could not assess the demeanour of witnesses based on the audio-recordings, the Appeals Chamber is of the view that the importance of observing first-hand the demeanour of witnesses in court cannot be discounted on the ground that audio-recordings exist. Although the preference for live testimony to be heard by each judge does not represent an “unbending requirement”,[1] the Appeals Chamber is not convinced that audio‑recordings alone allow a substitute judge to thoroughly assess all aspects of the witness’s demeanour in court, in particular when the judge is not proficient in the language spoken by the witness.[2] […] 148. The Appeals Chamber is of the view that transcripts or audio recordings of a witness’s testimony in court do not necessarily always allow a judge to assess thoroughly the witness’s possible aggressiveness, reluctance to answer questions, lack of emotion, silences, and arrogance. […] 164. The Appeals Chamber reiterates that, while there is a clear preference for live testimony to be heard by each and every judge, this preference does not represent an unbending requirement.[3] […] [1] The Prosecutor v. Édouard Karemera et al., Case No. ICTR-98-44-AR15bis.3, Decision on Appeals pursuant to Rule 15bis(D), 20 April 2007 (“Karemera et al. 20 April 2007 Appeal Decision”), para. 42, quoting Appeal Decision on Continuation of Trial [The Prosecutor v. Pauline Nyiramasuhuko et al., Case No. ICTR-98-42-A15bis, Decision in the Matter of Proceedings under Rule 15bis(D), 24 September 2003], para. 25. See also Prosecutor v. Vojislav Šešelj, Case No. IT-03-67-AR15bis, Decision on Appeal Against Decision on Continuation of Proceedings, 6 June 2014, para. 37; Appeal Decision on Continuation of Trial, para. 33 (“But [the substitute judge] may feel that, even in the absence of video‑recordings, the record of proceedings is enough to enable him to appreciate what has happened. Failure to review video-recordings which, because they are non-existent, do not form part of the record of the proceedings, does not mean that the judge has not familiarized himself with the record of the proceedings as the record stands and therefore does not disqualify him from joining the bench. He may decide to join the bench with any questions of demeanour being left to be resolved”.). [2] The Appeals Chamber notes that the Oxford Dictionary defines “demeanour” as the “manner of comporting oneself outwardly or towards others”. [3] See supra, para. 140. |
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| Appeal Judgement - 14.12.2015 |
NYIRAMASUHUKO et al. (Butare) (ICTR-98-42-A) |
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366. As for the remaining arguments relating to the conduct of the Prosecution and of the other relevant authorities, the Appeals Chamber finds merit in the submission that the Trial Chamber erred in concluding that it did not need to “consider the conduct of the Prosecution or other legal authorities.”[1] As held repeatedly, the conduct of the parties and of the relevant authorities are relevant factors to take into account in determining whether an accused’s fundamental right to a trial without undue delay has been infringed.[2] Given the significant length of the instant proceedings at the time it delivered its judgement, it was incumbent upon the Trial Chamber to carefully assess whether, besides the complexity of the case, the conduct of the parties and of other relevant authorities may have contributed to any unjustifiable delays in this case. 367. Concerning the conduct of the Prosecution, the Appeals Chamber observes that, from their arrests to the commencement of the trial on 12 June 2001, Nyiramasuhuko, Ntahobali, and Nsabimana spent almost four years in pre-trial detention, Nteziryayo three years, and Kanyabashi and Ndayambaje six years. The Appeals Chamber accepts that preparing such a case for trial can reasonably require a lengthy period of time but emphasises that every effort should be made to bring cases to trial as expeditiously as possible.[3] […] 372. It transpires from the procedural history summarised above that the Prosecution’s failure to comply with its disclosure obligations and lack of readiness delayed the start of the trial by several months. Although the Prosecution acknowledged its lack of readiness and belatedness in fulfilling its disclosure obligations, upon which the start of the trial depended, it does not provide any explanation as to why it was not in a position to disclose some of the relevant materials despite express orders from the Trial Chamber or why it repeatedly changed the date for its readiness to commence trial. While the trial was postponed by one month as a result of the death of Judge Kama,[4] the record shows that the fact that the trial was delayed to spring 2001 was largely caused by the Prosecution’s inability to meet its disclosure obligations and lack of readiness. In light of the foregoing, the Appeals Chamber finds that the Prosecution’s failure to fulfill its disclosure obligations created unjustified delays in the start of the trial. 373. With respect to the trial phase, the Appeals Chamber observes that, as highlighted by Ntahobali and Kanyabashi, the trial phase lasted over eight years and was thus proportionally longer than in other multi-accused cases at the Tribunal.[5] The Appeals Chamber, however, stresses that a more accelerated pace of other multi-accused cases does not, in and of itself, demonstrate undue delay.[6] 374. As noted by the Trial Chamber, the length of the proceedings was increased in this particular case by the replacement of a judge in the course of the trial, the presentation of six Defence cases and the plurality of cross-examinations for every witness.[7] Although not taken into account by the Trial Chamber when examining whether undue delay occurred, the Appeals Chamber further observes that, during the trial phase, the judges sitting in this case were also involved in several other proceedings before the Tribunal. Indeed, the Trial Chamber expressly noted in the “Procedural History” section of the Trial Judgement that it was not able to sit in the Nyiramasuhuko et al. case: (i) from 4 to 25 July 2001, 1 to 5 October 2001, 26 November to 13 December 2001, 16 September to 9 October 2002, 18 November to 12 December 2002, and 31 March to 24 April 2003 because all three judges of the Trial Chamber were seised of the Kajelijeli case; and (ii) from 3 to 25 September 2001, 28 January to 19 February 2002, 6 to 14 May 2002, 19 August to 12 September 2002, 13 January to 30 April 2003, and 5 to 15 May 2003 because all three judges of the Trial Chamber were seised of the Kamuhanda case.[8] Moreover, the Appeals Chamber notes that: (i) Judge Bossa, who was assigned to the case on 20 October 2003, was also at the time assigned to the Ndindabahizi case, which was in session notably from 27 October to 28 November 2003 and on 1 and 2 March 2004;[9] (ii) all three judges of the Trial Chamber were also seised of the Bisengimana sentencing case, in which they sat on 17 November 2005, 7 December 2005, 19 January 2006, and 20 April 2006;[10] and (iii) all three judges of the Trial Chamber were seised of the Nzabirinda sentencing case, in which they sat on 14 December 2006, 17 January 2007, and 23 February 2007.[11] 375. It is unquestionable that the pace of the trial was affected by the judges’ obligations in other cases. Whereas the proceedings in this case needed interruptions so as to allow the parties to prepare,[12] the judges’ obligations in other cases prevented them from sitting in this case for approximately 36 weeks. In light of the time required to dispose of the motions filed in these other cases, deliberate on their merits, and write the judgements, these additional obligations also necessarily significantly reduced the time the Trial Chamber judges could devote to the present case. 376. The Appeals Chamber observes that it was practice for judges of the Tribunal to participate simultaneously in multiple proceedings given the workload of the Tribunal during the relevant period.[13] It also notes that significant efforts were made by the authorities of the Tribunal to obtain the necessary resources to complete its mandate while ensuring the utmost respect for the rights of all accused.[14] However, in the particular circumstances of this case where the co-Accused had already been in detention for nearly 4 to 6 years at the start of the trial and which had already suffered from significant delays,[15] the Appeals Chamber concludes that the additional delays resulting from the judges’ simultaneous participation to other proceedings caused undue delay. The Appeals Chamber recalls that logistical considerations should not take priority over the trial chamber’s duty to safeguard the fairness of the proceedings.[16] In the same vein, the Appeals Chamber is of the view that organisational hurdles and lack of resources cannot reasonably justify the prolongation of proceedings that had already been significantly delayed.[17] [1] Trial Judgement, para. 143. [2] See supra, para. 346. [3] See Renzaho Appeal Judgement, para. 240. [4] In this respect, the Appeals Chamber rejects Ndayambaje’s undeveloped claim that the death of Judge Kama unduly delayed the commencement of the trial. See supra, fn. 856. [5] For example: - in the Ndindiliyimana et al. case, a four-accused case, the trial phase extended over four years and nine months; - in the Bizimungu et al. case, a four-accused case, the trial phase lasted over five years; - in the Bagosora et al. case, a four-accused case, the trial phase lasted for five years and two months; and - in the Nahimana et al. case, a three-accused case, the trial phase lasted two years and ten months. See Ndindiliyimana et al. Trial Judgement, Annex A, paras. 34, 134; Bizimungu et al. Trial Judgement, Annex A, paras. 29, 81; Bagosora et al. Trial Judgement, Annex A, paras. 2314, 2367; Nahimana et al. Trial Judgement, para. 94. [6] See Mugenzi and Mugiraneza Appeal Judgement, para. 32. [7] Trial Judgement, para. 139. [8] Trial Judgement, paras. 6345, 6349, 6357, 6361, 6367, 6377, 6379, 6384, 6386, 6389, fns. 159, 160. [9] See Ndindabahizi Trial Judgement, Section I.4, paras. 17, 21. [10] See Bisengimana Sentencing Judgement, Section VI.A, paras. 220, 228, 233. [11] See Nzabirinda Sentencing Judgement, Section II.A, paras. 9, 48. [12] As regards the Prosecution’s heavy reliance on the fact that most of the co-Accused repeatedly requested more time to prepare their defence, the Appeals Chamber emphasises that an accused cannot be blamed for trying to take full advantage of the resources afforded by the law in their defence as long as his conduct is not obstructive. Noting that the right to a fair trial in Article 20 of the Statute is in pari materia with Article 6 of the European Convention on Human Rights, the Appeals Chamber considers that the jurisprudence of the European Court of Human Rights (“ECtHR”) may provide useful guidance for the interpretation of the right to trial without undue delay. In this regard, see, e.g., Yagci and Sargin v. Turkey, ECtHR, Nos. 16419/90 and 16426/90, Judgment, 8 June 1995, para. 66. Regarding the reliance on the jurisprudence of the ECtHR, see Prosecutor v. Milan Martić, Case No. IT-95-11-AR73.2, Decision on Appeal against the Trial Chamber’s Decision on the Evidence of Witness Milan Babić, 14 September 2006, paras. 18, 19. [13] During the Nyiramasuhuko et al. trial, the Tribunal’s trial chambers were seised of 38 cases involving 53 accused. [14] The Appeals Chamber notes that, in 2002, in response to the request made by the then President of the Tribunal to complete its tasks within a reasonable amount of time in order to “respect the rights of the accused and to meet the expectations of the victims, Rwandan society and the United Nations”, the Security Council established a pool of ad litem judges. See “Identical Letters dated 14 September 2001 from the Secretary-General addressed to the President of the General Assembly and the President of the Security Council”, UN Doc. A/56/265-S/2001/764, 19 September 2001, Appendix, p. 7; Security Council Resolution 1431 (2002), UN Doc. S/RES/1431, 6 September 2002, paras. 1, 2. [15] The Appeals Chamber refers to the delays caused by the Prosecution’s lack of readiness, the replacement of Judge Maqutu, and the inability of witnesses to travel from Rwanda to Arusha as scheduled. See supra, paras. 364, 370-372. [16] See Sainović et al. Appeal Judgement, para. 101; Haradinaj et al. Appeal Judgement, para. 46. [17] The Appeals Chamber notes that the United Nations Human Rights Committee, the African Commission on Human and People’s Rights, and the ECtHR have held that it is for the contracting States to organise their legal systems in such a way that their courts can meet the requirement of a trial within a reasonable time. See, e.g., B. Lubuto v. Zambia, Human Rights Committee, Communication No. 390/1990 (Views adopted on 31 October 1995), UN Doc. CCPR/C/55/D/390/1990 (1995), 3 November 1995, para. 7.3 (“The Committee has noted the State party's explanations concerning the delay in the trial proceedings against the author. The Committee acknowledges the difficult economic situation of the State party, but wishes to emphasize that the rights set forth in the Covenant constitute minimum standards which all States parties have agreed to observe. Article 14, paragraph 3(c), states that all accused shall be entitled to be tried without delay, and this requirement applies equally to the right of review of conviction and sentence guaranteed by article 14, paragraph 5. The Committee considers that the period of eight years between the author's arrest in February 1980 and the final decision of the Supreme Court, dismissing his appeal, in February 1988, is incompatible with the requirements of article 14, paragraph 3(c).”); Human Rights Committee, General Comment No. 13: Article 14 (Administration of Justice), 13 April 1984, para. 10 (Views adopted on 12 May 2003), UN Doc. HRI/GEN/1/REV.6, p. 137 (“Subparagraph 3 (c) provides that the accused shall be tried without undue delay. This guarantee relates not only to the time by which a trial should commence, but also the time by which it should end and judgement be rendered; all stages must take place “without undue delay”. To make this right effective, a procedure must be available in order to ensure that the trial will proceed “without undue delay”, both in first instance and on appeal.”); Haregewoin Gabre-Selassie and IHRDA (on behalf of former Dergue Officials) v. Ethiopia, African Commission on Human and People’s Rights, Communication No. 301/05, 12 October 2013, para. 235 (“The African Commission also agrees with the Complainants that the complexity of a case should not debar domestic courts from acting with due diligence in dealing with a case on the Merits. At any rate, it is the responsibilities of States Parties to the African Charter to organize their judiciary in such a way that the right guaranteed in Article 7 (1) (d) of the Charter can be effectively enjoyed”) (internal references omitted); EKO-Energie, SPOL. S.R.O v. The Czech Republic, ECtHR, No. 65191/01, Judgment, 17 May 2005, para. 33 (“The Court recalls that the Convention places a duty on the Contracting States to organize their legal system so as to allow the courts to comply with the requirements of Article 6 § 1 of the Convention, including that of trial within a reasonable time. Nonetheless, a temporary backlog of business might not involve liability on the part of the Contracting States provided that they take, with the requisite promptness, remedial action to deal with an exceptional situation of this kind.”); Mansur v. Turkey, ECtHR, No. 16026/90, Judgment, 8 June 1995, para. 68; Dobbertin v. France, ECtHR, No. 13089/87, Judgment, 25 February 1993, para. 44; Vocaturo v. Italy, ECtHR, No. 11891/85, Judgment, 24 May 1991, para. 17 (“As regards the excessive workload, the Court points out that under Article 6 para. 1 (art. 6-1) of the Convention everyone has the right to a final decision within a reasonable time in the determination of his civil rights and obligations. It is for the Contracting States to organise their legal systems in such a way that their courts can meet this requirement.”); Abdoella v. The Netherlands, ECtHR, No. 12728/87, Judgment, 25 November 1992, para. 24 (“Article 6 para. 1 (art. 6-1) imposes on the Contracting States the duty to organise their judicial systems in such a way that their courts can meet each of its requirements”.). See also Jean Paul Genie-Lacayo v. Nicaragua, Inter-American Court of Human Rights, Judgment, 29 January 1997, paras. 39, 80 (“There is excessive delay regarding the application for judicial review filed on 29/8/94 which still has not been disposed of. Even considering complexity of case, and excuses, impediments and substitution of judges of the Supreme Court of Justice, the 2 years that have elapsed since the application was admitted is not reasonable and a breach of art8(1).”). |
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NYIRAMASUHUKO et al. (Butare) (ICTR-98-42-A) |
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385. The meaning of “legal prejudice” in the Trial Judgement is not clear. In any event, the Appeals Chamber clarifies that any form of prejudice that a party allegedly suffered as a result of undue delay ought to be considered. The Appeals Chamber finds that the Trial Chamber’s failure to expressly address the entirety of the co‑Accused’s arguments[1] and conduct a comprehensive assessment of their alleged prejudice in the Trial Judgement infringed the co‑Accused’s rights to a reasoned opinion under Article 22 of the Statute and Rule 88(C) of the Rules. […] 388. However, the Appeals Chamber recalls its finding that the present proceedings were unduly delayed as a result of the Prosecution’s conduct and the Trial Chamber judges’ simultaneous assignment to multiple proceedings, delays which are not attributable to the co-Accused.[2] These delays prolonged the detention of the co‑Accused. The Appeals Chamber finds that these delays and the resulting prolonged detention constitute prejudice per se and that the Trial Chamber erred in concluding that the co‑Accused did not suffer prejudice.[3] [1] The Appeals Chamber observes that Nyiramasuhuko and Ntahobali raised lengthy arguments regarding their prejudice that the Trial Chamber did not address in the 20 February 2004 Decision and 26 November 2008 Decision. See Nyiramasuhuko Appeal Brief, paras. 59-64, referring to 24 June 2003 Motion, paras. 164-190, 20 February 2004 Decision, para. 16; Ntahobali Appeal Brief, para. 4, referring to22 August 2008 Motion, paras. 53, 120, 134-136, 145‑152, 182, 183, 26 November 2008 Decision, paras. 54, 55, 59-61. [2] See supra, para. 378. [3] Cf. Gatete Appeal Judgement, paras. 44, 45. |
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| Appeal Judgement - 14.12.2015 |
NYIRAMASUHUKO et al. (Butare) (ICTR-98-42-A) |
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406. While the possibility is not ruled out that decisions rendered by a judge or a chamber could suffice to establish bias, it was held that this would be “truly extraordinary”.[1] In this regard, the Appeals Chamber notes that the European Court of Human Rights has affirmed on several occasions that complaints concerning judges’ lack of independence and impartiality grounded on the content of judicial decisions cannot be considered objectively justified.[2] See also paras. 95, 771, 2843. [1] Ferdinand Nahimana v. The Prosecutor, Case No. ICTR-99-52B-R, Decision on Request for Disqualification of Judge Pocar, 6 June 2012, para. 17, referring to Prosecutor v. Vidoje Blagojević et al., Case No. IT-02-60-PT, Decision on Blagojević’s Application Pursuant to Rule 15(B), 19 March 2003, para. 14. [2] See, e.g., Dimitrov and others v. Bulgaria, ECtHR, No. 77938/11, Judgement, 1 July 2014, para. 159 (“Under the subjective test, the personal impartiality of a judge must be presumed until there is proof to the contrary […]. The facts that some of the judges hearing the case ruled against them on some points or decided to proceed in a certain manner do not constitute such proof”); Previti v. Italy, ECtHR, No. 45291/06, Décision sur la recevabilité, 8 December 2009, para. 258 ("La Cour a cependant eu l’occasion de souligner que des craintes quant à un manque d’indépendance et d’impartialité des juges nationaux se fondant uniquement sur le contenu des décisions judiciaires prononcées contre un requérant (Bracci précité, § 52) ou sur les simples circonstances qu’une juridiction interne a commis des erreurs de fait ou de droit et que sa décision a été annulée par une instance supérieure (Sofri et autres, décision précitée) ne sauraient passer pour objectivement justifiées.”); Bracci v. Italy, ECtHR, No. 36822/02, Arrêt, 15 February 2006, para. 52 (“La Cour observe également que les craintes du requérant d'un manque d'indépendance et d'impartialité des juges nationaux se fondent uniquement sur le contenu des décisions judiciaires prononcées à son encontre. Elles ne sauraient dès lors passer pour objectivement justifiées.”); Sofri and others v. Italy, ECtHR, No. 37234/97, Decision, 4 March 2003, Section B.2.a (“Moreover, the fact that a domestic court has erred in fact or law or that its decision has been set aside by a higher court is not capable by itself of raising objectively justified doubts about its impartiality.”). |
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NYIRAMASUHUKO et al. (Butare) (ICTR-98-42-A) |
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435. The Appeals Chamber observes that the Rules, which specifically impose the disclosure of all witnesses’ statements and their identity, do not provide for the disclosure of the identity of the witnesses’ parents.[1] Nyiramasuhuko’s submissions, in fact, merely reflect her disagreement with the Trial Chamber’s exercise of its discretion in denying disclosure to the Defence of the identity of the Prosecution witnesses’ parents. […] [1] See Rules 66(A) and 69(C) of the Rules. |
ICTR Rule
Rule 66(A); Rule 69(C) ICTY Rule Rule 66(A); Rule 69(C) |
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| Appeal Judgement - 14.12.2015 |
NYIRAMASUHUKO et al. (Butare) (ICTR-98-42-A) |
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450. The Appeals Chamber notes that the requirement in Rule 50(A)(ii) of the Rules for granting leave to amend an indictment was only introduced in the Rules on 15 May 2004, following the 14th plenary session held on 23 and 24 April 2004.[1] According to this amendment, trial chambers shall examine each of the counts and any supporting materials the Prosecution may provide to determine, applying the standard set forth in Article 18 of the Statute, whether a case exists against the accused. The Appeals Chamber also observes that, prior to the enactment of Rule 50(A)(ii) of the Rules, the practice of the trial chambers of the Tribunal regarding the need to establish a prima facie case before granting leave to amend an indictment was not uniform. In several cases, trial chambers found that granting leave to amend an indictment was a matter for their discretion and only required the Prosecution to establish the factual and legal basis in support of its motion to amend.[2] In other cases, trial chambers examined whether prima facie evidence supported the motion to amend.[3] When seised with appeals against decisions related to the amendment of the indictment prior to the modification of Rule 50 of the Rules, the Appeals Chamber did not provide guidance on this issue.[4] Against this background, the Appeals Chamber, Judge Pocar and Judge Liu dissenting, finds Nyiramasuhuko’s allegation that the Trial Chamber erred in law by not requiring the Prosecution to present a prima facie case in support of the new counts to be without merit and deems it unnecessary to discuss Nyiramasuhuko’s remaining arguments premised on this alleged error of law. [1] See Amendments – 14th Plenary Session (23-24 April 2004), pp. 6, 7. [2] See, e.g., The Prosecutor v. Juvénal Kajelijeli, Case No. ICTR-98-44A-T, Decision on Prosecutor’s Motion to Correct the Indictment Dated 22 December 2000 and Motion for Leave to File an Amended Indictment, 25 January 2001, paras. 26, 40; The Prosecutor v. Éliezer Niyitegeka, Case No. ICTR-96-14-I, Decision on Prosecutor’s Request for Leave to File an Amended Indictment, 21 June 2000, paras. 43-45; The Prosecutor v. Jean Bosco Barayagwiza, Case No. ICTR-97-19-I, Decision on the Prosecutor’s Request for Leave to File an Amended Indictment, 11 April 2000, pp. 3, 4; The Prosecutor v. Ferdinand Nahimana, Case No. ICTR-96-11-T, Decision on the Prosecutor’s Request for Leave to File an Amended Indictment, signed 5 November 1999, filed 10 November 1999, paras. 7, 14, 15; The Prosecutor v. Gratien Kabiligi and Aloys Ntabakuze, Case Nos. ICTR-97-34-I & ICTR-97-30-I, Decision on the Prosecutor’s Motion to Amend the Indictment, 8 October 1999 (“Kabiligi8 October 1999 Decision”), paras. 42, 43. [3] See, e.g., The Prosecutor v. Édouard Karemera et al., Case No. ICTR-98-44-T, Decision on the Prosecutor’s Motion for Leave to Amend the Indictment, 13 February 2004, para. 35 (originally filed in French, English version filed on 14 May 2004); The Prosecutor v. Alfred Musema, Case No. ICTR-96-13-T, Decision on the Prosecutor’s Request for Leave to Amend the Indictment, dated 6 May 1999, signed 24 May 1999, filed 25 May 1999, para. 19. See also Prosecutor v. Fatmir Limaj et al., Case No. IT-03-66-PT, Decision on Prosecution’s Motion to Amend the Amended Indictment, signed 12 February 2004, filed 13 February 2004, para. 8; Prosecutor v. Enver Hadžihasanović and Amir Kubura, Case No. IT-01-47-PT, Decision on Form of Indictment, 17 September 2003, paras. 35, 36. [4] See The Prosecutor v. Édouard Karemera et al., Case No. ICTR-98-44-AR73, Decision on Prosecutor’s Interlocutory Appeal Against Trial Chamber III Decision of 8 October 2003 Denying Leave to File an Amended Indictment, 19 December 2003; The Prosecutor v. Casimir Bizimungu et al., Case No. ICTR-99-50-AR50, Decision on Prosecutor’s Interlocutory Appeal Against Trial Chamber II Decision of 6 October 2003 Denying Leave to File Amended Indictment, 12 February 2004 (“Bizimungu et al. 12 February 2004 Appeal Decision”). See also Nahimana et al. Appeal Judgement, paras. 390-393. This issue was subject to disagreement among the judges of the Tribunal. See Bizimungu et al. 12 February 2004 Appeal Decision, Individual Opinion of Judge Pocar. |
ICTR Statute Article 18 ICTY Statute Article 19 ICTR Rule Rule 50 ICTY Rule Rule 50 | |
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NYIRAMASUHUKO et al. (Butare) (ICTR-98-42-A) |
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1276. The Appeals Chamber rejects Ntahobali’s claim that the Trial Chamber applied the wrong legal criterion in evaluating the cumulative effect of the defects in the Indictment. Although the Trial Chamber mainly relied on its finding that the defects of the Indictment concerning allegations on which it made factual findings were cured, its analysis reflects that it did not limit its examination to this matter but, in accordance with the jurisprudence that it expressly recalled, examined whether the Defence had sufficient time and resources to investigate properly all the new material facts and that it was not prejudiced by the addition of numerous material facts. The Appeals Chamber refers in particular to the Trial Chamber’s reliance on the additional time allotted to the co-Accused to prepare their case[1] and its findings throughout the Trial Judgement that, where remedied, the original lack of notice had not caused prejudice.[2] 1277. The Appeals Chamber also finds no merit in Ntahobali’s argument that the number of defects in an indictment that can be cured is limited. The Appeals Chamber considers that, in instances where it is found that defective charges have not only been cured but also that the initial lack of notice did not result in prejudice, the question of the number of defects cured becomes secondary. It is clear from the Appeals Chamber’s jurisprudence that the key question remains whether or not the accused was materially prejudiced in the preparation of his defence.[3] [1] Trial Judgement, para. 130. [2] See, e.g., Trial Judgement, paras. 1464, 2166, 2932, 2942, 3161. [3] See Bagosora et al. Appeal Decision on Exclusion of Evidence [The Prosecutor v. Théoneste Bagosora et al., Case No. ICTR-98-41-AR73, Decision on Aloys Ntabakuze’s Interlocutory Appeal on Questions of Law Raised by the 29 June 2006 Trial Chamber I Decision on Motion for Exclusion of Evidence, 18 September 2006], para. 26: […] Further, while the addition of a few material facts may not prejudice the Defence in the preparation of its case, the addition of numerous material facts increases the risk of prejudice as the Defence may not have sufficient time and resources to investigate properly all the new material facts. Thus, where a Trial Chamber considers that a defective indictment has been subsequently cured by the Prosecution, it should further consider whether the extent of the defects in the indictment materially prejudice an accused’s right to a fair trial by hindering the preparation of a proper defence. |
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| Appeal Judgement - 14.12.2015 |
NYIRAMASUHUKO et al. (Butare) (ICTR-98-42-A) |
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468. As a preliminary matter, the Appeals Chamber clarifies that it considers that the Prosecution did not exceed the scope of its response brief by arguing that the Indictment was not defective regarding the count of conspiracy to commit genocide. The purpose of a response brief is to give a full answer to the issues raised in the relevant appeal brief[1] and there is nothing in the Rules or the relevant practice directions prohibiting a party from raising an allegation of error in the Trial Judgement in response to an issue raised by the other party. Therefore, the Appeals Chamber finds no merit in Nyiramasuhuko’s argument that the Prosecution should have requested leave to argue that the Trial Chamber erred in finding that the Indictment was defective as regards the charge of conspiracy to commit genocide. [1] Cf. 21 August 2007 Appeal Decision [The Prosecutor v. Pauline Nyiramasuhuko et al., Case No. ICTR-98-42-AR73, Decision on Joseph Kanyabashi’s Appeal Against the Decision of Trial Chamber II of 21 March 2007 Concerning the Dismissal of Motions to Vary His Witness List, 21 August 2007], para. 11. See also Practice Direction on Formal Requirements on Appeal [Practice Direction on Formal Requirements for Appeals from Judgement, 4 July 2005], para. 5. |
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| Appeal Judgement - 14.12.2015 |
NYIRAMASUHUKO et al. (Butare) (ICTR-98-42-A) |
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469. The Appeals Chamber recalls that when an accused is charged with conspiracy to commit genocide pursuant to Article 2(3)(b) of the Statute, the Prosecution must plead in the indictment: (i) an agreement between individuals aimed at the commission of genocide; and (ii) the fact that the individuals taking part in the agreement possessed the intent to destroy in whole or in part, a national, ethnical, racial, or religious group, as such.[1] […] […] 473. The Appeals Chamber is of the view that, contrary to the Trial Chamber’s determination,[2] there is no requirement for the Prosecution to specify in the Indictment when the conspiracy ended. The crime of conspiracy to commit genocide is an inchoate offence, the actus reus of which is “a concerted agreement to act for the purpose of committing genocide”,[3] and does not require evidence of the time range and end of the conspiracy. Of significance is when the agreement was formed, not when it ended. Therefore, the Appeals Chamber finds that the Trial Chamber erred in determining that the Indictment was defective because it failed to specify “when the conspiracy ended”. 474. […] Moreover, contrary to Nyiramasuhuko’s assertion, the Appeals Chamber considers that the specific individuals with whom the accused is alleged to have reached the agreement aimed at the commission of genocide do not necessarily have to be identified by name and that identification by general category in the Indictment can be sufficient to provide adequate notice to the accused.[4] [1] Nzabonimana Appeal Judgement, para. 255; Nahimana et al. Appeal Judgement, para. 344. [2] See Trial Judgement, para. 5661. [3] See Karemera and Ngirumpatse Appeal Judgement, para. 643, quoting Nahimana et al. Appeal Judgement, para. 896. See also Nzabonimana Appeal Judgement, para. 391; Gatete Appeal Judgement, para. 260; Nahimana et al. Appeal Judgement, para. 894. [4] Cf. Nzabonimana Appeal Judgement, para. 400; Karemera and Ngirumpatse Appeal Judgement, para. 370. The Appeals Chamber further finds that the fact that other members of the Interim Government were not convicted for conspiracy before the Tribunal is irrelevant to the question of whether Nyiramasuhuko was put on notice of the charges against her and is not inconsistent with the fact that Nyiramasuhuko was charged with having conspired with other members of the Interim Government. Cf. Bagosora and Nsengiyumva Appeal Judgement, para. 121. |
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NYIRAMASUHUKO et al. (Butare) (ICTR-98-42-A) |
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561. The Appeals Chamber considers that a witness’s membership in an association of survivors alone does not imply a desire or motive to implicate the accused, nor does it render the witness’s evidence tainted or his accounts unreliable or partial. The Appeals Chamber therefore sees no reason to require, as a matter of principle, a trial chamber to apply particular caution in treating the evidence of witnesses who are members of such associations. The Appeals Chamber also recalls its position that a “statement by Professor Reynt[j]ens that the Ibuka Organization paid people to give false evidence cannot, per se, constitute a sufficient ground for excluding, in a general manner, the testimony of Prosecution witnesses”.[1] [1] Rutaganda Appeal Judgement, para. 205. |
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| Appeal Judgement - 14.12.2015 |
NYIRAMASUHUKO et al. (Butare) (ICTR-98-42-A) |
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3322. The Appeals Chamber has held in relation to genocide that “committing” under Article 6(1) of the Statute, which envisions the physical perpetration of a crime, does not only mean physical killing and that other acts can constitute direct participation in the actus reus of the crime.[1] The question is whether an accused’s conduct was “as much an integral part of the [crimes] as were the killings which it enabled.”[2] In the cases where the Appeals Chamber has concluded that an accused’s role constituted an integral part of the crimes, the accused were present at the crime scene and conducted, supervised, directed, played a leading role, or otherwise fully exercised influence over the physical perpetrators.[3] 3323. Even if the Appeals Chamber were to overturn the Trial Chamber’s findings that Kanyabashi’s Speech was not inflammatory and did not substantially contribute to the subsequent killings, it is not convinced that Kanyabashi’s approval of Kambanda’s and Sindikubwabo’s Speeches, his position of authority, and the contents of his speech are sufficient to qualify Kanyabashi’s overall conduct as that of “committing” genocide. The Appeals Chamber considers that, where it is not established that the accused was present at the scene of the crimes, conducted, supervised, directed, played a leading role, or otherwise fully exercised influence over the physical perpetrators, making a speech days, if not weeks, before the physical perpetration of killings cannot be deemed to constitute “direct participation in the actus reus” of the killings. Nor can such circumstances compel the conclusion that the conduct of the individual who gave the speech was as much an integral part of the genocide as were the killings which it allegedly enabled. In the view of the Appeals Chamber, the notion of commission by playing an integral part in the crime is not as expansive as the Prosecution argues in the present case. […] [1] Munyakazi Appeal Judgement, para. 135; Kalimanzira Appeal Judgement, para. 219; Seromba Appeal Judgement, para. 161; Gacumbitsi Appeal Judgement, para. 60. [2] Munyakazi Appeal Judgement, para. 135; Kalimanzira Appeal Judgement, para. 219; Seromba Appeal Judgement, para. 161; Gacumbitsi Appeal Judgement, para. 60. See also Nzabonimana Appeal Judgement, para. 477. [3] See Munyakazi Appeal Judgement, paras. 135, 136; Seromba Appeal Judgement, paras. 171, 172; Gacumbitsi Appeal Judgement, paras. 60, 61. See also Nzabonimana Appeal Judgement, para. 477; Kalimanzira Appeal Judgement, paras. 219, 220. |
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NYIRAMASUHUKO et al. (Butare) (ICTR-98-42-A) |
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3327. The Appeals Chamber recalls that the actus reus of instigating is to prompt another person to commit an offence.[1] It is not necessary to prove that the accused was present when the instigated crime was committed[2] or that the crime would not have been perpetrated without the involvement of the accused; it is sufficient to demonstrate that the instigation was a factor substantially contributing to the conduct of another person committing the crime.[3] 3328. […] The Appeals Chamber considers that Kanyabashi’s commitment to execute the directives and instructions announced by Kambanda and Sindikubwabo to identify and kill Tutsis does not necessarily amount to prompting the attendees or the people in Butare Prefecture to kill Tutsis.[4] In the absence of any evidence discussed by the Trial Chamber or pointed out by the Prosecution that Kanyabashi’s Speech was understood as instigating the killing of Tutsis or had any impact on the conduct of those who subsequently committed killings,[5] the Appeals Chamber finds that a reasonable trier of fact could have concluded that Kanyabashi did not instigate genocide through his speech. [1] See, e.g., Nzabonimana Appeal Judgement, para. 146; Nahimana et al. Appeal Judgement, para. 480; Kordić and Čerkez Appeal Judgement, para. 27. [2] Nahimana et al. Appeal Judgement, para. 660. See also Boškoski and Tarčulovski Appeal Judgement, para. 125, fn. 347. [3] See, e.g., Nzabonimana Appeal Judgement, para. 146; Nahimana et al. Appeal Judgement, paras. 480, 660; Kordić and Čerkez Appeal Judgement, para. 27. [4] The Black's Law Dictionary defines the verb “prompt” as “to incite, especially to immediate action”. See Black’s Law Dictionary, 9th edition, 2009. In the Oxford Dictionary the verb “prompt” is defined as “to incite to action; to move or induce (a person, etc.) to or to do something”. See Oxford English Dictionary, 2015. [5] See also infra, para. 3333. |
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NYIRAMASUHUKO et al. (Butare) (ICTR-98-42-A) |
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3404. The Appeals Chamber notes that nothing precludes a trial chamber from imposing a term of life imprisonment when the gravity of the offence so requires,[1] and that neither Article 7 nor Article 10 of the ICCPR prohibits life imprisonment.[2] The Appeals Chamber considers that Ntahobali’s submissions concerning the enforcement of his sentence are speculative. Furthermore, the Appeals Chamber observes that sentence enforcement issues were not matters for the Trial Chamber and that, as such, there can be no error on behalf of the Trial Chamber in this respect. His arguments concerning pardon, commutation of sentence, and early release are therefore dismissed. 3405. The Appeals Chamber further dismisses Ntahobali’s contention that the absence in the Residual Mechanism Statute of a mandatory review of his life sentence after a fixed period would violate his fundamental rights. The Appeals Chamber observes that Ntahobali will retain the possibility to directly petition the President of the Residual Mechanism for pardon, commutation of sentence, or early release.[3] […] 3517. The Appeals Chamber also dismisses Ndayambaje’s claim that imposing a single life sentence deprived him of the benefit of any credit based on the period already spent in detention and that the Trial Chamber erred in failing to provide a reasoned opinion in this regard. Rule 101(C) of the Rules states that “[c]redit shall be given to the convicted person for the period, if any, during which the convicted person was detained in custody pending his surrender to the Tribunal or pending trial or appeal”. This provision, however, does not affect the ability of a trial chamber to impose the maximum sentence, as provided for by Rule 101(A) of the Rules.[4] [1] See Rule 101(A) of the Rules; Ntawukulilyayo Appeal Judgement, fn. 581; Munyakazi Appeal Judgement, para. 186, quoting Rukundo Appeal Judgement, para. 260 (“there is no category of cases within the jurisdiction of the Tribunal where the imposition of life imprisonment is per se barred, there is also no category of cases where it is per se mandated.”). [2] See Stakić Appeal Judgement, para. 395. [3] See Practice Direction on the Procedure for the Determination of Applications for Pardon, Commutation of Sentence, and Early Release of Persons Convicted by the ICTR, the ICTY or the Mechanism, MICT/3, 5 July 2012, para. 3. [4] See Karera Appeal Judgement, para. 397. |
ICTR Rule Rule 101 ICTY Rule Rule 101 | |
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NYIRAMASUHUKO et al. (Butare) (ICTR-98-42-A) |
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42. As regards Nyiramasuhuko’s request for an appropriate remedy for the violations found at trial, the Appeals Chamber observes that the only violations determined to have occurred were the violations of her rights to be informed of the charges against her and of initial appearance without delay recognised in the 12 October 2000 Decision [The Prosecutor v. Pauline Nyiramasuhuko and Arsène Shalom Ntahobali, Case No. ICTR-97-21-T, Decision on the Defence Motion for Exclusion of Evidence and Restitution of Property Seized, 12 October 2000 (originally filed in French, English translation filed on the same day)].[1] The Appeals Chamber recalls that “any violation, even if it entails a relative degree of prejudice, requires a proportionate remedy”.[2] The nature and form of the effective remedy should be proportional to the gravity of harm that is suffered.[3] In practice, “the effective remedy accorded by a Chamber for violations of an accused’s fair trial rights will almost always take the form of equitable or declaratory relief.”[4] The Appeals Chamber considers that, in situations where the violation has not materially prejudiced the accused, a formal recognition of the violation may be considered an effective remedy.[5] Nyiramasuhuko has not developed any argument to demonstrate that the recognition of the violations of her rights to be informed of the charges against her and of initial appearance without delay by Judge Kama in the 12 October 2000 Decision was not an effective remedy. Nyiramasuhuko’s claim is therefore dismissed. See also para. 50. [1] See Nyiramasuhuko Appeal Brief, para. 71 (p. 21). The Appeals Chamber notes that Nyiramasuhuko has failed to identify in her submissions any other violation recognised by the Trial Chamber that may require remedy and will therefore limit its consideration to the violations of her rights to be informed of the charges against her and of initial appearance without delay, which are expressly discussed in her submissions under this ground of appeal. [2] André Rwamakuba v. The Prosecutor, Case No. ICTR-98-44C-A, Decision on Appeal Against Decision on Appropriate Remedy, 13 September 2007 (“Rwamakuba Appeal Decision”), para. 24. See also Kajelijeli Appeal Judgement, para. 255. [3] Rwamakuba Appeal Decision, para. 27. [4] Rwamakuba Appeal Decision, para. 27 and references cited therein. [5] Cf. Rwamakuba Appeal Decision, para. 27; The Prosecutor v. André Rwamakuba, Case No. ICTR-98-44C-T, Decision on Appropriate Remedy, 31 January 2007 (“Rwamakuba Decision”), para. 69; Bagosora et al. Trial Judgement, para. 97. |
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NYIRAMASUHUKO et al. (Butare) (ICTR-98-42-A) |
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63. The Appeals Chamber recalls that, if a party raises no objection to a particular issue before the Trial Chamber, in the absence of special circumstances, the Appeals Chamber will find that the party has waived its right to adduce the issue as a valid ground of appeal.[1] The Appeals Chamber, Judge Agius dissenting, does not consider that the seriousness of the violations alleged by Ndayambaje constitutes special circumstances warranting the consideration on the merits of these allegations raised for the first time in the Ndayambaje Appeal Brief or at the appeals hearing. In these circumstances, the Appeals Chamber, Judge Agius dissenting, dismisses without further consideration this part of Ground 15 of Ndayambaje’s appeal as well as Ndayambaje’s new allegation of error raised at the appeals hearing. [1] See supra, fn. 157. This waiver principle has been applied to allegations of fair trial violations. See Bagosora and Nsengiyumva Appeal Judgement, para. 31 (right to initial appearance without delay); Musema Appeal Judgement, paras. 127 (right to effective cross-examination), 341 (right to have adequate time and facilities for the preparation of the defence); Akayesu Appeal Judgement, paras. 361, 370, 375, 376 (right to be informed promptly and in detail of the nature of the charges); Čelebići Appeal Judgement, paras. 640, 649, 650 (alleged violation of fair trial right to the attention of judges to the proceedings); Kambanda Appeal Judgement, paras. 25, 28 (right to counsel of own choosing); Tadić Appeal Judgement, para. 55 (right to equality of arms). |
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NYIRAMASUHUKO et al. (Butare) (ICTR-98-42-A) |
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108. As to whether the joinder created undue delay and thus required the severance of the cases, the Appeals Chamber finds no error in the Trial Chamber’s finding that the fact that a joint trial might last longer than that of a single accused does not necessarily encroach the co‑accused’s right to be tried without undue delay.[1] The Appeals Chamber recalls that Article 20(4)(c) of the Statute makes clear that the right to be tried without undue delay does not protect against any delay in the proceedings; it protects against undue delay.[2] […] The Appeals Chamber finds that, although the joinder added some degree of complexity to the proceedings, the mere allegation that separate trials would have proceeded faster is insufficient to substantiate a claim that undue delay occurred as a result of the joinder and that it was unreasonable for the Trial Chamber to deny the severance of Nyiramasuhuko’s case.[3] See also para. 365. [1] See 7 April 2006 Decision, para. 75. [2] Prosecutor v. Sefer Halilović, Case No. IT-01-48-A, Decision on Defence Motion for Prompt Scheduling of Appeal Hearing, 27 October 2006 (“Halilović Appeal Decision”), para. 17. See also Ndindiliyimana et al. Appeal Judgement, para. 43; Mugenzi and Mugiraneza Appeal Judgement, para. 30; Gatete Appeal Judgement, para. 18; Renzaho Appeal Judgement, para. 238; Nahimana et al. Appeal Judgement, para. 1074. [3] Gotovina Appeal Decision on Joinder [Prosecutor v. Ante Gotovina et al., Cases Nos. IT-01-45-AR73.1, IT‑03-73-AR73.1, IT-03-73-AR73.2, Decision on Interlocutory Appeals Against the Trial Chamber’s Decision to Amend the Indictment and for Joinder, 25 October 2006], para. 44. See also Neumeister v. Austria, European Court of Human Rights, No. 1936/63, Judgment, 27 June 1968 (“ECHR Neumeister Judgment”), para. 21 (“[t]he course of the investigation would probably have been accelerated had the Applicant’s case been severed from those of his co-accused, but nothing suggests that such a severance would here have been compatible with the good administration of justice”.). |
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NYIRAMASUHUKO et al. (Butare) (ICTR-98-42-A) |
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249. As to Ntahobali’s contention that Exhibit P113 lacked sufficient probative value to be admitted under Rule 89(C) of the Rules, the Appeals Chambers considers that the mere fact that a statement is made by a co-accused does not ipso facto render the document’s contents so unreliable that it could not be admitted under Rule 89(C) of the Rules.[1] See also para. 260. [1] See Prosecutor v. Vujadin Popović et al., Case No. IT-05-88-AR73.1, Decision on Appeals against Decision Admitting Material Related to Borovčanin’s Questioning, 14 December 2007, para. 50 (“However, it would be wrong to exclude certain evidence solely because of the supposedly intrinsic lack of reliability of the content of a suspect’s questioning in relation to persons who later became that suspect’s co-accused.”). |
ICTR Rule Rule 89 ICTY Rule Rule 89 | |
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| Appeal Judgement - 14.12.2015 |
NYIRAMASUHUKO et al. (Butare) (ICTR-98-42-A) |
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331. Likewise, the Appeals Chamber finds no merit in Nyiramasuhuko’s and Ntahobali’s argument that the fact that the witnesses lied required that their testimonies be excluded. In support of this claim, Ntahobali refers to national jurisprudence.[1] However, the Appeals Chamber highlights that Rule 89(A) of the Rules specifically provides that the Tribunal is not bound by national rules of evidence,[2] and recalls that decisions on the admission or exclusion of evidence fall within the trial chambers’ discretion.[3] […] [1] See Ntahobali Appeal Brief, para. 822 and references cited therein. [2] See also Simba Appeal Judgement, para. 38; Akayesu Appeal Judgement, fn. 577. [3] See Gaspard Kanyarukiga v. The Prosecutor, Case No. ICTR-02-78-AR73.2, Decision on Gaspard Kanyarukiga’s Interlocutory Appeal of a Decision on the Exclusion of Evidence, 23 March 2010 (“Kanyarukiga Appeal Decision”), para. 7; Prosecutor v. Jadranko Prliæ et al., Case No. IT-04-74-AR73.13, Decision on Jadranko Prlić Consolidated Interlocutory Appeal Against the Trial Chamber’s Orders of 6 and 9 October 2008 on Admission of Evidence, 12 January 2009 (“Prliæ et al. Appeal Decision”), para. 15; The Prosecutor v. Arsène Shalom Ntahobali and Pauline Nyiramasuhuko, Case No. ICTR-97-21-AR73, Decision on “Appeal of Accused Arsène Shalom Ntahobali Against the Decision on Kanyabashi’s Oral Motion to Cross-Examine Ntahobali Using Ntahobali’s Statements to Prosecution Investigators in July 1997”, 27 October 2006 (“27 October 2006 Decision”), para. 10. |
ICTR Rule Rule 89 ICTY Rule Rule 89 | |
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NYIRAMASUHUKO et al. (Butare) (ICTR-98-42-A) |
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1616. The Appeals Chamber recalls that neither the Rules nor the jurisprudence of the Tribunal oblige a trial chamber to require a particular type of identification evidence[1] and that trial chambers have the discretion to consider cautiously and rely on hearsay evidence.[2] The Appeals Chamber further recalls that a witness’s prior knowledge of, or level of familiarity with, an accused is a relevant factor in the assessment of identification evidence; however, contrary to what Ntahobali suggests, the fact that a witness did not personally know an accused prior to the events does not necessarily undermine the reliability of his identification evidence.[3] In the present case, the Trial Chamber correctly recalled generally the law concerning reliance on hearsay evidence in an introductory section of the Trial Judgement and specifically when considering such evidence with respect to Ntahobali’s identification at the prefectoral office.[4] The Trial Chamber considered the hearsay nature of various witnesses’ identifications of Ntahobali at the prefectoral office and concluded that they were reliable for a variety of reasons.[5] Ntahobali’s general contentions concerning the Trial Chamber’s use of hearsay, which do not discuss this analysis,[6] fail to demonstrate that the Trial Chamber erred in this regard. See also fn. 5590. [1] Gatete Appeal Judgement, para. 193; Kalimanzira Appeal Judgement, para. 96. See also Musema Appeal Judgement, para. 90. [2] See, e.g., Nizeyimana Appeal Judgement, para. 95; Munyakazi Appeal Judgement, para. 77; Kalimanzira Appeal Judgement, para. 96; Karera Appeal Judgement, para. 39. [3] Lukić and Lukić Appeal Judgement, para. 118; Renzaho Appeal Judgement, para. 530. Cf. Kayishema and Ruzindana Appeal Judgement, paras. 327, 328. [4] Trial Judgement, paras. 168, 169, 2638, 2679. [5] Trial Judgement, paras. 2633, 2638, 2678-2680. [6] See Ntahobali Appeal Brief, paras. 716-720. |
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