Presentation of witness evidence

Notion(s) Filing Case
Referral Decision - 16.12.2011 UWINKINDI Jean

50. The parties do not dispute that, on its face, Article 59 of the [Rwandan Code of Criminal Procedure (“RCCP”)] could bar the presentation of evidence by an accused or any defence witnesses who are suspected of involvement in an offence.[1] The Appeals Chamber notes, however, that the Referral Chamber interpreted Article 59 of the RCCP as being inconsistent with Article 13(10) of the Transfer Law and therefore inapplicable in any case transferred to Rwanda by the Tribunal pursuant to Article 25 of the Transfer Law. Implicit in this ruling is the Referral Chamber’s conclusion that, in light of the Transfer Law, Mr. Uwinkindi would not be precluded from presenting the evidence of a witness suspected of involvement in an offence or presenting evidence on his own behalf. In this respect, the Appeals Chamber recalls that the Rules of the Tribunal guarantee an accused the right to appear as a “witness” in his own defence.[2] It further notes that parties before the Tribunal are permitted to, and do, rely on accomplice witnesses or other witnesses who are suspected of being involved in the commission of crimes.[3]

51. The Appeals Chamber observes that the Transfer Law is not as clear as it could be in relation to the right of all parties to present evidence of witnesses without limitation in any referred case, and notes that Article 59 of the RCCP is ambivalent as to whether the proscription it contains applies equally to witnesses called by prosecutors in Rwanda. The Appeals Chamber is nonetheless satisfied that it was within the discretion of the Referral Chamber to conclude that Article 59 of the RCCP would not be applied in any referred case and that the Transfer Law guaranteed the accused the requisite fair trial rights with regard to the presentation of witness evidence.

[1] See [Defence Reply to the Prosecutor’s Response Brief to the Defence Appeal Brief Against the Decision on the Prosecutor’s Request for Referral to the Republic of Rwanda, 4 October 2011 (“Reply Brief”)], paras. 22, 23; Response Brief, para. 33.

[2] Rule 85(C) of the Rules. See also Prosecutor v. Vidoje Blagojević and Dragan Jokić, Case No. IT-02-60-A, Judgement, 9 May 2007, para. 27; Prosecutor v. Stanislav Galić, Case No. IT-98-29-A, Judgement, 30 November 2006, paras. 19, 22.

[3] See Impugned Decision, para. 39. Cf. Siméon Nchamihigo v. The Prosecutor, Case No. ICTR-01-63-A, Judgement, 18 March 2010, paras. 42-48.

Download full document
ICTR Rule Rule 11 bis ICTY Rule Rule 11 bis