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fnternational Criminal Tribunal for RwandaTribunal P6nal International pour le Rwanda

Before:

Registrar:

Date of fiIing:

TRIAL CHAMBER III

Judge Khalida Rashid Khan, presidingJudge Lee Gacuiga MuthogaJudge Seon Ki Park

Adama Dieng

9 November 2011

THE PROSECUTOR

v.

Bernard MUI{YAGISHARI

Case No. ICTR-2005-89-I

PROSECUTOR'S REQUEST FOR THE REFERRAL OF THECASE OF BERNARD MUNYAGISHARI TO RWANDA

PURSUANT TO RULE 11BIS OF THE TRIBUNAL'S RULESOF PROCEDURE AND EVIDENCE

Office of the Prosecutor

Hassan Bubacar JaIIowJames J. ArguinGeorge MugwanyaInneke OnseaAbdoulaye SeyeFrangois NsanzuweraErica Bussey

Counsel for the Accused

Philippe Moriceau

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I. INTRODUCTION

II. PROCEDURAL HISTORY .. . . . . . . . . . . . . . . . .5

III. APPLICABLE LAW ..........,7

IV. SUBMTSSIONS .. . . . . . . . . . . . . . . . . .8

A. JURISDICTION... . . . . . . . . . . .8

(a) Personal and Territorial Jurisdiction ........... ........8

0o) Material Jurisdict ion . . . . . . . . . . . . . . . . . . . . . . . . . . . . .9

(c) Temporal Jurisdict ion.. . . . . . . . . . . . . . . . . . . . . . . . .10

(d) Modes of Criminal Responsibility .......10

B. RWANDA IS WILLING AND ADEQUATELY PREPARED TO ACCEPTTHE ACCUSED'S CASE .....11

C. THE ACCUSED WILL RECEIVE A FAIR TRIAL AND ANAPPROPRIATE SENTENCE... . . . . . . . . . . .L2

(a) Penalty Structure . . . . . . . . . . . . . . . . .12

(b) Condit ions of Detention.. . . . . . . . . . . . . . . . . . . . . .14

(c) Presumption of innocence ....1G

(d) Availability and Protection of Witnesses.......... ..................10

1) Immunities in Transfer Law........

2) Witness Protection Programme ........18

3) Genocide Ideolory Law... . . . . . . . . . . . . . . . . . . .2A

a) Ability to call Defence witnesses .......2L5) Alternative Means for Securing Witness Testimony......... ..............24

6) Conclusion.. . . . . . . . . . . . . . . . . . . . . . . . .2b(e) Right to an Effective Defence ..............2G

1) Legal Representation ........262) Lesal A id . . . . . . . . . . . . . . . . . . . . . . . . . . . .28

3) Conclusion.. . . . . . . . . . . . . . . . . . . . . . . . .90(0 Judicial Independence, Impartiality and Competence ........................ g 1

D. MONITORING AND REVOCATION ........

v . RELIEF SOUGHT . . . . . . . . . . . . . . . . . . . . . . . . . . . . .40

4t+I. INTRODUCTION

1. The Prosecutor submits this request, pursuant to Rule 11 bis of theTribunal's Rules of Procedure and Evidence ('Rules"), for the referral of the caseof Bernard Munyagishari ('the Accused') to the competent authorities of the

Republic of Rwanda ('Rwanda") for trial.l

2. Rwanda meets all the requirements established by Rule 11 bis for referral

of a case for trial. This was recently confirmed by a Trial Chamber of this

Tribunal in Uwinhindi.2 The Chamber specifically held that Uwinkindi's case"will be prosecuted consistent with internationally recognized fair trial stand.ard.s

enshrined in the Statute of the Tribunal and other human rights instruments".B

The Chamber acknowledged the steps that Rwanda had taken to add.ress the

issues that had led to the denial of previous referral requests, find.ing that, in theyears since these requests, "Rwanda has made material changes in its laws and

has indicated its capacity and willingness to prosecute cases referred by this

Tribunal".a These steps included expanding the immunities available to

witnesses in referred cases,s earmarking sufficient fuirding for free legal aidprogrammes,o establishing the competence, experience and independence of itsjudiciary,T expanding and improving witness protection services,8 taking concrete

steps to secure the attendance of witnesses or presentation of evidence from

abroad,e and ensuring satisfactory conditions of detention.lo In line with the

letter and the spirit of Rule 11 bis, the Chamber included. robust cond.itions for

monitoring by the highly-respected African Commission on Human and Peoples'

t In compliance with the Chamber's scheduling order, the Prosecutor has included copies orreferences to the French and Kinyarwandan translations of supporting materials where possible.The Prosecutor u. Bernard, Munyagishari, Case No. ICTR-2005-86-I, Scheduling Order forAnticipated Rule 11 bis Motion, 2G october 2011, p. b ("scheduling order").z The Prosecutor u. Jean-Bosco Uwinkind.i, Case No. ICTR-2001-7b-R1lbis, Decision onProsecutor's Request for Referral to the Republic of Rwanda, 28 June 2011, paras.222-ZZ4("Uwinkind,t (TC)').3 Uwinkind,i (TC), para.223.a Uwinhindi (TC), para.223.5 Uwinkind,i (TC), paras 91-93, 96.6 Uwinkindi (TC), paras. 139, 146.7 Uwinkindi (TC), paras. 166, 178, 196.8 Uwinkind.i (TC), paras. 101, 129, 131.s Uwinkindi (TC), para. 108.10 Uwinhind.i (IC), para. 60.

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Rights ('ACHPRi') to provide additional safeguards for Uwinkindi's fair trial

rights.tt

3. In addition, over the past year, the European Court of Human Rights

("ECHR"), African Union, and Kingdom of Norway have also expressed

confidence in Rwanda's ability to ensure that the fair trial rights of accused

persons would be respected if their cases were tried in Rwanda.

4. On 27 October ?OLL, the ECHR held, in the case of Ahorugeze u. Sweden,

that there would be no violation of Ahorugeze's fair trial rights under Article 6 of

the European Convention of Human Rights if the applicant were extradited to

Rwanda to stand trial on charges of genocids.tz The ECHR found, in particular,

that there was "no reason to conclude that the applicant's ability to adduce

witness testimony and have such evidence examined by the courts in Rwanda

would be circumscribed in a manner inconsistent with Article 6",re and that

"there is no suflicient indication that the Rwandan judiciary lacks the requisite

independence and impartiality" .rt

5. On 11 July 2011, the Kingdom of Norway, Oslo District Court approved

the extradition of Charles Bandora to stand trial in Rwanda. The court

concluded that all "objective indications" were that Rwdnda would comply with

international standards for a fair trial.l6

6. In addition, on 22 January 2011, the African Union identified Rwanda as

the "country most suitable" to be entrusted with the trial of the former President

of Chad, Hissdne Habr6, who was charged with serious violations of international

Iaw, on the basis of the "experience of Rwanda's judiciary in the holding of trial

tr Uwinhindi (TC), paras. 35, 60, I32, L46,169, 211, 223;p.57-59.12 Case of ,Ahorugeze u. Sweden, Application No. 37075109, European Court of Human Rights,Judgement,2T Oclober 2011-, p.39 ("Ahoruge?,e Judgemenf,') (a copy is attached hereto as AnnexA).rs Ahorugeze Judgement, para. 123.La Ahorugeze Judgement, para. 125.15 NC/S Norway u. Charles Bandora, File No. LI-0502248N8-OTIR/01, OsIo District Cowt, lLJuly 2011, p. 14 ("Bandora Judgement") (a copy of the official English translation is attachedhereto as Annex B).

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for the persons accused of international crimes and the fact that Rwanda is Party

to the [United Nations Convention against Torture]".t6

7. As outlined in Rwanda's Report to the Tribunal of 19 August 20LL,r7

additional assurances that such fair trial rights will be respected are provided by

Rwanda's ongoing legislative reforms, which include its review of the Genocide

Ideolory Law in Article L3 of the Constitution, and draft legislation to allow

foreign and international judges to sit on the panel of any referred cases.l8

8. In light of the recent decision of a Trial Chamber to refer Uwinkindi for

trial in Rwanda, the confidence that national and regional bodies have expressed

in Rwanda's capacity to respect the fair trial rights of accused persons

transferred to Rwanda to stand trial, and the substantial improvements that

Rwanda has made - and continues to make - in instituting reforms to guarantee

fair trial rights, the Trial Chamber should be satisfied that, if this request for

referral is allowed, the Accused will receive a fair trial in Rwanda. Moreover,

Rwanda possesses the additional jurisdictional requirements prescribed under

Rule 11 bis. It is willing and adequately prepared to accept the case, and the

death penalty wiII not be imposed nor carried out. Overall, Rwanda meets all of

the Rule 11 bis requirements. Accordingly, the Trial Chamber should refer the

case of the Accused to the competent authorities of Rwanda to stand trial.

II. PROCEDURAL HISTORY

9. The Indictment against the Accused was confirmed by the Tribunal on 8

September 2005 and charges the Accused with conspiracy to commit genocide;

genocide or, in the alternative, complicity in genocide; murder as a crime against

16 Ben Kioko, DirectorlLegal Counsel, African Union, Letter to Martin Ngoga, Prosecutor General,Republic of Rwanda, 22 JuLy 2011 (copy attached hereto as Annex C)t7 The Prosecutor u. Jean Uwinkindi, Case No. ICTR-2011-75-R1lbis, Letter from Martin Ngoga,Prosecutor General, Republic of Rwanda, to Judge Khalida Rashid Khan, 19 August 20L1("Rwanda Report') (attached hereto as Annex D).18 As indicated in Rwanda's report, if Rwanda's democratically-elected Parliament agrees, thesereforms will be formally enacted into law during the current legislative session. (Rwanda Report,p. 10).

#el

humanity; and rape as a crime against humanity. The Accused is charged under

Articles 6(1) and 6(3) of the Statute.ts

10. The Accused was arrested, pursuant to a warrant issued by the Tribunal,

on 25 May 2011 in the Democratic Republic of the Congo. On 14 June 2011, he

was transferred to the United Nations Detention Facility in Arusha. At his

initial appearance on 20 June 2011., he pleaded not guilty to all of the charges.2o

He is currently awaiting trial.

11. In response to an inquiry from the Prosecutor, the Government of Rwanda,

by letter dated 28 September 2011, expressed its willingness and readiness to

accept and prosecute the Accused for the above crimes, with assurances that the

Accused will be prosecuted in accordance with the requisite fair trial guarantees

and well established international standards.2l

12. On 3 October 20tt, the Prosecutor requested, inter alia, that a Trial

Chamber be designated to adjudicate an anticipated motion pursuant to Rule 11

bis of the Rules, and that the designated Trial Chamber issue a scheduling order

for the filing of briefs by the Parties and any amicus curiae.zz On 13 October

20LL, the President of the Tribunal designated Trial Chamber III, composed of

Judges Khalida Rashid Khan, Presiding, Lee Gacuiga Muthoga and Seon Ki Park

to adjudicate the anticipated Rule 11 bis motion.2g On 26 October ?OLL, the Trial

re The hosecutor u. Berna,rd Munyagishari, Case Number ICTR-2005-89-I, Indictment, 8September 2005. A copy of the Indictment is attached hereto as Annex E.20 T.20 June 2011, p. 8-9.2r A copy of the Letter is attached hereto as Annex F.22 The hosecutor u. Bernard Munyagishari, Case No. ICTR-2005-89-I, Progecutor's Request forthe Referral of the Case of Bernard Munyagishari to Rwanda pursuant [sic] Rule 11 bis of theRules ofProcedure and Evidence, 3 October 2011.2s The hosecutor u. Bernard Munyagishori, Case No. ICTR-2005-89-I, Designation of a TrialChamber to Consider the Prosecutor's Request for the Referral of the Case of BernardMunyagishari to Rwanda, 13 October 2011. On 19 October 2011, the Defence filed a request for,inter a,Iia, a delay of three months to respond to the Prosecution's anticipated Rule Ll br.s motionto compose a defence team and in light of the importance of its work. See Requ€te en d,emandp deddlai sur la Demande dhpplication de lbrticle 17 bis,19 October 2011.

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Chamber issued a scheduling order for the frling of the briefs by the parties and

amicus curia,e, and dismissed the remainder of the Prosecutor's requests.2a

III. APPLICABLE LAW

13. Pursuant to Rule 11 bis (A), a Trial Chamber may order a referral of an

indictment to a state that has jurisdiction over the crimes with which an accused

is charged and is willing and adequately prepared to accept the case.25

Furthermore, in accordance with RuIe 11 bis (C), prior to ordering a referral, the

Trial Chamber must be satisfied that the accused will receive a fair trial in the

courts of the state concerned and that the death penalty wiII not be imposed or

carried out.

L4. The Appeals Chamber has summarized the applicable law with respect to

Rule 11 bis and its requirements as follows:

In assessing whether a state is competent within the meaning ofRule 1lbis of the Rules to accept a case from the Tribunal, adesignated Trial Chamber must first consider whether it has alegal framework which criminalizes the alleged'conduct of theaccused and provides an adequate penalty structure. The penaltystructure within the state must provide an appropriatepunishment for the offences for which the accused is charged, andconditions of detention must accord with international recognizedstandards. The Trial Chamber must also consider whether the

2a Scheduling Order, p. 5-6..25 The Prosecutor u. Michel Bagaragazn, Case No. ICTR-05-86-AR11bls, Decision on Rule llbrsAppeal, 30 August 2006, para. 8 ("Bagaragaza (AC)').As a strictly contextual matter, Rule 11 brs(A) does not require that a jurisdiction be 'willing and adequately prepared to accept' atransferred case if it was the territory in which the crime was committed or in which the accusedwas arrested. However, the ICTY Appeals Chamber has held: "that is beside the point, becauseunquestionably a jurisdiction's willingness and capacity to accept a referred case is an explicitprerequisite for any referral to a domestic jurisdiction, as the Tribunal has no power to order aState to accept a transferred case." See The Prosecutor u. Rad,ouan Stankoui|, Case No. IT-96-2312-ARLLbis.1, Decision on Rule Llbzs Referral, 1 September 2005_, para. 40 ("Stankoui6 (AC)").Consequently, the 'willing and adequately prepared' prong of Rule 11 bzs (Axiir) also applies toRule 11 brs (A)(i) and (ii), especially since ICTR Rule 11 brs (A) is in relevant part identical toICTY Rule 11 bis (A). See The Prosecutor u. Gaspard l(anyarukiga, Case No. ICTR-2002-78-Rllbis, Decision on Prosecutor's Request for Referral to the Republic of Rwanda, 6 June 2008,para. 7 and footnote L4 ("1(anyarukiga (TC)"); The Prosecutor u. Ild,ephonse Hategekimana, CaseNo. ICTR-00-55B-R11bis, Decision on Prosecutor's Request for the Referral of the Case ofIldephonse Hategekimana to Rwanda, 19 June 2008, para. 10 and footnote LI ("Hategekimana(TC)"); The Prosecutor u. Jean-Baptiste Gatete, Case No. ICTR-2000-61-R11bis, Decision onProsecutor's Request for Referral to the Republic of Rwanda, 17 November 2008, para. 7 andfootnote L4 (Gatete (TC)").

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accused will receive a fair trial, including whether the accused willbe accorded the rights set out in Article 20 of the Tribunal'sStatute ("Statu;s";.zo

15. The standard for referral is included in the Rule itself, which provides that

the "Chamber shall satisfu itself that the accused will receive a fair trial in the

courts of the State concerned ."zt By focusing on the fairness of a trial that has not

yet occurred, the Rule anticipates application of a prospective standard, that is,

one based on events that are likely to occur if referral is allowed.

IV. SUBMISSIONS

A. JURISDICTION

16. As explained by tbLe Munyahazi and Kayishema Trial Chambers, any one

of the bases stipulated in Rule 11 bis is adequate2s to complete the jurisdictional

requirement for the purposes of transfer.

(a) Personal and Territorial Jurisdiction

17. Rwanda has personal and territorial jurisdiction over the Accused's case,

pursuant to RuIe 11 bis (A), as the State in whose territory the crimes were

allegedly committed. The Accused's alleged crimes were committed in Gisenyi

Prefecture, Rwand.a. The Accused, a native of Gisenyi, was at the time of the

crimes charged in the Indictment, Secretary General of the MRND political party

for Gisenyi city and President of the Interahamwe for Gisenyi Prdfecture.

26 The Prosecutor u. Yussuf Munyakazi, Case No. ICTR-97-36-R11bis, Decision on theProsecution's Appeal against Decision on Referral under Rule 11bis, 8 October 2008, para. 4(footnotes omitted) ('Munyakazl (AC)"); The Prosecutor u. Gaspa,rd, Kanyarukiga, Case No. ICTR-2002-78-R11bis, Decision on the Prosecution's Appeal against Decision on Referral under Rulellbis, 30 October 2008, para. 4 (footnotes omitted) ('I{anyarukiga (AC)"); The Prosecutor u.Ildephonse Hategekimana, Case No. ICTR-00-55B-R11brs, Decision on the Prosecution's Appealagainst Decision on Referral under Rule llbas, 4 December 2008, pata. 4 (footnotes omitted)(' H ate g e ki m ana (AC)" ) .27 Rule 11 bzs (C).28 The Prosecutor u. Yussuf Munyakazi, Case No. ICTR-97-36-R11bls, Decision on the Prosecutor'sRequest for Referral of Case to the Republic of Rwanda, 28 May 2008, para. LG ("Munyakazi(TC)"); The Prosecutor u. Fulgence l{ayishema. Case No. ICTR-01-67-R11bls, Decision on theProsecutor's Request for Referral of Case to the Republic of Rwanda, 16 December 2008, para. 18('Kayishema (TC)').

+tg(b) Material Jurisdiction

18. Rwanda possesses the requisite material jurisdiction over the crimes for

which the Accused is indicted.ze First, Rwanda's legal framework criminalizes

the alleged conduct of the Accused as international crimes, and not as ordinary

crimes. This is consistent with Rule 11 bis and Appeals Chamber

jurisprudence.so Rwanda's legal framework provides for the proscription and

punishment of genocide and other transgressions of international humanitarian

law in terms identical to those laid down under the Tribunal's Statute.st Second,

based on the relevant provisions of Rwanda's Transfer Law, applicable

international conventions,sz and Article 190 of the Rwandan Constitution,ss

Rwanda has subject-matter jurisdiction over the crimes charged in the

Indictment against the Accused.

2e See also Uwinkindi (TC), para. 21.3o Bagaragaza (AC), paras. 9, 17-18.3r Article 1 of the Transfer Law provides that thie law shall regulate the transfer of cases andother related matters from the International Criminal Tribunal for Rwanda and from otherStates to the Republic of Rwanda. Pursuant to Article 3 of the same law, any person whose case istransferred by the Tribunal to Rwanda shall be prosecuted only for crimes falling within thejurisdiction of the Tribunal. See Organic Law No. 11/2007 of 16 March 2007 concerning Transferof Cases to the Repubtc of Rwanda from the International Criminal Tribunal for Rwanda andFrom Other States, Official Gazette of the Republic of Rwanda, 19 March 2007, as modified byOrganic Law No. 03/2009/OL of 26 May 2009 modifying and complementing the Organic Law No.Lll2007 of. L610312007 concerning the Transfer of Cases to the Republic of Rwanda from theInternational Criminal Tribunal for Rwanda and from Other States, Official Gazette of theRepublic of Rwanda, 26 May 2009 ("Transfer Law"). A copy of the Transfer Law is attached asAnnex G.32 Rwanda's legal framework provides for the application of (and the courts in practice apply)international treaties, such as the Genocide Convention and the Geneva Conventions, in theadjudication of genocide, war crimes and crimes against humanity. This has been confirmed byTribunal jurisprudence. See Kanyarukiga (TC), paras. 14-19; Gatete (TC), paras. 14-19. Rwandahas incorporated these treaties in national law, and these treaties applied to Rwanda at the timethe Accused committed the crimes with which he is charged. This has been acknowledged in theKanyarukiga and Gatete Decisions. See Kanyarukiga (tC), para. 16 (footnotes omitted); Gatete(TC), para. 16 (footnotes omitted).33 Constitution of the Republic of Rwanda of 4 June 2003 (as amended in 2003, 2005, 2008 and2010) ("Constitution'). For English, French and Kinyarwandan versions of the Constitution, seehttp://www.amategeko.neU (ast visited on 7 November 2011). Rwanda's Constitution and otherlegislation provide for the application of international treaties and in practice, the Courts applythese treaties. This has also been confirmed by the Chambers of this Tribunal See Kanyarukiga(TC), para. 17, with reference to Rwandan jurisprudence in footnote 28; Gatete (TC), para. 17,with reference to Rwandan jurisprudence in footnote 28.

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(c) Temporal Jurisdiction

19. The confirmed Indictment charges the Accused with crimes he perpetrated

on or between the dates of 1 January 1994 and 17 July 1994. As noted above,

pursuant to Article 3 of the Transfer Law, and notwithstanding the provisions of

other laws in Rwanda, persons who are transferred from the Tribunal shall be

prosecuted only for crimes falling within the jurisdiction of the Tribunal. As

confirmed by the Kanyaruhiga, Gatete and Uwinhind.i Decisions, "[i]t follows

from Articles L and 7 of the Statute that the ICTR only has jurisdiction to

prosecute acts committed between 1 January and 31 December 1994. The

formulation in the Transfer Law indicates that [the Accused], if transferred, will

not be prosecuted for acts committed before or after this period."sa

(d) Modes of Criminal Responsibility

20. The Accused is indicted first pursuant to Article 6(1) on charges of

planning, instigating, ordering, committing or otherwise aiding and abetting the

crimes alleged. Article 6(1) of the ICTR Statute covers both principal

perpetrators of crimes as well as accomplices to such crimes.

21. Rwanda possesses an adequate legal framework to try the Accused on the

basis of forms of criminal responsibility similar to those stipulated in Article 6(1).

Article 89 of Rwanda's Penal Code identifies both principal perpetrators and

accomplices to crimes. Article 90 of the same Code defines the author of a crime

as someone who has executed the crime or has directly cooperated in the

commission of the crime. Article 91 of the Code defines the material elements of

accomplice liability.ao Rwanda's legal framework also encompasses, inter alia,

three forms of accomplice liability, namely, complicity by instigation, complicity

by aiding and abetting, and complicity by preparing the means to commit the

crime.

3a l(anyarukiga (TC), para.20; Gatete (TC), para. 20; Uwinkindi (tC), para.20.s5 See e.g. hosecutor u. Jean-Paul Akayesu, Case No. ICTR-96-4-T, Judgement, 2 September1998, paras. 533-548.

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22. The Tribunal already held, most recently in the Uwinkind,rl decision, that

on the basis of these provisions of the Rwandan Penal Code, the modes of

participation existing under Rwandan law are similar to those found in Article

6(1) of the Statute and Tribunal jurisprudence.Bo

23. The Accused is also charged with having committed crimes pursuant to

Article 6(3) of the Statute. As found by the Tribunal's Appeals Chamber,sT this

mode of liability is recognized under Rwandan law, in particular in Article 53 of

the Organic Law No. 16/2004 of 19 June 2004 Establishing the Organisation,

Competence and Functioning of Gacaca Courts,se and Organic Law No..

33bis12003 Repressing the Crime of Genocide, Crimes Against Humanity and

War Crimes of 6 September 2003.ss

B. RWANDA IS WILLING AND ADEQUATELY PREPARED TOACCEPT THE ACCUSED'S CASE

24. Rwanda fulfils the "being willing to accept" requirement of Rule 11 bis. As

noted above, by letter dated 28 September 2011, the Government of Rwanda has

expressed its willingness and readiness to accept and prosecute the Accused for

the crimes for which he is indicted by the Tribunal.ao

In addition, Rwanda is "adequately prepared to accept" the case against

Accused. Rwanda possesses a legal framework that criminalizes all the

36 uwinkindi (Tc), para. 19; Kanyaruhiga (TC), para. 2L; Gatete (TC), para. 2r; Hategekimana(TC), para. 18.37 Hategekimana (AC), para. L2.38 Organic Law No. 1612004 of 19 June 2004 Establishing the Organisation, Competence andFunctioning of Gacaca Courts Charged with Prosecuting and Trying the Perpetrators of theCrime of Genocide and other Crimes against Humanity, Committed between October 1, 1gg0 andDecember 31, 1994, Official Gazette of the Republic of Rwanda, 19 June 2004, modified andcomplemented by Organic Law No. 28i2006 of 27 June 2006, Official Gazette of the Republic ofRwanda, 12 July 2006, Organic Law No. 10/2007 of 1 March 2007, Official Gazette of the Republicof Rwanda, I March 2007 and Organic Law No. 13/2008 of. 1910512008, Official Gazette of theRepublic of Rwanda, 1 June 2008. futicle 53 remains unaffected by these amended versions ofthe law. For English and French versions of this law, see http://www.amategeko.net/ Qast visitedon 8 November 2011)3e Organic Law No. 33bzs/2003 Repressing the Crime of Genocide, Crimes Against Humanity andWar Crimes of 6 September 2003, Official Gazette of the Republic of Rwanda, 1 November 2008.For English, French and Kinyarwandan versions of this law, see http://www.amategeko.net/ Qastvisited on 8 November 2011).+o See Annex F.

25.

the

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alleged conduct of the Accused, as detailed in the Indictment, so he can be duly

tried.al As demonstrated above and as will be shown in more detail below,

Rwanda possesses a legal framework identical to that established under the

Tribunal's Statute in criminalizing all the alleged condu'ct of the Accused, and in

providing for an adequate penalty structure and fair trial and due process

guarantees to accused persons. To that end, in 2007, Rwanda has specifically

enacted the Transfer Law, which makes provisions dealing with cases referred to

Rwanda from the Tribunal, and which clearly expresses Rwanda's readiness and

preparedness to accept and prosecute cases transferrild from the Tribunal.az

Moreover, in 2009, Rwanda modified the Transfer Law to address expressly the

concerns raised by the Trial and Appeal Judges in connection with the

Prosecutor's previous Rule 11 bis applications.

C. THE ACCUSED WILL RECEIVE A FAIR TRIAL AND ANAPPROPRIATE SENTENCE

(a) Penalty Structure

26. Rwanda has removed the death penalty from its entire legal system, and

its legal framework provides for an adequate penalty structure.as The death

penalty was abolished in Rwanda pursuant to the Abolition of the Death Penalty

Law (Organic Law No. 31/2007 of 25 July 2001.u Article 1 of the Organic Law

that modifies Article 3 of the Abolition of the Death Penalty Lawas specifically

ar For the 'adequately prepared" test, see Bagaragaza (AC), para. 9, with reference to hosecutor u.Zbtiho Mejahi| et al., Case No. IT-02-65-AR11bis.1, Decision on Joint Defence Appeal againstDecision on Referral under RuIe llbis, 7 April 2006, para. 60: the ICTR Appeals Chamberdescribed the inquiry into the referral state's 'competence' to accept a case in terms identical tothe inquiry applied at the International Criminal Tribunal for the Former Yugoslavia (ICTD todetermine whether a referral state is 'adequately prepared.' See also Prosecutor u. GojkoJankoui|, Case No. IT-96-2312-.AR11bds.2, Decision on Rule llbis Referral, 15 November 2005,para. 66 (Jankoui| (AC)).az See the Title of the Transfer Law, and Article 1.as See also Uwinhindi (TC), para. 51.aa Organic Law No. 3L12007 of 2510712007 relating to the Abolition of the Death Penalty, 25 July2007, Official Gazette of the Republic of Rwanda, 25 July 2007 ('Abolition of the Death PenaltyLaw"). For English, French and Kinyarwandan versions of this law, seehttp://www.amategeko.net/ Qast visited on 7 November 2011).a5 Organic Law No. 66/2008 of 21 November 2008 modifying and complementing Organic Law No.3L12007 of. 2510712007 relating to the Abolition of the Death Penalty, Official Gazette of theRepublic of Rwanda, 1 December 2008. For English, French and Kinyarwandan versions of thislaw, see http://www.amategeko.net/ Qast visited on 7 November 2011).

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[+t4states that life imprisonment with special provisions shall not apply to cases

transferred from the ICTR and from other States in accordance with the Transfer

Law. This is a significant modification because Trial and Appeals Chambers had

denied previous requests for transfer, inter alia, because there was a possibility

that accused persons might be subjected to life imprisonment with special

provisions. aG

27. Further, Article 2L of the Transfer Law on penalties is consistent with

Rule 101 of this Tribunal, which allows for a maximum penalty of life

imprisonment.aT Article 82 of the Rwandan Penal Code provides for

consideration of the individual circumstances of a convicted person in

determining the sentence, and Article 22 of the Transfer Law states that

convicted persons will be given credit for time spent in custody.a8 These

provisions are consistent with the Tribunal's Rules on sentencing.4e

28. In the Uwinhindi decision, the Trial Chamber held that the current

penalty structure of Rwanda is "adequate as required by the jurisprudence of the

Tribunal as it no longer allows for the imposition of the death penalty or life

imprisonment with solitary confinement".s0 It was further satisfied that "the

ambiguities that existed in previous Rule 11 bis applications regarding the

nature and scope of the sentence for accused persons in cases referred to Rwanda

have been adequately addressed by Rwanda".5l The same conclusion should

apply to the Accused's case.

a6 Munyakazi (TC), paras. 25-32; I(ayishema (TC), paras. 26-29; Kanyarukiga (TC), paras. 94-96;Gatete (TC), paras. 85-87; Hategekirnarna (TQ), paras. 23-25; Munyakazi (AC), paras. 8-2L:I(anyarukiga (AC), paras.6-17; Hategekimana (AC), paras. 31-38. As acknowledged by theChamber in the Uwinkindi decision, this possibility no Ionger exists. (Uwinkind,i (TC), para. 51.)The ambiguity concerning the applicable punishment that the Judges had previously found toexist between the Tlansfer Law and t}:re Abolition of the Death Penalty Law b;ae therefore beenresolved.a7 See also Uwinkindi (TC), para. 49.48lbid.4e ICTR Rule 101 @) & (C).ao Uwinkindi (TC), para. 51.51 Uwinkindi (TC), para. 51.

13

(b)

ut3

Conditions of Detention

29. Rwanda's detention facilities with respect to all cases that may be

transferred, in Mpanga and Kigali Central prisons, meet international standards,

in accordance with the Transfer Law.sz During earlier Rule 11 bis proceedings,

Chambers of this Tribunal found that the Transfer Law institutes a special

regime for detainees transferred from the Tribunal, and that mechanisms exist to

address any concerns that may be raised with respect to the implementation of

these provisions.ss

30. Under this special regime, prisoners transferred by the Tribunal to

Rwanda shall be detained in accordance with the minimum standards of

detention stipulated in the United Nations Body of Principles for the Protection

of all persons under any Form of Detention or Imprisonment.sa The Uwinhindi

Trial Chamber already found that adequate detention conditions were

guaranteed by the Transfer Law, and that "Uwinkindi "will be detained in

appropriate conditions if his case is referred to Rwanda."bb The same detention

conditions would apply to the Accused.

31. The Uwinkindi assessment of detention conditions in Rwanda is shared by

the ECHR in the Ahorugeze case,56 the Government of the Netherlands,sz utrd rn.

OsIo District Court in the Bandora case (which took into account observations

made by the Norwegian police afber visiting Mpanga).r8 Convicts from the

Special Court for Sierra Leone are currently serving their sentences in Mpanga

prisonse under conditions that meet international standards. Rwanda has

52 See also Uwinkindi (TC), para. 59. The Chamber recalled that the Kanyarukiga ReferralChamber found that "during trial, the accused would be detained in a custom-built facility at theKigali Central Prison". See Kanyarukiga (TC), para. 91.63 Kanyarukiga(TC), paras.85-86; Gatete (TC), paras.76-77; Hategekim.ana(TQ), paras. 75-77.5a Uwinkindi (TC), para. 58.65 Uwinkindi (TC), para.60.66 .Ahorugezn Judgement, para. 92.57 Observations in Intervention of the Government of the Netherlands concerning Application No.37075179, 27 July 2010, filed in the Ewopean Court of Human Rights, ,Ahorugeze v. Sweden,Application No. 37075/09, para. 8 ("Netherlands Observations") (attached hereto as Annex H).58 Bandora Judgement, p. 14.5e Memorandum of Understanding between The Special Court for Sierra Leone and TheGovernment of the Republic of Rwanda, 2 October 2009 (attached hereto as Annex I).

T4

4tz

represented that the same regulations governing the detention of SCSL prisoners

"also would apply to prisoners in any cases referred by the Tribunal."60

32. The Transfer Law further provides that the International Red Cross or an

"observer appointed by the President of the ICTR'"shall have the right to inspect

the conditions of detention of persons transferred to Rwanda by the ICTR."61

When any such inspection occurs, the Red Cross or ICTR observer "shall submit a

confidential report" of its findings to the Rwandan Minister of Justice and the

Tribunal's President.62 Moreover, Rule 11 bis, as amended in 2OLl, states that "if

the Trial Chamber so orders, the Registrar, shall send observers to monitor the

proceedings in the State concerned."63 This amended language is broad enough to

allow monitoring of all proceedings, including detention before and after trial.

Based on similar submissions, the Uwinhindi Trial Chamber found that the

monitoring mechanism, by conducting regular prison visits to ensure that both

the detention conditions and treatment of the Accused in detention were

satisfactory, could be used as a safeguard.Ga The Accused would benefit from the

same protection.

60 The Prosecutor u. Jean-Bosco Uwinkindi, Case No. ICTR-2001-75-I, Arnicus Curiae Brief for theRepublic of Rwanda in Support of the Prosecutor's Application for Referral Pursuant to Rule 11bis, dated 18 February 20IL and filed 25 February 2011, footnote 171 ('Rwanda Amicus CuriaeBrief') (attached hereto as Annex J).6r Uwinkindi (TC), para. 58.ez Uwinkindi (TC), para. 58. The Kanyarukiga, Gotete and Hategekimana Trial Chamberspreviously held, with respect to the initial Rule 11 bls applications, that any concerns regardingthe physical conditions of the detention facilities or any concerns relating to ill-treatment(although they specifically observed that they did "not consider it likely that such acts wiII becommitted under the special regime established by the Transfer Law") can be drawn to theattention of the monitoring mechanism under Rule 11 bts (D)(iv) or to inspectors to be appointedunder Article 23(2) of the Transfer Law. hosecutor v. Gaspard Ka,nyarukiga, Case No. ICTR-2002-78-R1lbis, Decision on Prosecutor's Request for Referral to the Republic of Rwanda, 6 June2008, paras. 92-93 ("Ka,nyarukiga (TC)"); Prosecutor u. Jean-Ba,ptiste Gatete. Case No. ICTR-2000-61-R1lbls, Decision on Prosecutor's Request for Referral to the Republic of Rwanda, 17 November2008, paras. 83-84 ("Gatete (TC)"); Prosecutor u. Ildephonse Hategekirnane., Case No. ICTR-O0-55B-R11bis, Decision on Prosecutor's Request for Referral of the Case of IldephonseHategekimana to Rwanda, 19 June 2008, para.76 ('Hategehirnana (TC)").63 RuIe 11 brs @) (1v) (post-amendment).6a Uwinkindi (IC), para. 60. The Chamber took note of Uwinkindi's submissions that Rwandahad announced it was building a new prison that would eventually replace Kigali Central Prison.The Chamber, however, found that, because the new prison had not yet been built, Uwinkindi'sconcern that the new prison might not comply with international standards was "speculative",and that the detailed provisions of the Transfer Law would ensure that the detention conditions

15

u(l33. In conclusion, the conditions of detention in Rwanda at Mpanga and Kigali

Central Prison meet international standards, the Transfer Law guarantees

adequate conditions of detention even if the Accused were to be detained at other

facilities in Rwanda, and the monitoring mechanism could be used as an

additional safeguard by conducting regular prison visits to ensure that both the

detention conditions and treatment of the Accused in detention were satisfactory.

(c) Presumption of innocence

34. The Accused's fair trial right relating to the presumption of innocence is

guaranteed under Rwanda law. Pursuant to Article 19 of the Rwandan

Constitution, every "person accused of a crime shall be presumed innocent until

his or her guilt has been conclusively proved in accord.ance with the law in a

public and fair hearing (...)." Article 44(2) of the Code of Criminal Procedure also

provides that "an accused is presumed innocent until proven guilty." Article

13(2) of the Transfer Law specifically restates this right.

35. Based on these provisions, in connection with previous Rule 11 bis

proceedings, four ICTR Trial Chambers correctly observed that the presumption

of innocence forms a part of Rwandan law.65 T}lie Uwinhindi Trial Chamber

further noted that Article 19 of the Constitution of Rwanda "is in conformity with

several human rights treaties to which Rwanda is party, for instance Article

t4(2) of the International Covenant on Civil and political'Rights ('ICCPR").

(d) Availability and Protection ofWitnesses

36. The immunities and protections afforded to witnesses under the Transfer

Law are adequate to ensure a fair trial to the Accused._ The fair trial concerns

regarding availability and protection of witnesses, which were identified by the

Trial and Appeal Chambers in previous Rule 11 bis applications, have now been

effectively addressed by Rwanda and, therefore, can no longer constitute an

in any other facilities in which accused persons might beinternational standards. See Uwinkindi (TC), para. 55.65 Uwinkindi (TC), paras. 22, 26; Kanyarukiga (TC), para.Hategekimana (TC); para. 47 .

held in custody would meet

'43; Gatete (TC), para. 40,

16

4t0

impediment to the transfer of cases. The Uwinhindi Chamber reached this same

conclusion, pointing out that "any referral with robust monitoring would be able

to address concerns that the Defence and t}ne amici have expressed' relating to

the availability of defence witnesses.66 It correctly found that "with the

amendments made to the laws regarding witness immunjty, the creation of a new

witness protection programme, and the safeguards imposed by the Chamber on

Rwanda, the Appeals Chamber's finding that witnesses may be unwilling to

testify is no longer a compelling reason for denying referral".67

1) Immunities in Transfer Law

37. The Transfer Law, as amended, provides increased immunity and

protection for witnesses. Article 13 states that "[w]ithout prejudice to the

relevant laws of contempt of court and perjury, no person shall be criminally

liable for anything said or done in the course of a trial."68 Article 14 provides an

additional guarantee of immunity for witnesses who travel from abroad. It states

that "[a]11 witnesses who travel from abroad to testifr in the trial of cases

transferred from the ICTR shall have immunity from search, seizure, arrest or

detention during their testimony and during their travel to and from the trials."6e

38. Defence witnesses and defence counsel are therefore assured immunity for

anything said or done in the course of trial.zo This immunity extends to any

statements made in the course of trial amounting to genocide denial under either

the current or revised ideology law. Based on the same provisions, the

Uwinhindi Chamber concluded that the "immunities and protections provided to

witnesses under the Transfer Law are adequate to ensure a fair trial of the

Accused before the High Court of Rwanda."7l

66 Uwinkind.i (TC), para.224.67 Uwinkindi (TC), para. 100.68 Transfer Law, Article 13 (as amended).6e Transfer Law, Article 14.70 See also Uwinkindi (TC), para. 95.71 Uwinkindi (IC), para. 90, see also paras. 93, 99, 101.

T7

L+01

39. The Uwinhindi Chamber's confidence in Rwanda's commitment to

honoring the immunity provisions was reinforced by Rwanda's study of proposed

revisions to the Genocide Ideology Law (which will be discussed in more detail

below).zz Rwanda's subsequent report demonstrates that substantial progress

has been made in addressing past concerns.Ts It also provides a timeline for

adoption of these latest reforms during the current legislative term.Ta

40. Because no cases have yet been referred to Rwanda, the immunity

provisions have not been tested in practice. But, there is no reason to doubt

Rwanda's representations that, consistent with the usual presumption of good

faith on the part of government officials, the immunity provisions will be

honoured in practice.Ts Indeed, as the Uwinhindi Trial Chamber noted, Rwanda

amended the Transfer Law in 2009 to enhance the protections afforded to

witnesses.T6 The Uwinhindi Trial Chamber viewed this "amend.ment as a

positive development."TT It also is tangible proof of Rwanda's commitment to the

Transfer Law's immunity provisions.

2) Witness Protection Progratwne

4L. Rwanda has a legal framework in place for the protection of witnesses and

has adopted provisions similar to those in the Tribunal's Statute.zs Article 14 of

the Transfer Law specifically states that in cases transferred from this Tribunal,

the High Court "shall provide appropriate protection for witnesses and shall have

the power to order protective measures similar to those.set forth in Rules 53, 69

and 75 of the ICTR Rules of Procedure and Evidence". It also refers to the

facilitation of witness testimony for witnesses coming from abroad, including

immunity from search, seizure, arrest or detention during the witness's

72 Uwinkindi (TC), para. 95.?3 Rwanda Report, p. 2-9.?a Rwanda Report, p.2-9.75 Rwanda Amicus Curiae Brief, para. 54.76 Uwinkind.i (TC), para.92.77 Uwinkindi (TC), para. 93.ze This conclusion has also been reached by several ICTR Trial Chambers in relation to theProsecutor's initial Rule 11 bis apptcations. See Kanyarukiga (TC), para. 65; Gatete (TC), para.56; Hategekimana (TC), pan.62.

18

+og

testimony and during their travel to and from trials. Pursuant to Article 145 of

the Code of Criminal Procedure, courts may order closed sessions where a public

hearing could be detrimental to public order and good morals, and they may take

other measures that may reasonably limit the right to a public trial when

necessary for the protection of witnesses.

42. This legal framework is complemented by improvements made to the

Rwandan Victims and Witnesses Support Unit ('VWSU") and the creation of the

Witness Protection Unit ("WPU") under the Judiciary. This has recently been

acknowledged by the Uwinhindi Trial Chamber.Te

43. The Appeals Chamber previously found that the witness protection service

administered by the Office of the Prosecutor General (VWSU) functions

adequately.so Further, the Chamber in the Uwinhindi decision noted that over

the past two years, the WVSU has improved and has seen "an increase in staff

size, funding and awareness raising programmes".8l Moreover, in addition to the

VWSU, Rwanda has established a witness protection unit under the Judiciary

flMPU).az In that way, Rwanda has met the concerns expressed by Trial and

Appeal Judges in previous Rule 11 bis applications that witnesses, especially

Defence witnesses, may be afraid to avail themselves of the \ MSU because it is

administered by the Office of the Prosecutor General.8s These witnesses will now

be able to access the service managed by the Rwandan judiciary. The Uwinhindi

Chamber regarded WPU's creation "under the auspices of the judiciary'' as a

positive step aimed at addressing past concerns that some witnesses might be

7s Uwinkindi (TC), para. 101.80 Munyakazi (AC), para. 38; I{anyarukiga (AC), paru.27.8r Uwinkind,i (TC), para. 129.a2 On 15 December 2008, the President of the Supreme Court directed by an Ordinance that aWitness Protection Unit be created in the Registries of the Supreme and High Courts to protectthe private life and security of witnesses pursuant to Article 14 of the Transfer Law. Each WPUis administered by one or more Registrars under the direction of the Chief Registrar OrdonnanceNo. 001/ 2008 du 15 ddcembre 2008 Prdsid,ent de la Cour Supr€me portant instruction relatiue d laprotection d,es t6moins dans le cadre d,u renuoi d'affaires d, la Rdpublique du Rwanda par LeTlibunal Pdnal International Pour Le Rwand,a (TPIR) et par d.butres Etats (attached hereto asAnnex K).83 Munyakazi (TC), para. 62; I{ayishema (TC), para. 42; Kanyarukiga (TC), para. 70; Gatete (TC),para. 61; Munyakazi (AC), para. 38; Kanyarukiga (AC), para. 27.

19

ao7reluctant to avail themselves of WVSU's services because it is a unit within the

prosecutor's office.84

44. Moreover, it should be recalled that both Trial and Appeals Chambers

acknowledged during previous Rule 11 bis applications that no judicial system,

be it national or international, can guarantee absolute witness protection.ss The

Prosecutor submits, in accordance with the findings made by the Kanyarukiga

and Gatete Trial Chambers, that "[s]hould incidents occur, it will be for the High

Court or the Supreme Court to initiate investigation, clarify the facts, and ensure

the necessary protection. If this is not done, or if the measures taken are

insufficient, it would be a matter for evaluation by the monitoring mechanism."86

3) Genocide ldeology Law

45. The Transfer Law's broad immunity provisions also adequately address

any witness fears related to arrest and prosecution under the Genocide Ideology

Law.87 As the Uwinhindi Trial Chamber observed, the Transfer Law, "as

amended, provides immunity to defence witnesses and defence counsel for

anything said or done in the course of trial[,]" including any statements

amounting to genocide denial or minimization.8s

46. In addition to this express grant of immunity, the Uwinhindi Trial

Chamber noted that Rwanda had undertaken a study aimed at clarif ing the

scope of its existing ideolory law.8e It required Rwanda to report to the President

on the status of that study.so According to Rwanda's subsequent report, the

Commission assigned to study the matter has recommended that the existing

8a Uwinkindi (TC), para. 131.86 Uwinkindi QC), para. 128; Kanyarukiga (TC), para. 69; Gatete (TC), para. 6O; Hategehirnana(TC), para. 64 (all with reference in footnote to Jankovi| (AC), para. 49); Munyakazi (AQ), pan.38.aa l(anyarukiga QC), para. 69; Gatete (TC), para. 60. See infra, paras. on monitoring.87 Munyakazi (TC), para. 61; Kayisherna (TC), para. 4L; Kanyarukiga (TC), paras. 71-72; Gatete(TC), paras. 62-63; Ha,tegekimana (TC), paras. 65-67; Munyakazi (AC), para. 37; Kanyarukiga(AC), para. 26; Hategekimana (AC), para. 21.88 Uwinkind.i (TC), para. 95.8s Uwinkind,i (TC), para.95.e0 Uwinkindi (TC), para. 95 and p. 59.

20

L+oL

ideolory law be repealed and replaced with a new law, which addresses the

principal concerns raised about the existing law while preserving the legislation's

Iegitimate objectives.st In essence, the revisions proposed are the following: a)

establishing a more direct nexus between the law's legitimate purposes and its

scope; b) clarifring potentially vague or overbroad terminolory; c) specifically

identifring prohibited conduct and imposing an intent element; and d)

reformulating the sentencing structure.e2

47. As Rwanda noted in its report to the President, it is unlikely that

opponents of the Genocide Ideolory Law will be satisfied even if Rwanda's

Parliament adopts the new law. Questions may still arise regarding the new

law's application and interpretation. Those questions, however, can be resolved

by Rwanda's judiciary.e3 There is no reason to believe that Rwanda's judiciary

will abdicate its responsibility to fairly and impartially interpret the laws and to

do so in a manner that wiII redress any potential grievances relating to the new

law's application.ea

4 Ability to call Defence witnesses

48. As noted above, Articles 13 and L4 of the Transfer Law confer broad

immunity on all witnesses. This broad immunity conferred to all witnesses and

the witness protection mechanisms put in place are important developments that

adequately address "the concerns of witnesses within Rwanda regarding their

safety".es In addition, the Tribunal's experience reveals that witnesses from

Rwanda have testified both in support of and against accused persons without

incident.

49. Likewise, in the Bandoro decision, the Oslo District court took into

account a report from the Norwegian police, who had made ten investigative

visits to Rwanda, interviewing 149 witnesses. The Norwegian police reported

el Rwanda Report, p. 3.e2 Rwanda Report, p. 3-9.e3 Rwanda Report, p. 10.ea Rwanda Report, p. 10-11.e5 Uwinhindi (TC), para. 99.

27

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that there was no indication that any of the witnesses, either testifring for or

against the accused, had been influenced or instructed to grve particular

statements or threatened in anv wav.e6

50. The experience of the Norwegian police in investigating cases in Rwanda is

confirmed by the experience of the Dutch government. In a filing with the

European Court of Human Rights, the Dutch governmeirt summafized its years

of experience in conducting investigations in Rwanda in the following terms:

The assigned Rwandan judicial officials have been very helpful inassisting the investigating teams, our prosecutors and ourinvestigating magistrate in their work in Rwanda. They have - onvery short notice - provided different types of assistance, rangingfrom providing suitable locations for conducting hearings, locatingand organizing transport for requested witnesses (d charge as wellas i d6charge), assisting with witness protection as well asarranging psychological and medical attention for witnesses to theoverall organization of the necessary paperwork and permissions. .

Ouerall, the co-operation of the Rwandan jud,icial authoritieshas been found to be exemplary and there are no indications ofinterference with the inuestigating teanns, nor witnesses for thatmatter.eT

51. It is noteworthy that in Rwanda the judicial police have the primary

responsibility for investigating crimes. Pursuant to Article 22 of. the Code of

Criminal Procedure, "fi]udicial police officers shall commence criminal

investigation on their own initiative, following a complaint or upon instructions

from the public prosecution." Article 19 of the Code of Criminal Procedure

requires the judicial police officer to gather evidence for both the prosecution and

defence a charge and a d6charge. The judicial police officer therefore

interrogates suspects and all potential witnesses and records their statements.es

s6 Bandora Judgement, p. L2.e? Netherlands Observations, para.7 (emphasis added).e8 Law No. 13/2004 of 17 May 2004 Relating to the Code of Criminal Procedure, Official Gazette ofthe Republic of Rwanda, 30 July 2007, Amended by Law 20/06 of 22 April 2006, Official Gazetteof the Republic of Rwanda, 27 May 2006 ("Code of Criminal Procedure"), Article 26. For English,French and Kinyarwandan versions of this law, see http://www.amategeko.net/ Qast visited on 7November 2011).

22

404

After the investigations, the judicial police officer transmits the complete file to

the Public Prosecution Service, which will transfer the case to court for trial.ss

52. Defence Counsel in Rwanda also are free to conduct their own criminal

investigations. In practice, they have been able to conduct domestic criminal

investigations without interference and have had no difficulties in calling defence

witnesses within Rwanda at trial.100 As the President of the KBA attested,

Rwandan lawyers also routinely conduct their own criminalinvestigations both in Kigali and in the provinces, withoutinterference or particular difficulties materially affecting theirwork. Where defense counsel want to interview a detainedwitness, they orally asks the prison authorities to meet him/trer,and within a few minutes, they are allowed access and can talk tothe witness for as long as they want. Of course, no prison offi.cercan deny a counsel access to his or her client. All this is done intotal respect of the right to privacy at the prison premises. Inpractice, where defense counsel want to call a witness fromabroad, they are also able to do it freely without any interventionfrom the authorities. In case the witness needs a visa, thencounsel can contact the immigration authorities to facilitate thewitness' entrY.lol

Furthermore, the President attested that:

Members of the KBA have dealt with numerous genocide andother criminal cases before lower courts, high courts and theSupreme Court. In their experience, accused persons are able toavail themselves of their right to present witnesses in theirdefence. They can attest that, in practice, the rights of accusedpersons to obtain attendance of and examine defencewitnesses, are not infringed. toz

It also has been recently shown, through Rwanda's practical experience in

genocide cases over which the High Court presided, that the "defence in most

sg Articles 42 and 43 of the Code of Criminal Procedure.r00 Affidavit of Maitre Emmanuel Rukangira, Acting President of the Kigali Bar Association("Rukangira Affidavif,'), para. 13 (a copy is attached hereto as Annex L).r0r See The Prosecutor u. Uwinkind,i Jean, Case No. ICTR-2001-75-Rule llbis, Amicus CuriaeBrief of the Kigali Bar Association in the Matter of the Prosecutor's Request for the Referral ofthe Case of UWINKINDI Jean,26 April 2011, para.47 ("KBA Amicus Curiae Brief') (attachedhereto as Annex M). The President of the Kigali Bar Association certified the veracity of all thestatements contained in the association's amicus brief (I{BAArnicus Curiae Brief, p. 24).t02 KBA Anxicus Curiae Brie{ para. 49.

53.

54.

36

23

q,63

cases was able to secure the attendance of witnesses even without the safeguards

available to cases transferred from the Tribul4]."103

55. In all events, as noted in the Uwinhindi decision, Rwanda has taken

"specific and concrete steps to amend the law to secure the attendance or

evidence from abroad."l0a The Transfer Law now provides immunity to defence

witnesses and counsel for anything said or done at trial. Rwanda is also party to

several mutual assistance agreements with other countries, which facilitate the

testimony of witnesses from abroad.1o5 Further, as shown below, the Rwanda

Criminal Code provides for compulsory attendance at tria1106 and the Transfer

Laws as amended provides for alternative means to allow witnesses to testifii.toz

5) Alternatiue Means for Securing Witness Testimony

56. In addition to the above protections and immunities, the Rwandan

Iegislative framework now includes several other measures to facilitate the

taking of evidence from any witnesses who may be unable or unwilling to

physically appear before the High Court to give testimony. Article 14 bis of the

Transfer Law, as inserted in 2009, provides that a witness may testifu bV three

alternative means: (a) by deposition in Rwanda or in a foreign jurisdiction before

a presiding officer, magistrate or other judicial officer appointed by the Judge for

that purpose; (b) by video-Iink hearing taken by a judge at trial; or (c) by a judge

sitting in a foreign jurisdiction for the purpose of recording such uiua uoce

testimony.lo8 Testimony given in any of these ways must be transcribed so it can

be made part of the trial record and shall carry the same weight as testimony

ro3 Uwinkindi QC), paras. 64, 100. These 36 cases were not trials at first instances, but involvedappeals from Intermediate Court judgements and sentences, judicial review of jurisdictionalissues and post-conviction review. Rwanda's report on these cases amply demonstrates that asignificant number of defence witnesses were called during trial of these genocide cases. See Thehosecutor u. Jean Uwinkindi, Case No. ICTR-2001-75-R11brs, Republic of Rwanda's Response to6 June 2011 Order to Provide Further Information regarding 36 Genocide Cases at the HighCourt, 20 June 2011, paras. 2-16 (attached hereto as Anner N).ro4 Uwinkindi (TC), para. 108.r05 This has been previously recognized by the Appeals Chamber, see Munyakazi (AC), para.41;Kanyarukiga (AC), para. 32; Hategekimana (AC), para. 25. See olso Uwinkindi (TC), para. 108.106 Uwinkindi (TC), para. 104.ro7 Uwinkindi (TC), para. 109.tos Uwinkindi (TC), para. 109.

24

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given in court.loe These procedures are consonant with the ICTR Rules of

Procedure and Evidence, and its jurisprudence.llo Each of these alternatives

could, with appropriate logistical support, allow the Accused to both face the

witnesses and hear their testimony uiua uoce. These alternatives, the Uwinhindi

Trial Chamber held, adequately addressed concerns about an Accused's ability to

secure live witness testimony from any witnesses who may be unwilling or

unable to travel to Rwanda.lll

57. It is also noteworthy that witnesses in Rwanda have an obligation to

appear and give evidence. Rwanda's legal framework provides for compulsory

process to compel witness attendance. These provisions are found, notably, in

Articles 54 and 55 of the Code of Criminal Proced.ure. In addition, pursuant to

Article 57, a "witness who fails to appear and testifr without advancing a

justifiable excuse after being summoned" is subject to criminal prosecution.

58. Overall, these measures will facilitate the availability and protection of

witnesses, and in particular, defence witnesses.

6) Conclusion

59. In conclusion, by virtue of its expansion of the immunities available to

witnesses, its expansion and improvement of its witness. protection services, and

the concrete steps it has taken to secure the attendance of witnesses from both

within and outside the country, Rwanda will be able, if referral is allowed, to

provide for the availability and protection of defence witnesses. Any issue that

may arise can and will be addressed by means of the safeguards provided by the

monitoring and revocation mechanisms.

roe Transfer Law, Article L4 bis.rr0 Rules 7L, 90 (A) of the Rules; The hosecutor u. Jean-Paul .Akayesu, Case No. ICTR-96-4-A,Judgement, 1 June 2001, paras.l34,286.rrt Uwinkindi (TC), para. 108. Rwanda also has legislation pending before its Parliament thatwould allow the panel for any case referred for trial in Rwanda to include judges from foreign orinternational courts. As the Uwinkindi Chamber held, this legislation "would further enhancethe Accused's fair trial rights." See Uwinkindi (TC), para. LLA; see olso Rwanda Report, p. 9-10.

25

Cpel

(e) Right to an Effective Defence

1) Legal Representation

60. The Accused wiII have competent and experienced counsel made available

to him in Rwanda. He will be able to secure in Rwanda, if he so wishes, adequate

Iegal representation by competent and experienced lawyers. Rwanda's

Constitution and laws guarantee the right to legal representation before courts of

law to all accused persons. Accused persons are guaranteed the right to counsel,

the right to silence, and the right to be informed of the charges against them,

including during arrest and pre-trial detention.ll2

61. In particular, the Constitution provides sufficient guarantees concerning

the right to legal representation.lls Thus, pursuant to Article 18 of the

Constitution, "the right to be informed of the nature and cause of charges and the

right to defence are absolute at all levels and degrees of proceedings before

administrative, judicial and all other decision making organs."lla Pursuant to

Article 19 of the Constitution, "[e]very person accused of a crime shall be

presumed innocent until his or her guilt has been conclusively proved in

accordance with the law in a public and fair hearing in which all the necessary

guarantees for defence haue been rnade auailabls."LLs Also, arrestees have the

right to legal counsel at all stages of judicial proceedings, including initial

interrogations.l16

62. Furthermore, there are a sufficient number of competent lawyers available

to represent this Accused or any other accused person. The KBA has 686

members.llz Of that number, the President of the KBA attested that

"approximately 30 current members of the KBA have been practicing for more

rr2 See in particular Articles 18 and 19 of the Constitution and Articles 13 (4) and 13 (6) of theTransfer Law.rrs Articles 18 and 19 of the Constitution. See olso Article 13 (4) of the Transfer Law.u4 Emphasis added.u5 Emphasis added.116 Code of Criminal Procedure, Articles 39, 64,96 and 185.ttz KBAAmicus Curiae Brief, para. I3; Uwinkindi (TC), para. 137.

26

4m

than 15 years, 67 fot 10 years or more and 76 for 7 years or more."118 ffus1efore,

a signifi.cant number of Rwandan lawyers meet the pre-requisites for assignment

of counsel before the ICTR, including the requirement of at least seven years

relevant experience.lle Indeed, fi.ve members of the KBA are currently enrolled

in the ICTR list of potential defence counsel maintained by the ICTR

Registral.lzo

63. The Accused could also be represented by foreign lawyers admitted to

practice before Rwandan geurfs.l2l To gain admission, the foreign attorney must

have been awarded a law degree and be a member in good standing of the bar of

their home state.r2z In addition, the attorney's home state must agree to provide

reciprocal admission to members of the Rwandan bar.123 In the past 4 years,

Rwanda has extended bar membership to attorneys from the United States,

Canada, Uganda, and Cameroon.124

64. In addition, Rwanda's legal framework specifrcally provides for measures

to ensure that legal representation is effective and that Defence counsel can carry

out their work. In line with international human rights jurisprudence,l2s this

framework proscribes any interference with counsel in the performance of their

responsibilities. Under Article L5 of the Transfer Law,

Notwithstanding the provisions of other laws of Rwanda,Defence counsel and their support staff shall have the rightto enter into Rwanda and move freely within Rwanda to

rlsKBAA/nicus Curiae Brief, para. 14.lle Article 13(1) of the ICTR Directiue on the Assignment of Defence Counsel, 14 March 2008.120 Uwinkindi (TC), para. 140.121 Article 6 of the Law No. 31L997 of 19 March 1997 Establishing a Bar in Rwanda, OfficialGazette of the Republic of Rwanda, 15 April 1997 ('Law Establishing a Bar in Rwanda"). ForEnglish, French and Kinyarwandan versions of this law, see http://www.amategeko.net/ (astvisited on 7 November 2011).122 Rukangira Affidavit, para. 6.123 Rukangira Affidavit, para. 6.r24 Rukangira Affidavit, para.7.r25 See e.g. decisions of the African Commission on Human and Peoples' Right in the followingcommunications: No. 87/93 (1995), Constitutional Rights Project (in respect of Lekwot and SixOthers) v. Nigeria, para. 13 (holding that the harassment and intimidation of counsel forcingthem to withdraw from the case is a violation of the right to defence guaranteed in Article 7(1)(c)of the African Charter on Human and Peoples' Rights). See http:llwww.achpr.org/english/Decison-Communication/Nigeria/Comm.o/o2087-93.pdf Qast visiteil 8 November 2011).

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perform their duties. They shall not be subject to search,seizure, arrest or detention in the performance of their legalduties.

65. As recognized by the Chamber in the Uwinkindi decision, Rwanda has a

demonstrated record of cooperation with defence teams from the ICTR and other

jurisdictions.lzo Further, an affidavit of the Kigali Bar Association confirms that

defence counsel have been able to conduct domestic criminal investigations

without interference and have had no difficulties in calling defence witnesses at

fiial.Lz7 Similarly, as noted above, in its submissions to the European Court of

Human Rights, the government of the Netherlands attested that, on the basis of

its years of experience in conducting investigations in Rwanda, "the co-operation

of the Rwandan judicial authorities has been found to be'exemplary and there are

no indications of interference with the investigating teams, nor witnesses for that

*u11gr".128

66. In all events and as stated by previous Trial Chambers and the Appeals

Chamber, should any instances of harassment, threats, or even arrests of lawyers

occur after the transfer under RuIe 11 bis, the Defence will have a legal basis for

bringing the matter to the High Court or the Supreme Court. The court would in

turn be under a duty to investigate the matter and provide a remedy. The

Chamber in the Uwinhindi decision further held that "if the Defence team is

prevented from carrying out its work effectively, this will become a matter for the

monitoring mechanism to address and may lead to the revocation of the

referral".lze The same would apply in this Accused's case.

2) Legal Aid

67. The Accused will also be able to secure adequate legal presentation

through legal aid and pro bono services. Article 16(3) of the Transfer Law

provides a legal framework guaranteeing the right to legal aid for indigent

accused Article 13(6) of the Transfer Law also expressly provides indigent

126 Uwinkindi (TC), para. 152.127 Rukangira Affidavit, para. 13.128 Netherlands Observations, pata. 7 .rzs (Jslinftindi (lC), para. 159.

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accused with the right to free legal representation. Legal aid to indigent and

vulnerable persons, including children and women, is in fact guaranteed under

Articles 18 and 19 of the Rwandan Constitution. Articles 39 and 185 of the Code

of Criminal Procedure further provide for a right to legal representation,

reaffirming that those who cannot afford counsel can seek legal services from the

Rwandan Bar130, which administers the legal aid programme. In this regard,

legal aid is provided for under the Law No. 3/97 of 19 March 1997 Establishing

the Bar in Rwanda.13l Pursuant to Article 56 of this law, a lawyer member of the

bar shall not "refuse or neglect the defence of an accused, or to assist o porty where

they haue been appointed to do ss."L32

68. In regard to the Prosecutor's initial Rule 11 bis applications, the Tribunal

has found that this right will be ensured in practice, and that legal aid will be

available for accused transferred to Rwanda.l33 Furthermore, as recently

recognized in the Uwinhindi decision, Rwanda currently has sufficient funds

allocated to its legal aid programmes.ls4

69. The Rwandan Government makes available in its budget funds for

providing legal assistance, including for transferred cases. These funds are

disbursed to the Bar through an agreement with the Ministry of Justice.

Affidavits from Rwanda Minister of Justice and the then Acting President of the

KBA, which administers the legal aid programme, attest to the substantial

resources that have been allocated to the programme. The Minister's affidavit

establishes that Rwanda's current budget includes 92 million RWF for legal

aid.135 An additional 30 million RWF have been designated for ICTR-related

issues, including, but not limited to, the provision of legal assistance to indigent

accused in transferred cases.136 Between these two separate line items, a total of

130 Articles 39 and 185 of the Code of Criminal Procedure.r3r Articles 56, 60-63 of the Law Establishing a Bar in Rwanda.rs2 Alticle 56 of the Law Establishing a Bar in Rwanda.r33 Kanyarukiga (tC), para. 58; Gatete (TC), para. 49; Hategekirnana (TC), para. 55.r34 UwilLkindi (TC), paras. L40,146.136 Affidavit of Tharcisse Karugama, Minister of Justice and Attorney General, 15 February 2011,('Karugama Affidavif,'), para.2 (a copy is attached hereto as Annex O).136 Karugama Affidavit, para. 3.

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122 million RWF (approximately $205,000 U.S. dollars) is currently available for

providing legal aid in transferred cases, including this case.137 In addition,

pursuant to contracts between the bar association and government, the Ministry

of Justice has committed to paying 90 million RWF to support the provision of

domestic legal aid services in 2011 alone.138

70. The Chamber in the Uwinhindi decision determined that these funds were

suffi.cient to provide Uwinkindi with legal aid.l3e It was satisfied, as required at

law, that sufficient funds have been budgeted for legal aid to ensure equality of

arms in the defence of any referred case.140 The same conclusion should apply in

this Accused's case.

7I. The Uwinhindi Chamber also noted that, pursuant to established Rule 11

bis jurisprudence, "'there is no obligation to establish in detail the sufficiency of

the funds available as a precondition for referrs,l."'r4r Instead, what matters is

that the Chamber is satisfied that sufficient funds have been budgeted for legal

aid to ensure equality of arms in the defence of any referred case.142 Based on

the same submissions as above, the Chamber was "satisfied that this

requirement ha[d] been -s1."14s

3) Conclusion

72. Given the capacity and experience of the Rwandan bar, the availability of

suffrcient legal aid funds to ensure equality of arms between the parties, the

evidence of the cooperation of Rwanda with defence teams, legislative provisions

137 Karugama Affidavit, para. 4.fi8 Contrat dhssistance et d.e reprdsentation en justice, 1 July 2010, Article 8.2., attached toRukangira Affidavit (Annex L)rls Uwinkindi (TC), para. L44.r40 Uwinkindi (TC), para. 139. Notably, there are other recognized initiatives that supplementthe legal aid program provided by the KBA and funded by the Rwandan Government. This is thecase of tloe Maison d,AccAs a h Justice O{AJ) - legal aid centres set up by the Ministry of Justice.International non-governmental organizations such as Avocats sans Frontidres (Lawyers withoutBorders) also provide and fund legal representation for vulnerable persons. See KBA AmicusCuriac Brief, paras. 33-36.L4r Uwinkitudi QC), pata. 144 (quoting Stankoui| (AC), para. 21).r42 Uwinkindi (TC), para. 139.t43 Uwinkindi (TC), para. 139.

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ensuring that defence teams can carry out their work without government

interference, and the safeguards of the monitoring and revocations mechanisms,

the Accused will have the right to an effective defence if his case is transferred to

Rwanda.

(f) Judicial Independence, Impartiality and Competence

73. The Accused will receive a fair trial by independent, impartial and

competent courts, namely the High Court and the Supreme Court of Rwanda.

The independence, impartiality, and competence of these Courts have been

recognized by the ICTR s Trial Chambers and Appeals Chamber when

adjudicating the Prosecutor's earlier Rule 11 bis applications for the transfer of

cases to Rwanda. These Chambers, among others, underscored that Rwanda's

legal framework provides for an independent judiciary that is separate from the

other branches of government and enjoys financial and administrative

autonomy.la4 They also recognized that judges enjoy tenure of office, and that

their appointment, discipline and removal are reserved to the judiciary itself

through its independent High Council.tas Moreover, the Chambers found that

Rwanda's judiciary is governed by a Code of Ethics, and that the judiciary's own

Ombudsman oversees its functions.146 They concluded that aII these guarantees

apply to the High Court and the Supreme Court, which will hear cases

transferred by the Tribunal, including that of the Accused, pursuant to Articles 2

and 16 of the Transfer Law.147

74. Judges on Rwanda's Supreme Court and High Court are indeed

independent and uniquely qualified to preside over any referred case. As shown

in more detail below, they enjoy tenure of office as far as their service as judicial

officers is concerned.l48 They also are governed by strict ethical rules, subject to

l44Munyakazi (AC), paras. 26-30; Kanyarukiga (fC), para. 35; Gatete (TC), para. 34;Hategekimana (TC), para. 38.ral Kanyarukiga (TC), para. 35; Gatete (TC), para. 34; Hategekimana (TC), para. 38.ra6 Kanyarukiga (IC), para. 35; Gatete (TC), para. 34.r47 Kanydrukiga (IC), para. 35; Gatete (TC), para. 34; Hategekirnana-(TC), para. 38.r4s Alticle L42 of. the Constitution, as amended in 2010, does not longer include the followingprovision, which was inserted by amendment in 2008: "Other Judges shall be appointed for adeterminate term of office that may be renewable by the High Council of the Judiciary in

31

n{annual evaluations, and highly experienced in genocide trials. This framework

promotes and strengthens their independence and impartiality.

75. With respect to their judicial functions, Article I42 of the Constitution

provides that "judges shall remain subject to the authority of the law and remain

independent from any other power or authority." Once appointed, the term of

any Supreme Court or High Court judge is restricted only by their retirement or

serious miscondusl.l4e

76. Pursuant to Article 8 of the Law on Supreme eourt,tro Supreme Court

judges may only cease to hold office upon retirement,t5r ot if they are removed

from office on account of objective reasons. The same procedure applies to the

removal of the President and Vice-President of the High Court; they too may be

removed only on account of bad conduct, incompetence, or serious professional

misconduct.rsz All other Judges, including High Court Judges not serving in an

administrative capacity, similarly shall not be removed except for objective and

identifiable reasons of serious misconduct.

accordance with the provisions of the law relating to their status, following their evaluation." Seea contrario, Uwinkind,i (TC), para. 181. On the basis of this specific provision, which is no longerincluded in the Constitution as amended in 2010, the Uwinkindi Trial Chamber found thatRwanda "no longer ensures life tenure for judges."(Uwinkind,i (TC), para. 183) However, asexplained in detail in the text, the Rwandan legal framework guarantees tenure of office andindependence of the judiciary.r4e fu'ticle 146 of the Constitution; Articles 1, 4, and 24 of Law No. 06 bis/2004 of 14 April2004 onthe Statutes for Judges and other Judicial Personnel, Official Gazette of the Republic of Rwanda,15 May 2004 ('Law on Statutes for Judges and other Judicial Personnef'). For English andFrench versions of this law, see http://www.amategeko.net/ (Iast visited on 7 November 2011).r50 Organic Law No. L12004 of 29 January 2004 Establishing the Organisation, Functioning andJurisdiction of the Supreme Court, Official Gazette of the Republic of Rwanda, 1 February 2004(as modified in 2005 and 2006) ("Law on Supreme Court'). For English, French andKinyarwandan versions of this law, see http://www.amategeko.net/ Qast visited on 7 November2011).151 Under Article 14 of the Law on Supreme Court, with the exception of the President and theVice-President of the Supreme Court, other judges of the Supreme Court retire at the age of 65.This age may be extended by 5 years by the Superior Council of the Judiciary. See also Article 79of the Law on Statutes for Judges and other Judicial Personnel, which applies to all judges.152 Alticle 19 of Organic Law No. 51/2008 of 9 September 2008 Determining the Organisation,Functioning and Jurisdiction of Courts, Official Gazelle of the Republic of Rwanda, 10 September2008. For English, French and Kinyarwandan versions of this law, see http://www.amategeko.net/ Qast visited on 7 November 2011).

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29 (r." \Y

77. This power to remove judges is entirely in the hands of the judiciary itself

(Article 157 of the Constitution and Articles L2,2I-28 of the Law on High Council

of the Judiciary).tsa The Law on Statutes for Judges and Other Judicial

Personnel empowers the High Council of the Judiciary Council, which is chaired

by the President of the Supreme Court, to discipline or remove judges.tsr The

process ensures that the allegations against the judge are carefully explored and

the judge is afforded a right to be heard. The removal of judges is thus subjected

to a meticulous process that guards against abuse and arbitrariness, and respects

judicial independence.

78. There is tangible proof that the removal process is not an empty

formalism.l55 From 2005 to 2010, the High (or Supreme) Council removed 13

registrars and four judges from office on charges related to official misconduct,

including corruption.lso During this same period, there were usually 28L

registrars and 281 judges assigned to all of Rwanda's courts.lr7 Thus, the

incidents of official misconduct within the judiciary - while always serious - were

committed by only a few rogue officials: 4.60/o of all registrars and t.4o/o of all

judges. More importantly, none of the registrars or judges who has been removed

from office was a member of the Supreme Court or High Court - the two courts

charged with the trial and appeal of any referred case.158

79. Pursuant to Article 157 of the Constitution and Article L2 of the Law on

High Council of the Judiciary, the judiciary also reserves to itself responsibility

for enforcing matters relating to terms of service. Pursuant to these provisions,

the judiciary's independent High Council is responsible for reviewing matters

r53 Organic Law No. 0212004 of 20 March 2004 Determining the Organisation, Powers andFunctioning of the Superior Council of the Judiciary, Official Gazette of the Republic of Rwanda,23 March 2004 (as modi{ied in 2006) (Law on High Council of the Judiciary). For English, Frenchand Kinyarwandan versions of this law, see http:i/www.amategeko.neV Qast visited on 7November 2011). See also Articles 30-46, 70-78 of the Law on Statutee for Judges and OtherJudicial Personnel.154 Alticles 157-158 of the Constitution; see also Article 30-46, 7O-78 of the Law on Statutes forJudges and Other Judicial Personnel.155 See Affidavit of Frangois R6gis Rukanakuvuga, 18 April 2011 ('Rukanakuvuga Affidavif,')(attached hereto as Annex P).156 Rukanakuvuga Affidavit, para. 3.157 Rukundakuvuga Affidavit, para. 4.168 Ru kundakuvuga Affidavit, para 5.

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relating to the promotion, discipline, and evaluation of judges at all levels,

excluding the President and Vice-President of the Supreme Court, who are

subject to Article 8 of the Law on Supreme Court,rss

80. In contrast to the life tenure applicable to judges performing judicial

functions, Article t42 of the Constitution, as amended in Z,OLO, provides specific

terms of office for judges serving as the administrative heads of the judiciary.

For instance, it provides that "[t]he President and the Vice President of the

Supreme Court shall be appointed for an eight (8) year term that is not

renewable." Similarly, "[t]he President of the High Court, the Vice President of

the High Court, the President of the Commercial High Court and the Vice

President of the Commercial High Court shall be appointed for a five (5) year

term renewable only once." These terms of office, however, apply only to judges

serving in administrative roles; they have no bearing on the judges' judicial roles.

81. Moreover, aII judges of the Supreme Court and High Court are trained

lawyers and experienced jurists, who hold, at a minimum, a university law

degres.leo As one of the prerequisites for appointment as judges, candidates must

possess adequate legal experience. For appointment as a judge of the High

Court, applicants must have a working experience of at least six years in the

legal field. Applicants with a doctoral degree in law are required to have a

minimum working experience of at least three years in the legal field.161 As

found by Chambers of this Tribunal, "even though some judges may be young,

they clearly have experience in adjudicating genocide cases. Furthermore, it

appears that many judges in the High Court and the Supreme Court have more

experience than the minimum requirements (six and eight years professional

experience, respectively) prescribed by the l4rlr."t62

82. In practice Rwanda's High Court and Supreme Court have had the

occasion to handle many cases of genocide pursuant to Rwanda's legislation that

rss $ss olso Article 158 of the Constitution.160 Article 8 of the Law on Statutes for Judges and Other Judicial Personnel.16r Article 11 of the Law on Statutes for Judges and Other Judicial Personnel.162 Kdnyarukiga (TC), para. 41. See also Hategekimana (TC), para. 44.

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incorporates the crime in terms identical to those under the Convention on the

Prevention and Punishment of the Crime of Genocide of 1948, and the Tribunal's

Statute.tes The cases they have adjudicated have related to all categories of

perpetrators, both low and high-ranking civil or military personnel. For instance,

from 2006 to 2010, the High Court presided over 36 genocide case, and during

2006 and 2008, the Supreme Court handled 61 appeals or other post-conviction

proceedings in genocide cases.164

83. Based on similar submissions, the Uwinhindi Chamber was "satisfied that

the judges of the Supreme Court and the High Court of Rwanda are qualified and

experienced and that they have the necessary skills to handle the case at issue if

transferred.Dl6s Additionally, the Chamber determined that allegations of

corruption within the judiciary were unsubstantiated and noted the "significant

steps" Rwanda has taken to address corruption in aII sectors of government.lGo

Further, it held that Rwandan judges, as professional judges, benefit from the

same presumption of independence and impartiality that the Tribunal extends to

its own judges. As the Uwinhindi Chamber noted, this presumption is not easily

rebutted.167

84. Other Chambers of the Tribunal have also closely examined claims about

the lack of independence of the judiciary, and arrived at similar conclusions. The

Chambers found that these claims were of a general nature and not focused on

the High Court and Supreme Court that will adjudicate any referred cases under

the Transfer Law.168 To the contrary, these Chambers found that the acquittal

rate in Rwanda was considerable, noting specifically that "[m]any accused of

Hutus origin have been acquitted by the ordinary courts, including cases where

r6s Kdnyarukisa (TC), para. 4L; Hategekirnana (TC), para. 44.164 Affidavit of Olivier Rukundakuvuga, Chief Registrar of the Supreme Court of Rwanda, 17February 2011, para. 11 ('Rukundakuvuga Affidavit') (a copy is attached hereto as Annex Q).See also Rwanda Arnicus Curiae Brief, para. 123.rct Uwinkindi (tC), paras. 178.166 Uwinkindi (TC), paras. 184-85.161 Uwinkindi (TC), para. 166. See also Ferdinand, Nahimana et al. u. The Prosecutor, Case No.ICTR-99-52-A, Judgement, 28 November 2007, pata. 48.168 Kqnyqruhiga (tC), para. 38; Gatete (TC), para. 36.

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convictions are overturned on appeal."l6s Indeed, in 2008, there were 283

criminal trials before the High Court.170 Slightly over 200 of these cases resulted

in convictions; the remaining 80 cases resulted in acquittals.l?l Thus, for 2008,

the High Court had an acquittal rate of nearly 30%. This healthy acquittal rate

is tangible proof that persons tried before the High Court are ensured a fair trial

before an impartial and independent judgs.tzz

85. In addition, as noted by the Chamber in the Uwinkind,i decision, the

Transfer Law has been amended to offer the President of the Court the option of

having complex or important cases heard by a quorum of three or more judges

rather than one judge.173 This amendment provides an additional guarantee for

the judiciary against any outside pressure or interference. Rwanda also has

proposed new legislation to allow foreign or international judges to sit on the

panel of any case referred for tria1.1?4 This prospect, the Uwinhindi Chamber

held, would further "enhance the Accused's fair trial rightg."l75

D. MONITORING AND REVOCATION

86. In addition to the guarantees and mechanisrris discussed above, the

monitoring and revocation system provides an additional safeguard for ensuring

the Accused's right to a fair trial in Rwanda. Rwanda's legal framework allows

for an effective monitoring of trials in the country.

87. The Appeals Chamber has held that, in adjudicating a referral application,

the Trial Chamber can satisfu itself that an accused will receive a fair trial on the

basis, inter alia, ofthe monitoring and revocation mechanism.176 The monitoring

r6e Kanyarukiga (tC), para. 37; Gatete (TC), para. 35.170 Rukundakuvuga Affidavit, para. 7.r7r Rukundakuvuga Affidavit, para. 7.r72 ftqra1fla Amicus Curiae Brief, para. 118.r?s Article 2 of Transfer Law (as amende d); Uwinkindt (TC), para. 1.88. However, it is worthrecalling that the Appeals Chamber held with respect to the previous Rule 11 bis applications,that international legal instruments, including human rights conventions do not require that atrial or appeal be heard by a specific number of judges to be fair and independent. Munyakazi(AC), para. 26.rT4I|winkindi (TC), para. 114. See also Rwanda Report, p. 9-10.175 Uwinkindi (tC), para. 114.176 See Stankovi| (AC), para. 52; Jankouii (AC), paras. 55'57.

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and revocation mechanisms serve as precautions against a failure to diligently

prosecute a referred case or conduct a fair trial.177 Indeed, the Appeals Chamber

has already accepted that the availability of a monitoring and revocation

procedure provide an additional means of dealing with any lingering concerns

regarding potential fair trial issues.178 Further, Rule 11. bis has been amended to

provide that "if the Trial Chamber so orders, the Registrar, shall send observers

to monitor the proceedings in the State concerned.'L7e As noted above, this

amended language is broad enough to allow monitoring of all proceedings,

including detention before and after trial.

88. These mechanisms were recently strengthened by the amendment to RuIe

L1 bis. Rule 11 bis D(iv) now provides that not only the Prosecutor but also the

Trial Chamber can send observers to monitor the proceedings, and RuIe 11 bis

(F) now specifically states that the Trial Chamber may revoke a referral order, at

the request of the Prosecutor ot proprio motu. Therefore, both the decision to

send monitors and the right to request revocation no longer lie within the sole

discretion of the Prosecutor. The recent amendments equip the Chamber with

new authority proprio motu to do so as well. In the Uwinhind,i decision, the

Chamber made use of these amended provisions to put in place a comprehensive

and "robust" system of monitoring by the highly-respected ACHPR to provide

additional safeguards for Uwinkindi's fair trial rights.180.

89. The ACHPR has accepted this monitoring role. It did so in connection

with previous Rule 11 bis proceedings and has again confirmed its commitment

in its response, dated 26 May 20tL, to a letter from the ICTR Prosecutor dated 24

MaY 2011.t4t

r77 Jdnkoui| (AC), para. 56.ve lYfanynfuazi (AC), para. 30.r?e Rule 11 bis (D) (rv) (post-amendment).t80 Uwinkindi (tC), para. 213, p. 57-58.r81 Request from Hassan B. Jallow, Chief Prosecutor to the Hon. Commissioner Reine Alapini-Gansou, Chairperson of the African Commission of Human and People's Rights, 24 May 20Il;Letter of acceptance for ACHPR to Act as Monitor, from Hon. Commissioner Hon. CommissionerReine Alapini-Gansou, Chairperson of the African Commission of Human and People's Rights, to

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90. The ACHPR has wide experience in the monitoring of court proceedings

and in the protection of judicial independence, fair trial, and human rights in

general. With particular regard to fair trial rights, the ACHPR has adopted

several important instruments on fair trial standards, such as the Principles and

Guidelines on the Right to a Fair Trial and Legal Assistance in Afriea (Fair Trial

Guidelines).tez They are based on other important resolutions adopted by the

Commission, which also demonstrate the Commission's vast expertise in the field

of fair trial rights, such as the Resolution on the Right to Recourse and Fair Trial

(1992), Resolution on the Respect and Strengthening of the Independence of the

Judiciary (1996) and Resolution on the Right to a Fair Trial and Legal Assistance

in Africa (200t;.taa The ACHPR's monitoring of trials in any referred case wiII

take place in accordance with these Fair Trial Guidelines, which reflect

international fair trial standards. In this regard, the Appeals Chamber and,

most recently, the Chamber in the Uwinhindi case, held that the Commission has

the necessary qualifications to monitor trials.l84

91. The Chambers of this Tribunal have also found Rwanda's legal framework

sufficient to ensure an effective monitoring system.l85 The Chambers took into

account that Rwanda possesses a legal framework for the acceptance and

operation of monitors that may be appointed by the Prosecutor, and for the

surrender of the accused to the Tribunal if a transfer order is revoked.186 Indeed,

Article 19 of the Transfer Law allows monitors to observe not only proceedings in

court, but also access documents and places of detention.

Hassan B. Jallow, Chief Prosecutor, 26 May 2011. Copies of both letters are attached as AnnexR.r82 See http://www.achpr.org/english/declarations/Guidelines-Trial-en.html (adopted in 2001)(Iast visited on 7 November 2001).rsg The ACHPR has also adopted other related resolutions including the Resolution on theEstablishment of Committees on Human Rights or other Similar Organ at National, Regional orSub-regional Level (Annex VIII to the 2na Activity Report of the Commission, adopted on June 14,1989); Resolution on Some Modalities for Promoting Human and Peoples'Rights (Annex IX, 2ndActivity Report of the Commission).r84 Munyakazi (AC), para. 30; Kanyarukiga (AC), para. 38; Hategekimana (AC) para. 29;Uwinkind,i (TC), paras . 2ll and 223.r85 Kanyarukiga QC), para. 103; Gatete (TC), para. 94 and Kayishema (TC), para. 54. See alsoUwinkindi (TC), para. 209.rs6 !(sny6ytrkiga QC), paras. 100-103; Gatete (TC), paras. 91-94 and Kayishema (TC), paras. 51-54.

38

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gZ. Moreover, Rwanda's legal framework specifically provides for the

protection of persons who may be appointed as monitors of cases referred to

Rwanda from the Tribunal to enable them to fully discharge their responsibilities

without interference. Such protection is identical to that accorded the staff of the

Tribunal under Article 29 of. the Tribunal's Statute pursuant to the Vienna

Convention of 13 February, L946, on the Privileges and Immunities of the United

Nations. Rwanda's Transfer Law also recognizes that the Tribunal's Rule 11 bis

empowers the Tribunal to revoke a referral order for certain reasons, and the

obligation for Rwanda to comply with such revocation.l8? Rwanda's law provides

that if such revocation occurs, "the accused shall be promptly surrendered to the

ICTR together with any files, documents, exhibits and aII other additional

materials as stipulated in ths e1fls1."188

93. In addition to the monitoring mechanism granted to the Prosecutor and

the Chamber pursuant to Rule 1-1 bis, the Accused and his counsel are always at

liberty to make use of the monitoring and revocation mechanisms by bringing to

the attention of the ACHPR (or any other monitors the Chamber or Prosecutor

may appoint) any concerns. The ACHPR would bring such concerns to the

attention of the Prosecutor or the Chamber as the case may be. Moreover, the

Accused could. trigger revocation by raising a complaint with the President and

asking the Chamber to exercise its authority proprio motu to initiate the

revocation process. The report relating to Rule 11 bls' amendment explicitly

endorses this interpretation:

The basis for the Trial Chamber to consider revocation propriomotu lrnay be the reports from the monitors and"/or reports fromhuman rights NGOs and/or complaints from the accused.lse

94. In sum, the Prosecutor submits that Rwanda's legal framework allows for

a successful implementation of the monitoring and revocation procedures

provided for in Rule 11bis, which provide an additional oversight for ensuring a

r87 See Rule 11 brs (F) and (G). Pursuant to Article 28 of the ICTR Statute, enshrining the duty of

a State to co-operate with the Tribunal, the State concerned shall accede to a request for deferral.r88 Article 20 of the Transfer Law.18e Report on Amendment to Rule 11 bis, L5 March 2011, para. 9.

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fair trial for the Accused in Rwanda. Under this framework, monitors can

oversee the trial of the Accused, and under Rwanda's Transfer Law, wiII have

access to Rwanda's court proceedings, documents, records relating to the case as

well as access to all places of detention.le0 Therefore, monitors will be well-

placed to address any concerns and to bring them to the attention of the

Prosecutor or the Chamber as the case may be.

95. The completion strategy will not occasion any break in either the

monitoring of referred cases or the Chamber's ability to rescind referral if fair

trial rights are prejudiced. The completion stratery envisions that, effective 1

July 2012, the Residual Mechanism will assume specified functions. Article 6 of

the Residual Mechanism Statute directs that the Mechanism "shall" monitor all

cases referred to national courts and that the Trial Chamber may revoke any

referral order, either at the request of the Prosecutor ot propTil Tnsxu.rel These

powers extend to any cases that the ICTR referred to national jurisdictions before

the Residual Mechanism takes effect.le2

V. RELIEF SOUGHT

For the foregoing reasons, the Prosecutor requests that:

(a) the Trial Chamber grant referral of the case of the Accused toRwanda as requested herein and issue the following orders:

(i) an Order referring this case to the authorities of Rwandathat they may forthwith assign it to the High CourtRwanda for trial:

(ii) an Order that protective measures for witnesses, issued bythe Tribunal upon confirmation of the indictment, remain inforce and apply mutatis mutandis in Rwanda unlessotherwise revoked or varied.

reo Article 19 of the Transfer Law.tsr See Resolution 1966 (2010), adopted by the Security Council at its 6463'd meeting, on 22December 2010, Annex 1 - Statute of the International Residual Mechanism for CriminalTribunals ("IRMCT'), S/RES/1966 (2010).1e2 Article 6, paras. 5 - 6 of the IRMCT Statute.

96.

soof

40

z8G

(b) the Trial Chamber grant the Prosecutor the opportunity to makesupplementary submissions once a decision has been rendered bythe Appeals Chamber in the case of The Prosecutor u. Uwinhindi.

Dated and signed this 9th day of November 2011, Arusha, Tanzania.

ames d. ArguIIr-lhief, Appeals & Legal Advisory Division

4L

zgs

A. Annexes

Annex A

Annex B

Annex C

Annex D

Annex E

Annex F

Annex G

Annex H

Ahorugeze u. Sweden, Application No. 37075109, EuropeanCourt of Human Rights, Judgement,2T October 2011

NC/S Norway u. Charles Bandora, File No. L1-050224ENE-OTIR/OI, Oslo District Court, 11 July 20LL

Ben Kioko, Director/Legal Counsel, African Union, Letter toMartin Ngoga, Prosecutor General, Republic of Rwanda, 22July 2011

The Prosecutor u. Jean Uwinhind,i, Case No. ICTR-20LL-75-Rllbis, Letter from Martin Ngoga, Prosecutor General,Republic of Rwanda, to Judge Khalida Rashid Khan, 19August 20ll

The Prosecutor u. Bernard, Munyagishari, Case No. ICTR-2005-89-I, Indictment, 8 September 2005(English and French uersions)

Letter from the Government of Rwanda, dated 28 September20LL

i) Organic Law No. IIl2007 of 16'March 2007 concerningTransfer of Cases to the Republic of Rwanda from theInternational Criminal Tribunal for Rwanda and From OtherStates, Official Gazette of the Republic of Rwanda, 19 March2007(English, French and Kinyarwandan uersions)

ii) Organic Law No. 03/2009/OL of 26 May 2009 modifringand complementing the Organic Law No. tLl2007 ofL610312007 concerning the Transfer of Cases to the Republicof Rwanda from the International Criminal Tribunal forRwanda and from Other States, Official Gazette of theRepublic of Rwanda,26 May 2009(English, French and Kinyarwandan uersions)

Observations in Intervention of the Government of theNetherlands concerning Application No. 37075179, 27 July2010, filed in the European Court of Human Rights,Ahorugeze u. Sweden, Application No. 37075109

Memorandum of Understanding Between the Special Courtfor Sierra Leone and The Government of the Republic ofRwanda, 2 October 2009

42

Annex I

3eg

Annex J

Annex K

Annex L

Annex M

Annex N

Annex O

Annex P

Annex Q

Annex R

The Prosecutor u. Jean-Bosco Uwinkindi, Case No. ICTR-2001-75-I , Amicus Curiae Brief for the Republic of Rwanda inSupport of the Prosecutor's Application for Referral Pursuantto Rule 1L bis, dated 18 Februaty 20LL and fiIed on 25February 2011

Ordonnance No. 001/2008 du 15 ddcembre 2008 Prdsident dela Cour Supr1me portant instruction relatiue d, la protectiondes tdmoins dans le cadre du renuoi d'affaires d,la Rdpubliquedu Rwanda par Le Tlibunal Pdnal Internationol Pour LeRwanda QPIR) et par d'autres Etats

Affidavit of Maitre Emmanuel Rukangira, Acting President ofthe Kigali Bar Association

Attachement; Contrat d'assistance et de reprdsentationen justice,l July 2010

The Prosecutor u. UWINKINDI Jean, Case No. ICTR-2001-75-Rule llbis, Amicus Curiae Brief of the Kigali Bar Associationin the Matter of the Prosecutor's Request for the Referral ofthe Case of UWINKINDI Jean, 26 April 20LL

The Prosecutor u. Jean Uwinhindi, Case No. ICTR-2001-75-Rllbis, Republic of Rwanda's Response to 6 June 2OLL Orderto Provide Further Information regarding 36 Genocide Casesat the High Court, 20 June 2011

Affidavit of Tharcisse Karugama, Minister of Justice andAttorney General, 15 February 20LL

Affidavit of Frangois R6gis Rukanakuvuga, 18 April %OIL

Affrdavit of Olivier Rukundakuvuga, Chief Registrar of theSupreme Court of Rwanda, tI February 20tt

i) Request from Hassan B. Jallow, Chief Prosecutor to theHon. Commissioner Reine Alapini-Gansou, Chairperson of theAfrican Commission of Human and People's Rights (ACHPR),24May 20Il

ii) Letter of acceptance for ACHPR to Act as Monitor, fromHon. Commissioner Hon. Commissioner Reine Alapini-Gansou, Chairperson of ACHPR, to Hassan B. Jallow, ChiefProsecutor, 26 May 201.1

43

B. Authorities

Akayesu

Prosecutor u. Jean-Paul Ahayesu, Case No. ICTR-96-4-T, Judgement, 2September 1998

The Prosecutor u. Jean-Paul Ahayesu, Case No. ICTR-96-4-A, Judgement, J- June2001

B,agaragaza

The Prosecutor u. Michel Bagaragaza, Case No. ICTR-05-86'AR11bis, Decision onRule llbis Appeal, 30 August 2006 ('Bagaragaza (AC)")

Gatete

The Prosecutor u. Jean-Baptiste Gatete, Case No. ICTR-2000-61-R11bis, Decisionon Prosecutor's Request for Referral to the Republic of Rwanda, 17 November2008 ("Gatete (TC)")

Hategekimana

The Prosecutor u. Ild,ephonse Hategehimana, Case No. ICTR-00-55B-R11bis,Decision on Prosecutor's Request for the Referral of the Case of IldephonseHategekimana to Rwanda, L9 June 2008 ('Hategehimana (TC)")

The Prosecutor u. Ild,ephonse Hategehimana, Case No. ICTR-00-558-R11bis,Decision on the Prosecution's Appeal against Decision on Referral under Rulellbis, 4 December 2008 ('Hategekimana (AC)")

Kanyarukiga

The Prosecutor v. Gaspard Kanya,rukiga, Case No. ICTR-2002-78-R1Lbis,Decision on Prosecutor's Request for Referral to the Republic of Rwanda, 6 June2008 (" Kany aruhiga (T C)")

The Prosecutor u. Gospard Kanyarukiga, Case No. ICTR-2002-78-RtIbis,Decision on the Prosecution's Appeal against Decision on Referral under Rulellbis, 30 October 2008 ("Kanyaruhigo (AC)")

44

zs^

Kayishema

The Prosecutor u. Fulgence Ka,yisherna,, Case No. ICTR-01-67-R11bis, Decision onthe Prosecutor's Request for Referral of Case to the Republic of Rwanda, 16December 2008 ('Kayisherna (TC)")

Nahimana et al.

Ferd,inq,nd Nahimana et al. u. The Prosecutor, Case No. ICTR-99-52-4,Judgement, 28 November 2007

Munyakazi

The Prosecutor u. Yussuf Munyahazi, Case No. ICTR-97-36-R1Lbis, Decision onthe Prosecutor's Request for Referral of Case to the Republic of Rwanda, 28 May2008 (" Munyakazi (T C)")

The Prosecutor u. Yussuf Munyahazi, Case No. ICTR-97-36-R11bis, Decision onthe Prosecution's Appeal against Decision on Referral under RuIe LLbis, 8October 2008 ("Munyahazi (AC)")

Uwinkindi

The Prosecutor u. Jean Uwinhindi, Case No. ICTR-200I-75-I, Decision onProsecutor's Request for Referral to the Republic of Rwanda, 28 June 20II('Uwinhindt (TC)")

ICTY Cases

Jankovi6

Prosecutor u. Gojko Jankoui|, Case No. IT-96-2312-ARLLbis.2, Decision on Rulellbis Referral, 15 November 2005 ("Janhouii (AC)")

Mejaki6 et al.

Prosecutor u. Zetjho Mejohi| et al., Case No. IT-02-65-AR11bis.!, Decision onJoint Defence Appeal against Decision on Referral under RuIe llbis, 7 April2006

Stankovid

The Prosecutor u. Radouan Stonkouii, Case No. IT-96-2312-ARL1bis.1, Decisionon Rule 11bis Referral, 1 September 2005 ('Stanhoui6 (AC)")

45

zsl

African Commission on Human and Peoples' Right Cases

Communication No. 8?/93, Constitutional Rights Project (in respect of Lekwot andSix Others) u. Nigeria

European Court of Human Rights Cases

Ahorugeze u. Swed.eru, Application No. 37075/09, Judgement, 27 October 2011('Ahorugeze Judgm ent")

National Cases

NC/S Norway u. Charles Band,ora, FiIe No. LL-050224ENE'OTIR/01, OsIoDistrict Court, 11 JuIy 2011 ('Bandora Judgment')

46

38<)

Annex A

341

EUROPEAN COURT OF HUMAN RIGHTS

COUR EUROPEENNE DES DROITS DE L'HOMME

FIFTH SECTION

CASE OF AHORUGE,ZE v. SWEDEN

(Application no. 3707 5/09)

JUDGMENT

STRASBOURG

27 October 20Il

This judgment will become final in the circumstances set out in Article 44 $ 2 of theConvention. It may be subject to editorial revision.

aI f : t . I

l \ y l-ffi ffi[-

T+8

AHORUGEZE v. SWEDEN ruDGMENT

In the case of Ahorugeze v. Sweden,The European Court of Human Rights (Fifth Section), sitting

Chamber composed of:Dean Spielm awq P re s ident,Elisabet Fura,Karel Jungwiert,Bo5g'an M. Zupandid,Isabelle Berro-Lefdwe,Ganna Yudkivska,Angelika NuBberger, j udges,

and Claudia Westerdiek, Section Registrar,Having deliberated in private on 4 October 2011.,Delivers the following judgment, which was adopted on that date:

I

a s a

PROCEDURE

1. The case originated in an application (no. 37075109) against theKingdom of Sweden lodged with the Court under Article 34 of theConvention for the Protection of Human Rights and Fundamental Freedoms("the Convention") by a Rwandan national, Mr Sylvdre Ahorugeze ("fheapplicant"), on 15 July 2009.

2. The applicant was represented by Mr H. Bredberg, a lawyer practisingin Stockholm. The Swedish Government ("the Govemment") wererepresented by their Agent, Mr C.-H. Ehrenkrona, of the Ministry forForeign Affairs.

3. The applicant alleged that his exfradition to Rwanda to stand trial oncharges of genocide would violate Articles 3 and 6 of the Convention.

4. On 15 July 2009 the President of the Third Section decided to applyRule 39 of the Rules of Court, indicating to the Government that it wasdesirable in the interests of the parties and the proper conduct of theproceedings not to deport the applicant until further notice. The Governmentwere also requested to submit certain factual information. The case wasfurther granted priority under Rule 4l of the Rules of Court.

5. On 2l Jarnary 2010 the President of the Third Section decided to givenotice of the application to the Govemment.

6. The Government and the applicant each filed written observations onthe admissibility and merits of the case.

7. The Netherlands Government, which had been given leave by thePresident to intervene in the written procedure (Article 36 $ 2 of theConvention and Rule 44 S 2 of the Rules of Court), submitted third-partycomments.

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2 AHORUGEZEV. SWEDENJUDGMENT

8. On 1 February 2011 the Court changed the composition of itsSections (Rule 25 $ I of the Rules of Court) and the present application wasassigned to the newly composed Fifth Section.

THE FACTS

I. THE CIRCUMSTANCES OF THE CASE

A. Background

9. The applicant is a Rwandan citizen of Hutu ethnicity, who was bomin 1956. He used to be the head of the Rwandan Civil Aviation Authority.He has claimed that he left Rwanda on 14 April 1994. In 2001 he took upresidence in Denmark, where he was granted refugee status. Resident inDenmark are also his wife, his former wife and his three children.

10. In January 2006, a Danish public prosecutor opened a preliminaryinvestigation in regard to a suspicion that the applicant had committedgenocide and crimes against humanity in Rwanda n 1994.In particulaq thepreliminary investigation concerned one of the crimes allegedly committedby the applicant, a massacre of Tutsis on 7 April 1994. The Danish policemade several visits to Rwanda and other countries and questioned numerouswitnesses but finally, in September 2007, the preliminary investigation wasdiscontinued because the prosecutor found that the evidence against theapplicant was not sufficient for a conviction.

11. Subsequently, the Danish Ministry of Foreign Affairs received arequest from the Rwandan authorities to have the applicant extradited toRwanda to stand trial on charges including genocide and crimes againsthumanity. The Danish public prosecutor made a preliminary examination ofthe matter and presented his comments to the Danish Ministry of Justice. Onthis basis, the Ministry of Justice asked the Rwandan authorities to provideit with further information about the alleged crimes of which the applicantwas suspected and, in particular, supporting material (such as forensicevidence and depositions). The reason for this was that, according toSection 3 of the Danish Extradition Act, a request for extradition may bedenied if the evidence in support of the request is deemed insufficient. TheRwandan authorities did not respond and no decision has been taken by theDanish authorities on the request for extradition.

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AHORUGEZE v. SWEDEN JUDGMENT

B. Extradition proceedings in Sweden

12. On 16 July 2008, after the Swedish police had been informed by theRwandan Embassy in Stockholm that the applicant had visited them andthat he was sought by the Rwandan authorities, the applicant was arrested inStockholm in compliance with an intemational alert and warrant of arrest.The arrest order was confirmed by the District Court (tingsrtitten) of Solnaon 18 July and, on 2l July, the Ministry of Justice decided, pursuant toSection 23 of the Criminal Offences Extradition Act (Lag om utltimningforbrott, 1957:668; "the 1957 Act"), to invite the Rwandan authorities topresent a request for extraditionby 22 August.

13. On 4 August 2008 the National Public Prosecution Authority inRwanda made a formal request for the extradition of the applicant toRwanda for purposes of prosecution. It invoked an intemational arrestwarrant issued by the Rwandan Prosecutor-General on 17 July 2008 as wellas an indictment according to which the applicant was charged with thefollowing crimes, allegedly committed between 6 April and 4 July 1994:(1) genocide, (2) complicity in genocide, (3) conspiracy to commitgenocide, (4) murder, (5) extermination, and (6) formation, membership,leadership and participation in an association of a criminal gang, whosepurpose and existence were to do harm to people or their property.Allegedly, during the relevant period, the applicant had acted as a leader forthe Interahamwe militia. He had trained and encouraged other government-connected civilian militias to kill Tutsis, to cause them serious bodily harmand to plunder their homes. He had also fransported and distributedweapons to members of the Interahamwe and other militias. He had metwith local officials to plan and organise the distribution of weapons and hadincited civilians to kill and rape Tutsis. He had prepared, trained, equippedand organised militias in his home town. Furtherrnore, together with about50 members of the Interahamwe, he had been actively involved in themurder of 28 Tutsis on7 Apnl1994.

14. In the arrest warrant of 17 July 2008 and the extradition request of4 August 2008, the Rwandan authorities referred to recent legislativechanges concerning the criminal procedure and possible punishment inregard to transferred genocide suspects (which are further described below).They affirmed their "satisfactory assurances on human rights issues",claiming that, should the applicant be transferred to Rwanda, he wouldreceive a fair trial in accordance with national legislation and in conformitywith fair-trial guarantees contained in international instruments ratified byRwanda. He would be tried, at first instance, by the High Court and, uponappeal, the Supreme Court. In regard to detention, the extradition requestcontained the following information:

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AHORUGEZE v. SWEDEN JUDCMENT

"If arrested, detained or imprisoned following [his] arrest and subsequent to theRwandan jurisdictions, [the applicant] will be accorded adequate accommodation, at aprison which has been deemed by intemational observers to meet intemationalstandards. Transferred persons will be afforded nourishment and medical treatment,and will be heated in a humane and proper manner, in accordance with intemationalaccepted standards."

In a footnote, the detention facility was described in greater detail:

"MPANGA Prison in the Southern Province has been designated as the primarydetention centre. The ICTR [the International Criminal Tribunal for Rwanda] hasacknowledged, after visiting the Prison, that it meets international standards. Atransfer facility has also been established at Kigali central prison, and this facility willserve as a temporary detention centre for suspects appearing before the High Court ofthe Republic. ..."

15. In accordance with Section 15 of the 1957 Act, the Governmentreferred the request to the Office of the Prosecutor-General. Since theapplicant opposed the extradition, he was granted public defence counsel.Moreover, on29 September 2008, the District Court decided to remand theapplicant in custody on suspicion of genocide.

16. On 9 March 2009 the Prosecutor-General finished his investigationand referred the case to the Supreme Court (Htigsta domstolen) forexamination in accordance with Section 17 of the 1957 Act. He attached hisopinion, according to which there was probable cause for believing that theapplicant was guilty of the crimes referred to in the extradition request and,as - with the exception of the last charge (6 above) - they corresponded tocrimes under Swedish law, the extradition request could be granted. TheProsecutor-General further submitted that, although the investigation couldgive cause for some doubt, there were no impediments to the extradition asthe situation in Rwanda was not so serious that the applicant's rights underArticles 3 and 6 of the Convention would be violated.

17. Before the Supreme Court the applicant opposed the extradition anddenied all of the charges against him. He alleged that the witness accountswhich formed the basis of the charges were false and that there was aconspiracy against him. As concemed the alleged massacre on 7 April 1994,it had been investigated by the Danish police but the investigation had beendiscontinued as there was insufficient evidence against him. This lack ofevidence applied to all the crimes of which he was accused. Moreover, inhis view, the accusations were of a political nature as he was a Hutu and hewas convinced that he would be seriously persecuted if returned. Theapplicant further claimed that the Rwandan justice system was comrpt anddysfunctional and lacking in independence and impartiality. In particular, itwould be very difficult for him to call and question wifiresses in his defenceon an equal basis with witnesses called by the prosecution. Thus, he wouldsuffer a flagrant denial ofjustice in violation of Article 6 of the Convention.He also referred to several decisions in which the ICTR had found that therewere impediments to transferring genocide suspects to Rwanda and noted

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AHORUGEZE v. SWEDEN JUDCMENT

that no other country had accepted such requests from Rwanda. Lastly, heinvoked his poor health, stating that he had undergone a heart bypassoperation and would be in need of another such operation within a fewyears.

18. On 26 May 2009, after having held an oral hearing, the SupremeCourt took its decision. It first stressed that the examination was limited tothe question of whether there were any impediments to the applicant'sextradition. In carrying out this examination, the Supreme Court had toconsider the 1957 Act as well as Articles 3 and 6 of the Convention.Turning to the circumstances of the case, the court first agreed with theProsecutor-General's assessment that there was probable cause to believethat the applicant was guilty of the charges against him and that, since thesecrimes were also crimes under Swedish law, it was permissible to extraditehim (exception was again made for the sixth charge for the same reason asabove). The court further found that the crimes were not of a political natureand that, hence, this did not constitute an impediment. Furthermore, inregard to the applicant's Hutu ethnicity, which had been of great importancewhen the Danish authorities granted him asylum, the court noted that thedefinition of refugee status had been expanded in many countries. The courtthen noted that neither the Danish decision nor the investigation on which itwas based had been adduced in the extradition matter. The court howeverfound that the Danish decision was several years old and that the evidenceat the court's disposal did not support the assessment that the applicant wasat a real risk of persecution due to his ethnicity. The court also consideredthat the applicant's state of health did not pose any problem for theextradition. Thus, there were no impediments under the 1957 Act to theextradition of the applicant.

19. Turning to the examination under the Convention, the SupremeCourt first found that the evidence at hand did not give reason to believethat the applicant would be subjected to torhre or inhuman or degradingtreatment contrary to Article 3 of the Convention upon return to Rwanda.As concerned Article 6, the court noted that, according to Strasbourg case-law, only a"flagrant denial ofjustice" in the receiving country could lead toa finding of a violation against the extraditing country. Hence there was norequirement to ensure that the person would be guaranteed a fair trial in allaspects. Moreover, it was for the applicant to show that there weresubstantial grounds for believing that he would suffer a flagrant denial ofjustice. In the instant case, the applicant had given information aboutRwanda and had submitted a letter of 16 October 2008 from AmnestyInternational (see fuither below at $$ 4l-43) and decisions by the ICTR of28 May and 6 June 2008. He had also presented a decision by the Minisuryof Justice of Finland of 20 February 2009 and a decision by the High Courtin London of 8 April 2009, both of which declined to extradite somepersons to Rwanda to stand trial. In this respect, the court noted that the

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AHORUGEZE v. SWEDEN JUDCMENT

Finnish decision was based on ICTR's decisions. However, these decisionsconcerned transfer of suspects from the ICTR to the Rwandan nationalcourts. According to Article Il bis of the ICTR's Rules of Procedure andEvidence, extradition was possible if the tribunal was satisfied that theaccused would receive a fair trial in the courts of the State concerned. This,in the Swedish Supreme Court's opinion, was clearly a much more rigorousdemand than that under Article 6 of the Convention. ICTR's decisions couldtherefore not lead to the conclusion that the extradition of the applicant inthe present case would be in violation of Article 6 of the Convention. lnregard to the decision of the UK High Court, the Supreme Court noted that,contrary to the lower court, the High Court had found that the extradition ofthe persons in question would put them at real risk of suffering a flagrantdenial of justice, with respect to both the difficulty of adducing evidenceand the doubts pertaining to the independence and impartiality of theRwandan judiciary. While this gave reason to doubt whether the extraditionof the applicant would be possible, the Supreme Court observednevertheless that, according to international sources and reports from theSwedish Minisfiy for Foreign Affairs and the Swedish Embassy in Kigali,the judicial system in Rwanda had made clear improvements after theabove-mentioned decisions, although much remained to be done. Forinstance, a new wibress protection programme had been launched and thepunishment of life-time imprisonment in isolation had been abolished.

20. Having regard to all of the above, the Supreme Court found thatthere existed certain reasons to doubt that the applicant would be afforded atrial in Rwanda which fulfilled all requirements under Article 6 of theConvention, in particular whether his right to call witnesses would be equalto that of the prosecution. However, the circumstances of the case did notconstitute a general legal impediment to the extradition of the applicant toRwanda to stand trial on charges of genocide and crimes against humanity.The court then expressed that it assumed that consideration would be givento the need for further information before the Government made a finaldecision in the case.

21,. On 7 July 2009 the Swedish Government decided that the applicantshould be extradited to Rwanda to stand trial for genocide and crimesagainst humanity. However, it rejected the request in relation to the sixthcharge. The Government fust agreed with the Supreme Court that therewere no impediments to the extradition under Swedish law. As concernedthe examination under the Convention, the Govemment noted that the deathpenalty had been abolished n 2007 and that life imprisonment with specialconditions (such as isolation) had been abolished in November 2008. A newprison had been built which was considered to reach an acceptableinternational standard and which, inter alia, was meant for personsconvicted of genocide. There was also nothing to suggest that the RwandanState sanctioned torture or inhuman treatnent of convicted persons or

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AHORUGEZE v. SWEDEN JUDGMENT

persons suspected of serious crimes. Thus, extradition would not becontrary to Article 3 of the Convention. In regard to Article 6, theGovernment observed that the standards set by the ICTR were morerigorous than the standard set by the Convention and the European Court'scase-law. It noted that the judicial system in Rwanda had improved over thelast couple of years and that new laws had been promulgated during thespring of 2009 to improve the wibress protection prograrnme and thepossibility to hear witnesses who were not present in Rwanda. Hence, theGovemment concluded that the extradition would not violate Article 6 ofthe Convention and therefore approved it.

C. Events during the proceedings before the Court

22. On 13 July 2009 the applicant requested the Court to indicate to theSwedish Government under Rule 39 of the Rules of Court a suspension ofhis extradition to Rwanda. On 15 July the President of the Section to whichthe case had been allocated decided to apply Rule 39 and, on 20 July, theSwedish Government decided not to enforce the extradition until furthernotice.

23. Subsequently, on 21 July 2009, the President of the Sectionrequested the Government to reply to certain factual questions in accordancewith Rule 54 $ 2 (a) of the Rules of Court. Specifically, the Presidentwanted to know if the Government had obtained any guarantees from theRwandan authorities that the applicant would receive a fair trial and betreated in a correct manner, if they knew where he would be detained andwhether they intended to adopt measures to monitor and follow the futuredetention and trial of the applicant in Rwanda.

24. In a letter of 12 August 2009, sent following a request forinformation from the Swedish Ministry of Justice, Mr TharcisseKarugarama, the Rwandan Minister of Justice confrmed the following:

"1. If transferred to Rwanda, [the applicant] will primarily be placed in the Mpanga[Prison] during his pre-trial and detention during trial. The Kigali Central Prison,however, may serve as a temporary detention center for him while appearing beforethe High Court of the Republic.

2. If convicted in Rwanda, [the applicant] will be placed in the Mpanga Prisonwhile serving the sentence.

3. Swedish authorities will be able to monitor and evaluate [the applicant's]conditions in Rwanda, in relation to his detentiorVimprisonment facilities, as well as inrelation to his trial and proceedings conducted in Rwanda."

Mr Karugarama also assured that the applicant would not be subjected tosolitary confinement once retumed to Rwanda. The Death Penalty AbolitionLaw (see further below at $ 35) excluded life imprisonment with specialprovisions (i.e. isolation) for those extradited from other states.

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AHORUGEZE v. SWEDEN JUDCMENT

25. By a decision of 27 July 2011, the Supreme Court released theapplicant from detention.

II. RELEVANT LAW AND PRACTICE

A. Swedish law

26. According to sections I and 4 of the 1957 Act, a person who in aforeign state is suspected or accused of or sentenced for an act that ispunishable there may be extradited to that state following a decision by theGovemment. Such extradition may be granted only if the act for which it isrequested corresponds to an offence for which imprisonment for one year ormore is prescribed by Swedish law.

27. Sections 5-8 lay down certain limiAtions. Thus, an extraditionrequest may not be granted for certain offences committed by members ofthe armed forces or for political offences. Furthermore, a person may not beextradited if, on account of his origin, belonging to a particular social group,religious or political views, or otherwise on account of politicalcircumstances, he would run the risk, in the foreign state, of being subjectedto persecution directed against his life or liberty or otherwise of a harshnature. Also, the extradition cannot take place if the person in question isnot protected against being sent to a state where he would run such a risk.Finally, a request may be refused if, having regard to the person's youngage, state of health or other personal circumstances, the extradition wouldrun manifestly counter to the demands of humanity. In the latter case, regardshould be had also to the nature of the offence in question and the interestsof the requesting state.

28. Section 14 stipulates that an extradition request is submitted inwriting to the Ministry of Justice, accompanied by the documentation onwhich the request is based.

29. According to section 15, the Prosecutor-General gives his opinion inthe extradition matter before the Government takes a decision. If the personconcerned does not consent to being extradited, the case is also examined bythe Supreme Court.

30. Section 16 prescribes that the Prosecutor-General is to conduct thenecessary investigation in accordance with the rules applicable topreliminary investigations in criminal cases. Coercive measures are subjectto the general rules prescribed for criminal cases. However, there are alsosome more specific rules outlined in section 23 of the Act, according towhich a decision by a prosecutor to apply coercive measures must instantlybe reported to a district court. Appeal against this court's decision liesdirectly to the Supreme Court.

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AHORUGEZE v. SWEDEN JUDGMENT

31. According to section L7 and 18, the Prosecutor-General submits thecase and the finished investigation, together with an opinion, to the SupremeCourt. The Supreme Court then decides whether the extradition request maybe lawfully granted. A hearing is held if it is considered necessary.

32. Under section 20, the matter is reported to the Government when theSupreme Court has issued its decision. If the Supreme Court has found thatthere is a legal impediment to the extradition, the request may not begranted.

33. The Swedish Supreme Court has examined several cases regardingextradition of suspected criminals. According to leading Supreme Courtcase-law (see NJA 2002 p 624, NJA 2007 not N36 and NJA 2007 s 574) thescope of the court's examination is not limited to an assessment of whetherthere are impediments to an extradition prescribed in the 1957 Act, but alsoincludes an evaluation of the compliance of the extradition with theConvention.

B. Rwandan law

1. TheTransferLaw

34. Organic Law no. II|2A07 of 16103/2007 concerning the Transfer ofCases to the Republic of Rwanda from the International Criminal Tribunalfor Rwanda and from Other States ("the Transfer Law") was amended on26l|.1.ay 2009 (through Organic Law no. 03/2009 af 2610512009 Modifyingand Complementing [the Transfer Law]), following criticism against thetaking of evidence from witnesses expressed by the ICTR and by somecountries and international organisations. The amended Transfer Lawcontains, inter alia, the following provisions (the 2009 amendmentsindicated in italics):

Article 2 - The competent Court

"Notwithstanding any other law to the contrary, the High Court shall be thecompetent court to conduct at the first instance the trial of cases transferred to Rwandaas provided by this Organic Law.

At the first instance, the case shall be tried by a single Judge.

However, the President ofthe Court may at his/her absolute discretion designate aquorum of three (3) or more judges assisted by a Court Registrar depending onhis/her assessment of the complexity and importance of the case."

Article 13 - Guarantee of rights of an accused person

"Without prejudice to other rights guaranteed under the laws of Rwanda, includingthe Constitution of the Republic of Rwanda of June 4, 2003 as amended to date or

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Laws relating to the Code of Criminal Procedure of Rwanda and the InternationalCovenant on Civil and Political Rights, as ratified by the Decree Law no. 08175 ofFebruary 12, 1975, the accused person in the case transferred by ICTR to Rwandashall be guaranteed the following rights:

l. a fair and public hearing;

2. presumption ofinnocent until proved guilty;

3. to be informed promptly and in detail in a language which he/she understands, ofthe nature and the cause of the charge against him;

4. adequate time and facilities to prepare his/her defense;

5. a speedy trial without undue delay;

6. entitlement to counsel ofhis/her choice in any examination. In case he/she has nomeans to pay, he/she shall be entitled to legal representation;

7. the right to remain silent and not to be compelled to incriminate him/trerself;

8. the right to be tried in his/her presence;

9. to examine, or have a person to examine on his/her behalf the witnesses againsthim/trer;

10. to obtain the attendance and examination of witnesses on his/her behalf underthe same conditions as witnesses against him/her.

l{ithout prejudice to the relevant laws on contetnpt of court and perjury, no personshall be criminally liable for anything said or done in the course of a trial. "

Article 14 - Protection and assistance to witnesses

"In the trial of cases transferred from the ICTR, the High Court of the Republic shallprovide appropriate protection for witnesses and shall have the power to orderprotective measures similar to those set forth in Articles 53, 69 and 75 of the ICTRRules ofProcedure and Evidence.

In the trial of cases transferred from the ICTR, the Prosecutor General of theRepublic shall facilitate the witnesses in giving testimony including those livingabroad, by the provision of appropriate immigration documents, personal security aswell as providing them with medical and psychological assistance.

All witnesses who travel from abroad to Rwanda to testify in the trial of casestransferred from the ICTR shall have immunity from search, seizuro, arrest ordetention during their testimony and during their tavel to and from the trials. TheHigh Court of the Republic may establish reasonable conditions towards a witness'sright of safety in the country. As such there shall be determination of limitations ofmovements in the countrv. duration of stav and travel."

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Article 14 bis - Testimony of a witness residing abroad

"llrithout prejudice to the generality of Article 14, where a witness is unable or, forgood reason, unwilling to physically appear before the High Court to give testilnony,the judge rnay upon request of a party order that the testimony of such witness betaken in the following manner:

L By deposition in Rwanda or in a foreign jurisdiction, taken by a PresidingOfficer, Magistrate or other judicial officer appointed/commissioned by the Judge forthat purpose;

2. By video-link hearing taken by the judge at trial;

3. By a judge sitting in a foreign jurisdiction for the purpose of recording such vivavoce testimony.

The request for the taking of testimony in any of the modes described above shallindicate the names and whereabouts of the witness whose testimony is sought, astatement of the matters on which the witness is to be examined, and of thecircumstances justifiing the taking of testimony in such manner.

The order granting the taking of testimony of a witness in any of the modesprescribed above shall designate the date, time and the place at which such testirnonyis to be taken, requiring the parties to be present to examine and cross-exarnine thewitness.

Testinony taken under this Article shall be trawcribed and form part of the trialrecord and shall carry the same weight as viva voce testimony heard at trial."

Article 15 - Defence councel

"Without prejudice to the provisions of other laws of Rwanda, defence councel andtheir support staff shall have the right to enter into Rwanda and move freely withinRwanda to perform their duties. They shall not be subject to search, seizure, arrest ordetention in the performance oftheir legal duties.

The defence councel and their support staff shall, at their request, be provided withappropriate security and protection."

Article 16 - Appeals

"Both the prosecution and the accused have the right to appeal against any decisiontaken by tho High Court of the Republic upon one or all of the following grounds:

l. an error on a question of law invalidating the decision, or

2. an enor of fact which has occasioned a miscarriage ofjustice.

The Supreme Court may uphold or invalidate some or all of the decisions of theHigh Court of the Republic. Where necessary, it may order the High Court of theRepublic to review the case."

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Article 2l - The heaviest penalty

"Life imprisonment shall be the heaviest penalty imposed upon a convicted personin a case transferred to Rwanda from ICTR."

Article 23 - Detention

"Any person who is transferred to Rwanda by the ICTR for trial shall be detained inaccordance with the minimum standards of detention stipulated in the United NationsBody of Principles for the Protection of all persons under any Form of Detention orImprisonment, adopted by General Assembly resolution 43/173 of 9 December, 1998.

The International Committee of the Red Cross or an observer appointed by thePresident of the ICTR shall have the right to inspect the conditions of detention ofpersons transferred to Rwanda by the ICTR and held in detention. The InternationalCommittee of the Red Cross or the observer appointed by the ICTR shall submit aconfidential report based on the findings of these inspections to the Minister in chargeof Justice of Rwanda and to the President of the ICTR.

In case an accused person dies or escapes from detention, the Prosecutor General ofthe Republic shall immediately notify the President of the ICTR and the Minister ofJustice in Rwanda.

The Prosecutor General ofthe Republic shall conduct investigations on the death orthe escaping of the person who was in detention and shall submit a report to thePresident of ICTR and the Minister of Justice in Rwanda."

Articre 24 - Appricabttor;"#l::?T;#'":il::fJ$"matters of transfer of cases

"This Organic Law applies mutatis mutandis in other matters where there is transferof cases to the Republic of Rwanda from other States or where hansfer of cases orextradition of suspects is sought by the Republic of Rwanda from other states."

2. Abolition of the death penalty

35. Rwanda abolished the death penalty through Organic Lawno.3L/2007 of 2510712007 relating to the Abolition of the Death Penalty("the Death Penalty Abolition Law"). This law was amended as of1 December 2008 (through Organic Law no. 6612008 of 2lllll2008Modifying and Complementing [the Death Penalty Abolition Law]),following which the relevant provisions read as follows (the 2008amendment indicated in italics):

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Article 2 - Abolition of the Death Penaltv

"The death penalty is hereby abolished."

Article 3 - Substitution of the Death Penalty

"In all the legislative texts in force before the commencement of this Organic Law,the death penalty is hereby substituted by life imprisonment or life imprisonment withspecial provisions as provided for by this Organic Law.

However, life imprisonnent with special provisions as provided for by paragraphone ofthis Article shall not be pronounced in respect ofcases transferued to Rwandafrom the International Criminal Tribunal for Rwanda and from other States inaccordance with the provisions of [the Transfer LawJ."

Article 4 - Life imprisonment with special provisions

"Life imprisonment with special provisions is imprisonment with the followingmodalities:

l. A convicted person is not entitled to any kind of mercy, conditional release orrehabilitation, unless he/she has served at least twenty (20) years of imprisonment;

2. A convicted person is kept in isolation."

The law provides for the specific mode of enforcement and execution of lifeimprisonment with special provisions."

3. The gacaca courts

36. A traditional, community-based gacaca system of tribunals wasestablished in 2002 to try people suspected of crimes during the 1994genocide, in order to resolve the enormous amount of such cases (however,not the most serious, so-called "category I" cases - to which the applicant'scase allegedly belongs -, which are still tried in the ordinary courts). Thegovemment's stated goal for the gacaca system was to ensure that thosewho had participated in the genocide were brought to trial, furthering theends of justice, ending impunity and promoting national unity. The gacacalaw provides for reduced sentences, including community service, forco-operation, and credit for time served.

37. After a pilot phase when approximately 700,000 individuals wereidentified for prosecution for having participated in the genocide, thegacaca courts began trials nationwide in July 2006. The trials have beenpublic but there have been concenm about their fairness, among other thingsbecause of a perceived lack of impartiality and reports that defendants havenot been given the opportunity to defend themselves. In addition, somecourts have spent only a few hours hearing each case and poorly qualified,ill-trained and corrupt gacaca judges in certain districts have fuelled

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widespread distrust of the system. There have been reports of local gacacaofficials and citizens abusing the process to pursue personal matters andsettle grudges unrelated to the genocide, including making false accusationsin order to acquire land. However, in some reported cases where judges hadacted inappropriately, gacqca officials have intervened and held that theprocedure had been illegal.

C. Information from the Swedish Embassy in Kigali

38. On 16 June 2009, at the request of the Government, the SwedishEmbassy in Kigali submitted, inter alia, the following.

39. In addition to the amendments that had been made to the TransferLaw, Rwanda was revising its 2005 witness protection scheme so thatwitness protection would fall under the Supreme Court and not, as wascurrently the case, under the National Public Prosecution Authority. Itwould apply to witnesses for both the prosecution and the defence.

40. The Embassy was of the opinion that the independence of thejudiciary was slowly improving and that there was no direct proof thatjudges followed political orders. In this respect, it noted that Rwanda wasaware that it was being observed by the international community, inparticular in extradition cases concerning genocide. As concemed detentionconditions, the Embassy observed that persons suspected of genocide andcrimes against humanity were given priority by the Rwandan Governmentand that their detention conditions were good. Again, as the internationalcommunity followed these cases, Rwanda made an effort to ensure goodstandards. Furthermore, persons convicted under this law would serve theirsentences in the Mpanga Prison which had been recently built in line withinternational standards. The Embassy also noted that a Bar Association hadbeen created which had about 350 members, although two-thirds of thesewere still in training.

D. Information from Amnesty International

41. In two letters, sent to the Swedish Prosecutor-General and theSwedish Government on 16 October 2008 and 30 June 2009, respectively,Amnesty International submitted comments on Rwandan legislation andpractice in relation to intemational human rights law.

42. In Amnesty International's view, there was a serious risk that theapplicant would not receive a fair trial in Rwanda, in violation of Article 6of the convention and Article 14 of the International Covenant on civil andPolitical Rights ("ICCPR"). Amnesty International referred to one of itsreports (Rwanda: Suspects must not be transferred to Rwanda courts fortrial until it is demonstrated that trials will comply with internationalstandards of justice, November 2007) in which serious concern was

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expressed that people who were extradited there faced a real risk of beingsubjected to an unfair trial and to torture or inhuman treafrnent in detentioncentres.

43. Amnesty International referred also to the decisions of the ICTR,refusing to transfer suspects to Rwandan national courts, and to the reasonsgiven in those decisions (see further below). It further stressed that no othercountry had transferred suspects to Rwanda but, on the contrary, had foundit to be impermissible.

E. ICTR decisions on transfer to Rwanda

44. Pursuant to Rule ll bis of the Rules of Procedure and Evidence ofthe ICTR and that court's case-law, a designated Trial Chamber may orderreferral to a State that has jurisdiction over the charged crimes and is willingand prepared to accept the case. In assessing whether a State is competentunder Rule 1l bis, it has to be established that it has a legal framework thatcriminalises the alleged conduct of the accused and provides an adequatepenal structure. The penal structure must provide an appropriate punishmentfor the offence and conditions of detention must comply with intemationallyrecognised standards. Prior to ordering referral, the chamber must besatisfied that the accused will receive a fair trial in the courts of the Stateand that the death penalty will not be imposed or carried out.

45. As regards the requirement of a fair trial, the accused must beaccorded by the State concerned the rights set out in Article 20 of the ICTRStatute. Those rights in essence mirror the rights laid down in Article 6 ofthe Convention and Article 14 of the ICCPR.

1. The transfer cases of Munyakazi, Kanyarukiga, Hategekirnana,Gatete and Kayishema

46. ln 2008 the ICTR decided in five cases to refuse the transfer ofgenocide suspects for trial in Rwanda. In the first case, Munyakazi, the TrialChamber found (on 28 May 2008) that there were three obstacles to atransfer: the applicable sentence would be life imprisonment in isolationwithout appropriate safeguards, the trial court's composition with a singlejudge involved a risk of its being unable to withstand direct or indirectpressure from the Rwandan Government, and the defendant would not beable to secure the attendance of and examine witnesses on his own behalfunder the same conditions as the prosecutor's witnesses. Following anappeal by the ICTR Prosecutor, the Appeals Chamber upheld (on 8 October2008) the Trial Chamber's first and third rulings. However, it granted theappeal in so far as the second ruling was concerned: it found that the trialchamber had erred in concluding that Rwanda did not respect theindependence of the judiciary and that the composition of the Rwandancourts did not comply with the right to a fair trial. With respect to the issues

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relating to witness testimony, the Appeals Chamber was satisfied - contraryto the trial chamber - that video-link facilities were available and wouldlikely be authorised in cases where witresses residing abroad genuinelyfeared to testiff in person. However, the Appeals Chamber considered thatsuch arrangements would not guarantee equality of arms "if the majority ofDefence witnesses would testiff by video-link while the majority ofProsecution wibresses would testifu in person" (paragraph 42 of thedecision). It also shared the concerns of the Trial Chamber in regard to thetreafinent of witnesses in Rwanda and their fears of harassment, arrest anddetention. There were reports of murders of genocide survivors who hadprovided or intended to provide testimony in genocide trials. Moreover,there were justified fears among witnesses that their appearance would leadto indictrnents being issued against them, for instance for promoting"genocidal ideology", a term laid down in the Rwandan Constitution andgiven a wide interpretation by Government officials to cover an extendedrange of ideas, expressions and conduct, including those perceived todisplay opposition to Govemment policies.

47. In the second case, Kanyarukiga, the Appeals Chamber (on30 October 2008) upheld the Trial Chamber's decision (of 6 June 2008) onthe same grounds as in Munyakazi. As regards wibresses inside Rwanda, theAppeals Chamber stated the following (at paragraph26):

"The Appeals Chamber considers that there was su{ficient information before theTrial Chamber of harassment of witnesses testifying in Rwanda and that witnesseswho have given evidence before the Tribunal experienced threats, torture, arrests anddetentions, and, in some instances, were killed. There was also information before theTrial Chamber of persons who refused, out of fear, to testify in defence of people theyknew to be innocent. The Trial Chamber further noted that some defence witnessesfeared that, if they testified, they would be indicted to face trial before the Gacacacourts, or accused of adhering to 'genocidal ideology'. The Appeals Chamberobserves that the information available to the Trial Chamber demonstrates thatregardless of whether their fears are wellfounded, witnesses in Rwanda may beunwilling to testify for the Defence as a result of the fear that they may face seriousconsequences, including threats, harassment, torture, arrest, or even murder. Ittherefore finds that the Trial Chamber did not err in concluding that Kanyarukigamight face problems in obtaining witnesses residing in Rwanda because they wouldbe afraid to testify."

48. The Appeals Chamber found that similar concerns applied towitnesses residing abroad, concluding that, despite the wibress protectionavailable under Rwandan law, the available information indicated that thedefendant would not "be able to call wihresses residing outside Rwanda tothe extent and in a manner which would ensure a fair trial if the case weretransferred to Rwanda" (paragraph 3l).

49. The next three cases - Hategekimana (Tial Chamber, l9 June 2008;Appeals Chamber, 4 December 2008), Gatete (Trial Chamber,l7 November 2008) and Kayishema (Trial Chamber, 16 December 2008) -

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contained virtually identical reasoning. It appears that no appeals were madeagainst the Trial Chamber's decisions in Gqtete and Kayishema.

2. Transfer of case files from the ICTR Prosecutor to the Rwandanauthorities

50. In 2010, the ICTR Prosecutor transferred several cases to Rwandafor further investigation and possible action. An ICTR press release of8 June 2010 stated as follows:

"Twenty-five cases of persons investigated but not indicted by the Tribunal weretransferred from the Office of the Prosecutor (OTP) to Rwanda for furtherinvestigation and possible future action on 8 June 2010. This action was undertaken inaccordance with UN Security Council Resolution 1503, which urges that appropriatecases be prosecuted in competent national jurisdictions. Justice Hassan BubacarJallow, Prosecutor of the ICTR, formally handed over electronic and hard copies ofthe cases to Prosecutor-General of Rwanda, Mr. Martin Ngoga. Justice Jallow saidthat the transfer emphasizes the partnership between the OTP and Rwanda's nationaljurisdiction. He commended the Rwandese govemment for the improvements it hasmade to Rwanda's judicial infrastructure and capacity. Justice Jallow also noted hisintentions to continue pursuing the transfer of fi.rther cases to Rwanda, including anumber of cases in which the subjects have already been indicted, pursuant toRulellbis. Mr. Ngoga said that the transfer is "a vote of confidence", in Rwanda'spast and present efforts at improvement. He noted that Rwanda remains ready toreceive any future cases from ICTR. He also noted that though Rwanda, "did notsucceed in the past," the govemment has now addressed the concems raised by theTribunal's Judges. Mr. Ngoga thanked the Office of the Prosecutor for its partnershipand pledged to keep the Tribunal apprised ofRwanda's handling ofthe cases. 30 casefiles have been transferred to Rwanda previously, bringing the total number ofdossiers transferred to 55."

3, The transfer case of Uwinkindi

51. On 28 June 2011 the ICTR decided for the first time to transfer anindicted genocide suspect for trial in Rwanda. In concluding that it wassatisfied that the Government of Rwanda was now prepared to receive itsfirst referral from the ICTR, a Referral Chamber took into account theamendments that had been made to Rwandan legislation since 2008 andfound that the issues which had led to the earlier refusals had beenaddressed to some degree in the intervening period.

52. As regards the possible punishment imposed on a transferredsuspect, the Chamber stated the following (at paragraph 5l):

"The Chamber finds that the current penalty structure of Rwanda is adequate asrequired by the jurisprudence of the Tribunal as it no longer allows for imposition ofthe death penalty or life imprisonment with solitary confinement. The Chamber issatisfied that the ambiguities which existed in previous Rule I I bls applicationsregarding the nature and scope ofthe sentence for accused persons in cases referred toRwanda have been adequately addressed by Rwanda."

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53. It went on to draw the following conclusion as to the conditions ofdetention in Rwanda (atpangraph 60):

"The Chamber notes that adequate detention conditions are guaranteed by theTransfer Law and considers that the Defence submissions that the conditions will beinadequate in practice are speculative at this juncture. The Chamber expects that themonitoring mechanism will conduct regular prison visits to ensure that both thedetention conditions and treatment of the Accused in detention are satisfactory, andthat it will immediately report any concerns to both the Prosecutor and the Presidentof the Tribunal. Thus, the Chamber is convinced that the Accused will be detained inappropriate conditions ifhis case is referred to Rwanda."

54. With respect to the main issue concerning the availability andprotection of witnesses, the Chamber first noted that it was not its role todetermine whether the fears held by witnesses were legitimate, reasonableor well-founded but rather to assess the likelihood that the accused would beable to "obtain the attendance and examination of witnesses on his or herbehalf under the same conditions as witness against him or her" (as requiredby Article 20, paragraph a (e) of the ICTR Statute) if the case were to betransferred to Rwanda. As to witnesses residing in Rwanda, the Chamberstated the following (at paragraphs 99-103):

"The Defence cites instances during the past two years in which the Tribunal'sdefence counsel have complained that their witnesses were unwilling to testifybecause of fears of intimidation or harassment. [Human Rights Watch] also refers toincidents in which defence witnesses in Rwanda have been jailed or victimised beforeor after testifying. Furthermore, many witnesses fear their appearance will lead to anindictment against them. Defence witnesses may fear being accused of "genocidalideology'', a crime referred to in the Rwandan Constitution but undefined underRwandan law. It is the Chamber's view that the concerns of witnesses within Rwandaregarding their safety have been addressed by changes to the law over the past twoyears. The Chamber expects that Rwanda will ensure the safety of both prosecutionand defence witnesses in a transfer case as has been stipulated in the new andamended laws.

This Chamber notes the previous frndings by the Appeals Chamber in Rule 11 6isdecisions that witnesses in Rwanda may be unwilling to testify for the defence due totheir fear that they may face serious consequences, including prosecution, threats,harassment, torture, arrest or even murder. The Chamber notes that in the 36 genocidecases tried in the High Court of Rwanda, the defence in most cases was able to securethe attendance ofwitresses even without the safeguards available to cases transferredfrom the Tribunal. It is logical to assume that with the amendments made to the lawsregarding witness immunity, the creation of a new witness protection programme, andthe safeguards imposed by the Chamber on Rwanda, the Appeals Chamber's findingthat witnesses may be unwilling to testify is no longer a compelling reason fordenying referral.

Although the concems expressed by the Defence are materially the same as thoseexpressed by defence teams in past referral cases, Rwanda has shown the willingnessand the capacity to change by amending its relevant laws over the past two years. Theamendment to Article 13 of the Transfer Law to include immunity for statements bywitnesses at trial is a step towards allaying the fears of witnesses. This is

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complemented by the improvem€nts made to the Rwandan Victims and WitnessesSupport Unit ("VWSU" which is sometimes also referred to as "WVSU") and thecreation of the Witness Protection Unit ("WPU") under the Judiciary as discussedbelow.

The Chamber notes that in cases before the Tribunal some witnesses are still afraidof testifying despite the provision of multiple safeguards. The Chamber is thereforesatisfied that Rwanda has taken adequate steps to amend its laws in this regard. Thefull implementation of these additional measures mandated by this Chamber wouldlikely guarantee a fair trial for the Accused.

The Chamber further notes that the subjective fear of witnesses to testify cannot beaddressed without implementing adequate legal safeguards to allay such fears. Wherelaws can neutralise the reasonable fears of individuals, the Chamber is of the opinionthat they must be implemented and revised as needed. It is the considered opinion ofthis Chamber that it is impossible to evaluate the effectiveness of a reasonable law inthe abstract. Accordingly, the relevant Rwandan laws must be given a chance tooperate before being held to be defective."

55. The Chamber then addressed the situation of wifiresses residingabroad and noted, inter alia, the following (atparagraphs 109-113):

"The Defence states that all of its 4l witnesses living abroad have indicated thatthey were not prepared to travel to Rwanda to testify or to appear before any Rwandanjudge who might havel to their countries of residence. The Chamber notes thatfollowing the 2009 amendments to Article 14 of the Transfer Law, witnesses maynow testify in three more ways in addition to providing viva voce testimony before therelevant High Court in Rwanda: via deposition in Rwanda; via video-link taken beforea judge at trial, or in a foreign jurisdiction; or via a judge sitting in a foreignjurisdiction.

At the outset, the Chamber observes the use of any of these methods is not a rightguaranteed to the Accused (or to any other party). These procedures are intended as anexception to the general rule of viva voce testimony before the court, and whether toprovide for any of these measures remains within the sole discretion of the trial court.The law is silent as to whether or not the adverse party can make submissions on sucha request and does not establish any criteria that may guide a judge in his or herdecision when facing such a request. The law also does not stipulate whether thedecision on such a request is subject to appeal, and ifso, under which conditions.

The Defence submits that in the present case the reasons put forward by Defencewitnesses in their affidavits may well be rejected by a Rwandan judge, For instance, itdoubts that a judge would consider valid a witress' fear for his or her security ifbrought to Rwanda for testimony, the fact that his or testimony would incriminate theRwandan Patriotic Front ("RPF"), or that he or she does not trust the Rwandanjudiciary. Although the doubts expressed by the Defence are relevant the Chamberconcludes that they are speculative at this juncture.

With respect to the prospect that witnesses living abroad could testify by video-link,the Appeals Chamber has previously held that "the availability of video-link facilitiesis not a completely satisfactory solution with respect to the testimony of witnessesresiding outside Rwanda, given that it is preferable to hear direct witness testimony,and that it would be a violation of the principle of equality of arms if the majority ofdefence witnesses would testify by video-link while the majority of Prosecution

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witnesses would testify in person." However, with regards to the witnesses who liveoutside Rwanda, this Chamber notes that, in addition to the possibility of hearingtestimony via video-link, Article 14 of the amended Transfer Law allows testimony tobe provided a) via deposition in Rwanda or in a foreign jurisdiction, taken by aPresiding Officer, Magistrate, or other judicial officer appointed for that purpose; orb) before a judge sitting in a foreign jurisdiction for the purpose of recording suchtestimony.

The Defence argues that for its 41 witnesses residing abroad, a judge sitting on thecase would have to travel to nine different African countries to receive theirtestimonies meaning that the Accused would be absent for almost the entirety of hisDefence case. The Defence recalls the right of the Accused to be "tried in hispresence," as stipulated in Article 14 (3) (d) of [the International Covenant on Civiland Political Rightsl. The Chamber notes the amendments to Article 14 of theTransfer Law which provide the option of hearing evidence from wihresses locatedoutside Rwanda in order to ensur€ their protection. Even in an instance where theAccused wishes to exercise his right to examine or cross-examine a witness who istestifying in another location, he could avail himself of the video-link facilitiesalready in place. Thus, there is no apparent impediment to the presence of theAccused during the sections of the hial that would take place outside Rwanda. TheChamber finds that the Defence argument that the Accused would be absent for themajority of his Defence case untenable and that the possibility that witnesses willtestify outside Rwanda cannot be regarded as prejudicial to the right to a fair trial."

56. The Chamber further noted with satisfaction that, in addition to thewitness protection programme administered by the Office of the Prosecutor-General ("V!VSU"), Rwanda had recently taken steps towards the creationof a witness protection unit under the auspices of the judiciary ("WPU").However, the terms of reference and effectiveness of the new unit could notbe evaluated as it had been established to assist witnesses in transferredcases only, and there had not been such a case yet (paragraph 13 l).

57. As to the availability of defence counsel, the Chamber noted thatmany members of the Rwandan Bar had more than five years' experience,that five lawyers were enrolled in the ICTR's list of potential counsel, thatRwandan lawyers were obliged to provide pro bono services to indigentpersons and that there was a legal framework as well as a budgetaryprovision for legal aid. Consequently, the Chamber was confident thatdefence counsel and legal aid would be available to the accused iftransferred (paragraphs 139-140 and 1,44-146). While there were concernsabout the working conditions for defence counsel - there had been instancesof harassment, threats or even arrests of lawyers defending genocidesuspects - the Chamber noted that such incidents could be brought to theattention of the Rwandan High Court or Supreme Court and that Article 13of the Transfer Law, as amended in 2009, granted lawyers immunity fromprosecution for statements linked to their activities as defence counsel(paragraphs 154 and 159).

58. On the issue of the independence and impartiality of the Rwandanjudiciary, the Chamber was of the view that Rwandan judges, asprofessional judges, benefited from a presumption in their favour that could

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not be lightly rebutted (paragraph 166). The judges of the High Court andthe Supreme Court were considered qualified and experienced and inpossession of the necessary skills to handle a transferred case(paragraph 178). Furthernore, the Rwandan legal framework guaranteed theindependence and impartiality of the judiciary (paragraph 186). Thesubmissions made in the case by the defence and by amici curiae in supportof their contention that the judiciary lacked those qualities in practice, in theChamber's opinion, mainly concerned cases of a political nature and did notreflect the conditions of the trial or the charges faced by the accused(paragraph 196). In addition, the information available to the Chamber didnot give reason to conclude that the judiciary was unduly comrpt(paragraph 185).

59. In respect of most of the above issues, the Chamber noted that therewere additional safeguards in the monitoring and revocation mechanismsavailable under Rule 1I bis. It requested the African Commission onHuman and Peoples' Rights ("ACHPR"), which had already agreed to thearrangement, to monitor Mr Uwinkindi's trial in Rwanda and declared thatthe Commission should bring to the attention of the ICTR President anypotential issues that may arise throughout the course of the proceedings(paragraph 213). The Chamber also emphasised that it was authorised torevoke the case from Rwanda as a last resort if necessary $taragraph2lT).

60. The Chamber ended its decision with the following conclusion (atparagraphs 222-225):

"Upon assessment of the submissions of the parties and the amici curiae, theChamber has concluded that the case of this Accused should be referred to theauthorities of the Republic of Rwanda for his prosecution before the competentnational court for charges brought against him by the Prosecutor in the Indictment. Inso deciding, the Chamber is cognizant that it is taking a view contrary to the viewstaken about two years ago by Referral Chambers of this Tribunal where uponassessment of the facts before them, they concluded that those cases should not bereferred to Rwanda.

This Chamber notes that, in the intervening period, Rwanda has made materialchanges in its laws and has indicated its capacity and willingness to prosecute casesreferred by this Tribunal. This gives the Referral Chamber confrdence that the case ofthe Accused, ifreferred, will be prosecuted consistent with internationally recognisedfair trial standards enshrined in the Statute of this Tribunal and other human rightsinstruments. The Referral Chamber is persuaded to refer this case after receivingassurances that a robust monitoring mechanism provided by the ACHPR will ensurethat any material violation of the fair trial rights of this Accused will be brought to theattention of the President of the Tribunal forthwith so that remedial action, includingrevocation, can be considered by this Tribunal, or if applicable, by the ResidualMechanism.

The Referral Chamber is cognizant of the strong opposition mounted by the Defenceand certain amici cuiae to the proposed referral. The Chamber, however, considersthat the issues that concemed the previous Referral Chambers, in particular, theavailability ofwitnesses and their protection, have been addressed to some satisfaction

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by Rwanda in the intervening period and that any referral with robust monitoringwould be able to address concerns that the Defence and the arnici have expressed.

Before parting with this Decision, the Chamber expresses its solemn hope that theRepublic of Rwanda, in accepting its first referral from this Tribunal, will actualise inpractice the commitments it has made in its filings about its good faith, capacity andwillingness to enforce the highest standards of intemational justice in the referredcases."

61. The Referral Chamber's decision has been appealed against to theICTR Appeals Chamber.

F. Decisions on extradition to Rwanda from national jurisdictions

L France

62. Several requests by the Government of Rwanda for the extradition ofpersons suspected of various counts of genocide, crimes against humanity,mnrder or rape have been refused by the French courts. On23 October 2008the Court of Appeal of Toulouse declined to order extradition in the case ofBivugarabago. Following the ICTR's approach in Munyakasi andKanyarukiga, the Toulouse court considered that a Rwandan ffibunal wouldbe sufficiently independent and impartial, but that it would not guarantee afair trial, in particular with regard to the appearance and protection ofdefence witnesses. Similar concems led to extradition requests beingrefused by the Court of Appeal of Mamoudzou (in the French overseasdepartrnent of Mayotte) on 14 November 2008 in the case of Senyamuhara,by the Court of Appeal of Paris on 10 December 2008 in Kamali and by theCourt ofAppeal ofLyons on 9 January 2009 in Kamana. The Lyons courtreiterated the problems concerning defence witnesses and also found thatthe possible punishment of imprisonment for at least 20 years in isolationcontravened French public order as well as Article 3 of the Convention.

63. More recently, the appellate courts of Versailles and Bordeaux, on15 September and 19 October 2010 respectively, refused extradition toRwanda in the cases of Rwamucyo and Munyemana. The Versailles courtfound that the crimes of genocide with which Mr Rwamucyo was chargedwere not punishable under Rwandan law at the time when they wereallegedly committed and that the "ordinary crimes" listed in the extraditionrequest fell under a ten-year statute of limitations. The court further hadregard to the May 2010 arrest and detention in Kigali of American attorneyPeter Erlinder, defence counsel for several Rwandan suspects, on charges of"genocide denial" and concluded that Mr Rwamucyo, if extradited, wouldnot benefit from fundamental procedural guarantees and the protection ofthe rights of defence.

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2. Gerrnany

64. Relying on the reasons for the refusals of the ICTR to transfer casesto Rwanda, an appellate court in Frankfurt/Main, on 3 November 2008,dismissed the requests for extradition of two genocide suspects, CallixteMbarushimana and Onesphore Rwabukombe.

3. Finland

65. On 20 February 2009 the Finnish Ministry of Justice refused toextradite Frangois Bazararnba, a former Rwandan pastor, to Rwanda to faceprosecution for genocide and murder. The Ministry referred to several ICTRdecisions and their conclusion that the right to a fair trial, in particular theright of the defence to call and hear witnesses, could not be guaranteed inRwanda. According to the Ministry, it had neither any reason to questionthe conclusions of the ICTR nor any grounds to assess the prevailingcircumstances in Rwanda any differently than the ICTR. As Finland, byacceding to the European Convention, had committed itself to guaranteeinga fair trial to persons within its jurisdiction, the Ministry was of the viewthat Finnish authorities could not, through their own actions, contribute to atrial in a foreign State which raised justified concerns as to whether the trialwould be conducted in a fair marurer.

66. Instead, on 1 June 2009, Mr Bazaramba was charged with genocideand murder before the Finnish courts, on the basis of universal jurisdictionlaid down in Firurish law. The trial began in September 2009 and, on1l June 2010, after hearing witnesses in Finland, Rwanda and Tanzania, thePorvoo District Court found Mr Bazaramba guilty of genocide and ofhaving murdered or incited others to murder at least five persons. An appealhas been made against the conviction.

4. United Kingdom

67. In August 2006 the Government of Rwanda issued arrest warrants onsuspicion of genocide in respect of four men residing in the UnitedKingdom. Following an extradition hearing before the City of WestminsterMagistrates Court, District Judge Evans, on 6 June 2008, sent the matter tothe Secretary of State who, on 1 August 2008, signed orders that the foursuspects be extradited to Rwanda for genocide proceedings. Appeals weremade to the High Court against the judge's decision and the Secretary ofState's orders.

68. On 8 April2009 the High Court (Lord Justice Laws and Lord JusticeSullivan) delivered its judgment (Brown and others v. the Government ofRwanda and the Secretary of State for the Home Departmenr). While it didnot contest that there was a prima facie case against all four appellants, onthe principal issue of whether they would receive a fair trial in Rwanda itsassessment of the facts and evidence differed sharply from that of the

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District Judge. The High Court stated (at paragraphs 24 and 33) that thelegal test for the fair trial issue - under Article 6 of the Convention - was"whether the appellants would suffer a real risk of a flagrant denial ofjustice if they were extradited for trial in Rwanda". While the District Judgehad correctly stated that the burden of proving that there was such a riskrested with the defence, he had erred in concluding that the appellants had toprove this on the balance of probabilities. According to the High Court, thiswas not the accurate meaning of "real risK'; rather, the term implied "a riskwhich is substantial and not merely fanciful; and it may be established bysomething less than proof of a 5lo/o probability", thus the same approach asthat taken in refugee cases (paragraph 34).

69. As to the merits of the issue of fair trial, the High Court referredextensively to the conclusions drawn in the ICTR transfer decisions. Itnoted that there was no specific provision in the procedural law of Rwandafor witnesses to give evidence via video-link and that, in the circumstances,there was at least a substantial risk that such facilities would not beavailable. Thus, the High Court found it likely that the appellants would beunable to call supporting witnesses who declined to give evidence in personout of a professed fear of reprisals (paragraphs 64-66). Furthermore, havingregard, inter alia, to a report by Human Rights Watch of July 2008 and thetestimony given by three expert witnesses, the High Court concluded thatthere was evidence of judicial interference by the Rwandan executive andthat the appellants would suffer a flagrant denial of justice also in regard tothe judiciary's impartiality and independence (paragraphs lI9-l2I).Accordingly, the appeals of all four appellants were granted and theirextradition denied. Thev were released from detention and cannot be triedby the UK courts.

5. Switzerland

70. By a decision of I July 2009, the Swiss Govemment refused toextradite Gaspard Ruhumuliza, a former Rwandan minister, to Rwanda.

6. United States

71. Following the refused request for a stay of deportation by the UnitedStates Supreme Court on 4 November 2010, the U,S. Immigration andCustoms Enforcement, on 26 January 2011, proceeded to deportJean-Marie Vianney Mudahinyuka to Rwanda to face trial on genocidecharges.

7. Norway

72. On 11 July 2011 the Oslo District Court granted a request forextradition to Rwanda of Charles Bandora, another genocide suspect. It firstnoted that there were reasonable suspicions against Mr Bandora for the

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crimes with which he was charged. It also considered that there was noreason to assume that, if extradited to Rwanda, he would be subjected topersecution that would threaten his life or freedom or otherwise be of aserious character. The court noted that the Norwegian police (as well as,apparently, Mr Bandora's counsel) had visited the Mpanga Prison (where, ifconvicted, Mr Bandora would be incarcerated) and had found that theconditions there, including medical care, corresponded to internationalstandards - a conclusion that had been shared by the ICTR. Mr Bandorawould also be able to receive regular visits from his family in Rwanda. Thecourt thus concluded that the extradition would not run counter tohumanitarian considerations orArticle 3 of the Convention.

73. As to the main issue in the case - the faimess of the trial in Rwanda- the Oslo court noted that improvements had been made in recent years toRwandan legislation and administration - including the wibress protectionprogrammes - in an attempt to meet international fairtrial requirements.While Mr Bandora's counsel had claimed that problems persisted in practicein regard to the independence of the judiciary and the equality of arms, thecourt found that the legislative and other changes, as well as the possibilityfor observers to follow the bial, meant that there was no real risk that thetrial would be unfair. There was thus reason to reach a different conclusionthan that drawn in earlier ICTR fransfer decisions and in the judgment of theUK High Court. The court also took into account that the Norwegian policehad made ten investigative visits to Rwanda since September 2009 and hadinterviewed a total of 149 wifiresses in the country in regard to four differentcases. According to the report of the police, there had been no indicationthat the witnesses * whether testifying for or against the suspects in question- had been influenced or instructed by the Rwandan authorities to giveparticular statements or that they had been threatened in any way. Nor hadany of the witnesses expressed a fear of the authorities or a reluctance togive testimony to the Norwegian police. In the court's view, these findings- together with the Rwandan witness protection guarantees and thealternative ways of giving testimony in cases transferred to Rwanda -indicated that Mr Bandora's fear that witresses would refuse to givetestimony on his behalf if his case were to be tried in Rwanda was notsufficiently justified.

74. The Oslo court further found that the ICTR Referral Chamber'sdecision in the case of Uwinkindi had to be accorded great weight, inparticular due to the ICTR's knowledge of the conditions in Rwanda andsince the threshold was higher for transfers from the ICTR (the chamber hadto be satisfied that the accused would receive a fair trial) than forextraditions examined under Article 6 of the Convention (which wereimpermissible only if there would be a "flagrant denial of justice"). Whilethe court noted that the Referral Chamber had taken into account themonitoring it had ordered and the revocation mechanism it had at its

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disposal, the court stressed that the chamber had considered revocation onlyas "a remedy of last resort" and that it had generally been satisfied that thematerial changes in Rwandan legislation would render the trial fair.

75. Mr Bandora has appealed against the decision.

THE LAW

I. ADMISSIBILITY

76. The Court considers that the application is not manifestly ill-foundedwithin the meaning of Article 35 $ 3 (a) of the Convention. It further notesthat it is not inadmissible on any other grounds. It must therefore bedeclared admissible.

II. MERITS

A. Alleged violation of Article 3 of the Convention

77. The applicant complained that his extradition to Rwanda, to standtrial for charges of genocide, would violate Article 3 of the Convention,which reads as follows:

"No one shall be subjected to torture or to inhuman or degrading treatment orpunishment."

1. The submissions of the parties

(a) The applicant

78. The applicant claimed that he was suffering from heart problems andwould have to undergo heart bypass surgery in a few years. There was aserious risk that he would not be able to get that surgery in Rwanda. He alsoclaimed that he risked persecution because he is a Hutu.

79. Moreover, the applicant asserted that the conditions in Rwandandetention and imprisonment would violate his rights under Article 3. Hewould face a real risk of torture and ill-treatnent in detention. Further, whilethe Rwandan authorities had stated that he would serve a possible prisonsentence at Mpanga Prison, nothing prevented the Rwandan authoritiesfrom placing him in another prison. The Swedish Government would not beable to take any measures against such a change.

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(b) The respondent Government

80. The Swedish Govemment submitted that it had not beensubstantiated by a medical certificate or any other evidence that theapplicant needed to undergo heart bypass surgery, In any event, it had notbeen shown that his medical condition was serious enough to render anenforcement of the expulsion order conhary to the Convention. TheGovemment further pointed out that the applicant had not invoked anyspecific circumstances in support of his allegation that he ran the risk ofpersecution due to his ethnicity. In the Government's view, the generalsituation in Rwanda did not lend itself to concluding that people of Hutuorigin risked being subjected to treatment contrary to Article 3 solely on thebasis of their ethnicity.

81. As regards the prison conditions in Rwanda, the Governmentreferred to the Rwandan arrest warrant of 17 July 2008 and the extraditionrequest of 4 August 2008, in which Rwanda "guaranteed" that, if theapplicant were to be arrested, detained or imprisoned following extradition,he would be placed in a prison that met international skndards (seeparagraph 14 above). They also referred to information from the SwedishOffice for Development Cooperation, according to which the conditions indetention centres and prisons for this specific type of arrested or convictedperson were assessed as good or very good and that these detainees were theRwandan Government's highest priority. Rwanda was expected to givethese detainees the best possible care due to the great interest from theinternational community. The Swedish Office for Development Cooperationhad also asserted that genocide convicts coming under the Transfer Lawwould serve their sentences in the newly built Mpanga Prison. Itsinternational section contained 26 individual cells built in accordance withinternational standards, as confirmed by the ICTR as well as the SpecialCourt for Sierra Leone (which had recently decided to allow eight peopleconvicted of war crimes to serve their sentences at that prison). TheGovernment further submitted that a temporary transfer facility, which alsomet international standards, had been set up at Kigali Central Prison.Moreover, they pointed out that, following legislative changes, the applicantcould not be sentenced to life imprisonment in isolation. Finally, noting thatthe applicant had only alleged a risk of torture or ill-treafrnent in generalterms, the Government held that their investigation did not point to any factssuggesting the occurrence in Rwanda of systematic or state-sanctionedtorture or inhuman treatnent of crime suspects or convicted offenders.

(c) The third-party intervener

82. The Netherlands Government submitted that, while there had beeninternational criticism of the conditions in the ordinary Rwandan prisons,genocide suspects and convicts were to be detained in the Mpanga Prison,

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which fully complied with international standards and which currentlyhosted persons convicted by the Special Court for Sierra Leone.

2. The Court's assessment

(a) The relevant principles

83. The Contracting States have the right, as a matter of well-establishedinternational law and subject to their treaty obligations, including theConvention, to control the entry, residence and expulsion of aliens (see,among other authoities, Vilvarajah and Others v. the United Kingdom,judgment of 30 October 1991, Series A no. 215, p. 34, g 102).

84. It is the settled case-law of the Court that extradition by aContracting State may give rise to an issue under Article 3, and henceengage the responsibility of that State under the Convention, wheresubstantial grounds have been shown for believing that the person inquestion would, if extradited, face a real risk of being subjected to treatrnentcontrary to Article 3 in the receiving country. The establishment of suchresponsibility inevitably involves an assessment of conditions in therequesting country against the standards of Article 3 of the Convention.Nonetheless, there is no question of adjudicating on or establishing theresponsibility of the receiving country, whether under general internationallaw, under the Convention or otherwise. In so far as any liability under theConvention is or may be incurred, it is liability incuned by the extraditingContracting State by reason of its having taken action which has - as adirect consequence - the exposure of an individual to proscribed ill-treatment (see Soering v. the United Kingdom, judgment of 7 July 1989,Series A no. 161, pp. 35-36, 0g 89-91, and Mamatkulov and Askarovv. Turkey [GC], nos. 46827199 and 46951199, ECHR 2005-I, g 67).

85. It would hardly be compatible with the "common heritage ofpolitical traditions, ideals, freedom and the rule of law" to which thePreamble refers, were a Contracting State knowingly to surrender a personto another State where there were substantial grounds for believing that hewould be in danger of being subjected to torture or inhuman or degradingtreatment or punishment (see the above-cited Soering, pp. 34-35, $ 88, andMamatkulov and Askarov v. Turkey, $ 68),

86. In determining whether substantial grounds have been shown forbelieving that a real risk of treatment contrary to Article 3 exists, the Courtwill assess the issue in the light of all the material placed before it or, ifnecessary, material obtained proprio motu. If the applicant has not beenextradited or deported when the Court examines the case, the relevant timefor the assessment of the existence of such a risk will be that of theproceedings before the Court (see Chahal v. the United Kingdom,judgmentof 15 November 1996, Reports of Judgments and Decisions 1996-Y,

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p. 1856, $$ 85-86, and Marnatkulov and Askarov v, Turkey, cited above,$ 6e).

87. Furthermore, ill-treafrnent must attain a minimum level of severity ifit is to fall within the scope of Article 3. The assessment of this minimum is,in the nature of things, relative; it depends on all the circumstances of thecase, such as the nature and context of the treatment or punishment, themanner and method of its execution, its duration and its physical or mentaleffects (see the above-cited Vilvarajah and Others, p. 36, $ 107, andMamatkulov and Askarov v. Turkey, $ 70). Allegations of ill-treatment mustbe supported by appropriate evidence (see, mutatis mutandis, Klaasv. Germany, judgment of 22 September 1993, Series A no. 269, pp. 17-18,$ 30).

88. Aliens who are subject to removal cannot, in principle, claim anyentitlement to remain in the territory of a Contracting State in order tocontinue to benefit from medical, social or other forms of assistance andservices provided by that State. The fact that the applicant's circumstances,including his life expectancy, would be significantly reduced if he were tobe removed from the Contracting State is not sufficient in itself to give riseto breach of Article 3. The decision to remove an alien who is sufferingfrom a serious mental or physical illness to a country where the facilities forthe treatment of that illness are inferior to those available in the ContractingState may raise an issue under Article 3, but only in a very exceptional case,where the humanitarian grounds against the removal are compelling. In thecase of D. v. the United Kingdom (udgment of 2 May 1997, Reports ofJudgments and Decisions 1997-IIl) the very exceptional circumstances werethat the applicant was critically ill and appeared to be close to death, couldnot be guaranteed any nursing or medical care in his country of origin andhad no family there willing or able to care for him or provide him with evena basic level of food, shelter or social support (see also N. v. the UnitedKingdom [GC], no. 26565/05, g 42,27 May 2008).

(b) Application ofthe above principles to the present case

89. The Court notes that the applicant has invoked heart problems,stating that he needs to have bypass surgery in a few years. While it appearsthat he had bypass surgery some years ago, no medical certificates havebeen submitted which indicate that he has to undergo such surgery again. Inany event, the threshold for a medical condition to raise an issue underArticle 3 is, as shown by the case-law referred to above, a very high one. Atthis moment, the applicant's heart problems cannot be considered so seriousas to raise an issue under that Article and there are no compellinghumanitarian grounds against his extradition to Rwanda due to his medicalcondition.

90. The applicant has further claimed that he would risk persecution inRwanda because of the fact that he is a Hutu. The Court notes that none of

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the decisions by the ICTR and national jurisdictions refusing transfer orextradition to Rwanda has been based, even in part, on such considerations.Nor has any evidence been submitted or found which gives reason toconclude that there is a general situation of persecution or ill-teatment ofthe Hutu population in Rwanda. Moreover, the applicant has not pointed toany particular personal circumstances which would indicate that he risksbeing subjected to treatrnent contrary to Article 3 due to his ethnicity.

91. Turning to the issue of the conditions of detention and imprisonmentin Rwanda, the Court frst notes that Rwanda's extradition request of4 August 2008 and the letter of 12 August 2009 from the Rwandan Ministerof Justice state that the applicant will be detained and serve a possibleprison sentence at the Mpanga Prison and, temporarily during his trialbefore the High Court, at the Kigali Central Prison. It is true, as pointed outby the applicant, that the Rwandan authorities would be able to place him ina different prison without the Swedish Government having any means toprevent it. However, given the provisions of the Transfer Law and therepeated assurances by the Rwandan authorities, the applicant's observationmust be considered as no more than speculative.

92. The respondent Govemment have submitted that the two mentioneddetention facilities meet intemational standards. This assessment is sharedby, for instance, the ICTR (see $ 53 above), the Netherlands Government($ 82) and the Oslo District Court (which took into account observationsmade by the Norwegian police following visits to the Mpanga Prison; $ 72).The Court has regard also to the fact that the Special Court for Sierra Leonehas sent several convicted persons to the Mpanga Prison to serve theirsentences there. The Special Court must accordingly have found theconditions in the prison to be satisfactory. Moreover, there is no evidence inthe case that the applicant would face a risk of torture or ill-freatment at theMpanga Prison or the Kigali Central Prison.

93. The Court further notes that, pursuant to Article 3 of the DeathPenalty Abolition Law, as amended in 2008, no persons transferred fromother states under the Transfer Law may be sentenced to life imprisonmentin isolation.

94. The Court is mindful of the fact that the ICTR Referral Chamber, inthe Uwinkindi case, accorded certain weight to the regular prison visits to beconducted by the appointed monitors of ACHPR and to their immediatereporting should they discover any matter of concem. Although theRwandan authorities have invited the Swedish Government to monitor theapplicant's detention conditions, this mechanism or guarantee has not beenformalised in the applicant's case and it is not clear whether the SwedishGovernment would actually monitor the applicant's situation in Rwanda.However, in the Court's opinion, the monitoring carried out by the ACHPRmust be seen as merely an extra safeguard and the fact that the ICTR

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ordered such monitoring does not change its general finding that thedetention conditions, as set out in the Transfer Law, were adequate.

95. Thus, in the light of the material before it, the Court is not able toconclude that substantial grounds exist for believing that the applicant facesa real risk of treatrnent proscribed by Article 3.

Consequently, the applicant's extradition to Rwanda would not involve aviolation of Article 3 of the Convention.

B. Alleged violation of Article 6 of the Convention

96. The applicant complained that a trial in Rwanda would amount to aflagrant denial of justice. He relied on Article 6 of the Convention, whichprovides the following:

L In the determination of ... any criminal charge against him, everyone is entitled toa fair and public hearing within a reasonable time by an independent and impartialtribunal established by law. ...

2. Everyone charged with a criminal offence shall be presumed innocent untilproved guilty according to law.

3. Everyone charged with a criminal offence has the following minimum rights:

(a) to be informed promptly, in a language which he understands and in detail, ofthe nature and cause ofthe accusation against him;

(b) to have adequate time and facilities for the preparation of his defence;

(c) to defend himselfin person or through legal assistance ofhis own choosing or,ifhe has not sufficient means to pay for legal assistance, to be given it free when theinterests ofjustice so require;

(d) to examine or have examined witnesses against him and to obtain the attendanceand examination of witnesses on his behalf under the same conditions as witnessesagainst him;

L The submissions of the parties

(a) The oppllcant

97. The applicant maintained that, although Rwanda had introducedlegislative changes aimed at improving the rule of law, there was noevidence that these changes had had an effect in practice. For instance, themajority of the applicant's witresses were living outside Rwanda and werenot willing to travel to the country in order to testi$r. The possibility ofexamining witnesses via video-link had not solved the problem of witnesses

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who were too afraid to come forward. Those who were willing to testify viavideo-link had to sign a statement revealing their residential address andthose who had fled Rwanda did not dare to do so. Furthermore, it was notlikely that this type of testimony would carry the same weight as testimonygiven in court.

98. Another problem facing the applicant if he were to stand trial inRwanda was the lack of qualified lawyers that could defend him.

99. Moreover, the applicant asserted that the Rwandan judiciary was notimpartial or independent from the executive. According to the Organizationfor Peace, Justice and Development in Rwanda ("OPJDR"), a former judgeat the Higher Instance Court of Butare-Rwanda had stated that the applicantwas on a list of Hutu intellectuals against whom a number of prosecutors,still in service, had been instructed to collect and fabricate accusations.

100. The applicant's personal situation was further compounded by thefact that he had given testimony for the defence in several cases that hadbeen or were about to be adjudicated by the ICTR. He was therefore of greatinterest to the Rwandan authorities. Furthermore, as former head of theRwandan Civil Aviation Authority, the ruling party in Rwanda, FPR, mightwant to silence the applicant, believing that he has knowledge of thecircumstances surrounding the shooting down on 6 April 1994 of the planecarrying President Habyarimana.

101. On 17 August 2010 the applicant submitted two copies ofjudgments dated 6 January and 24 May 2008, respectively, allegedly fromgacaca courts in Rwanda, in which the applicant had been found guilty ofhaving destroyed and looted other people's properfy and had been orderedto pay damages. One of the judgments specified that the crimes had beencommitted during the 1994 genocide. The courts had ordered the seizureand public auction of the applicant's house to cover the damages, which intotal equalled about 130,000 US dollars. In the applicant's opinion, thesejudgments showed that sentences had already been passed against him andthat, consequently, he would not get a fair trial in Rwanda.

102. In regard to the decision of the ICTR Referral Chamber of 28 June2011 in the case of Uwinkindi, the applicant pointed out that the decisionwas not final. Moreover, the Referral Chamber had stressed that the natureof extradition and referral proceedings were materially different; whereasthe extraditing State had no control over the trial of the exhadited person,the ICTR retained the power to revoke its decision and had also ordered thereferral pursuant to a stringent monitoring mechanism. In the applicant'sview, it was clear that the Referral Chamber had relied heavily on themonitoring programme, which would ensure that detention conditions weresatisfactory and evaluate the ability for the accused to present his line ofdefence. Both these issues being of concern to the applicant, he pointed outthat the Swedish Government would not exercise any control over the trialafter an extradition. Moreover" even if thev were to receive information

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about violations of his rights, they would not be able take any remedialaction.

(b) The respondent Government

103. The Swedish Government submitted that the Rwandan TransferLaw, as amended in 2009, fulfilled the intemationally accepted minimumrequirements of the rule of law. By amending its legislation, Rwanda hadresponded directly to the criticism expressed by the ICTR and othercountries and international organisations, in particular in regard to itswitness protection system. The amendments had been introduced inMay 2009, thus after the decision of the Finnish Ministry of Justice and thejudgment delivered by the UK High Court, refusing to allow extraditions toRwanda.

104. Of decisive importance were the legislative changes adopted whichallowed the defence to call and examine witresses - in Rwanda orelsewhere - under the same conditions as the prosecution, using variousalternative means of giving testimony, and without there being a risk thatthe witnesses would be prosecuted themselves for anything said or doneduring the trial. In the Government's view, there was no indication thatthese amendments would not be adhered to in practice. According to theSwedish Office for Development Cooperation, international organisationsand foreign missions considered that Rwanda's efforts in witness protectionhad been successful. The Office had also stated that there were no technicalobstacles in Rwanda to the use of video-links. The Government added thattestimony via videoJink was an accepted and commonly used measurewithin international legal co-operation in cases where witnesses were unableto travel to a court and was often a natural consequence of the transfer ofproceedings to other states. Having regard to the alternative ways of givingtestimony and the development of the wifiress protection system, theGovernment held that the applicant's claim that his witresses would not beable to come forward was unsubstantiated.

105. Moreover, among the guarantees in the Transfer Law was the rightto defence counsel, provided for free if the accused had no means to pay forcounsel. The Govemment pointed out that, in their extradition request,Rwanda had stated that all accused persons were informed of their right tocounsel of their choice.

106. The Government further stated that there was no indication that thecourts or proceedings in Rwanda would be biased or lack the impartiality orindependence required in a case ofthe present character. Extradited suspectswere heard by the High Court of the Republic at first instance, with apossibility to appeal to the Supreme Court which, according to the RwandanConstitution, sat with three judges. The Constitution guaranteed judicialindependence and the judiciary's financial and administrative autonomy.The judges were professional and bound by ethical rules. The Government

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pointed out that none of the ICTR Prosecutor's requests for referral toRwanda had been refused due to a lack of independence and impartiality ofthe Rwandan judiciary. The chambers of the ICTR had noted that noevidence had been found to suggest that there was a significant risk that theRwandan Government would interfere in transfer cases before the HighCourt and the Supreme Court.

107. The Government maintained that, as their extradition decision wasnot based on guarantees made by Rwanda but, instead, on an assessmentthat the extradition of the applicant - regardless of guarantees - would beconsistent with Article 6, the issue of monitoring commitments was notrelevant. However, in the letter of 12 August 2009 (see $ 24 above), theRwandan Minister of Justice had confirmed that Swedish authorities werewelcome to monitor and evaluate the conditions of the applicant's detentionor imprisonment in Rwanda as well as his trial. While not considering thatSweden had an obligation to do so under international law, the Governmentstated that, due to the circumstances of the case, Sweden was prepared, ifnecessary, to take measures to monitor the legal proceedings and theapplicant's situation as a detainee.

108. The Government sfressed that, in accordance with the provisions ofthe Transfer Law and the repeated confirmations by the Rwandanauthorities in the applicant's case, the applicant would not be tried in thegacaca courts. The documents from gacaca courts, introduced by theapplicant late in the proceedings, concerned damages, and the applicant hadnot explained the connection, if any, between the acts mentioned in thosedocuments and the criminal acts pertinent to the extradition proceedings. Inthe Government's view, the documents submitted had no bearing on thepresent case.

109. In regard to the decision of the ICTR Referral Chamber in theUwinkindi case, the Govemment submitted that it supported theirobservations regarding the positive developments of the justice system inRwanda as well as their position that the enforcement of the extraditiondecision would not violate the applicant's rights under the Convention.They noted that the standard applied by the ICTR (that the accused shouldreceive a fat trial) was more stringent than the standard applied by theCourt when determining whether an act of extradition is compatible with theConvention.

(c) The third-party intervener

110. The Netherlands Government submitted that, as a strong materialsupporter of the build-up of the Rwandan justice system after the genocide,they had closely witnessed the developments. Furthermore, the Netherlandshad been investigating genocide cases in Rwanda since 2006 and Dutchdetectives, prosecutors and investigating magistrates frequently visitedRwanda for this reason. The co-operation of the Rwandan judicial

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authorities, including on the issue of witness protection, had beenexemplary and there were no indications of interference with theinvestigating teams or with witnesses. The officials never inquired about thewitnesses or about the content of their testimonies.

111. In the opinion of the Netherlands Government, Rwanda had madesubstantial and fundamental progress in furthering the rule of law. Theyreferred to recent legal amendments as well as changes in judicial and legalpractice, including the abolition of the death penalty, the introduction of thepossibility to use remote witness testimony in court and the building of theMpanga Prison. Furthermore, the Rwandan judiciary attached greatimportance to its impartiality and Rwandan ordinary court judges weregenerally - also by their European and ICTR peers - considered to beimpartial.

112. The Netherlands Government pointed out that the decisions torefuse transfers and exhaditions of genocide suspects preceded the changesin the Rwandan justice system. They further stated, in regard to criticismlevelled by, for instance, Human Rights Watch, at the gacaca proceedings,that extradited genocide suspects would not appear before the gacacacourts.

2. The Court's assessrnent

(a) The relevant principles

113. According to the Court's case-law, an issue might exceptionallyarise under Article 6 by an extradition decision in circumstances where theindividual would risk suffering a flagrant denial of a fair trial in therequesting country. The principle was first set out in Soeringv. theUnitedKingdom (cited above, $ 113) and has been subsequentlyconfirmed by the Court in a number of cases (see, for instance,Mamatkulov and Askarov, cited above, $$ 90-91).

114. The term "flagrant denial of justice" has been consideredsynonymous with a trial which is manifestly contrary to the provisions ofArticle 6 or the principles embodied therein (see, among other authorities,Sejdovic v. Italy [GC], no. 56581/00, $ 84, ECHR 2006-II).

115. It should be noted that, in the twenty-two years since the Soeringjudgment, the Court has never found that an extradition or expulsion wouldbe in violation of Article 6. This indicates that the "flagrant denial ofjustice" test is a stringent one. A flagrant denial ofjustice goes beyond mereirregularities or lack of safeguards in the trial procedures such as mightresult in a breach of Article 6 if occurring within the Contracting State itself.What is required is a breach of the principles of fair trial guaranteed byArticle 6 which is so fundamental as to amount to a nullification, ordestruction of the very essence, of the right guaranteed by that Article.

35

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36 AHORUGEZE v. SWEDEN JUDGMENT

116. In executing this test, the Court considers that the same standardand burden of proof should apply as in the examination of extraditions andexpulsions under Article 3. Accordingly, it is for the applicant to adduceevidence capable ofproving that there are substantial grounds for believingthat, if removed from a Contracting State, he would be exposed to a real riskof being subjected to a flagrant denial of justice. Where such evidence isadduced, it is for the Government to dispel any doubts about it (see, mutatisrnutandis, Saadi v. Italy [GC], no. 37201106, $ 129, ECHR 2008-...).

(b) Apptication ofthe above principles to the present case

117. The Court reiterates that, in 2008 and early 2009, the ICTR as wellas courts and authorities of several national jurisdictions refused to transferor extradite genocide suspects to Rwanda due to concerns that the suspectswould not receive a fair trial in that country. The decisions mainly focusedon the difficulties for the defence to adduce wifiress testimony, on accountof the fears of witnesses to appear for fear of reprisals and the risk thatremote defence testimony would not be given the same weight by the courtsas evidence for the prosecution given in person. While the ICTR found noreason to criticise the impartiality and independence of the Rwandanjudiciary or the composition of the courts, the UK High Court concludedthat there was evidence of judicial interference by the Rwandan executive.Several decisions also found that the possibility of life imprisonment inisolation constituted an impediment to transferring the suspects to Rwanda.

118. Since these decisions were taken, several amendments have beenmade to the Rwandan legislation. The respondent Government and thethird-party intervener have submitted that there have been additionalimprovements in legal practice. Consequently, it needs to be determinedwhether these changes are sufficient to conclude that, if the applicant is nowextradited to Rwanda, he would not be subjected to a real risk of a flagrantdenial ofjustice.

119. As noted above in regard to the applicant's complaint underArticle 3, he cannot be sentenced to life imprisonment in isolation (see$ 93). Thus, this particular issue need not be examined further.

120. The Court considers that the central issue in the present case is theapplicant's ability to adduce witnesses on his behalf and obtain anexamination of testimony by the courts that reasonably respect the equalityof arms vis-d-vis the prosecution.

l2l. As regards the fears of reprisals that the applicant's witnesses mayhave, it is, as noted by the ICTR in Uwinkindi, not determinative whetherthose fears are reasonable or well-founded but rather whether there areobjective reasons to believe that witnesses would refuse to come forward. Inthis respect, the Court first notes that, through a May 2009 amendment toArticle 13 of the Transfer Law, witnesses - as well as other participants inthe proceedings - are afforded immunity from prosecution for statements

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AHORUGEZE v. SWEDEN JUDGMENT 37

made or actions taken during a ffial. Furthermore, in addition to the witnessprotection programme previously in existence under the auspices of theOffice of the Prosecutor-General ("VVVSU"), Rwanda has recently madearrangements for an additional witness protection unit under the direction ofthe judiciary ("WPLI'). The Court also takes into account the submissionsmade by the Netherlands Government, according to which, during Dutchinvestigations of genocide cases in Rwanda, the Rwandan officials hadnever inquired about the wifiresses or their statements. Similar assessments,recorded in the Oslo District Court's judgment of ll July 2011, had beenmade by the Norwegian police after having interviewed 149 witnesses inRwanda since September 2009.

122. Furthennore, the introduction of Article 14 bis of the Transfer Lawprovides for the possibility of witnesses residing outside Rwanda to givetestimony through the use of several alternative means, without having toappear in person at a trial. Besides the possibility of making depositionsbefore a judge in Rwanda or abroad, the most important development isperhaps that the law now provides for the hearing of witnesses during thetrial via video-link. Already in its first referral case, Munyakazi, the ICTRAppeals Chamber was satisfied that video-link facilities were available andwould likely be authorised in cases where witnesses residing abroadgenuinely feared to testifu in person. In the present case, the respondentGovernment have submitted that there are no technical obstacles to the useof video-links in Rwanda. In this connection, the Court reiterates that it haspreviously held that the use of video-link testimony is as such in conformitywith Article 6 (see, for instance, Kabwe and Chungu v. the United Kingdom(dec.), nos.29647108 and 33269108,2 February 2010). Furthermore, in viewof the legislative changes providing for altemative ways of givingtestimony, the Court cannot find any basis for concluding that statementsthus made would be treated by the courts in a manner inconsistent with therespect for the equality of arms.

123. In conclusion, the Court finds no reason to conclude that theapplicant's ability to adduce wibress testimony and have such evidenceexamined by the courts in Rwanda would be circumscribed in a mannerinconsistent with the demands of Article 6.

124. The applicant has further claimed that there were no qualifiedlawyers able to defend him in Rwanda. The Court finds that this claim isunsubstantiated. It appears that the applicant would be free to appointforeign defence counsel. More importantly, reference is made to thedecision in the Uwinkindi case, where the Referral Chamber noted, interalia, that many members of the Rwandan Bar had more than five years'experience, that Rwandan lawyers were obliged to provide pro bonoservices to indigent persons and that there was a legal framework as well asa budgetary provision for legal aid.

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38 AHORUGEZEv. SWEDENJUDCMENT

125. Turning to the independence and impartiality of the Rwandanjudiciary, the Court takes note of the concerns expressed by someinternational organisations as well as the UK High Court. However, in itsreferral cases, the ICTR has concluded that the Rwandan judiciary meetsthese requirements. In Uwinkindi, the Referral Chamber considered that thejudges of the High Court and the Supreme Court were qualified andexperienced and in possession ofthe necessary skills to handle a transferredcase. Furthennore, both the ICTR and the respondent Government havepointed to the legal and constitutional guarantees of the judiciary'sindependence and impartiality. The experience of the Dutch investigativeteams and the Norwegian police - that Rwandan authorities had not in anyway interfered with their work or with the witresses they heard - points inthe same direction. The Court therefore concludes that there is no sufficientindication that the Rwandan judiciary lacks the requisite independence andimpartiality.

126. As to the applicant's personal situation, the Court finds that it hasnot been substantiated that his trial would be conducted unfairly because ofhis having given testimony for the defence in trials before the ICTR orbecause of his former position as head of the Rwandan Civil AviationAuthority. Furthermore, in regard to the decisions allegedly taken by gacacacourts in 2008, the Court first notes that they were invoked only inAugust 2010, more than two years after their date of issuance and more thana year after the introduction of the present application. Even assuming thatthey are genuine, the Court notes that they relate to damages that theapplicant had been ordered to pay as compensation for having destroyed andlooted property. It has not been shown that there is a connection between theacts for which he was ordered to pay damages and the acts covered by thecharges in Rwanda's extradition request. Moreover, according to theprovisions of the Transfer Law and the statements made by the Rwandanauthorities in connection with the exhadition request, extradited genocidesuspects - including the applicant - will have their criminal liability tried bythe High Court and the Supreme Court and not by the gacaca courts.

I27. The Court has in the foregoing referred to the ICTR ReferralChamber's decision rn Uwinkindl. While noting that the decision is notfinal, the Court nevertheless considers that its conclusions have to be givenconsiderable weight. It is the first transfer decision taken by the ICTR sincethe legislative changes in Rwanda. The Chamber found that the issues thathad led to the decisions in 2008 to refuse transfers had been addressed tosuch a degree in the intervening period that the Chamber was confident thatthe accused would be prosecuted in a maruler consistent with internationallyrecognised fair trial standards enshrined in the ICTR Statute and otherhuman rights instruments. While the Chamber also relied on the monitoringit ordered and its ability to revoke the transferred case if necessary, this doesnot, as noted above in regard to the complaint under Article 3, change the

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AHORUGEZE v. SWEDEN ruDGMENT

conclusions drawn. In this connection, the Court notes that Sweden hasdeclared itself prepared to monitor the proceedings in Rwanda and theapplicant's detention.

I28. It must also be emphasised that the decision to transfer Uwinkindifor trial in Rwanda was made pursuant to Rule Il bis of the Rules ofProcedure and Evidence of the ICTR which, among other things, stipulatethat the referring chamber must be satisfied that the person in question willreceive a fair trial in the courts of Rwanda. The standard thus establishedclearly set a higher threshold for transfers than the test for extraditions underArticle 6 of the Convention, as interpreted by the Court.

129. In conclusion, having regard to the above considerations, the Courtfinds that the applicant, if extradited to stand trial in Rwanda, would notface a real risk ofa flagrant denial ofjustice.

Consequently, the application does not reveal a violation of Article 6 ofthe Convention.

III. RULE 39 OF THE RULES OF COURT

130. The Court reiterates that, in accordance with Article 44 S 2 of theConvention, the present judgment will not become final until (a) the partiesdeclare that they will not request that the case be referred to the GrandChamber, or (b) three months after the date of the judgment, if refenal ofthe case to the Grand Chamber has not been requested, or (c) the Panel ofthe Grand Chamber rejects any request to refer under Article 43 of theConvention.

l3l. It considers that the indication made to the Government underRule 39 of the Rules of Court must remain in force until the presentjudgment becomes final or until the Panel of the Grand Chamber of theCourt accepts any request by one or both of the parties to refer the case tothe Grand Chamber under Article 43 of the Convention (see F.1{ v. Sweden,no. 32621106, $ 107, 20 Janvary 2009).

FOR THESE REASONS, THE COURT UNANIMOUSLY

L Declares the application admissible;

2. Holds that the applicant's extradition to Rwanda would not involve aviolation of Article 3 of the Convention;

3. Holds that the extradition would not involve a violation of Article 6 ofthe Convention:

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40 AHORUGEZE v. SWEDEN JUDGMENT

4. Decides to continue to indicate to the Government under Rule 39 of theRules of Court that it is desirable in the interests of the proper conduct ofthe proceedings not to extradite the applicant until such time as thepresent judgment becomes final.

Done in English, and notified in writing on 27 October 2011, pursuant toRule 77 $$ 2 and 3 of the Rules of Court.

Claudia WesterdiekRegistrar

Dean SpielmannPresident

4e229

Annex B

z3TTra n s lat e d fro m Nor-vve g ian

OSLO DISTRICT COURT

Pronounced:

File no.:

Judge:

The caseconcerns:

11.07.2011

11-050224ENE-OT|R/01

District Court Judge Axel Slettebse

NCIS Norway

vs.

Charles Bandora

Police Prosecutor Marit Formo

Defence Counsel Harafd Stabell

-;-,^anslatir' I:NCIS:.

' , ' : ' : t

No limitations on public disctosure

Trans lated from No rwe gian

DECISION

LCIS- {9*ay, represented by Police Prosecutor Marit Formo, has by endorsement of l7March 20ll to oslo District iourt submitted an application purruun, to the Extradition Actsection !7 ' cf , chapter l, that a decision be pronounced that the conditions are met for theextradition of

Charles Bandora, born on Z4.0g,lgi4,cunently in custody on remand at Ullersmo prison,

to Rwanda for criminal prosecution, cf. the Extradition Act section l0 no. 2. We refer tothe extradition request from Rwanda (police doc. 09) which concems criminal offencescommitted during the genocide in Rwanda in l994.in extradition ,"qurr, has been issuedagainst charles Bandora on grounds of genocide, crimes against humanity andparticipation in a criminal group with thi intention of harniing p*pl" and their property.The prosecuting authoritiei are of the opinion that the conditiins for extraditing'tutr'---'Bandora to Rwanda hlye leen met with respect to the criminal acrs listed in Nbts, ChargeSheet of 1 5 March 201 1 . They apply to violations of the penal Code section 233 first andsecond subsections for wilfully and under especially aggravatin! .ir"u111rrun.""h;;l;;

caused another person's death.

The.basis is the followins:In the periodfrom April to June )994, daring the genocide in Rwanda, hc killed or was an accessoryto the kilkng of a cowiderable number of peopte irom rn, trntiiilp Tutsi at dffirent places inN g enda muni c ip a lity, inc ludi ng :

l' on7 Apr, Igg4, a poriceman named c-arixte Kayiranga, €ailixte Kayirangawas killedwith_a manchete by personsfrom the Interaian , iitrtio oran,

^ so-Aiers from the amry outside Mr Bandara,s house in Ruhuha,2' On 7 April 1994, a soldier with an unknown identity. Thc sotdier was kiltcd by persow fromthe Interahamwe militia and/or soldiers from the o;"y o";t;i;;r in the vicinity of MrBandora's house in Ruhuha.3' lround 7 Apfl 1994' Ezechiel Mugenzi. Ezechiel Mugenzi was killed outside Mr Band.ora,shouse by persons from the Interahamwe militia anuoi soiaieiiyrom the army,4' lroundT Apr, 1994, Qracien Murangira and4 otherfamityienuerc.

Gracien Murangira and- 4 otherfamily members ,rrc itttri'by- p,rrrorc Iro* the Interahanwemilitia and/or soldiers Jrom the army,5. on I j April r9!a--in the city of Ruhuha, approx. 400 persons who had sought refuge inRuhuha church- The refugees were brougii out of thc cnurcn ia-*iuedwith manchetes anrlother weapons on the church premises iy a

-targi .number of perpetrators, including personsfrom the Interahamwe militia and soldie-rs froi the or^y.

' ' -' ' -

The person charged was in vaious ways accessory n the killings nentioned above, among otherthings through:- ordeing killings- planning, prepayation and/or organising the killings,' incitements made in pubtic to kilr personi of the etinic group Tutsi,' training the perpetrators of the kitlings, includtng locaigrot ps of the Interahamwe militia,' various types of assistance provifud to the perpetratoo-o1 n" ulringr, ir"ir;irg ;r;;:;;;"p,of the Interahamwe militia, among others tni"g, by oxring *i ;, of his vehicres andsupplying weapons and fuel,' participation in the erection of road btocks to bcate aul identifu Tutsis who were to bekil led.

---?r

Thp acts commiued by the person charged were premcditated as they were a part of a well-plannedstrategy and a well-considered decision to exterminate the enfire ttini- sr*p Tutsi. There are alsoespeciauy aggravating circumsrances as the person ctnrged, rhrough ifr *rr, participated in a

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33S-Trans late d from Norwe gian

regime and/or extremist groups consisting_ of persons from the ethnic group Hutu, who, in cooperationwith the Interahamwe and Impuzamuganoi mtltttas imnitted c ginocidc which resulted in the killingof approx' 800,M0 people Tle1e kiltings were committed to a giat extent in a particularly gruesomeand painful nnnncr-against defenseless people on the run, i*ioaiig a considerable number ofpregnant womcn, chiMren and elderly people.

Background:charles Bandora is a national of Rwanda. He was anested at oslo Airport Gardermoen on8 June 2010, on the basis-of an Interpol diffusion. After the genocide in Rwanda (epr1-July 1994) he fled Rwanda, and according to the requesr, heiad been evading n*aioanauthorities until he was arrested in Norway. After his arrest, Chartes Bandora has been incustody on remand pending the processing of his extradition application. He has made astatement to the Norwegian police where he denies any involvlment in the genocide inRwanda and the acts described in the extradition r"qu"*t. Mr Bandora maintains that theinformation/facts listed in the extradition request are fictitousArave been made up byRwandan authorities in their intent to take possession of his money and property inRwanda' He admits staying in Ngenda in Rwanda during the genocide and that he on 7April 1994, among other.things, met mayor samuel HatEgeruiiana, who, according to theRwandan authorities, and a number of witnesses in the cai", *as a key figure in theorganisation of the genocide in Ngenda. According to Mr Bandora, thl mLting with themayor only concemed the fact that his shop had bJen robbed the same day. we refer to therendering of the main information from Mi Bandora's statement emerging from theapplication which, in the Court's opinion, is an adequate sunrmary of his statement to theNorwegian police.

The genocide in Rwanda:The genocide in Rwanda took place in the period from 6 April to July 1994.Approximately 800, 000 people are said to have been killed during tlie genocide.According to ICTR's first judgment of 2 september r99g, the Akiyesubase,,,theestimated total number of victims in the conflict varies from 500,000 to t,00b,000 ormore", cf. the reference made to the ICTR judgment on page 10 and I I in the judgmentpronounced by rhe British High court of Justice on s eprifzo09. The numbeiof

-perpetrators who partook has been estimated to approx 300,000 according to theapplication. The genocide was the result of a prot,ongec conflict benpeenihe t1uo t*g.rtethnic groups - the Hutus and the Tutsis - in Rwand-a. The people killed were -ainr!Tittsis andHutus sympathizing with the Tutsis. According lo ttie apptication, extremisrI1y*, at a high political and military level planneo ano ortanirco,n, genocide, while thekillings to a large extent were committed by the Interahaniwe militia and the Rwandanarmy. Interahamwe was rhe youth wing of ihe MRND party, cf. NCIS report ooc. oo,oz.MRND was, according to the report, eitabrished u, u nr* irny i" 1975iyJfvenalHabyarimana who tY"d power in a coup d'drat in 1973, and who developed Rwanda intoa one-party system. The.genocide ranged from isolated killings to massacres of thousandsof people who had sought refuge in aslembly halls, churches,"trospitats ano otr,e, fuuricbuildings. Many people were also killed at road blocks erected throughout Rwanda.

Bringing the perpetators to justice arter the genocideAccording to the application, the triais in the aftermath of the genocide have mainly takenplace in Rwanda, but also in other countries that have accomniodated refugees fromRwanda, refugees who are suspected of having participated in the genocide. Trials havealso taken place at the International criminal iribunal'for Rwanda (ICTR) which hasinvestigated and prosecuted severar ofthe most serious cases.

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Tra nslated from N orwe gian 33rl'

In Rwanda the criminal cases have been brought both before the ordinary courts and theGacaca courts, whigl-r, according to the applicition, were "r,ubtirh"d

by the Rwandanauthorities in in 2Cf/2, and which, according to information submitted to the Court, was areintroduction of a traditional Rwandan peJple's court passing sentences at a local level inboth civil and criminal cases. The gacaca courrs were operational from 20()z to 2010_

The criminal case against Charles Bandora in RwandaThe case against Mr Bandora stafied according to Rwandan authorities with him beinglisted in 2001 among the so-called "category1 perpetrators" {p..ron, suspected of themost aggravated criminal acts during the genocide). rne justidcadon for the list was thefact that the prosecuting authorities at various regional r"urir r.rr asked to collectinf?"T1ti9n about perpetrators in their respective areas, something that happened in theperiod 1994 to 2001. This information constituted the basis for thE hst prepared in ioot.According to the application, the list has subsequently been ieuiseo u, i.uirgory i

--

perpetrators" have been identified or checked-out.

According to the applicatioa,-the case against Mr Bandora was heard before the Gacacacourt in Mr Bandora's local district Ruhuha, and was initially investigated from 2002 to2005' The court cases before the Gacaca courts started in 2005. Mr Bindora was chargedwith several of the killings mentioned in the extradition request, and the case wasprosecuted before a first instance court in September 2008, which according to iheinformation submitted ended with the acquitial of Mr Bando* rrr"iuogrnJnt *u,appealed and heard in the Appeal chamblr of the Gacaca court in october 2009.According to the application, the Appeal Chamber convicted Mr Bandora of genocide andsentenced him to life imprisonment. Additionally, a case against Mr Bandora-was hearobefore the Gacaca court in 2008 which concerned .o*p"nr'ution following plunder anddestruction of property. He w-a_s reportedly sentenced to puy compensation to the aggrievedparties amounting to approx 23 million Rwandan francs. -

If Mr Bandora is extradited to Rwanda, he will, according to the application and provisionsin the Rwandan "transfer law", be entitled to retrial of hiJcase uefo^re tr,e oroinar!-.ounr,in the first instance in the"High Court". Rwandan authorities have therefore set aside thec39u:u j$gment against Mr Bandora. The Rwandan criminal case against Mr Bandora,which will be adjudicated following his possible extradition, will, acJording ro *t ut nu,been stated, not be in contradiction withihe ban on repeated'crinninal prosecution cf. theECHR protocol 7 Anicle4. This is not contested and ihus forms the basis for the Court,sdecision.

The district court's hearingThe Court received the request from NCIS on 23 March 2011. Defence counsel HaraldStabell applied for an-oral hearing in a letter of 25 March 201 I and also argued that he didnot have sufficient information to submit a reply to the applicurion u, he,,had to go toRwanda to makc further en4airies concerning th, "rubiiisionswith respect toyii, trrat(ECHR Article 6) and the.question pertaining to the Extradition Act section 7 and basichumanitarian considerations @CER Article j)". "The main issue will be the possibility ofo.btqiyinq a satffictory.de(nc1,

!:.". fu, respect for the adverseriat principre cf. ECHRArticle 6 no. I letters b), c) and d),', ,'A, regards the ECHR Article 3, it wiil ie necessaryto have a closer look at the prisonfacilities-where Mr Bandora *ig b" nr7 n-r,rii"ir;.The defence counsel informed the court that NCIS ,"prrrrotutiu", *"r" going to Rwandaat the end of May and stay for approximately two weeks, and that Harald Stabell in his

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zz7Translate d from No rwe g ian

capacity as defence lawyer had reserved time- to travel together with NCIS during thisperiod' stabell asked for th_e court's approval to go to Rianda. Foilowing statements froma police prosecutor at NCIS and the Niiionat Proiecutor's office rcptrr"i,rJilriul-uri,Bakkevig, approval was granted in a letter from the court dateo 26.04.2010.In agreementwith the parties' the gral hearing was scheduled for ?1 June20l l. prior to this, NCIS had,by letter of 8 April20l l, stated th at" given the. nature o7 tn, cis, orar hearing may beappropriate". The importance of an oral hearing *u, thu, noi.ont.rr.o.

comments to the extraditio-n request were submitted by the defence counsel on return fromRwanda in his letter of 14 June lot t. tn this letter, h";haile"g"s that the conditions forextradition are met. The main claim/argument is that extraditi6n to Rwanda would imply areal risk for serious violation of the ECHR Article 6, and that extradition therefore couldnot be granted, see below.

In his comment the defense counsel also applied for a deferment of the coufi hearing untilafter the court vacation (after 15 August zbit) to enable ptoirsot peter Erlinder ro bepresent to give a presentation of the court system in Rwanda" with ernphasis on tt,li -

independence of the-courts and the possibiiities for orp,r,riyo, th, oarro*it'princrpb,,.The defence council wanted Erlinder to appear in .ou.i in jerson.

NCIS, represented by police prosecutor Marit Formo, did not consent to a deferment andset out the grounds for her view in detail in her letter of 16 June 2011, which r-., .rpii.l t"by the defence counsel in a letter of 20 June 201 l. Auacheo to lne defence counsel,s mostrecentletter was e'g. the article "The arrest of ICTR Defense counset peter Erlinder inRwanda" in '"The American society of Inte-rnational Law, tnrightr, 1l August 2010, aswell as professor Erlinder's article '"The uN security c""""li?6. Hoc Rwanda Tribunal:International Justice or Juridically-constructed ,'viciors Impunity?,, (all read by theCourt).

The defence counsel's application for deferment of the court hearing was not granted as thecourt found that it had not been documented that a deferment was necessary with respectto obtaining sufficient evidence to try the case. See the Court's letter of 22June 201 l.

An oral hearing was then held on 24 June 201I. charles Bandora did not appear becausehe suddenly fell iil. An application for deferment of the court hearing was not submitted,and the court did not find Mr Bandora's presence necessary. we refer to the court recordfrom the court hearing..]he parties agt"eabeforehand ttratitre cturt trearing should mainlydeal with the "fair rriar issue", to wtrictr the court had no ou.;Lir""r. with respect topresentation of evidence and the conditions for extradition a's such, it was sufficient for theparties to refer to the existing documentation in the case as well u, to tut, Bandora,sstatement to NCIS and the submitted written documentation.

During the court hearing, Police Superintendgnl Kjetil Tunold (lead investigator on theBandora case), testified about his report of 23 JunL zor rpreseni"o ,o ,rp court (and whichthe court stated had been read in advance). Tunold atso tistinJ uuou, enquiries madeprior to the court hearing with respect to the defence counsels notiRrO submissions in anemail of 23 June 201I that "there is a real risk" that tvtr gandora's case will not come upfor trial in many years, risking violation of the ECHR Article o ano tt e right to have hiscase tried within "reasonable time". In this connection, reference was made to the HRW,sreport "Law and Reality" (attachment I to the defence counsel,s comment), page 51, 3.

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paragraph (concerning Enos Kagaba) and information received by the defence counsel thatKagaba's case had.not yet been idiudicated- 6 years after the extradition. This submissionwas not upheld as it, according to the defence counsel ano as ttre.oort "on."luJiicouronot be considered sufficiently justified based on Kjetil runold,s testimony unj r,i,

-enquiries.

The nrose-c,ptor upheld the application and her opinion that the conditions for extraditionwere met' she stated that the ICTRs decision with respect to "The eto.".utoi;, nrquest forthe referral of the case of Jean-Bosco uwinkinai to [iuanoa pursuanr to Rule I I Bis,,(presented in the case), was expected in the near future and ivoutd be forwarded to thedistrict court as soon as the decision was made. There were no comments to this.

The defe$cp counsel maintained, in line with his written submissions, that the conditionsfor extradition were not met as the extradition of charles Bandora to Rwanda would implya violation of Norway's extra-territorial commitments pursuant to the ECHR Article 6.According to the defence counsel, the supreme court has in its Norwegian supreme courtReport 2ffi7 page 1453.set a requiremeniwh_ich is too rtri.i(lobjective indicarions,,) as tohow immediate the serious violation of ECHR Article o must Le in order to refuseextradition' The requirement is, however, met given the serious weaknesses with respect tothe courts independence and the limited respeci for the adverserial principle in Rwanda.However, defence councel argues that the requirement rot'ol;".tiue indications,,is not inline wirh rhe norm defined uy *e EHRT in iti judgm.nt so"ri-r,g v. uK and Einhorn v.France' It is sufficient that there is a "real risk of sirious violation of Article 6,,, somethingwhich must be taken into account. In comparison, reference is made to the thoroughdiscussion in a judgment passed by the ur Hign cou.t oiiusti., on 0g.04.2009 page 15 to65' in which the British supreme 6ourt in 2009 concluded that an extradition to Rwandawould constitute a violation of Article 6. However, th; s;;e courr in sweden reachedan opposite decision approximately a week later, but un upp.ur-irus been submitted to theEHRT against the swedish supreme courr judgmenr of ia'.os.zaog.According ro thedefence counsel, an interim miasore (ECHR Aitjcle:gl;as;;ided. Thus, extradition hasnot been carried out. According to the defence counsel, emphasis should be on the Britishjudgment given these circumstinces, and because the discuisions presented in thisjudgment are far more thorough and detailed. Moreover, there is no ,,considereddiscussion" in the Swedish judgment with respect to whether violation of the adversarialprinciple of the ECHR Article 6.3.d is to be considered "a nagrant denial of justice,,.Furthermore, the defence counsel has refened to the fact tnatitre ICTR in a number ofdecisions has refused extradition to Rwanda pursuant to ttr" iuim of procedure andEvidence Articlel I bis, which require ttrat ttri court "shili;;rW itself that the accusedwill receive afair triat-.in the courts of the state concemed". al;rough the norm accordingto ECHR Article 6 is different from th" on" following from Article llDis, the defencecounsel argues that the ICTR's assessments are relevint in respect of the discussions basedon the ECHR, given the considerable source material on which the judgments are basedconceming the conditions in Rwanda. According to the defence counsel, however, theICTR's Appeals Chamber has, contrary to rhe Tlal Chamberi cln"fuOed that the Highcourt in Rwanda is better equipped tguinrt intervention ur trt"'.** system is set withthree judges, as guaranteed in in Mr dandora's case, but the IcrR has so far not refusedextradition with reference to^lack of respect for the uo*tr*iur principte. Furthermore, thedefence counser has, with reference to tle criticim prrr"ntJil;, British judgment ofthe ICTR's Appeals chamber's conclusion,r,ut u puiJ-.onririi"g

"rrr,*e judges would besufficient to guarantee an independent court, argued that a formaicomposition of the High

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court with three judges will not be sufficient to ensure an independent trial in Rwanda1nd9r $e cyrrent political climate. The situation today r,"r noiirnptoved compareJio *tenthe B-ritish judgment was pronounced and the descripiion oiiangiule cases which illusrrateinterference from the executive power. In this ,"rp".t, reretencJis made to AmnesiyIntemational's "Annual Report iOl l, Rwanda", Amnesty International: ,,unsafe to speakour, Resrricrions on FT"loq of Expression in Rwanda ,iorl,H"*^" iiigh;w;"h,"Justice compromised'.The Lrgacy of Rwanda's Communityiased Gacaca courts, 2011(a summary as well as the chapter;'External Interference in 6ecision Making,,),,andAmnesty Internationar, "public satement, 26.rr.zor0,'. The defen.".ounr.iat.gu", trrutthese reports describe a-strong executive power in a country where there is no realdemocracy and where the opposition is oppressed g{ are subject to killings, imprisonmentand threats' Furthermore, reference is made to the ICTR's disiussions in the ICTR,s Trialchamber and the description of the the state of affairs in ttreiudgment passed uy ttre to*e,court judgment, from whiclr it emerges that the Rwandan autiorities denied formerprosecuting counsel at the ICTR, Carla del Ponte, access to her own office in Kigali, thatwitnesses were not allowed to leave Rwanda to go to Arusha to make a statement in the so-called Baglishema case, that Rwandan authorities have reacted very negatively to theassessments made by international players who have criticised trre iunJnt aott oritie., anOthe fact that the Rwandan Parliament decided to request its prosecuting authorities tochalglthe spanish judge Andreu for "denial of the genociol" fottowing the indictment of40 RPF senior members in the spanish courts. The defence counsel argues that there is aconstant pressure on the courts from the executive powers in Rwanda, which is illustratedby the involvement in court cases at the ICTR. Tt e anest oip.t"rro. ana ta*y", ai tr,"IcrR, Peter Erlinder, in Rwanda in March 2010 is un

"*u.pi. lf this. The defence counselhas further submined that extradition will be contrary to ttt"'Ecrm Article 6 based on thelimited respect for the adverserial principle in Rwanda. He has referred to the above-mentioned reports, including Amnesty Intemational's Annua] Report from which itemerges from the paragraph 'Justice System" that "Concerns remained about thewillingness of witnesses to testify, given restrictions on freedom of expression trritughIaws on "genocide ideology"" and Amnesty's statementof 26.1r.200r: ,,problems with thenational justice system in Rwanda, in particular witness protection and the potential

unwillingness of defence witlesses to testify, given restrictions on freedom of expression,means that barriers to transfer identified by thJ ICTR may be difficult to address in theshort-term"' The defence counsel has argued that basic *Luknesses with respect to thepossibilities of submission of evidence based on the_adversariaiprinciple is the reason whythe ICTR does not transfer the accused to Rwanda. It was also the main reason why theHigh Court in Britain reached the same conclusion in 2009. According to the defencecounsel, it is well known that defence witnesses called in genocide cases in Rwanda havebeen killed or subjected to threats, have refused to give a s=tatement or have givenstatements with reservations, fearing reprisals. In this connection, referencefs made toAmnesty International: "Safer to stay silent. The chilling effect oi Rwanda,s laws on -

"genocide ideology" and "sectarianism" ", August 20ro which, among other things, refersto the expert witness at the ICTR, Allison Des Forges, who faced alleg-ations or',g""no.ioeideology" following a conference in Kigali i 200g,-where she had described thedevelopment of the judicial system in Rwanda with respect to ttt" .igl,, of fair trial asinadequate. The defence counsel has also referred to the arrest oi prtff Erlinder in 2010,who.also faced allegations of "genocide ideology" and has ruu*lt,.o that it is notsuprising that ordinary citizens are reluctant to give statements in favour of a personcharged with genocide when leading scientists ind foreign independent defence counselscan be charged with criminal offences for actions whichire a normat part of their

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professional duties. The defence counsel has also argued that Mr Bandora, based on hisknowledge of Rwanda, is sceptical of the possibilitiJs for him to call witnesses in hisdefence, because they witl bsafraid to expose themselves to the risks involved. MrBandora would therefore prefer that the case be tried in Norway, which will ensure that hisopporrunity to submit evidence and call witnesses will be on completely different termsthan in Rwanda' ln Norway witnesses can testify also abroad without fear of repraisals.The defence counsel has submined an application that the conditions for allowing theextradition of Charles Bandora to Rwan-Oi are nor met.

The ICTR Referral Chamber,s decision of 2i iune 20.Ion 28 June 2011 the International criminal rribunal for Rwanda (ICTR) published itsdecision in the uwinkindi case, as notified in advance uy tn, frorouting counsel (seeabove)' The judgment was forwarded to the court the

"rty sai" day as an attachmenr ro

3 gmail with copy to the defence counsel. It emerges froir;; decision rhar rhe ICTRsRefenal chamber (designated under Rule ll bis) Joncluded that the uwinkindi casewould be transferred to the Rwandan authorities for prosecut ion ,,before ,n, ,i^piir,national courtfor ,!yp!t lrought against him by *, proriritor in the Indictment,,, Tlteforwarding of the ICTR's decisi,on ha's not brougtrt uU"ot uny iurther remarks from thedefence counsel.

The Court's assessmentThe court finds that the conditions for the extradition of charles Bandora to Rwandapursuant to the Extradition Act section 17, cf . chapter I for further prosecution .i. ;;Extradition Act, section 10 no. z, are met.The court agr"o *in the arguments on thevarious requirements presented by NCIS in its application.

under the Extradition Act section 3 no. l, extradition can only be effectuated when the acror an act of a similar nature that constitutes the basis for trre apprication is punishable byimprisonment for more than 1 year under Norwegian law.It ii-not.onr"sted that thisrequirement is met. An apptication for the extradition of charles Bandora has beenpresented based on criminal acts which according to nwanoanilgistation are categoriseoas genocide (including being accessory to g€nociie, and .onrpiiu"y (enterprise to commitgenocide), crimes against humanity (including murder -o "xi.r-ination)

and purti.iputionin a criminal group with the intention to harm peopre T9 their froperty. As argued byNcIs, with reference to the book "Extraditionlor punishable oifrn""r,, by GjermundMathiesen, page 226, it.is of no importance whethir the criminal act is categori zed orclassified similarly or differently in Norwegian and Rwandan criminat law. The mainissue, however, is whether the atts to which the application relates, are also punishable inNorway, something which is beyond doubt giveniire seriousness of the charges brought byNcIs' The charges are also representative oi the acts to which th" ,*trudition requestpertains, and they are punishable under Norwegian law. The ."quir"rnrn, for a maximumpenalty (of more than I year) is indisputably met. This is nor contested.

R e as onab le g ro unds fo r s uspi ci onIn the court's opinion, the rbquirement "reasonable grounds for suspicion,, under theExtradition Act section l0 no. 2 second sentence haJarso been met, as stated andthoroughly explained in the application. This requirement is oi itre same nature as the oneset for."reasonable grounds for suspicion" undeithe Criminal proceoure Act section l7l asa requirement for remanding a suspect in custody (cf. Norwegian-supreme cilR;p*,1995 page 1228 andLB-2007-97441). This is not contested. fue-issue at hand is whether

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there is a preponderance of evidence to support the charges against him or not. ln rulingsfollowing previous.remand hearings in the case, oslo oistricicourt has found that there isa preponderance of evidence to suspect Mr Bandora of having committed or being anaccessory to the acts described in extradition application. ThJcourt t"r"rr tolrriiou,rulings, most recently to oslo District court's *ting of 23 lvlay 2011. Neithrip*y rru,submitted any information or presented any argument that could cause the Court to differfrom the District Court's assessment on this point.

A number of wimesses (see interviews submitted in doc I I ) link Charles Bandora to theMRND and to the organisation and planning of the genocide, including organisin! ttremeeting on 7 April 1994, which, according to witneises, was held on p-r"rrir", orin"o uyMr Bandora, and at which the decision to stafi the genocide on the Ttrtsis in the areareportedly was made' Furthermore, witnesses (doc11) have stated that Mr Bandora indifferent settings issuedso-called "hate propaganda" against the Tutsis, both before andduring the genocide, and that he issued oroers-to the lr;erahamwe and also assisted them invarious ways. According to witnesses, he provided the Interahamwe with weapons,uniforms, vehicles, fuel and drink before ind after the killing raids, and he ordered them roset up road blocks. That the MRND was key in the planninglorganising and execution ofthe genocide in Rwanda is not disputed. MiBandoru rtur uitoiulo tlatie for a brieileriodin 1992 was the leader of the MRND branch in Ngenda. He has also admitted that hesupplied food, drink and fuel to the army in the area. However, witness statements(included in doc I l) and information that Mr Bandora played a more active role in MRNDand in the Interahamwe before and during the genocide, indicate that he also played u -o.,c.entr.al rolein the genocide in the municipalityof Ngenda and his home town of Ruhuathan he has been willing to admit. Charlei Bandora'i statement that he witnessed nokillings in Ngenda during the genocide and that he during the genocide drove back andforth between Ngenda and Nyamata, and that he *ur onf occJpied wittr runnin! trls

'

business, does not appear credible in the light ofthe scale and extent ofthe genocide,which included erection of road blocks all over the country at which personi with thestamp "Tutsi" in their ID card and so-called "moderate" Fiutus were stopped and, to a largeextent, killed. Very many Tutsis were killed in the area where Mr nanoora *ur rtuylng.

only in Nyamata Church and the sunounding areas approx. 41,000 Tutsis were killed inthe course of a few weeks' That Mr Bandora-during these weeks was only occupied withthe running of his business and did not witness any kiilings, appears unlikely. In additionto this, the witness statemenrs link him to the indi;iouat c-trargei, as stated in theapplication' For example with respect to the Charge Sheet itJm 3, the murder of EzechielMugenzi, the witnesses Paul Karekezi (doc I l.O3Jand vianney Matabaro (aoc r r.iil,who were both members of the Interahamwe, and according to the information submittedhave confessed to and have been convicted of the murder, liave stated that the murder wasordered by Mr Bandora. charles Manirakiza (doc l r.z), who according to theinformation submitted has also been convicted of the murder, has stated that Mr Bandorastayed in the centre of Ruhuha where his business was located and where the soldiersprotected him. From there they sent members of the Interahamwe to kill Tutsis. withrespect to the Charge Sheet item 4, the murder of Gracien Murangira and four othermembers-of his family, the witness Paul Kareke zi, who accordin j to the informationsubmitted has been convicted of the murder of Gracien Murangir"a and his family, statedthat Mr Bandora ordered them to go and rob and murder Muraigira and his/her iu-lly.With respect to the other charges, the Court refers to ttre apptica?ion and the witnessstatements that link Mr Bandora to the killings as an accessory, including the statements

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made by Cyprien Kayitare and Chantal Mukanurenzi, who were two of the very few whosurvived the massacre of 400 peopte in Ruhuha church on 13 April lgg4, and who havestated that that Mr Bandora took part in the attack on the church. Chantal Mukanurenzibelieved that Mr Bandora was onL of the local leaders of the Interaharnwe, and accordingto the witness Mr Bandora pronounced statements that contributed to starting the slaughter.

Based on the above, the Court finds that this, as a whole, constitutes reasonable groundsfor suspecting Charles Ba1!9ra of being involved in the acts rhat he is charged with. Thecondition set by the Extradition Act section 10 no. 2 second sentence is therefore met.

The condition, set out in the Extra^dition Act sections r, 2, 4, 5 and 6Furthermore, the Court finds, as stated in the application,-that these provisions do notprevent extradition' Charles Bandora is cunenily staying in Norway, he has been chargedwith genocide in Rwanda, he is not a Norwegian nationil, and the acts mentioned in theextradition request are punishable pursuant to the Norwegian penal Code and are not of apolitical nature. There is no reason to believe that there is-any danger that Charles Bandora,if he is extradited to Rwanda, will suffer persecution based on race, religion, nationality,political opinions or other political circumstances directed against his 1ile orliberty orotherwise of a serious nature. Extradition will therefore not 6e in conflict with theExtradition Act section 6. For the Court to deny extradition porruunt to this provision, asstated in the application, {rere must be objective indications of such violations in the eventofa possible extradition. Because the Court cannot find any evidence that such objectiveproof is present [in this case], the Court finds that the application cannot be refused on thisbasis.

concerning the European convention on Human Rights (ECHR) Article 6 and thefairtrial requirement"The Extradition Act must be interpreted and applied under the limitations that followlltm ttr-e Human Rights Act, cf. sections I and

-3-of the Act,', re. Gjermund Mathisen"ExJraditionfor punishable offences" page323: "with this Act, two core pieces of HumanRights Legislation relating to fair trial - ECHR Article O ano tiCpR Arricte 14 - ueincluded."

The ECHR Article 6 reads:

I, In the dctermination of his civil rights and obtigations or of any ciminal chnrge againsthiln, everyone is entitred to afair and pubtic hiaring within a ieasonabre ui uy onindependent and innartia! trtltynar estabrishecr by raw. Jadgment srwlr be pronouncedpublicly but the press and public may be excrudedfrom ailbr pan of th, t roi n tneinterests of morals, pubric ordcr or nationar secuity in a arnbcrotL iriery, *he* neinterests of iuveniles or the p.roteuion of ttu pivati ttp o7 n paiis- ii'rii'uirr, o, tothe extent xrictly necessary in the opinion ojthe court rn speciar circumstances wherepublicitl- would prejudice the interests of juitice.

Everyone chargedwith a ciminar offence shail be presumcd innocent unil proverrguilty according to law.Everyone chargedwith a crininar offence has thefoilowing minimum rights:

to be informed promptry, in a hngwge which he uurerstantls antr in detail, of thenature and cause of the accusation against him;to have adequate time and facitities for the preparation of his defente:

2

3

a

b

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c to defend hinself in person or through legal assistance of his own choosing or, if he hasnot sfficient means n pay for legal assiitance, to be given it free when thJ inierests ofjustice so require;d to emmine or have examinedwitnesses against him and to obtain the attendance andexamination of witnesses on hi.s behalf under the same conditions as winessei igainxhim;e rc have thefree assistance ofan interpreter ifhe cannot understand or speak thelanguage used in court.

The International Convention on Civil and Political Rights (with protocols) Article 14contains similar provisions.

llarsued in the application, and with reference to Norwegian Supreme court Reports2007 page 1453, in order to deny an extradition applicatioi there must be objectiveindications supporting the assumption that the country to which a person is to be extraditedwill fail to comply with international legislation designed to protect the individual,s rightto due process' The Court_cannot ground its ruling on'un rg,irrr.nt, as claimed by thedefense councel, that the Supreme Court has misconstrued 6r misunderstood the norm thatfollows from the European Court of Human Rights's case law *o r,* established too stricrcriteria for the immediacy of the seriousness oflhe violation to ECHR Article 6. In anycase, the Court is bound by the norm that the Supreme Court bases its decisions on. AIso, itfollows from "soering vs' the UK" that the ECHR Article 6 only in exceptional cases canprotect the person charged from extradition: "The Coun does n'ot excludi that an issuemight exceptionally be raised under Article 6 by an extradition decision in circuiiin eswhere the fugitive haslttfferld or risks sufferins aflagrant denial of fair trial in thereqleltilq country". This criterion is, as ciermuno tviathisen writei in'Extradition forpunishable offences" page 324: strictly woided, and"the consequence is that it will takc aIot for an extradition in any given case to represent a breach oj ECHR Anrrb 6-.According to Gjermund Mathisen, recent case law is based"oz the same premise, that thec_riterion is "aflagrant denial of afair tial,,, or ,,aflagrant denial of juitice,,.Based onthe above, the Courtfinds that the requirement for'bbjictive indications,, is not in conflictwith the norm established by the European Court of Human Rights as a condition fordenying extradition with respect to the fair rrial requirement.

Furthermore, it follows from the case law established by the ECHT that it is the personcharged who "carries.the burden of proving that the viilation of his right, oqoir rrathat he has been the victim of, or risr<s becirning the victim of, i, ,,Jlagiant,,, ci.c3ermunoMathisen, page 326, and the references in note 17.Similarly, the Swedish Supreme Court referre d to Einhorn vs. France and other decisionsmade by the Europeang-.oun

9{H,uman Rights in its decision, see page 13, last paragraph.I'e' the burden of proof lies with the person charged if he wishes io ctaim absence of fairtrial in his home country as grounds for refusingixtradition.

Based o1 the changes that Rwanda has made-to its legal system during the last few years,as described in the application, the Court finds tt at tr,i. Banoora has not submittedsufficient proofto support his claim that the application ue reiecteo. The changes havebeen made in order to satisfy the requirements ior a fair trial ihut *e set out in internationalconventions' which before the changes were made prevented exradition to Rwanda.

The defense counsel does not dispute that Rwanda has adopted laws that comply with therequirements of a fair trial or that Rwanda has improved its tegal system. However, thedefense counsel doubts how well these laws will be implemerited and followeo ofio -

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practice given the current realities in Rwanda, in which the requirement for independentcourts and respect for the adversarial principle in reality have not been met.

The court, however, is of the opinion that given the changes that Rwanda has made to itslaws. and legal system, and the guarantee that Rwanda f,uiprouiorc that Mr Bandora willbe given a fair trial if he is extradited to Rwanda, there are no longer any grounds forrejecting the application. This is in line with previous cases J".ic"O by the ICTR and in thejudgment passed by Se British High courtoiJlstice on a npJr 2009. Among orher things,Rwandan authorities have emphasised that Mr Bandora wiil fe tried by tr," oftin*v courrs,i'e' by the High Court in the first instance "by three or *ot" juoges,,, that he will receive anopen and fair hearing by a competent and impartial court, th;t he will be consideredinnoc.ent until proven guilty, that he will havi the right to a lawyer of his own choice, thathe will be allowed to call witnesses in his defence in'the same manner that witnesses willbecalled to testify against him, that he has the right not to incriminate himself, and theright to appeal. Furthermore, a witness protection scheme has been established under thesupervision of the pr.osecuting authority that, according to what is stated by tneprosecution, is described as practical and efficient witi'respecr to reacting to possiblethreats before or during the investigation and/or trial. witnesses receive protection and can,lmolt8 other things, choose to testify via videolink. These rights equally apply to wirnessesfor the prosecution and the defence, and no one can be punisled for statements said oractions taken related to a trial. Rwandan authorities refer to the Transfer Law Article 13,which provides that "no persons shall be criminally liable for unyting said or done in thecourse of a trial" (except for 'tontempt of court and prejury"). This is also true withrespect to the "Genocide ideology" law. Rwandan auno.ities also state that observers willhave permission to follow Mr Bandora's trial, and that the trial itself will be public.

Based on the above, the Court must base its decision on the assumption that Mr Bandorawill be given a fair trial in Rwanda, and that there are at least no "objective indications,, orany real risk of this not being the case. The Court assumes, in accordance with thestatements and guarantees provided by Rwandan authorities, that the court which will tryMr Bandora will be an independent court made up of three (or more) competent judges andthat he will enjoy full rights under the adversarialprinciple.

Pt 99.un also supports itself on the information provided in police Superintendent KjetilTunold's report of 23 June 2009 (sic!) based on aiotat or rO trips to Rwanda to interviewwitnesses that the National Criminal krvestigation Service (Ncis) has canied our from 24September 2009 until today.In a]l, NCIS hai interviewed 149 witnesses in four differentcases during these trips. According to Tunold,s report, at no time have the NCISrepresentatives had the impression or received any indication that any of its witnesses"have been Wuenced or instructed to testify in i particular diiectron. The generalimpression is rather that the witnesses oppro, tyqrepared to testifu to th, ior*rgionpolice and also about what case/person'tiey will'be'astcei to r;;r';fy about,,. ,,No witnesshas ever expressed any fear of the authorities in connection with"the interview,,. withrespect to defense witnesses thar NCIS has interviewed, not one of the witnesses have beenreluctant to testify to the Norwegian police, and: "Nor do we have the impression that theyaJe a{raid to testify for any reason, and we hnue never heard of any threits, reprtsak, etc.that has influenced the testimony in any direction". This information indicates that MrBandora's fear that witnesses will be unwilling to testify if the trial is held in Rwanda iswithout sufficient grounds, particularly due to the changes that Rwanoa has made to itslaws and legal system during the last fer years, includiig the establishment of a witness

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protection scheme, independent courts and the alternative ways witnesses can be allowedto testify.

This assessment is supported by the the Swedish Supreme Court decision of 26 May Z0(I-,and the [cTR's decision to transfer 55 investigated cases to Rwanda for adjudication basedon the positive developments in the country, cf. the press release dated g June 2010 whichpresents the reasons behind the transfer.

Also, the court relies on a recent decision made by the ICTR (Refenal chamber) dated 2gJune 201 I ' in accordance with advance notice given ourin j it "

n"*ing, a copy of whichhas been forwarded to the court, to allow the piosecutor'r"uppti.ution to transfer the trialof Jean uwinkinid t:l"t the_prosecuting authority had filed'charges against) io nwanaa.In the judgment, the ICTR Reflnal chariber discussed and assessed similar objections tothose presented by the defense counsel, Advocate stabell, in Mr Bandora,s favourconcerningthe courts'independence, application ofthe adverserial principle, includingobjections linked to the arrest of Profesior Peter Erlinder in May 2010, and came to theconclusion that extradition could be allowed. From paragrapn sb or trre oeclsi"n fpaJe zslit is evident that the ICTR considers defense witnesies, fear of being ,,falsely,, ur*r?a orgenocide "premature" taking into account the changes that have been made to Artiele 13 ofthe Transfer Law, which gives witnesses immuniry-with respect to their testimonies. Fromparagraph 90 of the decision it is evident that the iCtn nefeoal Chamber is oritre oplnionthat the immunity and protection provided to the witnesses in accoraance with the Transferluy it satisfactory with respect to ensuring.the.person .n*g.J a fair trial urrr,. Hitr,-courtin Rwanda. From paragraph 99 of the decision ii is evident itrat ttre ICTR RefenalChamber's reservation with respect to witness security in Rwanda has been allayed by thechanges made to Rwandan lawduring the last two years. The Court refers to p.ugruit totand the discussion of the establishment of, among other things, the Witness protection unit(wPU) under the Ju{rgiarrl This also applies to iitn"rses ou-ts;de Rwanda. The Courtrefers to paragraphs 128-l32,Discussion, which concludes: "the potential reluctance ofwitnesses to avail the services of WPIJ is speculative at this time. The Cno^:,U* ii i/*,opinion that the issue of protective rneasures for Defence witness is prima facie guiranteedensuring a likely fair triar of the Accused". with respect to the independence of"thecourts', it is apparent-from paragraph lg6 that the ,,ligalfrarneworkl,

in Rwanda, in theICTR Refenal chamber's opinion, guarantees inaepeioence of the courts in cases that aretried-atrhe High court, among otheis, which is the tourt that will try Mr Bandora,s case.The ICTR Referral Chamber found that extradition could be allowed because the court, inpursuance of Rule 1 I bis, had"satisfi(ed) itself that the accused will receiv, oyo,i, iiii,ii rnthe courts of the State concemed". It is true that the decision makes the premise thatextradition can take place on the conditionthar "after receiving assurances that a robustmonitoring mechanism provided by the ACHPR (African Comirission on Human andPeoples' Rights) will ensure that any material violation "f

thri;, trial rights... wi7 bebrought to the auention of .the President of the Tribunal" lrrtdir,ut tt r court, in accordancewith Rule 11 bis (E), can "revoke the order',, ',The revocAtionmechan!,,iril,, is, however, aremedy that the Referral Chamber, according to paragraph 217 of thedecision, onry *ilconsider as "a reme$) of rast resort". Apart from thJabbve, the ICTR Refenal chambernotes in its conclusion, se€ page 56, paragraph 222 0nwards, that the decision takencontradicts decisions madeJwo years previously when aura, *"r" not transferred, but thatRwanda in the meantime "has made material ihanges tn its taii and has indicated itscapacity an"d willingness to prosecute caseE referred by this Tribunal. ,, This assured the

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Referral chamber that the case would be tried in accordance with the requirements of a fairtrial.

The Court is of the opinion that this recent d€cision by the ICTR must be given greatweight in so far as the threshold for the ICTR to allow a transfer is higher than in Norway(the ICTR must "satisfy itself that the accused will receive a fair trial,' where transfer fromNorway to Rwanda in accordance with ECHR Article 6 can onty be denied if there are"objective indications" of violation(s) of rhe fair trial rrquimrnt for which the personcharged carries the burden of proof), and because or *re icrR,s ..sources,, (which thedefense counsel has referred to) and closeness with respect to the conditions in Rwanda.

Based on the above, the Court finds that extradition cannot be denied based on the ECHR1ni the fair trial requirement. Based on the prosecution's arguments, which, among otherlhjngs, are supporred by the ICTR Refenal bhamber's oecislon of 2g June 2011,Mr Bandora has not succeeded in convincing the court that there are ,,objectiveindications" that Rwanda will not comply with international standards for a fair trial if heis extradited to Rwanda. Extradition caniherefore not be denieJ on this basis.

The Extradition Act section 7 and the ECHR Article 3The Court bases it decision on the opinion that extradition will not violate basichumanitarian considerations, cf. the Extradition Act section 7 and the ECHR Article 3. TheCourt refers, as before, to the application. Current case law and legal theory,"t,n"tu, u, uhig! levet for denying extradition on this basis, cf. Gjermund Mathisen, ,,Extradition forpunishable offences", page 336 onwards. That extradition will have ,,seriousconsequences" for the person charged, is not sufficient to deny extradition. The provisionguards against cases in which extradition would have "disproiortionately seriousconsequences". This implies that the court must assess thi proportionaliiy of anextradition case. This assessment must include the severity br t'tr" criminal acts involved.

According to Ullevil university Hospital, Mr Bandora suffers from gout and diabetes rype2' He is on medication for these illneises and for high blood pressure. There is noinformation indicating that Mr Bandora will receive inaoequate teatment if he is extraditedto Rwanda. The Court refers to a letter from Rwandan authorities dated 7 March 2011 anda police report from a vist to Mpanga Prison and the medical facilities at the prison,information that has not beenconteited by the defense counsel after he, u..orainfioinformation submitted to the court, visited the prison himself.

The court finds that the conditions in Mpanga Prison and the special wing built forextradited prisoners satisfy internationaistandards, and that Mi Bandorai t"utttproblems are not serious enough to justify denying the application. The conditions inthe said wing of Mpanga prison have, aciording t6 the information submitted to theCourt, been found satisfactory by the ICTR, uniong others. In the Court's opinion,the conditions in Mpanga Prison are good and Mr Bandora can expect to receivenecessary medical treatment. He will also be allowed regular vistiuy his familyinRwanda.

Based on the above, the court finds that extradition of Mr Bandora to Rwanda does notviolate basic humanitarian considerations or the ECHR Article 3.

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The Extradition Act section.S does not prevent extradition. In this respect, we refer to thefact that the prosecuting authority, a..o.ding to the information they have submitted, is notaware of any circumstances preventing the extradition of Charles Bandora. Nor have MrBandora or his defence councel, Harald stabell, argued that there are any circumstances asset our in the Extradition Act section g that would preuent extradition.

The Extradition Act section 9 (relating to the period of prescription) does not preventextradition. The periodof p-rescription with respect to the criminal acts listeo in the chargeSheet of 15 March 201I is 25 years, to be counted from 1994. Thus, rhe sratutory limit forprosecution of the criminal acts has not expired. This has not been contested by the defencecounsel.

Extradition may be effectuated when a court order has been issued for Mr Bandora,s arrestor a remand order has been pronounced against him pursuant to Rwandan legislation cf.the Extradition Act section 10, 2. senten.J. Tn" same applies to oecisions carrying thesame effect, based on an assessment of whether ganooia is guilty of the said arirrinut u.tr.The Court finds that the necessary requirements for extradittn h-ave been met as argued inthe application and with reference to the submitted international arrest warrant (doc.09.'02'02) issued by the director of Public ProsecutionslProsecutor General rvrartin Ngogu,who is competent to issue an alrest warrant under Rwandan legislation, This t as not 6eencontested by the defence counsel.

Based on the above the Courts finds that ttre requlrements for extraditing charles Bandorato Rwanda are met with respect to the criminal icts mentioned in the Cliarge srreet of isMarch 2011.

CONCLUSION

The requirements for the extradition of charles Bandora, born on 24.0g.1954, toRwanda are met with respect to the criminal offences listed in the Charge Sheet of 15March 2011.

The Court rises (end of the Court session)

Axel Sletteboe

The prosecuting counsel, Police Prosecutor Marit Formo, is given the task of serving thedecision on Mr Bandora in prison and inform him about his right to appeal against thedecision, the deadline for rodging an appeal and the procedure. The time limit forappealing against the decision is 3 days cf. the Extradition Act section 17 no.3. A copy ofthe decision will also be forwarded to his defence counsel by fax and as an attachment tothis email'

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Annex C

AFRICAN UNION

uqfi rLftluNIAo AFRIcANA

Relerence: Bc/olc/ so.lt ++fu.tt22JuIy 2011

Flonorable Prosecutor General,

Subject Hi_sgene Habre Case

b I am writing further to my telephonic_conversatjon with you on f,e possibititoithe trial of Hissene Habre taking'place in Rwanoa.

As you will recall' d-uring its seventeenth ordinary session held from 30 June to 1*ll:oi:-ii, yi'il!:-!9y*g, cy,T:, tne nG6m'v- ii

.rreaos of srare andG overn me n r o r r h e Arrica n u n i o n a oop e o &ciil ilr-#;'rd'rffi :riiidii::r:i:Hissene Habre Case. : ,: - .:

The Assemb! decision stipulates inler alia, as foltows:

UNION AFRICAINE

\,

3. .-.uFGEs Lelegailo carry..out its regar responsibility in accordance withthe Unitad Natrbns Convention aggn;r Tortirei, tni ieiisioiJr n, ururraNalions (uN) committee agains{Tortura as welr as lhe said mandate toHissene Habre on tria.l .expeditiously or extradite him to iiotner countrywilling to put him on trial:

In implementation of Assembly oecision, the African union comrnission isundertaking consuttations with the -Governrnents

of senegat and chad on rheorganization of triaf in AU Member state, Farty !o the uN ionuErutn againsiiorruie.-nrthe end of these consuttations, a decision wiil ne t;ke;;;1'n" *ry torward, In themeantime, we have been informed by the Govemmenr of chad that they join the demanoof lhe victims and the Human rights gj'roups for a lriar in aefiium.- -

However, taking inlo account lhe experience of Rwanda' judiciary in the holding oftrial for the persons accused of internationat crimei;"J il;;l-rn"t p*r^,ra ir Dqdrr raand the hct that Rwanda is part! tol:"iig,::?ii.r.1?I:lu_g-Tl::lT_hT ioenririeo nwa";;;;; ail;,;,l""!l ffilyrl;to be entrusted with the Hissene Habre on trial.

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In addilion, t would to inform you that a Donors Round Table for the tunding ot theHissene Habre trial took place in Dakar. Senegal on 24 November 2010. The tolallinancral pledges rnade during the Donors Round Table is Euro Eight milliol six hundredthousand (EUR 8,600,000), equivalent at current rates to US$ 12,040,000. This amount

On the way fonarard, the AU Commission will inform your government as soon aspossible of the ouicome of consultations with the Government of Chad.

Please lind attached a aopy of the Assernbty Decision AssemblylAU/Dec'371(XVll) and accept'the assurances of my highest to3l3;6g1alion'

,- -Yours Sincerely.-

willserve to fund the trial,

mr. m".tln NGOGAProsecutor GenEral of tha Republlc of RwandaP.O. Box 1328 Kigalt, RwandaTsl: + 250 0252 589500Fnr: * 250 9252 569501

q--R.:r-'--)a 1.^,4Ben Kioko (Ml.) -

0irector/Legal CounselOffice of the Legal Counsel

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Annex D

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. ='' nnpusirc itr nifTnruaNATIONAL PUBLIC PROSECUTION AUTHORITYORGANE NATIONAI DE POURSI,JITE IUDICIAJRE

UBUSHINIACYAHA BUIruRU

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P.O. Box: 1328 KIGATI.RWANDA- Phone: +2SO OZSZ Sg9S00Fax:250 0252 589501

E-mail : info@nppa.gov.rw Website : w$w.nDDa.gov.rw

Kigali, 19 August 2011

Hon. Khalida Bachid KhanPresident, Internatio nal Criminal Tribunal for RwandaP.O. Box 6016Arusha International Conference CentreEast Alrica RoadAmeha, Tanzania

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Rel The Hosecutor i. Jedn Uiniiindi,Case No. ICTR-201 1-75-R11 bis

Dear President Khan;

The people and government of Rwanda applaud the Referral Cha{berle 28 Jqne2011 decision, allowing the referral of the captioned case to Rwanda for trial. Thedecision is a mileetone onhealing,

The Tribunal's conlidence in Rwanda's capacity for and commitment to ensuring thefair trial rights of the accused in this or any other case that may be refetred to --- -Rwanda is eoundly placed.r ludeed, in the past few weeks, the Africin UnionKingdom of Norway expressed similar confidence in Rwanda's ability to protect thefair trial rights of persons accused of crimes.

on22July2011, theA. f r icanUnionident i f iedRwandaaethe"cquntry . . . I loSt . . . - -suitable" to be entrusted with the trial of the former President of Chad, HisseneHabre, who is charged with serious violations of international law. The A.fricanUnion made this determinatiou after "taking into account the experience ofRwanda'e judiciary in the holding of trial for the persons accused of international

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Hon. Khalida Rachid KhanPresident,ICTR19 August 2011Page 3

crioee and the fact that Rwanda ie PartyAgainst Torture]."1

to the [United Natione Convention

Additionally, on 11 July 2011, the Kingdom of Norway, OsIo District Courtapproved Che e:rtradition of an accueed g6nocidaire to etand trial in Rwanda. In sodoing tbe Norwegiatr coutt, like the Referral Cha"'ber, was persuaded that all"objective indications" were that Rwanda would comply with interuationalstandards for a fair trial.z

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Additional assuranc€ is provided by Rwanda's ongoing legislative reforms, including. its review of Article 13 of Rwanda'e Conetitution, which is commonly known as the

Genocide Ideology Law,s aud draft legislation to allow foreign and internationaljudges to sit on the panel of any referred case. Because these initiatives w€r€

. ongoing at the time of the fuferral Chambeds decision, the Referral ChamberL requested that Rwanda update Your Honour on any progrese made on these

mattera.4 This report is eubmitted io compiiance with that request. As yburitill see,- ---substantial progress has been made.

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A. Proposed Reforms to the Genocide Ideology Law

With regard to the 2008 Genocide Ideology Law, Rwanda previously stated that itwas not deaf to the criticisms levelled against tlat law.c For the past severalrnonthe, Rwanda has li,stened to those criticisms and taken many of them intoaccount. Rwanda's Ministry of Justice has prepared draft legislation forconsideration by Rwanda's Cabinet.6 The Cabinet, which was in recess until 18August, likely will table the draft legislation for a vote in September or Odober.-'If ''

approved by the Cabinet, the draft legislation wiii be submitted to Parliament forite consideration during tbe current legislative seesion.

t Ben KioLo, Directorlkgal Couneei, African Union. letter to Martin Ngog., Proeecutar Geueral,Republic of Rwaada, 22 Jt;Jy 20 I I (copy attached as Exhibit A).t |/CIS Norwoy u. Clwrles 8rc;ldr.ro, File No, 11-0602248N8-OTInyOl, Decision p. 14 (Oslq Dist. Ct.11 July 2011) (a copy of the official Eaglish translation is attached as Exhibit B).*The Oslo Dietrict --Court'e decieion ia eubject to appeal.t Organic Law No. 18i/2OOg of 23 Juiy 2OO8, Relating b tle. htaishment of the Crime of GenoeideIhlog C20OA Ceuocide Ideology Law").a The hosecator u. Uwinhindd, Caee No. ICfR-2001-?5-Rllbie, Decision on Prosesutor's Requeet forBeferol to the Repubiic of Rwanda, 28 June 2011, p, 59 and para. tL4 {Tcferral Charnbe/aDecision').t Tlw hogxlcutor v. Uwinhindi, Carp. No. ICTB-2001-?6-R11bis, Amicue Cr:riae Brief for tjre Republicof Rwanda in Support of the Proeequtor'e Applrcation for Refetral Pursuant to Rule 11 bts, 18February 2011, para. 128 f8wanda'e Amicus Brief)'e A copy of the orrent draft legislatioa, which remains subject to change, ie attached ae Exhibit C.

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3t+Hon. Khalida Rachid l(hanPresident. IglR19 August 20triPage 3

The draft legislation is the product of intenee study and congultation by aCornmission coasisting of representatives from the Ministry of Justice; legalscholars fron both national and foreign uuiversities; private and non.profitinstitutions; and other etakeholders, including the National public prosecutionAuthority, Ofrce of the Ombudsman, and National Human Rights Commission.The Commiesion aleo eolicited comments from international human righte groups,induding flunan Rights Watch and A.mnesty International.

In reviewing the currenl law, the Commission carefully evaluated Rwanda's'--"obligationa under the International Conveution on the Prevention and Punishmentof the Crime of Genocide of g December 1948; International Covenant oa Civil andPolitical Rights of L6 December 1966; and the African Charter on Iluman aud'.Peoples' Rights of 27 June 1961. Additional(y, tho Commiesion looked at past cases

t-_ to _ideuciS proble'ne and concerus relating to the current law's application and- enforcement. The Commission also analyzed comparable provisions in othernation's genocide laws.

Based on the analysis and comrnents received to date, the Commission intends torecommend that tbe curteot law be repealed and subetituted with a new law. Thenew law is intended to addtees the principal concerns raised;abogt tle-existing lart::rr:while, at the sane time, preserve the legislation'e legitimate objectivds. Thetevisions fall into four main categories: (1) establishiug a more direct nexusbetween the law's legitimate purposes and its scope; (2) clarifying potentially vag1reor overbroad terminology; (3) specifically identifying prohibited conduct andimposing an intent element; anil (4) reformulating the sentencing structure.

1. Establishins a More Direct Nexus Between Pumose and Score

The flames of genocide have been extinguished, but the eubers still emoulder andtbreaten to ignite. Rwanda must be vigilant in preventing the spark6' of figf,o --:- .- -speech, genocide denial, and e*rnic division frorn igniting renewed violence.

I'his is no idle threat in a country still rccovering from genocide and confronted with.:::-: i:: :: ::unrepentant g6nocidaires both in its midst aad on its borders. Only a few yeareago, iu April 2008, one unrepentant g6nocidaire threw a grenade at Rwanda'e maiugenocide memorial and museum, killing on€ person.T A year earlier, a caller to aRwandan radio program urged listenere to "finish the job."a And, most recently,armed combatants espousing the same incendiary rhetoric of "Hutu power" that-:r-::' -

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I Lare Waldod Reui,siting Hotel Rwdnda: genocid,e idzolog, reconcilintian, ond rescurr.q 11 J,Genocide R.eeoarch l0l, lO2 (Marcb 2009). Isrd'

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Hon. Khalida Rachid KhanPresident,ICTE19 August 2011Pagp 4

fuelled the geaocide against the Tutsi are encanped on Rwanda'e border with tbeDemocratic Republic of Congo.' Sis.ilarly divisive tbemee of racial and ethnichatred have been espoused by exile g"oupe based in Europe.to

No one can reasoaably question the legitimacy of Rwanda's desire to guard itselfagainst these and sirnilar threats. As the Referral Chamber coruectly recognizedArtide 13 of the Constitution "in iteelf ie legitiaate and understandable in theRurandan @utext."ll Indeed, "mary countries criminalize the d.enial of tbe,Holocaust, while others prohibit hate speech in general."le The ain of Rwanda'slaw is no diferent; it "intends to prevent and punish the crime of geaocideideologr."te

2. Clarification of Ter$inolowtty Critics, however, have complaiued that there ie no direct nexus bets,een this - ,. - -

legitinate aim and the 200-8 Genocide ldeology Law's potential applicatlon-go--- - -:.jaddress this concern, the Com"liasion-s draft legislation would cfari& tbG defrnitlou"'"of genocide ideology and identify the specific tlpes of conduct that are prohibitedunder the revised law.

As presently drafted, Article 2 of the 2008 Genocide Ideology Law defines "genocideideolog/ as "an aggregate of thoughts characterized by. conduct, speeches, .. -docruaents and other actg aimed at exterminating or incitiag othere to exterminatepeople bas[ed] on ethaic group, origin, nationality, religion, colour, physicalappearance, sex, Ianguage, religion or political opinion, committed jn.qgql4.:;-*...-:...=::

The Commission'e drafb legislation would replace this definition with a newdefinition. -Uuder Article 2 of tbe draft legislation, the phrase "genocide ideologya isdefrned as "thoughts and/or beliefs that support the extermination of a group ofpeople, in whole or in pari baeed on their shared characteristies." "Sharedcharacteristics," i:x turn, ate defined as "shared ethnicity, origin, nationality,religion, race, physical appearance, language, religion, political opinion or sex."

s Id.ro Id.rr Refecal Qhnnls1's Decieion, para. 95.u Id. According to one recent etudy, Binilat lawg exiet il Auetria, Bdgittrn, Czech Republic, Fialce,Germany, Ilunga4r, Ierael, Lurembourg, . Poland, Portugal. Rouania, and Switzerland. &eBenjanin J. Cardazo School of lant, Heoling the Wovnds, Speech, I&ntily & Reconcildction inRwan&. and, @ord, App. A, available at httu://www.Elobalactipnpw.ore/qp/wp-content/uploadd6nel-genocide-report.pdf. I -uArtide I of the 2008 Genocide ldeology lrw. I

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Hon. Khalida Rachid KhauPresident,ICTR19 Augusr 20i1Page 5

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Additional definitions are provided for other operative phrases used elsewhere inthe draft legislation, including the "genocide conmitted in Rwanda,, and. the ..crimeof genocide." The "genocide committed in Rwanda" is d.fi;J;; dr-"iii*oo"ia,against the Tutsi committed in Rwanda from October lsr lgg0 to December 31et1994'" The "crime of genocide" is defined in terms substantively identical to erti.t"2 of the Tribunal's statute and its jurisprudence.

3. SoecificallyidentifvingprohibitedConduct

Additional context for the meaning and application of these operative tegns isprovided in aewly drafted Articles 3 to 6. These draft articl"r *oufa irptu." A"ti.t",-t3 of the 2008 Genocide Ideology Law, which critics claim sweep" i* ui""ary andL prohibits otherwise legitimate speech or dissent.lav

The new draft articles would define the substantive elements of the crimes ofapproval of genocide comnitted, in Rwanda (Article 3), denial of genocide committedin Rwanda (Article 4), and incitemenl of genocide (Articte b).

Most significantly, each of these crimes would iaclude a mene rea elemeni-:Additionally, Article 6 would introduce newfaith.

defences for persons actiug in good

Draft Article 3, for inetance, defines the crime of approval of genocide committed inRwanda as requiring proof of the following specilic intentional conduct: uAnyperson, who intentionally, justifiea, excuses, glorifies, condones, legitimizes orrationalizes the genocide committed in Rwanda, eommits a crime of approval of -genocide committed in Rwanda."r6 Drafb Article 3 goes on to provide that the crime"shall be manifested by any of the following conduct:

11 Article 3 of the 2008 Genocide ldeology Law provides ae followe:The sime of genocide ideology ie cbaracterized in any behaviour manifested by facte aimed at

-ilehumanizing a pereoo ot a group of persona witlr t}re eame qharacteriatics in the followingmanner:1. t'hreatening. intiaidating, degrading through d[e]fauratory speeches, documents oractione which sim at propounding wickedneee or inciting hatred;2-. 'oarginalizing, laughing al one'e misfortune, defamiug, mocking. boarting, deepising,degrading creating confueioo aining at negating the genocide which occurred, Jtitnj up iUfeelinge, taking revenge, dtering testinony or evidencs for the genocide which occurred;1: -killing, planning to kjll or attempting !o kill eooeone for purpoees of furthering genocideideolory.

16 Article 96 of the Bwandan Pensl Code providee, in relevaot part, that a "person who commjte acriare intentionally is one who conmita it with conecience and will."l

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I{on. Khalida Rachid l(hanPregident,ICTR19 August 2011Page 6

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l. altering of evidence of the genocide crime committed iu Bn'anda,intimidation or interfering with victims of the genocide committedin Rwanda and other crimes against hunaanity committed i:nBwanda &om 0l October 1990 to Sl December 1994;

2. desecrating memorial or burial eitee of tbe victims of the genocidecommitted in Rwanda;

3. acte of marginalising or defaming any p6r6on or a group of peoplein a way that may iacite hatred bas€d on shared eharacteristics, ormoching atry persoa or group of people on the basis of sharedcharacterietics;

acts of pereecution, intinidation, meuae€, and asgaults-'disnityt,l violence or torture.

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'r encoulaging the acts mentioned in points I through 4 of thieArticle by disseminating documents, pictures, or verbalcommunication, including those transmitted through televisionand radio."

Articles 4 and 5 mntain sinilarly specific language to de{ine the crimas of denial ofgenocide comnitted in Rwanda and incitement of genocide. Those articles toorequire that the conduct be intentional and further provide concrete examples ofhow the c,rimee "shaU be nanifested."

Article 6 of the draft, legislation includes new defences or safeharbours for persous who establish that their "acts were in good faith and/or in thepublic intereet, and [not inteudedJ to proruote genocide ideolory."

-Similnily, a

{ person who establisheg that "he/ehe iutended to disseminate knowledge ora' information about the history of Rwanda" likewiee shall not be convicted. These

new defences are directly responeive to criticisnrs tbat the 2008 Genocide IdeologyLaw allegediy sweeps too broadly by chilling legitimate public debate.

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These proposed defences are supplemented by the btoad immunity conferred onwitnessee and nembers of defence teams by Article 13 of Rwanda's Transfer Law.l6Read together, the draft revisions to the 2008 Genocide Ideolory Law and theimmuniry conferred by the Tlangfer Law render moot any alleged fears of witnessintinidation.

16 Refsrral Chanrber's Decieion, para. 95. ;l

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? r?.Hon. Khalida Rachid KhanPresident,ICTR19 Aug,;st 2011Page 7

Reformulation of Sentencine Structure

The proposed reforus ate not limited to clarifying the ecope and application of thelaw, they also extend to the peaalties that may be inposed. Critice of the 2008Crenocide Ideolory Law allege that the existing penalties are too harsh. Thesecritics have been particularly concerned with the possibility that children could bepunished for violating the law.

The Commission's drafc legislatioa takes these criticisns into account in a numberof ways. First, the draft legislation substantially reduces the range of penalties thatmay be imposed for both persons and entities convicted of the crimes. For instance,under the 2008 Genocide ldeolog;y Law, a person convicted of genocide ideology issubject to 10-to:25 years imFrisonment, plus a fine of 200,000 to 1,000,000

^ Rwandan francs.rz The draft legislation, in contrast| proposes a graduatedv sentencing scheme, inteailed to reflect the perceived gravity of the underlying

offence:

. Approval of geaocide committed in Rwanda: 3-to-5 years imprisonment;plus-----:-----ia fine of 200,000 to 1,000,000 Rwandan france (Article 7).

r Denial of genocide committed in Rwanda: s-to-f yeiis imprinonme-t, plGI:fine of 200,000 to 1,000,000 Rwandan francs (Article 8).

r Incitement of genocid.e: 7-to-10 years imprisonment, plus a fine of 1,000,000to 2,000,000 Rwandan francs (Article 9).

When the crime is committed by a former or cutrent leader, the 2008 GenocideIdoology Law provides for a penalty of 15-to-25 years imprisonm.ent, plus a fine of2,000,000 to 5,000,000 Rwaadan francs.rs Article 11 of the draft legislation would,

L reduce this penalty to ?.to-12 years imprisonment, plus a line of 1,000,000 to2, 000,000 Rwandan fraucs.

A similar reduction in penalties is proposed for crimee committed by an association, -political organisation, or non-profit, Under the 2008 Genocide ldeolory Law, theseentities are subject to dissolution of their legal status, plus fines ranging from5,000,000 to 10,000,000 Rwandan &ancs.re Under Article 10 of the draft legislation,thefineewouldbereducedto2,000,000to5,000,000Rwandanfrance.

ttAtticle 4 of the 2008 Genoqide Ideology Law.rr Id. at Article 6.rg Id. at futide ?.

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Hon. Khalida Rachid KhanPresident,IC?R19 August 2011Page 8

there is an importaat caveat to the Commission's proposed Beotencing reforus.Conteaporaneously with the Commiesion's review of the 2008 Geaocide ldeologyLaw, Parliament is considering aaend'.ents to Rwanda's Penal Code. Onepmposed amendment (Article 134) would irnpose a single sentence of 3-to-7 yearsimprisonment for the crime of genocide ideology.

Because the Peaal Code is an Organic Law, under Article 98 of Rwanda'sCorstitution, its provisione would govern the range of potential senteuces for thecri.me of genoside ideology.ro

The Chamber of Deputiee, which is the lower chamber of Rwanda's Parliament,approved this amendment to the Penal Code. the Chamber of Deputies' bill wasthen submitted to the Senate, which, in Auguet 2011, proposed elight modifcationsto the legislation. The Senate bill will be returned to the lower chanber. for itg ---'-*---

|- - further consideration. The Cbamber of Deputies ie anticipated to take up theSenate biil_when it regumeg segsion in Septemler._

A second way in which the Commission e draft legislation responds to critics of the - - - - - -

2008 Genocide ldeology Law is in its treatment of aggravating and mitigatingfactors. In keeping with the Commission's proposed graduated senteueing scheme,the draft tegielation identifies specific aggravating factors, including the use of force

or physical destruction (Artiele 15), a prior conviction for genocide (Article 16), and

tecidiuitm (Article 1?). In a stark departure from the cu:tent law, a person foundguilry of genocicle ideolory who was previously convicted of genocide would beeubject to 12-to-15 yeare imprisonment. Under tJre current law, in contrast, the

applicable sentenc€ is life inprisonnent.2r Moreover, if Che pending amendment-to- --.--- - - -

the Penal Code for the senteucing of genoeide ideology is adopted, the maxinumsentence in all cases will be 7 years, except in cases of regidivism where a jU4gq qay--

double the sentence.z2

In addition to aggravating factors, Rwandan judges also may consider nitigatingcilcumstances pursuant to Articles 82 to 84 of the Rwandan Peual Code. This is in

keeping with Article 82 of the Rwandan Penal Code, which directs judges todetermine a eentence by taking into accou:rt all of the surrounding.qllcurlelancee, -,-including the iadividuafs motives, previous history, aod pereonal background.Tbese factors are subetantially similar to those considered by the Tribunal in

lo If Article 134 of the Penal Code is approved by Partiaalent, the Coromission will revrse the

sentencing provieioag of itg draft genocide ideology law to reflect tbe auended Organic [,aw'n Articl€ 5 of the 2008 Genocide Ideology Law.u Article 8E of the Bwandan Penal C,ode; se also Article 17 of Comoiesioa's draft Genocide Ideology

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z \1)Hon. Khalida Rachid KhanPresident,ICTA,19 Auguet 2011Page 9

impoeing eentence under Article 23 of the Statute and Rule 101 of the Rules ofProcedure and Evidence.

Thfud, the proposed legislation would eliminate any punishment for children under14. Pureuant to Article 12 of the Commieeion'e draft legisiation, "[a]ny childconvicted of erimee nentioned in this Law shall be sentenced in accordance with theprinciples provided for in the Penal Code."

For a child between the ages of 14 and 18, Article 77 of the Rwandan Penal Codespecifically provides for mitigation of any gentence i:nposed. The mitigatiou reducesany sentence for a child aged 14 to 18 to balf the term of imprisonment applicable toa person 18 years or older.ss -::::

Although the current version of the Rwandan Penal Code is eilent on thepunishnent of cri,-es committed by children less than 14 years old, Rwandan lawdeems that children under 14 years are not criminaliy liable. A further proposedamendment to tbe Rwaudan Penal Code (Article 100) rrould codifu this existingunderstanding.

Lastly, Article 13 of the Commission's draft legislation would reduce the rangej:=--=j==:=penalties for parents and other guardians of the chitd frod f5-fo-25 ieaisiEEstipulated in Article 11 of the 2008 Genocide Ideology law, to 10-to-12 years. Thisproposed amen.lment too is subject to the 3.to-7 year limitation that may beimposed by the pending amendment to the Penal Code provision for genocide

tabled for a vote in September 2011 whon the Parliameut resumes session. Thecurrent version of the legislation provides that the President of the Supreme Corrrtmay:

in the intereet of justice and for the purpose of consistency of thejudgements rendered in Rwanda with thoss rendered in foreign countrieewhen dealing with similar issues, on his or her initiativs or at the regueet ofthe Accused person, the Accused's counsel or the Rwandaa or foreign -=.-Prosecution authorities, seek the cooperation from the United NationsOrganization, from any other international organization or from a foreign ___

L

ty

ideology sentences.

B. Proposed Legislation on Foreign Judges

With regard to the proposed legislation to allow foreign or international judges to siton the panel of any referred caee, Rwanda reports that the legisiation has be6n - -. .:-- --- --

23 Article ?? ofthe Rwandau Penal Code. /

l

zo7

Hon. Khalida Rachid KhanPresident, ICTR19 August 201 IPage l0

country by requesting that judges &ou other countriee be eent agsist theRwaadan judges in trying cases whoee referral to Rwanda is beiug soughtaud which are related to international and ceose-border crimee committed inthe territory of Rwanda or abroad referred to in the Organic laq.__establishing the organization, the functioni"g and the jurisdiction of courts.

Such cases are tried by a bench of at least three judges (B) at the frret&,instance and on appeal. _ ' *---'

The request for a foreign judge is channelled through the cooperation--, ---between countries and international orgarrizations.rr

This text is in keeping with Rwanda's submissions to the Referal Chambefeq-d.

c. Conclueion

As thia report demonstrates, the Tlibunal's confrdence in Rwanda's commitment to -ensuring the fairneee of any caee that may be referred to Rwanda for trial is wellplaced. Rwanda ie committed to examining its existing laws to improve the fairadrninictlalion of justice. lThen, in the coneidered opinion of its elected leaders,adustraents to Rwanda's existing l,aws are desirable, Rwanda will uadertake effortsto improve ite lawe.

Tbe proposed teforms to tbe 2008 Genocidc ldeology Law and propose{!egr$q.tign-:-_*_ _.-,to allow foreign or international judges to sit on the panel of any refeue d case-are ---------

concret€ examples of this commitment.

If Rwanda'e democratically-elected Parliament agrees, both of these-legislative-refonne will be formally enactcd into law during the current legislative eession.Rwanda will advise you of any further developments in this regard.

It would be naive to believe that theee prcpoeed legislative changes will appease allof Rwanda's critics or answer all of the questions that nay arise relating to -the

interpretation aad application of the new laws. But, assuming Parliament approvesthe proposed legielation, any lingering queetions about the new laws' interpretationor application can be resolved by Rwanda'e judiciary. As noted in Rwanda's amicusbrie{ therc is no reaeon to believe that Rwanda's judiciary will abdicata itg

-t{ A copy of the draft Article 13, para. 2, amending the Organic l,aw Detetminiag Organization,Functioniag, end Jurisdiction of the Supreare Court, ia attached ae Exhibit D'to Rwanda'e Amicue Brief, lara. 128.

In

,)

3C'Hon, Khalida Rachid KhaaPresideot, ICTR19 Augusz Z01l

Respectfully s ubmitted,

Registrar Adama DiengProsecutor Hassan Bubacar JallowDefence Counsel Ciaver Sindayigaya

26 Id., para. 62.

Page 11

responsibility to fairly and iTpartially iaterpret the lawe and to do so in a mannerthat will redress any potentiaLgrieva:ices relating to tu. ia*. "ppli."tion.z6

Thank you for this olportunity to update the Tribuual on these importantlegislative initiatives. Rwanda etaude ready to assist tn" iliu,rrral in any way inexpediting the referral of this and any other case for trial.

Kindly instruct the Registrar to fire this report in the usual manner.

t,

L-

Prosecutor General

307

Annex E

II mrqo ],r ; F H - " -'USE$&]i E fi i 6hii ti'd:1 ft q li$ tj'

IEJ&SEtsil EffiH'EG-_*

B,M.tr\

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/

I'N,].ED ,TAT()NsNATIONS UNIES

International Criminal Tribunal for RwandaTribunal P€nal International pour le Rwanda

Arusha Intemational Conferenca CenlreP.O.Box 6016, Arusha, Tanzania - B.P.6016, Arusha, Tanzanie

Tel: 255 27 4207-111 25O 4367-72 o( 1 212 963 2850 Fax: 255 27 25040A014373 or 1 212 963 2848

INTEROFFICE MEMORANDUM _ MEMORANDTJM INTERIEUR

To: Court Management Section Date: 8 September 2005Ref:

Prosecutor to modify the Indictment.

The Prosecutor has elected to modify the original Indictment. Anached isthe modified Indictment of 8 September 2005

The Office of the Prosecutor will file translation of the Indictrnent of 8September 2005 as soon as possible. If the Prosecutor's application for nondisclosure orders is granted, it is his intention to disclose to the defence,through CMS, all of the supporting material in redacted form pursuant toRule 66(aXi). -

4. In the meantime, it is imperative that the Indictments and this memorandumbe kept UNDER SEAL.

TLr.,)

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INTERNATIONAL CRIMINAL TRIBUNAL FOR RWANDA

Case No. ICTR-2005-89-I

THE PROSECUTOR

AGAINST

BERNARD MUNYAGISHARI

INDICTMENT

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I. The Prosecutor of the lnternational Criminal for Rwanda (the "Prosecutor"),pursuant to the authority stipulated in Article 17 of the Statute of the IntemationalCriminal Tribunal for Rwanda (the "Statute") charges:

BERNARD MUNYAGISTIARI

wirh:

Count l: CONSPIRACY TO COMMIT GENOCIDE, pursuant to Articles2(3)O) and 6(l) of the Statute;

Count 2: cENoclDE, pursuant to Articles 2(3)(a), 6(l) and 6(3) of theStatute; or alternatively,

Count 3: CoMPLICITY IN GENOCIDE, pursuant to Articles 2(3Xe),6(l) and 6(3) ofthe Statute;

Count 4: MURDER AS A CRIME ACAINSTHUMANITY, pursuant toArticles 3(a), 6(1) and 6(3) of the Statute; and,

Count 5: RAPE AS A CRIME AGAINST HUMANITY, pursuant toArticles 3(g), 6(1) and 6(3) of the Statute,

II. THE ACCUSED

l. Bernard Munyagishari was born in 1959 in Gisenyi secteur, Rubavu commune,Gi senyi prefe cture, Rwanda.

2. Bernard Munyagishari was at various times a school teacher and a nationalfootball referee. After the multi party political system was adopted in Rwanda in 1991,Bernard Munyagishari was employed by the lnsurance Company SONARWA inGisenyi city as a reward for his active participation in the MRND (National RepublicanMovement for Democracy and Development) political party at the local level. He servedas Secretary General of the MRND political pany for Gisenyi city and as President of theInterahamwe for Gisenyi prefecture for the period from 1992 through 1994. TheInterahamwe was officially the youth wing of the MRND.

3. As Secretary General of the MRND for Gisenyi city and President of theInterahamwe for Gisenyi prefecture, Bernard Munyagishari recruited manyInterahamwe for his political party. Bernard Munyagishari, Major Frangois-XavierUwimana, one Rukara and others, provided military'like training for the Interahamweand distributed weapons to them.

B€.

4. As Secretary General of the MRND for Gisenyi city and President of theInterahamwe for Gisenyi prefecture, Bernard Munyagishari exercised effective confoland authority over the members of the Interahamwe and the ImpuzamuganDi militias inGisenl and its environs.

5. On or about 6 April 1994, and on other occasions from that period through 17IuIy 7994, Bernard Munyagiehari was seen armed with a pistol, a Kalashnikov and aclub.

IIT. CHARGES AND CONCISE STATEMENT OF'FACTS

6. At all times referred to in this indictment, there existed in Rwanda a minorityethnic or racial group known as Tutsis, offrcially identified as such by the government.The majority of the population was comprised of an ethnic or racial group known asHutus, also officially identified as such by the Govemment.

7 . Throughout Rwanda during the course of 1994, particularly between 6 April 1994and 17 July 1994, soldiers, Interahamwe militia and armed civilians, targeted andartacked Tutsis on the basis that they were Tutsis, with the intent to kill or cause seriousharm to them as such and to destroy the Tutsi population in Rwanda in whole or in part.Hundreds of thousands of civilian Tutsis were killed bv the Interahamwe and other armedcivil populations.

COUNT l: CONSPIRACY TO COMMIT GENOCIDE

The Prosecutor charges Bernard Munyagishari with CONSPIRACY TO COMMITGENOCIDE, a crime stipulated in Article 2 (3) (b) of the Statute, in that on or betweenthe dates of I January 1994 and 17 July 1994, in Gisenyi prefecture, Rwanda, BernardMunyagishari did agree with others, namely members of the Rwandan Govemment, theMRND leaders, the Rwandan Armed Forces and the Interahamwe militia, including butnot limited to influential and powerful persons such as Colonel Anatole Nsengiyumva,Joseph Nzirorera, Augustin Ngirabatware, Mbanzi Wellars, Juv€nal Uwilingiyimana,Barnabd Samvura, Thomas Mugiraneza, Omar Serushago and others, to kill or causeserious bodily or mental harm to the members of the Tutsi population of Rwanda, withthe inte,nt to destroy, in whole or in part, a racial or ethnic Broup, as such, as outlined inparagraphs 8 through 22 of this indictment.

CONCISE STATEMENT OF'FACTS FOR COUNT 1

I ndividual Criminal Responsibility

8. Pursuant !o Article 6(1) of the Statute, the accused, Bernard Munyagishari, isindividually responsible for the crime of CONSPIRACY TO COMMIT GENOCIDEbecause he committed the act of agreeing with Colonel Anatole Nsengiyumva, Joseph

ect

Nzirorera, Augustin Ngirabatware, Mbanzi Wellars, Juv6nal Uwilingiyimana, BarnabeSamvura, Thomas Mugiraneza, Omar Serushago and others, on a plan to destroy in wheleor in part, the Tutsi ethnic group, as described in paragraphs 9 through 22 of thisindicbnent. In furtherance of this plan, he personally committed, ordered, instigated oraided and abetted specific acts that facilitated the deshuction ofthe Tutsis, such actionsraking place between an unknown date in early 1992 and 17 July 1994. The particularsthat give rise to his individual criminal responsibility are set forth in paragraphs 9 through22 of this indictment.

9. After the multi party political systern was adopted in Rwanda in 1991, BernardMunyagishari, in his capacity of Secretary General of the MRND for Gisenyi city,recruited many young people to the youth wing of the MRND known as theInterahamwe. These persons were almost exclusively of Hutu ethnic origin. The role ofthe Interahamwe in Gisenyi was to create disorder in the opposition political rallies andto attack and kill the Tutsis and the Hutu opponents of ethnic division who were accusedof being accomplices of the Inkotanyi, the Rwandan Patriotic Front combatants ("theRPF").

10. On an unknown date in 1992, Bernard Munyagishari agreed with influentialpersons to create five main Interahamwe militia gpups in Gisenyi to attack and killTutsis and Hutu Opponents of ethnic division, Bernard Munyagishari was appointedPresident of the Interahamwe militia for Gisenyi prefecture and accepted the positionknowing the criminal role of the Interahamwe. Thomas Mugiraneza was his vice-president. Bernard Munyagishari personally led one of the groups, while the remainingfour were managed under his leadership, by Omar Serushago, Thomas Issa, HassanSibomana and one Mabuye.

1 l. Bernard Munyagishari was trained as commando by Major Frangois-XavierUwimana in the Bigogure military camp in furtherance of the agreement described herein.Bernard Munyagishari often was armed and sometimes wore a military uniform, but henever became an offrcial member of the Rwandan Armed Forces'

12. During the period from 1992 and up until the death of President JuvenalHabyarimana on 6 April 1994, in furtherance of the agreement described herein, BernardMunyagishari trained the Interahamwe milina The training enabled the Interahamwemore efficiently to attack and kill the Tutsis and the Hutu opponents with the weaponsthey were given by the soldiers.

13. In December 1993, Bernard Munyagishari and other Interahamwe leaders attendeda meeting held at Meridien Hotel in Gisenyi to organize the killing campaign, Themeeting was convend by Joseph Nzirorera and Juv6nal Uwilingiyimana, During themeeting, the participants, including Bernard Munyagishari, agreed that weapons mustbe distributed to ttre Interahamwe to kill the Tutsis. Bernard Munyagishari was incharge of briefing the Interahamwe on the purpose of distributing weapons to them.

ge,.J'

14. On several occasiors prior to 7 April 1994, the Minister of Planning, AugustinNgirabatware, nicknamed Mbiyo Mbiyo, held meetings with Bernard Munyagishariand the Interahamwe at the MRND Secretarial Office in Gisenyi. The participants,including Berrrard Munyagishari, agreed that no one of Tutsi ethnic origin be allowedto attend the meetings. The participants, including Bernard Munyaglshari, furtheragreed to kill the Tutsis. After most of those meetings, Bemard Munyagishari andMinister Augustin Ngirabatware hired buses from the transportation companyONATRACOM in Gisenyi, to convey lhe Interahamwe to the communes to look forTutsis whom they killed.

15. On or about 5 April 1994, in furtherance of the agreement described herein,Interahamwe led by Bernard Munyagishari began spreading false rumours in Gisenyithat the Tutsis had put poison in the water so that those who would drink that watet,namely the Hutus, died. This was done with the intention of causing tensions among thepopulation so that the population would see the Tutsis as the etlemy. As a result, theInterahamwe threatened to kill the Tutsis.

16. On or about l0 January 1994, an Interahamwe leader nicknamed Jean-Pierre,informed LINAMIR (United Nations Assistance Mission for Rwanda) in Kigali that theMRND feaders and members of the Interahamwe cells, including Jean-Pierre himself,had prepared lists of Tutsis to be eliminated. The lists contained the narnes and theresidences of the Tutsis to be killed. The lists were also given to other authorities andInterahamwe leaders in the country, including Gisenyi where Bernard Munyagishariand Bamabe Samvura received them. After the death of President Juvenal Habyarimana,on several unknown days including one in May 1994, Bernard Munyagishari organizedhis Interahamwe ta search homes of Tutsis to be killed. There were Interahamwe whowere assigned to search Tutsis' houses by day, and those who were assigned to searchTutsis' houses by night Bernard Munyagishari himself led a group of Interahamwe tohomes of prominent Tutsis to be killed. Bernard Munyagishari also ordered his[nterahamwe to some specific houses where Tutsi families were living to capture theseTutsis. Some of the Tutsis captured were killed by the Interahamwe.

17. During March 1994, the Rwanda Government was under pressure to implementthe Arusha Accords, Bernard Munyagishari organized, on several occasions in Gisenyi,violent protests against the Arusha Accords and mastsrminded a virulent hate campaignagainst the Tutsis in furlherance of the agreement described herein. BernardMunyagishari and his Interahatnwe mounted roadblocks in Gisenyi to show theirdisapproval and anger in relation to the ongoing negotiations in Arusha. They arrestedTutsis at the roadblocks and assaulted them. During the demonstrations, BernardMunyagishari and his Interahamwe also looted Tutsi homes and destroyed Tutsiproperty.

18. On or about 7 April 1994, in order to organize the commencement of theextermination plan against the Tutsis, Colonel Antole Nsengiyumva convened a meetingof political leaders, local authorities and Interahamwe at the military camp in Gisenyi.

Among those present at the meeting were Bernard Munyagishari, Barnabe Samvura,chairman of the CDR for-Rubavu commune, and Thomas Mugiraneza, Vice-President ofthe Interahamwe for Gisenyi prefecture. The participants, including BernardMunyagishari, discussed details of the plan to exterminate the Tusis and agreed duringthe course of the meeting to dishibute weapons to be used to exterminate the Tutsis.

19. At the end of the meeting held on or about 7 April 1994, in furtherance of theagreement described herein, Colonel Anatole Nsengiyumva ordered Captain Bizuremuye,Commander of the mobile brigade of Gisenyi, to distribute weapons and ammunitions tothe Interahamwe leaders who were present. The weapons, including grenades and rifles,wEre in tum distributed to the Interahamwe who immediately commenced attacks onTutsis. Bernard Munyagishari agreed with others to participate in the distribution ofweapons to the Interahamwe knowing that such weapons would be used in carrying outattacks on Tutsis.

20. On an unknown date in April 1994, Bernard Munyagisharl attended a rneetingat the stadium in Gisenyi, convened by Colonel Anatole Nsengiyrmva. During themeeting, the participants discussed whether or not the killings of Tutsis should bestopped. Bernard Munyagishari agreed with Colonel Anatole Nsengiyumva and othersnot to stop the killings in Gisenyi. Bernard Munyagishari and the Interahamweattending the meeting endorsed their approval of Colonel Anatole Nsengiyumva who saidto the killers that he did not agree with the first two speakers who had called for the endof the massacres. Colonel Anatole Nsengiyumva congratulated the Interahamwe forwhat he called "good work" and encouraged them to continue the "work". In thatcontext, "work" meant killing the Tutsis. Bernard Munyagishari agreed with ColonelAnatole Nsengiyrmva and others that the killing of Tutsis should continue and after themeeting the killing of the Tutsis became more and more intense in Gisenyi,

21. From 7 April 1994 through 17 July 1994, in furtherance of the agreementdescribed herein, Bernard Munyagishari supervised the roadblocks in the city ofGisenyi and its environs. He was present at many roadblocks including the one leading toBralirwa Company in Gisenyi, ordering the Interahamwe and instigating other civiliansto kill the Tutsis. During the same period, the Interahamwe led by BernardMunyagishari killed many Tutsis at roadblocks in Gisenyi.

22. Oir an unknown date in May 1994, Bernard Munyagishari convened a meetingin the stadium of Gisenyi. He agreed with the other participants that no Tutsi be allowedin the meeting. Bernard Munyagishari further agreed with the other participants todefine the enemy of the Hutus. He said during his speech that the time had come to knowwho was their real enemy and called the participants to deal with this enemy quickly andwithout mercy. For Bernard Munyagisharl and the participants at the meeting it wasclear that the enemy was the Tutsi. Immediately after the meeting, the Interahamwestarted going from house to house searching for Tutsis and killed them. There were someInterahamwe who would search Tutsis' houses by day and others who would searchTutsis'houses by night.

alT-

COUNT 2: GENOCIDE

The Prosecutor charges Bernard Munyagishari with GENOCIDE, a crime stipulated inArticle 2(3)(a), of the Statute in that on or between the dates of 7 April 1994 and 17 July1994 in Gisenyi prefecture, Rwanda, Bernard Munyagisharl was responsible for killingor causing serious bodily or mental harm to members of the Tutsi population" includingrape and otler acts of sexual violence, with intent to destroy, in whole or in part, a racialor ethnic group as such, as outlined in paragraphs 23 through 42 ofthis indictnent.

ORALTERNATIVELY

COUNT 3: COMPLICITY IN GENOCIDE

The Prosecutor charges Bernard Munyagishari with COMPLICITY IN GENOCIDE,a crime stipulated in Article 2(3Xe) of the Statute, in that on or between the dates of 7April 1994 and 17 July 1994 in Gisenyi prefecture, Rwanda, Bernard Munyagishariwas responsible for the killing or causing serious bodily or mental harm to members ofthe Tutsi population, including rape and other acts of sexual violence, with knowledgethat others intended to deshoy, in whole or in part, a racial or ethnic, group as such, andthat his assistance would contribute to the crime of genocide, as outlined in paragraphs 23through 42 of this indictrnent.

CONCISE STATEMENTS OT'FACTS FOR COUNTS 2 AND 3

Individual Criminal Responsibility

23. Pursuant to Article 6(l) of the Statute, the accused, Bernard Munyagishari isresponsible for the crime of genocide or complicity in genocide because he planned,ordered those over whom he had authority by reason of his position described inparagraphs 2 through 4 of the indictment, instigated those over whom he did not haveauthority, committed or otherwise aided and abetted in the planning, preparation orexecution of these crimes. In addition, the accused willfully and knowingly participatedin a joint criminal enterprise whose object, purpose and foreseeable outcome was thedestruction of the Tutsi racial or ethnic group in Gisenyi prefecture. To fulfill thiscriminal pupose, the accused acted with Inlerahamwe such as Omar Serushago, ThomasMugiraneza, Bemard Samvura, Bagtrngo Augustin, Zainabou also known as ZainabuMukundufite Faiziri and other participants, all such actions being taken either directly orthrough co-perpetrators, for at least the period of I January 1994 through 17 July 1994.The particulars that give rise to his individual criminal responsibility are set forthparagraphs 24 through 33 of this indicbnent.

24. After the establishment of roadblocks in Gisenyi and its environs on an unknowndate in April 1994, Bernard Munyagishari personally supervised the roadblocks locatedin the central area of Gisenyi and those leading from Nyundo into Gisenyi and the oneIeading to Bralirwa Company. Bernard Munyagishari further assigned to OmarSerushago the supervision of the very strategic roadblock "La Corniche". "LaCorniche" was located on the main road leading to the border with Zaire (now

}ft#"

Democratis Republic of Congo) between Lake Kivu and Gise'nyi city, and prevented theTutsis frorn fleeing to Zaire to seek refuge. At the roadblocks that BernardMunyagishari supendsed, the Interahamwe of the accused checked identity cards,selected Tutsis and took them to "Commune Rouge" where they killed and buried them'llte "Commune Rouge" was an infamous cemetery in Gisenyi and the adjective "rouge"(red) recalled the colour of the blood of those who were killed and buried there.Members of the Interahamwe who were co-perpetrators in the joint criminal enterprisekilled the Tutsis who were sent to "Commune Rouge".

25. During the events referred to in this indictment, in the period from 7 April 1994 to

17 July 1994, Bernard Munyagishari, accompanied by large numbers of Interahamwe,drove around Gisenyi town and identified to his group of militia the homes of Tutsis

marked for elimination and other places where Tutsis sought refuge, such as the catholicchurch, Saint Fiddle College, the Convent in Gisenyi, the Nyundo Parish and other public

buildings. Bernard Munyrgishari, armed with guns and grenades and other traditional*eapons, then committed attacks and ordered the members of the Interahamwe and

instigated the members of the civilian population to attack Tutsis' homes and places

wheie rhey were hiding and kill many of thern Bernard Munyagishari himself killed

Tutsis in the course of those attacks. In some cases, Bernard Munyagishari and his

Interahamwe took the Tutsis from their hiding-places to "Commune Rouge" where they

killed them.

26. On or about 7 and 8 April 1994, on or about I May 1994 and on an unlnown date

between 7 April and 31 May 1994, Bernard Munyagishari committed attacks and

ordered the members of the Interahamwe and instigated the members of the civilianpopulation to attack the Tutsis who had sought refuge in the Nyundo parish in Gisenyprl|""t re. The attackers, including Bernard Munyagishari, abducted from the parish

approximately three hundred (300) Tutsis, took them to "Commune Rouge" and killed

them.

27. During April 1994, after the death of President Juvdnal Habyarimana on 6 April,

Bernard Munyagishari, leading a group of Interahamwe including Omar Serushago andHassan Ngeze, committed an attack on the Catholic Church in Gisenl where large

numbers of Tutsis had sought refuge. The Interahamwe, including Bernard

Munyagishari, killed many Tutsis and wounded many others there. After killing Tutsis

in thi Catholic Church, Bernard Munyagisharl and his Interahamwe transported the

dead bodies to "Cornmune Rouge" where they buried them.

28. On or about 7 April 1994 in Gisenyi, Bernard Munyaglshari committed the killing

of a Tutsi man named Augustin Karimunda also known as Kalimunda who was an

employee of the Brewery Company in Gisenyi.

29. On or about 10 April 1994, Bernard Munyagishari and Bagungo Augustin, the

bourgmestre of Nyamyumba commune, were patrolling Gisenyi in a minibus. h Atecoorse of the patrol, a Tutsi man, Joel Safari, who had been gravely wounded in an earlierattack at his home, was abducted by the accused and put in the minibus which also held

9+

two Tutsi women. One of the women was the wife of one Rongn, coach of Rayon Sport,

a local football club in Gisenyi. Shortly afterwards, Bernard Munyagishari and the

bourgmestre Bagungo Augustin took Joel Safari and the two women to "Commune

Rouge" where they were killed.

30. On an unknown date between 7 April and 17 July 1994, Bernard Munyagishari

abducted Nyampeta also known as Munyampeta, a leading Tutsi businessman in Gisenyi,

and then toot tti- in a vehicle ta "commune Rouge" where he committed the killing of

Nyampeta also known MunYamPeta.

31. On an unknown date in April 1994, Bernard Munyagishari with a group of

Interahamwe including Omar Serushago and one Thomas, committed an attack on the

Saint-Fidete College in Gisenyi. Tlte Interahamwe, including Bernard Munyagishari

used buses to take many Tutsil from the Saint-Fidele College lo"Commune Rouge" and

killed them and buried them there.

32. On an unknown date around 30 April 1994, Bernard Munyagishari with a group

of Interahamwe inchtding Omar Serushago, Thomas Mugiraneza and Hassan Gitoki,

committed an atiack on thi Company Rwandex in Gisenyi where many Tutsis had sought

refuge. Upon their anival at the Company Rwandex, Bernard Munyagishari and some

Inteiahamwebe*to death the watchman, a ruur of Tutsi origin, who tried to stop them'

Afterwards, they abducted four Tutsis, two men and two women' who had been identified

by the gendarmes present at the scene. Bernard Munyagishari and his Interahamwe

then took the four Tutsis to "Commune Rouge" and killed them'

33. During the period from 7 April 1994 to 17 July 1994, Bernard Munyagishari

created a spJial corps of young Interahamwe called the "Ntarumikwa", in order to rape

and kill thl futsi wlmen-and girls. By creating this group, Bernard Munyagishari

aided and abetted its Interahimwe members in openly raping Tutsi women and girls

before killing them. Bernard Munyagishari also aided and abetted his wife and fellow

Interahamwi, Zainabou also known as Zainabu Mukundufite Faiziri, and a female group

that she headed, to sexually torture female Tutsis before killing them.

Criminal Responsibiltty as a Superior

34. pursuant to Article 6(3) of the Statule, the accused Bernard Munyagishari is

responsible of the crime of genocide or complicity in g.enocide because specific criminal

acts such as killing the Tuisis or causing serious bodily or mental harm to the Tutsis'

inoluding rape and other acts of sexual violence, wsre committed by the subordinates of

the accr.ied, and the accused knew or had reason to know that such subordinates were

about to commit such acts before they were commiffed, or that such subordinates had

committed such acts and the accused failed to take necessary and reasonable measures to

prevent such acts or to punish the perpetrators thereof. These subordinates included

interahamwe such as Omar Serushago, Damas Karikumutima' one Gaca, one Mchel and

other persons. The particulars of th- participation of the subordinates of the accused in

q6'

the commission of these crimes are set out in pmagraphs 35 through 42 of thisindictment.

35. After Bernard Munyagishari murdered Augustin Karimunda also known asKalimunda on or about 7 April 1994, one Gaca who was a subordinate of BernardMunyagishari in the Interahamwe and his group of killers abducted Maria, the Tutsiwife of Karimunda also known as Kalimunda and took her to "Commune Rouge" andkilled her and buried her there. Bernard Munyaglshari knew or had reason to know thatGaca and his group of Interahamwehad committed the murder and failed to prevent thekilling or to punish the perpetrators.

36. From 13 April 1994 until an unknown date in 1994, Ornar Serushago, asubordinate of Bernard Munyagishari, supervised a very strategic roadblock 'Za

Corniche". Many Tutsis who attempted to flee to the nearest neighboring counfry,Zaire, were arrested by Omar Serushago and his Interahmawe who took them to"Commune Rouge" where they were killed. Bernard Munyagishari knew or hadreason to larow that Omar Serushago and his group of "Interahamwe had committed thekilling, and failed to prevent the crime or to punish the perpetrators.

37. Between 7 and 10 April 1994, Omar Serushago, a subordinate of BernardMunyagishari and a leader of the Interahamwe in Gisenfi, led a large group of

-Interahamwe-to-the Company Rwandex where the Tutsi employees of the company hadsought refuge. Omar Serushago and his group of Interahamwe launched an attack againstthe refugees and killed about twenty Tutsis on the first day of the attacks. BernardMunyagishari knew or had reason to know that Omar Serushago and his group oflnterahamwe had committed the killing and failed to prevent the crime or to punish theperpetratorc.

38. On or about 7 and 8 April 1994, on or about I May 1994 and on an unknown datebetween 7-Apriland 31 May 1994, the Interahanwe who were subordinates of BernardMunyagisharl=attacked'the Tutsis- who had sought refuge in Nyundo parish" I&eInterahamwe killed many refugees during those attacks. In the course of one of thoseittacks, tFaioiiinately three hundred (300) Tutsis were abducted from the parish andparaded before the people of Gisenyi by Interahamwe who were subordinates of BernardMunyagishari before th"y were taken to "Commune rouge" and killed. TheInterahamwe accused those Tutsis of being "Inkotanyi". Bernard Munyagishari knewor had reason to know that his Interahamwe had committed the killing and failed toprevent the crime or to punish the perpetrators.

39. During tlie period from 7 April 1994 to 17 July 7994, rape, sexual assaults andother crimes of a sexual nature were widely and notoriously committed throughoutCisenyi. These crimes were perpetrated by Interahamwe who were subordinates ofBernard Munyagisharl, against Tutsi women and guls. Bernard Munyagishari knewor had reason to know that his Interahamwe had committed such crimes and failed toprevent the acts or to punish the perpetrators.

l 0

40. On or about 7 April 1994 in Gisenyi, Interahamwe who were the subordinates ofBernard lVlunyagishari killed a Tutsi woman called Kanzayire Solange, wife ofKamanzi Straton. After killing the womarL the Interahamwe looted the house of thecouple. Bernard Munyaglshari knew or had reason to lnow that his Interahamwe hadcommitted the murder and failed to prevent the crime or to punish the perpetrators.

41. Between 7 April and 17 July 1994, Bernard Munyagishari abducted a yotmgTutsi student named Frangoise, daughter of one Emmanuel, telling her that she was beingprotected from the rnassacres that were going on in Gisenyi at the time. ln the threeweeks she was held captive in the house of Bernard Munyagishari, two of BernardMunyagishari's Interahamwe, one Darnas and one Michel, raped the young Frangoise.The girl was later killed and her body disposed at a place called "Mu Makoro" inGisenyi. Bernard Munagishari knew or had reason to know that his Interahamwe hadraped and killed Frangoise and failed to prevent the crimes or to punish the perpetrators.

42, During the period from 7 April to 17 July 1994, Zainaibou also known asZainaibu Mukurdufite Faiziri, the wife of Bernard Munyagishari, headed a female

was notorious for sexually torturing Tutsi women before killing them. This group forcediron rods into the genitals of the Tutsi women. They also asked Tutsi women to produce

_ :, milk from their bodies if they were true Tutsis. Those Tutsi women were then tortured to, =-.-death. These acts constituted rape and Bernard Munyagishari knew or had reason to

know that his subordinates had committed rape and failed to prevent the crime or punishthe perpetrators.

COUNT 4: MURDER AS A CRIME AGAINST HUMANITY

Ihe Prosecutor charges Benrard Munyagishari with MURDER as a CRIME

' .:-,-_ -:-:=Gisenyi prefecture, with intent to kill members of the Tutsi racial or ethnic group or

-*J:";il"T1$'':"lfJH:il,"ilJ",i#:$'t'Jltr1l|;J:;Hffi H'i"liillf fi il:T:H'1''.Hffi 'l'.'"?:,J.I'ff '3--fi l#':TlffiIi*TifflJlil':iffi i:5**:1,:"CONCISE STATEMENT OF'F'ACTS F'OR COUNT 4

Individual Criminal Responsibility

43. Pursuant to Article 6(l) of the Statute, the accused, Bernard Munyagishari, isindividually responsible for the crime of MURDER AS A CRIME AGAINST- - HUMAIilTY because he planned, instigated, ordered, committed or otherwise aided andabetted in the planning, preparation or execution of this crime. With respect to thecommission of this crime, Bernard Munyaglshari ordered those over whom he hadauthority and instigated, aided and abetted those over whom he did not have authority.

l 1

.-1q,q

- - *-- Criminal Responsibility as a Superior -- - - ' --

In addition, the accused wiltfully and knowinglyparticipated in a joint criminal enterprisewhose object, purpose and foriseeable outcome was the murder of the Tutsi racial or

ethnic gro"p ttto"ghout Rwanda" and of the Hunr opponents of ethnic division. To

ilfrl 6is "ti-in"f

purpose, the accused acted with the bourgmestre of Nyamyrnba

Commune, Bagungo Augustin, and with the leaders and members of Interahamwe Omat

Serushago, Oamai Karikumutima, one Michel, one Gaca" Zainabou also known as

ZainabriMukundufite Faiziri and other participants, all such actions being taken either

directly or through co-perpefiators, for al least the period of I January 1994 through 17

July t194. The-particulars that give rise to his individual criminal responsibility are set

forth in paragraphs 44 through 46 ofthis indicEnent.

44. On 7 April 1g94 in Gisenyi, Bernard Munyaglshari committed the killing of a

Tutsi man named Augustin Karimunda also known as Kalimunda who was an employee

of the Brewery CompanY in GisenYi.

45. On or about l0 April 1994, Bernard Munyagishari and Bagungo Augustin, the

bourgmestre of Nyamyumba commure' were patolling Gisenyi in a minibus' In the

.ou.r, of the patroi, a futsi man, Joel Safari, who had been gravely wounded in an earlier

attack at his home, was abducted by the accused and put in the minibus which also held

two Tutsi women. One of the women was the wife of one Rongin, coach of Rayon

Sport, a local football club in Gisenyi. Shortly afterwards., Bernard Munyagishari and

tte Uourgm"ste took Joel Safari and the two women to l'Commune Rouge" where-they

were killed,

46. On an unknown date from 7 April to 17 July 1994, Bernard Munyagishari

abducted Nyampeta also known as Munyampeta, a leading Tltsi businessman in Gisenyi

and then toot tti- in a vehicle to "commune Rouge" where he committed the killing of

Nyampeta also known as Munyampeta.

47. Pursuant to Article 6(3) of the Statute, the accused Bernard Munyagishari, is

responsible of the crime of MUnpnR AS A CRIME AGAINST HUMANITY because

,p""in" criminal acts were committed by subordinates of the accused and the accused

knew or had reason to know that such subordinates were about to commit such acts

before they were committed or that such subordinates had committed such acts and the

accused faUeO to take necessary 8nd reasonable measures to prevent such acts or to

pmish the perpetrators thereof. 'i'tt"r. subordinates included leaders and members of the

Tnterahamwe such as Omar Serushago, Bagungo Augustin, Damas Karikumutima, one

Michel, one Gaca, Zainabou also known as Zainabu Mukundufite Faiziri, and otherparticipants. The paniculars of the participation of th9 ryy.e{'s subordinates in the

commission of the crime are set out in paragraphs 48 and 49 of this indictment'

4g. After Bernard Munyagisharl had mudered Augustin Karimunda also known as

Kalimunda on or about Z.fpritle9+, one Gaca, a subordinate of Bernard Munyagishari

in the Interahamwe and his group of killers abducted Maria, the Tutsi wife of Karimunda

also known as Kalimrmda, and took her to "Commune Rouge" and killed her and buriedher there. Bernard Munyagishari knevr or had reason to know that his group ofInterahamwe had committed the murder and failed to prevent the killing or to punish theperpefrators.

49. On or about 7 April 199a in Gisenyi, Interahamwe who were the subordinates ofBernard Munyagishari killed one Tutsi wonnn called Kanzayire Solange, wife ofKamanzi Straton. A-fter killing the woman, the Interahamwe looted the house of thecouple. Bernard Munyagishari knew or had reason to know that his Interahamwehadcommitted the murder and failed to prevent the killing or to punish the perpefators.

COUNT 5: RAPE AS A CRIME AGAINST HUMANITY

The Prosecutor charges Bernard Munyagishari with RAPE AS A CRIME AGAINSTHUMANITY, a crime stipulated in Article 3(g) of the Starute, in that on or between thedates of I January 1994 and 17 July 1994 throughout Rwanda, Bernard Munyagishariwith the intention of raping members of the Tutsi racial or ethnic group or personsidentified as Tutsis, was responsible for tbe rape of Tutsis as part of a widespread orsystematic attack against that civilian population on ethnic or racial grounds.

CONCISE STATEMENT OT'F'ACTS F'OR COUNT 5

Individual Criminal Responsibility

S0. Pursuant to Article 6(1) of the Statute, the accused, Bernard Munyagishari, isindividually responsible for the crime of RAPE AS A CRIME AGAINSTH1IMANIIY because he planned, ordered, instigated, committed or otherwise aided andabetted in the planning, preparation or execution of this crime. In addition, the accusedwillfully and knowingly participated in a joint criminal enterprise whose object" puposeand foreseeable outcome was the rape of women of the Tutsi racial or ethnic groupthroughout Rwanda, and of Hutu opponents of ethnic division. To fulfill this criminalpotpoi", the accused acted with leaders and members of the Interahamwe such as Damaskarikumutima, one Michel, Zainabou also known as Zainabu Mukundufite Faiziri, andother participants, all such actions being taken either directly or through co-perpetrators,for atleast the period of I January 1994 through 17 July 1994. The particulars that giverise to his individual criminal responsibility are set forth in paragraphs 5l and 52 of thisindictment.

51. During the period from 7 April 1994 to 17 July 1994, Bernard Munyagisharicreated a special corps of youn g Interahamwe called the "NtarumilcutQ", in order to rapeand kill the Tutsi *bmen. By creating this group, Bernard Munyagishari aided andabetted its Interahanwe members in raping Tutsi women and girls before killing them.Bernard Munyagisharl also aided and abetted his wife and fellow Interahamwe,Zainabou also

-}nown as Zainabu Mukundufite Faiziri, and a female group that she

headed in sexually torturing and raping Tutsi women. This group forced irons rods intothe genitals of the Tutsi women and mutilated their bodies'

l 3

_j q{

52. Between 7 April andlT July 1994, Bernard'Munyagishari abducteda-youngTutsi student named Frangoise, daughter of one Emmanuel, telling her that she was beingprotected from the massacres that were going on in Gisenyi at the time. For three weeks

she was held captive in the house of Bernard Munyagishari. Bernard Munyagishariraped Frangoise. The girl was later killed and her body disposed of at a place called "Mu

Makoro" in Gisenyi.

Criminal Responsibility as a Superior

53. Pursuant to Article 6(3) of the Statute, the accused Bernard Munyagisbari, is

responsible of the crime of RAPE AS A CRIME AGAINST HUMAMTY because

specific criminal acts were committed by subordinates of the accused and the accused

knew or had reason to know that such subordinates were about to commit such acts

before they were committed or that such subordinates had committed such acts and the

accused failed to take necessary and reasonable measures to prevent such acts or to

punish the perpetrators thereof. These subordinates included leaders and members of the

Interahamwe such as Damas Karikumutima, one Michel, Zainabou also lnown as

Zatnabu Mukundufite Faiziri, and other unknown participants. The particulars of theparticipation of the aocused's subordinates in the commission of the crime are set out in

paragraphs 54 through 56 ofthis indicfrnent.

54. Dgring the period from April 1994 to July 1994, rape, sexual assaults and other

crimes of seiual nafire were widely and notoriously committed throughout Gisenyi.

These crirnes were perpetrated by Inlerahamwe who were subordinates of Bernard

Munyagishari, against Tutsi women and girls. Bernard Munyagishari knew or had

reason to know tfrat tris Interahamwe had committed such crimes and failed to prevent the

acts or to punish the perpetrators.

55. Between ? April and 17 July 1994, Bernard Munyagishari abducted a young

Tutsi student named Frangoise, daughter of one Emmanuel, telling her that she was being

protected from the massacres that were going on in Gisenyi at the time. ln the three

weeks she was held captive in the house of Bernard Munyagishari, two of Bernard

Munyagish3;ri's Interahamwe, Damas Karilumutima and one Michel, raped Frangoise'

The ghl was later lcilled and her body disposed of at a place called "Mu Maknro" in

Gisenyi. Bernard Munagishari knew or had reason to know that his Interahamwe had

raped Frangoise and failed to prevent the rape or to punish the perpetrators.

56. Between 7 April and 17 July 1994, Berrrard Munyagishari's wife named

Zainabou also known as Zainabu Mukundufite Faiziri, headed a female group of

Interahamwe that was subordinate to Bernard Munyagishari and notorious for sexually

tortr.ging Tutsi women before killing them. This group forced iron rods into the genitals

of the Tutsi women. Those Tutsi women were then killed. These acts constituted rape and

Bernard Munyagishari knew or had reason to know that his subordinates had

commined such crimes and failed to prevent the acts or to punish the perpetrators.

l 4

,-.cql

The acts and omissions of Bernard Munyagishari detailed herein are punishablepursuant to articles 22 and23 of the Statute.

y of September 2005,Signed at Arusha, Tanzania, this.

HasB-an Bubacar Ja ffi

15

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To:LJ TrialChamber I

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From: [-J Chamber

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LJ Defence

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.EJ ProseqJtor's Office I lJ Othar:4(lAlphonse VgnI lranett\:W (names)

Case Name: The Prosecutor vs. Bernard Munyagishari i CCse Number: ICTR-2005-89-|

Dates: Transmitted: 08/09/05 I Document's date: 08/09/05No. of Pages: 1 6 OrlginalLanguage: fi English E French flKinyanrandaTltle ofDocument:

Confirmation of Indlctment agalnst Bernard Munyagishari

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e\ n7t\1Y1rr. --- t i--- - :- :-. - :-":-:. ' ' : -.:r

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lnternational Criminal Tribunal for RwandaTribunal p6nal international Pour le Rwanda

UNITED NATIONSNANONS UNIEI

Affaire no ICTR-200$89-I

FRANQAISOriginal : ANGLAIS

LE PROCUREUR

BERNARD MUNYAGISHARI

i r . l

ACTE D'ACCUSATION

fEduction certifi€e par la SSL du

Pr05-00r 5 (F)

e81

Le Procweur c. Bernard Munyagishari, affaire no ICTR-2005-89-|

Chef 1 :

Che f2 :

Che f3 :

Chef4:

Le Procureur du Tribunal pdnal intemational pour le Rwanda (le < Procureur n), envertu des pouvoirs que lui confEre I'article 17 du Statut du Tribunal pdnal international pourle Rwanda Qe < Statut n), accuse :

BERNARD MIJNYAGISIIARI des crimes suivants :

ENTENTE EN VUE DE COMMETTRE LE GfNOCIDE, en vertu desarticles 2.3.b) et 6.1. du Statut;

GENOCIDE, en vertu des articles 2,3.a),6.1. et 6.3. du Statut; ou.d,.titre -, *,subsidiaire,

coMPLICITf DANS LE GENOCIDE, en vertu des articles 2.3.e),6.1. et

6.3. du Statut;

ASSASSINAT CONSTITUTIF DE CRIME CONTRE L'HUMAMTI0, en

vertu des-articles 3 a), 6.1. et 6.3. du Statut ; et

Chef 5 : vIoL coNsrlTurrr'on CfliMlt boNfRpT;ii0MAxtrq en vertudes articles 3 g), 6.1. et 6.3. du Statut.

II. L'ACCUSf

L Bernard Munyagishari est nd en 1959 dans le secteur de Gisenyi, commune de

RuLaw, prdfecture de Gisenyi, au Rwanda.

2.BernardMunyagishar iadtd,Adive. rsmoment ! :9rye igry l1 , :1 .T! l99.9L%.football. Aprds que 1e if*"*d" eut adoptd te muttipartisme e1]fll,-Bilinald MUiryagish6Fi---_---.--

a eu un ernploi auprds de la compagnie d'assurances SoNARWA dans la ville de Gisenyi en

guise de rd.o*p"ns. pour sa iarticipation active au sein du MRND local (Mouvement

iep.ruti"uio national pour la dimocratie et le diveloppement). Il a'6td secrdtaire gcndral du-:=: :-:-

MRND dans la ville de Gisenyi et prdsident des Interahamwe dans la prdfecture de Gisenyi

de L992 a lgg4.Les Interahamwe formuent officiellement I'aile jeunesse du MRND. '

j. En sa qualit6 de secrCtaire gdndral du MRND dans la ville de Gisenyi et prdsident des

Interqhamw" iunr la prCfecteure de Gisenyi, Bernard Munyagishari a recrutd _beaucoupd,lnterahamwe pour son parti. Bernard Munyegishari, le major Frangois-Xavier Uwimana,

un nommd Rukara et dlautes personnes ont dispensd une formation paramilitaire aux

Inlerahamwe et leur ont distribud des annes.

4. En tant que secrdtaire gdn€ral du MRND dans la ville de Gisenyi et pr6sident des

Interahamwe dans la prdfecture de Gisenyi, Bernard Munyagishari a exerci un Contr6le

efiectif et une autoriti sur les membres des milices Interahamwe et Impuzamugambi de

Gisenyi et des environs,

5. Le 6 avril 1994 ou vers cette date et en d'auhes occasions jusqu'au 17 juillet 1994'

Bernard Munyagishari a 6td vu armd d'un pistolet, d'une katachnikov et d'un gourdin'

Pr05-0015 (F)

certifide par la SSL du TPIR

Le Procureur c. Bernard Muttyagishari, affaire no ICTR-2005-89-I

III. ACCUSATIONS ET EXPOSE SUCCTNT DES FAITS

6. A toutes les Cpoques visees par le pr€sent acte d'accusation, il existait au Rwanda ungoupe racial ou ethnique minoritaire appeld le groupe tutsi et officiellement considirdcomm€ tel par le Gouvernement-. La population majoritaire appartenait d un autre groupeethnique ou racial appelC les Hutus, qui 6tait lui aussi offrciellement considdrd comme tel parle Gouvernement.

7. En 1994, et plus particulidrement ente le 6 awil et le 17 juillet 1994, srrr I'ensembledu teritoire rwandais, des militaires, des miliciens Interahamv)e et des civils arm€s ont prispour cible et attaquC des personnes parce qu'elles appartenaient au groupe ethnique tutsi,dans I'intention de les tuer ou de porter gravernent atteinte A I'intdgritd de ce groupe commetel, et de ddtuire, en tout ou en partie, la population tutsie du Rwanda. Des centaines demilliers de civils tutsis ont Ctd tuds par les Interahamwe et d'auhes civils armds.

CIIEF 1 : ENTENTE EN VUE DE COMMETTRE LE GENOCIDE

Le Procureur accuse Bernard Munyagishari d'ENTENTE EN VUE DE COMMETTRELE GfNOCIDE, crime prdvu d I'article 2.3.b) du Statut, en ce qu'entre le lc' janvier et lelTjuillet 1994 inclusivement, dans la prdfecture Gisenyi, au Rwanda, BernardMunyagishari et d'autres personnes, notamment des membres du Gouvernement rwandais, "des dirigeants drr.MRND, les Forceq armdes rwandaises-.et les milidensjplgLqlggy4:.y-,:comprissansquecetteinumdrationsoit l imitative,despersonn6sinfluenteseT:p[i !--4ntds-comme le colonel Anatole Nsengiyumva, Joseph Nzirorera, Augustin Ngirabatware, MbanziWellars, Juvdnal Uwilingiyimana, Barnabd Samvura, Thomas Mugiraneza, Omar Serushago ,et d'autres personnes, sont convenus de tuer des membres de la population tutsie du Rwandaou de porter gravement atteinte d leur intdgritd physique ou mentale, dans I'intention deditruire, en tout ou en partie, un groupe racial ou ethnique comme tel, ainsi qu'il est expos6aux paragraphes 8 d 22 du prdsent acte d'accusation.

EXPOSE SUCCINCT DES FAITS RELATIFS AU CIIEF 1

.=}ZgB

Re spons a b il it i p i nal e i ndiv idue ll e

8. En application de l'article 6.1. du Statut, I'accusi Belnard,Mqqy,agtqlari;estindividuellement responsable du crime d'ENTENTE EN VUE DE COMMETTRE LEGENOCIDE pour s'6tre entendu avec le colonel Anatole Nsengiyumva, Joseph Nzirorera,Augustin Ngirabatrware, Mbanzi Wellars, Juvdnal Uwilingiyimana, Bamabi Samvura,Thornas Mugiraneza, Omar Serushago et d'autres personnes, sur un plan'visant ladestruction, en tout ou en partie, du groupe ethnique tutsi ainsi qu'il est exposC auxparagraphes 9 d 22 du prdsent acte d'accusation. En exdcution de ce plan, il apersonnellement commis, ordonnd, incitd A commettre ou aidd et encouragd i commettre desactes spdcifiques-ayant facilitd la destnrction des Tutsis, actes commis entre une dateinconnue au dCbut de 1992 et le 17 juillet 1994. Les faits ditaillds A raison desquels saresponsabilitd pdnale individuelle se trouve engagde sont exposis aux paragraphes 9 d22 duprdsent acte d'accusation.

Traduction certifide oar la SSL du TPIR

Pr05-00r5 (F)

)97

Le Procureur c. Bernard Munyagishari, affaire n" ICTR'2005'89'|

g. Aprgs I'adoption du multipartisme au Rnnanda en 1991, Bernard Munyagishari, en

sa qualitd de secrdt-aire g€niral ai nmNn dans la ville de Gisenyi, a recrutd beaucoup dejeunes pour I'aile jeunesse du MRND, connue sous le nom d'Interahamwe. Ces personnes

Ctaient itrrqur toutes d'origine ethnique hutue. A Gisenyi, le r6le des Interahamwe consistait

i eauser du d6sordre lors dis meetings des partis de I'opposition et d'attaquer et de tuer les

Tutsis et les Hutus qui s'opposaient d la division ethnique, ceux-ci etant accusis d'€tre des

complices des Inkotanyl,, lei iombattants du Front patriotique rwandais (le ( FPR D).

10. A une date inconnue en 1992, Bernard Munyagishari s'est entendu avec des

personnes influentes pour crier cinq grands groupes de miliciens Interahamwe i Gisenyi

ayant pour mission d'attaquer et de tuei les Tutsis et les Hutus opposds d la division ethnique.

Iiernard Munyagishari a gtg nommd prdsident des milices Interahamwe de la prdfectre de

Gisenyi it a accipt€ ce poste alors qu'il connaissait le rdle criminel des Interahamwe.

Thomas Mugiranlza eiait son vice-prdsident. Bernard Munyagishari dirigeait

personnelle*.irt l'* des groupes tandis que les quage auhes dtaient dirigds' sous sa

supervision, par Omar SerusLago, Thomas [ssa" Hassan Sibomana et un certain Mabuye.

ll. En exCcution de I'entente dgcrile- dans le :Pf6-se11,acte d'4ccusago:B'i=:9Inar{-=::.::

Munyagishari a regu une formation de commando du majorFq?mfatic-xavieluwimilq^-:n==:

rurp *iituire de Bigogwe. Bernard Munyagislgi!!ait souvent armd et portait parfois une- . c c . - : - l l - ; ^ ; + - ^ * L - - A ^ . D ^ * a a < a n A e c

ienue militaire mais 'n'est

jamais devenu officiellement membre des Forces armCes

rwandaises.

militaires.

12. En exdcution de I'entente ddcrite dans le prcsent acte d'accusation, de 1992 d la mort-

du Pr6sident Juv6nal Habyarimana le 6 avril 1-994, Bernard Munyagishari a formd des

milices Interahamwe. La iormation a permis aux Interahamwe d'attaquer et de tuer plus

effrcacement tes Tutsis et les opposanti ttut o avec les alrye.s qurc leur avaigq$-q949-e1!5

13. En ddcembre 1993, Bernard Munyagishari et d'_aulres chefs des Interahamwe ont

assiste d une r6unioo a i'tr'Ot"t Mdridien de Glsenyi dans le but d'organisgr,la ,"-u.?aglg d": --,-==-;::massacres. La rdunion avait 6td convoqude par Joseph Nzirorera et JuvCnal Uwilingiyimana'

Au cours de celle-ci, les particip*tt, d*t Bernard Munyagishari, sont convenus de I

distribuer des armes aux Inieraho**, pow qu'ils tuent les Tutsis. Bernard Munyagishari

dtait charg6 d'inforner les Interaha^*i dubut dans lequel les armes leur dtaient distribudes.-

14. A plusieurs reprises avant le 7 avril1994, le Ministre de la planification, Augustin

Ngirabatrvarr, ,*o*L€ Mbiyo Mbiyo, a tenu des rdunions avec Bernard Munyagishari et

Les Interahamwe 'aI_ secrdtariat du MRND d Gisenyi. Les participants, dont,Bernard

Munyagishari, sont convenus de ne laisser aucune personne d'origine ethnique tutsie assister

u* ,i*ions. Les participants, dont Bernard Munyagishari, sont en outre convenus de tuer

les Tutsis. Aprds la plupart de ces rdunions, Bernard Munyagishari et le Ministre Augustin

Ngirabanvare louaient ies autobus de la compagnie de transport ONATRACOM e Gisenyi

afin qu'ils fiansportent les Interahamwe dans les communes oir ils cherchaient les Tutsis et

les tuaient.

15 ,vers

En ex6cution de I'entente ddcrite dans le prdsent acte d'accusation, le 5 avril 19-94 su

cette date, des Interahamwe dingds par Bernard Munyagishari ont commencd i

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propager <ie rhusses rumeurs d Cisenyi selon lesqueites les Tutsis avaient mis du poison dansI'eau pour causer la mort de ceux qui la boiraient en I'occunence les Hutus. Cette rumeur adtd propagde dans I'intention de provoquer des tensions au sein de la population afin quecelle-ci considdre les Tutsis comme I'ennemi. En consdquence, les Interahamwe ont menacdde tuer les Tutsis.

)

16. Le l0 janvier 1994 ou vers cette date, un chef des Interahamwe, surnommd Jean-Pierre, a informi la MINUAR (Mission des Nations Unies pour I'assistance au Rwanda) irKigali que les dirigeants du MRND et les membres des cellules des Interahamwe, dont Jean-Piene lui-m€me, avaient dtabli des listes de Tutsis A iliminer. Ces listes indiquaient les nomset les lieux de rdsidence des Tutsis qui devaient €tre tuds. Des listes ont 6td aussi remises auxautres autoritds et aux chefs des Interahamwe dans le pays, notamment d Gisenyi oil c'estBernard Munyagishari et Barnabd Samvura qui les ont regues. Aprds la mort du PrdsidentJuvdna lHabyar imana ,dp lus ie r : r sda tes inconnuesdon tuneenma i1994 ,Berna rdMunyagishari a organisd une fouille, par ses Interahamwe, des maisons de Tutsis i tuer.Certains Interahamwe €taient chargds de fouiller les maisons des Tutsis le jour et d'autres lanuit, Bernard Munyagishari lui-m€me a conduit un groupe d'lnterahamwe yerc les maisonsde perso4nalitCs tutsies qui devdient €tre tudes. Bernard Munyagishari a aussi ordonnd i sesInterahamwe de se rendre au domicile de certaines familles tutsies afin de les capturer.Certains des Tutsis'capturis ont dtd tuds par les Interahamwe.

|7,Enrnars|994,aIorsque[eGouvernementrwandais'.subiss4it.d'es:pq9!'slgs-po!L-'4;met t reen@uvreles.Accordsd 'Anjsha,BefnardMuny'g ishai i4AF|ry 'e ! [ -@-organise i Gisenyi de violentes protestations contre ces accords et a orchestrC une campagnede haine virulente contre les Tutsis en exdcution de I'entente ddcrite dans le prCsent acted'accusation. Bernard Munyagishari et ses Interahamwe ont dtabli des barages routiers e.Gisenyi pour manifester leur ddsapprobation et leur coldre par rapport aux ndgociations encours ir Arusha. [s ont an€ti des Tutsis aux barrages routiers et les ont agressds. Au cours deces ddmonstrations, Bernard Munyagishari et ses Inlerahamwe ont aussi pilld des maisonsde Tutsis et ditruit lews biens.

l8 .Le7avi | l994ouverscet tedate,envued,organiser leddbutduplan<Pexterminat lonGdes Tutsis, le colonel Anatole Nsengiyumva a convoqud une rdunion des dirigeantspolitiques, des autoritds locales et des Interahamwe au camp militaire de Gisenyi. Etaientnotamment prdsents i la rdunion, Bernard Munyagishari, BarnabC Samvura, prdsident de tu --'.- ,, -*- - -CDR dans la commune de Rubavu, et Thomas Mugiraneza, vice-prdsident des Interahamwedans la pr{fecture de Gisenyi. Les participants, dont Bernard Munyagishari, ont discutd desddtaits du plan d'extermination des Tutsis et sont convenus, au cours de la rdunion, dedistribuer des armes pour les exterminer.

19. A Ia fin de la rCunion qui a eu lieu le 7 avril 1994 ou vers cette date, en exdcution deI'entente ddcrite dans le pr6sent acte d'accusation, le colonel Anatole Nsengiyumva aordonnd au capitaine Bizuremuye, commandant de la brigade mobile de Gisenyi, dedistribuer des armes et des munitions aux chefs des Interahamwe qui itaient prCsents. Lesarmes, dont des grenades et des fusils, ont ensuite dtd dishibudes aux Interahamwe qui ontimm6diatement lancd des attaques contre les Tutsis. Bernard Munyagishari s'est entenduavec d'autes personnes pour participer d la distribution d'armes aw< Interahamwe, sachantque ces armes serviraient A mener des attaques contre les Tutsis.

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Le Procureur c. Bernard Mwyagishari,affaire no ICTR-2005-89-I

20. A une date inconnue en avril 1994, Bernard Munyagishari a assistd i une rdunionconvoqude par le colonel Anatole Nsengiyumva au stade de Gisenyi. Au cours de la rCunion,les participants ont discutd de la question de savoir s'il fallait ou non mettre fin aux tueriesdes Tutsis. Bernard Munyagishari, le colonel Anatole Nsengiyumva et d'autres personnessont convenus de ne pas arr€ter les tueiies i Gisenyi. Bernard Munyagishari et lesInterahamwe qui participaient i la rCunion ont appuyi la diclaration du colonel AnatoleNsengiyurnva qui, s'adressant aux tueurs, a exprimC son ddsaccord avec les deux premiersorateurs qui plaidaient en faveur de la fin des massacres. Le colonel Anatole Nsengiyumva afdlicitd Les Interahamwe pour ce qu'il a appeld un << bon travail > et les a encouragds d-continuer i < travailler >. Dans ce contexte, < travailler > signifiait tuer les Tutsis. Bernard

- -- Munyagishari est convenu avec [e colonel Anatole Nsengiyumva et d'autres personnes queles massacres de Tutsis devraient continuer et, apr0s la r€union, ces massacres sont devenusde plus en plus intenses i Gisenyi.

I

21. Du 7 avril au 17 juilletlgg4,en exdcution de l'entente ddcrite dans le present acte-- ---d?accusation, Bernard Munyagishari a supervisd les-barrages routiers dans la ville de

Gisenyi et ses environs. Il 6tait prdsent A beauco-up de !4qages rou{9_fqr-4g4t g-e-lui-:01{:l:9,chemin qui mdne d la compagnie Bralirwa d Gisenyi, il y a ordonnd avx Interahamwe de tus1=--les Tutsis et a incitd d'aufres civils A faire de m€me. Au cours de la m6me pdriode, les

- Interihamwe dirigds par Bernard Munyagishari ont tud beaucoup de Tutsis aux barragesroutiers i Gisenyi.

22. A une date inconnue en mai 1994, Bernard Munyagishari a convoqud une rdunionau stade de Gisenyi. Il s'est entendu avec les autres participants pour n'admettre aucun Tutsidr la rdunion. Bernard Munyagishari est en outre convenu avec les autres participants de -difinir l'ennemi des Hutus. Au cours de son disc.ours, il a ddclari que le ttnqptgql!_Yg!gj9----:===_=-savoir qui dtait I'ennemi rdel et a demande--aux participants de luttix-contre I'ennemi

- - ::: rapidement et sans pitid. Pour Bernard Munyagishari et ceux qui participaient i la rdunion,-

il dtait clair qrre I'ennemi 6tait le Tutsi. Immddiatement apr0s la rdunion, les Interahamwe ontcommencd i aller de maison en maison A la recherche de Tutsis et les ont tuis. Certains

- - '

Interahamwe fouillaient les maisons des Tutsis le jour tandis que d'autres le faisaient la nuit.

GHEF 2 : CtXOCTOE

Le Procureur accuse Bernard Munyagishari de GfNOCIDE, crime prdvu i I'article 2.3.a)du Statut, en ce qu'il a, entre le 7 awil etle 17 juillet 1994 inclusivement, dans la prdfecturede Gisenyi, au Rwanda, dtd responsable du meurtre de membres de la population tutsie oud'atteintes graves i leur intCgritd physique ou mentale, y compris le viol et d'autres actes deviolence sexuelle, dans I'intention de d€truire, en tout ou en partie, un groupe racial ouethnique comme tel, ainsi qu'il est exposd aux pamgraphes 23 i 42 du prdsent acted'accusation.

OU A TITRE SUBSIDAIRE

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CHEF 3 : COMPLICITE DANS LE GfNOCIDE

Le Procureur accuse Bernard Munyagishari de COMPLICITf, DANS LE GfNOCIDE,crime prdvu'A I'article 2.3.e) du Statut, en ce qu'il a, enEe le 7 avril et le l7 juillet 1994inclusivement, dans la prdfecture de Gisenyi, au Rwanda" 6t6 responsable du meurtre dernembres de la population tutsie ou d'atteintes graves i leur intdgrite physique ou mentale, ycompris le viol et d'autres actes de violence sexuelle, en sachant que d'autres penionnesavaient I'intention de ddtruire, en tout ou en partie, un groupe racial ou ethnique comme tel etque son aide contribuerait i la commission du crime de gdnocide, ainsi qu'il est exposd auxparagraphes 23 d42 duprdsent acte d'accusation. '

EXPOSE SUCCINCT DES FAITS RELATIFS AUX CHEFS 2 ET 3

Responsabilitd pdnale individuelle

23. En application de I'article 6.1. du Statut, I'accusd Bernard Munyagishari estresponsable du crime de gdnocide ou de complicit€ dans le gCnocide pour avoir planifiC lacommission de ces crimes, ordonnC i ceux sur lesquels il exergait une autoritd en raison de saposition ddcrite aux paragraphes 2 i 4 du prdsent acte d'accusation de les commettre, incitdceux sur lesquels'il nlexergait pas d'autoritd i les commettre, commis ou de toute autremanidre aidC et encouragd d planifier, prdparer ou exdcuter ces crimes. De plus, I'accusd aparticipd sciemment et dClibCrdment i une entreprisecriminelle-com,mune dggt l''objqL:l4Ut:::"=-=-et la consdquence prdvisibli gtaient la destruction du groupe raciat ou ethnique tutsi dans laprdfecture de Gisenyi. Pour rdaliser ce dessein criminel, I'accus6 a agi de concert avec desInterahamwe, tels qu'Omar Serushago, Thomas Mugiraneza, Bernard Samvura, AugustinBagungo, Zainabou, aussi connue sous le nom de Zainabu Mukundufite Faiziri, et d'autresparticipants, soit directement, soit par I'intermddiaire de coauteurs, pendant au moins laperioae allant du l" janvier au 17 juillet 1994. Les faits ddtaillds i raison desquels saiesponsabilitd pdnale individuelle se trouve engagde sont exposds aux paragraphes24 d 33 duprdsent acte d'accusation.

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24. Aprds l'{tablissement des banagds ioutieri i Gisenyi-et ses environs i uneinconnue en avril 1994, Bernard Munyagishari a personnellement surpervisd les barragesroutiers situds au centre de Gisenyi et ceux qui se Eouvaient sur la route qui mdne de Nyun{oi Gisenyi et celle qui va vers la socidtd Bralirwa. Bernard Munyagishari a par ailleursconfid i Omar Serushago la supervision du banage partiouli0rement sEatdgique de < laCorniche >, Celui-ci 6tait situd sur la route principale qui mdne i la frontiEre du Zdire(aujourd'hui la Rdpublique dCmocratique du Congo) entre le lac Kivu et la ville de Gisenyi, _it imp€chait les Tutsis de fuir vers le Zaire, Aurbanages routiers que supervisait BernardMunyagishari, ses Interahamwe virifiaient les cartes d'identite, sdlectionnaient les Tutsis etles emmenaient A la < Commune rouge ) oir ils les hraient et les enterraient. La < Communerouge ) dtait un cimetidre tristemenicdldbre d Gisenyi, et l'adjectif (rouge l rappelait lacouleur du sang de ceux qui y avaient dtd tuds et enterrds. Des membres des Interahamwecoauteurs de I'entreprise criminelle commune ont tud les Tutsis qui ont it6 envoyis i la< Commune rouge )),

25. A t'dpoque des faits visds dans le prdsent acte d'accusation, dwant la pdriode du7 avi|1994 au l7 juitlet 1994, Bernard Munyagishari, accompagnd d'un grand nombre

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d'Interchamwe, afait Ie tour de la ville de Gisenyi en voiture et alndiquC d son groupe demiliciens les maisons des Tutsis qui devaient €tre dliminds et les autres endroits otr des Tutsisavaient cherchd refuge, comme l'6glise catholique, le coll0ge Saint Fid0le, le couvent deGisenyi, la paroisse de Nprndo et d'autres bitiments publics. Bernard Munyagishari, arm6de fusils, de grenades et d'armes traditionnelles, a paf, la suite men€ des attaques,ordonnC auxmembres des Interahamwe d'attaquer les maisons des Tutsis et les endroits oi ils se cachaientet de tuer beaucoup d'entre eux et a incitd la population civile i faire de m6me. BernardMunyagishari a lui-m6me tuC des Tutsis au cours de ces attaques. Dans certains cas,Bernard Munyagishari et ses Interahamwe ont sorti les Tutsis de leurs cachettes pour lesemmener d la < Commune rouge > otr ils les ont tu6s.

,-26.- -- lcs 7 et 8 avril ainsi que le l" mai 1994 ou vers ces dates, et d une date inconnue - ,.-entre le 7 avril et le 31 mai 1994, Bernard Munyagishari a mend des attaques et ordonndaux membres des Interahamwe d'attaquer les Tutsis qui avaient cherch€ refuge d la paroisse ide Nyundo dans la prdfecture de Gisenyi, et a incitd la population civile d faire de m6me. Lesassaillants, dont Bernard Munyagishari, ont enlevd de Ia paroisse environ 300 rifugiCs, les

*. -----ont.emmends i la < Commune rouge > et les y ont tuds. -

27. En avril le9+, apres la mort au prisiJ"it l""enuf Hufv"ri-*a le-6hviil, Bernard--*-- --:Munyagishari, i la tete d'un groupe d'Interahamwe, dont Omar Senrshago et Hassan Ngeze,a lancd une attaque contre I'dglise catholique de Gisenyi oir un grand nombre de Tutsisavaient cherchd refuge. Les Interahamwe, dont Bernard Munyagishari, y ont tud denombreux Tutsis et blessd beaucoup d'autres. Aprds avoir tui les Tutsis i I'Cglise catholique,Bernard Munyagishari et ses Interahamwe ont transportd les cadavres i Ia < Communerouge D otr ils les ont enterrds,

28. Le 7 avril 1994 ou vers cette date, A Gisenyi, Bernard MunyagishniFi,-.htein.Tutsi:====:du nom d'Augustin Karimunda, aussi connu sous le nom de Kalimunda, un employE de laBrasserie i Gisenyi.

29. Le 10 avrii iqga ou urr, ,itt aate, g"rnaiA fvfoov"gishari et Augustin Bagrrngo,bourgmestre de la commune de Nyamyumba, faisaient une patouille dans Gisenyi i bordd'un minibus lorsque I'accusC a enlevC Jo€l Safari, un Tutsi qui avait dt€ gridvement bless6--------1--lors d'une attaque antdrieure A son domicile, et I'a mis dans le minibus dans lequel setrouvaient aussi detx femrnes tutsies. L'une de celles-ci €tait I'dpouse d'un certain Rongin,I'entralnew du club de football local de Gisenyi, Rayon Sport. Peu de temps aprds, BernardMunyagishari et le bourgmestre Augustin Bagungo ont emmend JoEl Safari et les der:xfernmes i la < Commune rouge > oir ils ont 6td tuds.

30. A une date inconnue entre le ? avril et le 17 juillet 1994, Bernard Munyagishari aenlevd Nyampeta, aussi connu sous le nom de Munyampeta, un important homme d'affairestutsi de Gisenyi, et I'a emrnend i bord d'un v€hicule i la < Commune rouge ) oir il I'a tud.

31. A une date inconnue en avril 1994, Bernard Munyagishari et un grouped'Interahamwe, dont Omar Serushago et un certain Thomas, ont menC une attaque contre lecolldge Saint Fiddle A Gisenyi. Les Interahamwe, y compris Bernard Munyagishtri, se sontservis d'autocars pour tmnsporter un grand nombre de Tutsis du colldge Saint Fiddle i la<< Commune rouge D oir ils les ont tu6s et enterris.

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32. A une date inconnue ven le 30 awil 1994, Bernard Munyagishari et un grouped'Interahamwe domt Omar Serushago, Thomas Mugiraneza et Hassan Gitoki, ont lantC unelttaque contre la sociitd Rwandex situCe d Gisenyi oir beaucoup de Tutsis s'dtaient r€fugi€s.A leur arrivde d la sociitd Rwandex, Bernard Munyagishari et quelques Interahamwe ontbattu d mort le gardierq un Tutsi, qui tentait de les emp6cher d'y enher. Par la suite, ils ontenlevd quatre Tutsis, deux homrnes et deux femmes, qui avaient Ct6 identifids par lesgendarmes prdsents sur les lieux. Bernard Munyagishari et ses Interahamwe ont irsuiteemmend les quatre Tutsis i la < Commune rouge ll et les ont tu6s.

33. Au cours de la pCriode allant du 7 awil au 17 juillet 1994, Bernard Munyagishari acrdd un groupe spdcial de jeuues Interahamwe appeles les <<Ntarumilotta>>,chargds de violeret de tuer les femmes et jeunes filles tutsies. Par la cr€ation de ce,groupe, BernardMunyagishari a aidd et encouragd ses Interahamwe d violer au vu de tous les femriiis etjeunes filles tutsies avant de les tuer. Bernard Munyagishari a aussi aidd et encouragd safemme, une Interahamwe comrne lui, Zainabou, connue aussi sous le nom de ZainabuMukundufite Faiziri, et Ie groupe de femmes qu'elle dirigeait, A torturir sexuellement desfemmes tutsies avant de les tuer.

Responsabilitd pdnale du supd,rieur hidrarchique

34. En application de I'article 6,3.,du Stalut, l'.qggusd.BQrnard-:Muny.agis,heri.egt:==::=::-:::--:::.--responsable du crime de gdnocide bri de iompticiti dans le g6nocide

"n L quFei----

subordonnds ont commis certains actes criminels tels que merlrtres de Tutsis ou atteintesgraves i leur intdgritd physique ou mentale, notamment des viols et autres actes de violencesexuelle, et qu'il savait ou avait des raisons de savoir qu'ils s'apprEtaient i commettre ouavaient commis ces actes, mais n'a pas pris les mesures ndcessaires et raisonnables pourempEcher que lesdits actes soient commis ou pour en punir les auteurs. Au nombre de cessubordonnCs figuraient des Interahamwe tels qu'Omar Serushago, Damas Karikumutima, uncertain Gaca, un certain MichEl et d'autres personnes, Les faie dCtaillds relatifs i lapart icipationdessubordonncsdel 'accusddlacommissi9n{ecescrimes'ont'=*poGparagraphei 35 a 42 du prdsent acte d'accusation.

35. Aprds que Bernard Munyagishari eut assassind A-uguslin l-!4rimundlr-CgalementconnusouslenomdeKalimund4le7aVriI1994ouveiscdttedate,uncertainGa6iff ile subordonni de Bernard Munyagishari dans les Interahamwe et son groupe de tueurs ontenlevd Maria, Ia femme tutsie de Karimunda, dgalement connu sous le nom de Kalimunda, etI'ont emmen€e i la << Commune rouge )) oir ils lont tuie et enterrde. Bernard Munyagiihari-

-

savait ou avait des raisons de savoir que Gaca et son groupee d'lnterahamrve avaient commiscet assassinat et n'a pas pris les rnesures ndcessaires pour llemp€cher ou pour en punir lesauteurs.

36. Du 13 avil 1994 i une date inconnue de la m6me ann6e, Ornar Serushago, unsubordonni de Bernard Munyagishari, a supervis€ < La Corniche >>, un banage routierparticulidrement strategique. Plusieurs Tutsis qui tentaient de s'enfuir au Za'ire, pays voisin leplus proche, ont dtd arr€t€s par Omar Serushago et ses Interahamwe et emmends i la<< Commune rouge )) ofi ils ont Ctd tuis. Bernard Munyagishari savait ou avait des raisons

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de savoir qu'Omar $erushago et son groupe d'lnterahamwe avaientcommis ces meurhes etn'a pas pris les mesures nCcessaires poru les emp€cher ou pour en punir les autegrs.

37. Entre le 7 et le l0 avril 1994, Omar Serushago, un subordonnd de BernardMunyagishari et un des dirigeants des Interahamwe de Gisenyi, a conduit un grand gouped'Interahamwe I la socidtC Rwandex o$ les ernployds tutsis de celle-ci avaient douvd onrg".Omar Serushago et son groupe d'Interahamwe ont attaqud les rdfugids, tuant une vingtaine deTutsis le premier jour des attaques. Bernard Munyagishari savait ou avait des raisons desavoir qu'Omar Serushago et son groupe d'Interahamwe avaient commis ces megrtres et n'apas pris les mesues ndcessaires pour les emp€cher ou pour en punir les auteurs.

* --38*--Les 7 et 8 avril 1994 ainsi que le lo mu 1994 ou vers ces dates, et i u4e d4teinconnue entre le 7 avril et le 3l mai 1994, les Interahamwe qui dtaient des subordonnds deBernard Munyagishari ont attaqud les Tutsis qui avaient frouvd refuge dans la paroisse deNyundo, Les Interahamwe ont tud un grand nombre de rdfugids au cours de ces attaques.Lors de I'wte d'elles, i peu prds trois cents (300) Tutsis ont Ctd enlevds de la paroisse etpromen6s dans la ville de Gisenyi par des Interahamwe qui Ctaient des subordonnds de

- Bergar{ Munyagishari avant d'€tre emmends e h < Commune-rouge > otr ils-ont dtd-tuds'.;::_:_Les Interahamwe accusaient ces Tutsis d'6he des < Inkotanyi >. Bernard Munyagishari -- -savait ou avait des raisons de savoir que ses Interahamwe avaient commis ces meurtres et n'apas pris les mesures ndcessaires poru les emp€cher ou pour en punir les auteurs.

39. Au cours de la pdriode allant du 7 avril au 17 juillet 1994, des viols, des agressionssexuelles et d'autres crimes d caractdre sexuel ont dtd commis sur une grande Cchelle et defagon notoire dans Gisenyi. Ces crimes ont dtC perp'dtrds par des Interahamwe qui 6taient dessubordonnds de Bernard Munyagishari contre des femmes et des jeunes filles _tutsiqs_.Bernard Munyagishari savait ou avait des raisons de savoir que ses InterahaaTye-ayalelt-commis ces crimes et n'a pas pris les mesures ndcessaires pour les emp€cher ou pour en punirles auteurs.

40. Le 7 avil 1994 ou vers cette date i Gisenyi, des Interahamwe qui dtaient ?ersubordonnCs de Bernard Munyagishari ont tud une Tutsie du nom de Solange Kanzayire,dpouse de Straton Kamanzi. Apr€s I'avoir tude, ils ont pilld la maison du coupla-Be-Lnt!4_Munyagishari savait ou avait des raisons de savoir que ses Interahamwe avaient commis cemeurtre et n'a pas pris les mesures ndcessaires pour I'emp€cher ou pour en punir les auteurs.

4l' Enffe le 7 avril et le 17 juillet 1994, Bernard Munyagishari a enlevd une jeunedtudiante tutsie du nom de Frangoise, fille d'un certain Emmanuel, en lui disant que c'itaitpour la protdger des massacres qui se ddroulaient dans Gisenyi i I'dpoque. Pendant les troissemaines qu'a durd sa ddtention dans la maison de Bernard Munyagishari, deux desInterahamwe de Bernard Munyagishari, un certain Damas et un certain Michel, ont viold lajeune Frangoise. Celle-ci a ensuite dte tude et son cadavre jete d un endroit appel( << MuMakoro > d Gisenyi. Bernard Munyagishari savait ou avait des raisons de savoir que sesInterahamwe avaient viol6 et tud Frangoise et n'a pas pris les mesures nicessaires pouremp€cher ces actes ou pour en punir les auteurs.

42. Au cours de la pdriode allant du 7 avril au 17 juillet 1994, 7-ainabou, Cgalementconnue sous le nom de Zanabu Mukr.urdufite Faiziri, Cpouse de Bernard Munyagishari, a

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<iirigd un $oupe cie iemmes interahamwe qui dtaient des subordonndes de EcrnardMunyagishari. Ce groupe 6tait connu pour inlliger des torhues sexuelles aux femmes tutsies-avant de les tuer. Les femmes de ce groupe enfongaient des tiges de fer dans les organesgdnitaux des Tutsies, Elles leur dernandaient aussi de faire sortir du lait de leur corps si ellesetaient de-v6ritables Tutsies. Celles-ci dtaient ensuite torttrees jusqu'i ee que mort s'ensuive.Ces actes itaient des viols, et Bernard Munyagishari savait ou avait des raisons de savoirque ses subordonndes avaient commis ces viols et n'a pas pris les mesures nicessaires pourles emp6cher ou pour en punir les auteurs.

CIIEF 4 : ASSASSINAT CONSTITUTIF DE CRIME CONTRE L'}IUMANITf

Le Procureur accuse Bernard Munyagishari d'ASSASSINAT CONSTIiUTIF DECRIME CONTRE L'IIUMANITf, crime prdvu d I'article 3,a) du Statut,en ce qu'entre lel"' janvier et le 17 juillet 1994 inclusivement, sur I'ensemble du tenitoire ruandais, enparticulier dans la pidf."t*r de Gisenyi, dans I'intention de tuer des membres du groupeiacial ou eth4ique tutsi ou des personnes considdries comme tutsies ou pr6sumdes soutenirles Tutsis, il s'est rendu responsable de leur assassinat par sei bctes personnels et ceux de sessubordonnds commis dans le cadre d'une attaque g€n6ralisde ou systdmatique dirigde contecette population civile en raison de son appartenance raciale et politique, ainsi qu'il estexposd aux paragraphes 43 i 49 du prdsent acte d'accusation.

EXPOSE SUCCINCT DES FAITS RELATIFS AU CHEF 4

Respo ns ab il it 6 pinal e indivi due I I e

4i,, En application de I'article 6,1. du Statut, I'accusd Bernard Munyagishari est

individuellement responsable d'ASSASSINAT CONSTITUTIF DE CRIME CONTREL'HUMANITf pour avoir ptanifid, incitC i commettre, ordonnd, commis ou de toute autre

manidre aidd et encouragd i planifier, prdparel ou exdcuter ce crime. S'agissant de [a

commission du crime en question, Bernard Muuyagishari a donnd I'ordre de le perpdtrer i

ceux sur lesquels il avait iutoritd et a incit6, ainsi qu'aidC.et encolragd ceux sur lesquels il - - --

n'avait p"r uutotiti d le commettre. De plus,'l'accusd a participe sciemment'Otddlib€rdment d':

un. "ntirprise

criminelle commune dont I'objet, le but et la consiquence prdvisible dtaient

I'assassinit du groupe racial ou ethnique tutsi partout au Rwanda et des opposants hutus d la

division ethniq-ue. Four rdaliser ce dessein criminel, I'accusd a agi-de-concert"-avecJ":bourgmestre de la commune de Nyamyumba, Augustin Bagwgo, et avec les dirigeants et les

.*mbres du mouvement Interahamwe, dont Omar Serushago, Damas Karikumutima, un

certainMichel,uncertainGaca,Zainabou,6galementconnuesous-le-nom-deZainabu-MukundufiteFaizir i ,etd'autrespersonnes'soitdirectement,soitparl ' intermcdiairedecoauteurs, pendant au moins la pCriode allant du l" janvier au 17 juillet 1994. Les faits

ddtaillds A raison desquels sa responsabilitd pdnale individuelle se trouve engag€e sont

exposis attx paragraphes 44 A 46 du pr€sent acte d'accusation.

44, Le 7 avnl l'994 a Gisenyi, Bernard Munyagishari a tud un Tutsi ddnomm6 AugustinKarimunda, dgalement connu sous le nom de Kalimunda, employd de la Brasserie de Gisenyi.

45, Le l0 avlj,l 1994 ou vers cette date, Bernard Munyagishari et Augustin Bagungo,bourgmestre de la commune de Nyamyumba, faisaient r.rne patrouille dans Gisenyi i bord

ion certifide par la SSL du TPIR

l lPro5-001 5 (F)

2n

)

Le Procureur c, Bernard Muttyagishari,affaire no ICTR-2005-E9-I i:' +

d'un minibus. Au cours de cetle patrouille, un Tutsi d€nommC Jo€l Safari, qui avait 6tdgri&vement blessd lors d'une attaque antdrieure d son domicile, a dt6 enlevd par I'accusd etmir d*s le minibus dans lequel se trouvaient Cgalement deux femmes tutsies. L'une decelles-ci dtait l'6pouse d'un eertain Rongin, I'entralneur du club de football local de Gisenyi,Rayon Sport. Peu de temps aprds, Bernard Munyagishari et le bourgmestre ont emmendJo€l Safari et les deux femmes i la < Commune rouge > ori ils ont dt6 tuds.

46. A une date inconnue enhe le 7 avril et le 17 juillet 1994, Bernard Munyagishari aenlevC Nyampeta, aussi connu sous le nom de Munyampeta, un important homme d'affairestutsi de Gisenyi, et I'a emmend I bord d'un vdhicule i la < Commwte rouge ) oir il I'a tud.

!.,12gponsabilit€ pdnale du supdrieur hidrarchique -

47. En application de I'article 6.3. du Statut, I'accusd Bernard Munyagishari est

responsabte d'ASSASSINAT CONSTITUTIF DE CRIME CONTRE L'HLiMAMTf en

."'qu. ses subordonnds ont commis certains actes criminels et qu'il savait ou avait des

raisons de savoir qu'ils s'appr€taient A commetfe ou avaient commis'ces'actes, mais n'a pas

pris les mesures necessaires et raisonnables pour e.mryche1 eye-lttglb actes j.oJg1!:9T.T]iou po* en punir les auteurs. Au nombre de ces subordonnds-figuraient des dirilEanti et aeS

membres du mouvement Interahamwe comme Omar Serushago, Augustin Bagungo, Damas

Karikumutima, un certain Michel, un certain Gaca, Zainabou, dgalement connue sous le nom

de Zainabu Mukundufite Faiziri, et d'autres personnes. Les faits ddtaillds relatifs A la

participation des subordonn€s de I'accusd i la commission de ce crime sont expos6s atu(

paragraphes 48 et49 duprdsent acte d'accusation.

savait ou avait des raisons de savoir que son groupe 'd'Interahamwe

avdit-eotnmis-cet

assassinat et n'a pas pris les mesures ndcessaires pow I'emp€cher ou pour en punir les

auteurs.

49. Le 7 avril 1994 ou vers cette date i Gisenyi, des Interahamwe qui itaient des

subordonnds de Bernard Munyagisbari ont tud une Tutsie du nom de Solange Kanzayire,

dpouse de Straton Kamanzi. Apres I'avoir tude, ils ont piltd la maison du couple. Bernard

Munyagishari savait ou avait des raisons de savoir que ses Interahamwe avaient commis ce

torortr .t n'a pas pris les mesures ndcessaires pour I'emp6cher ou pour en punir les auteurs.

CIIEF 5 : VIOL CONSTITUTIF DE CRIME CONTRE L'HI'MANITf

Le Procureur accuse Bernard Munyagishari de VIOL CONSTITUTIF DE CRIME

CONTRE L'HUMANITf, crime prdvu i I'article 3 g) du Statut, en ce qu'entre le l" janvier

et le l7 juillet 1994 inclusivement, sur l'ensemble du territoire rwandais, dans I'intention de

violer dis membres du groupe racial ou ethnique tutsi ou les persorures considdrCes comme

des Tutsies, il s'est t.nlu rlrponsable du viol de personnes tutsies commis dans le cadre

Traduction certifi6e par la SSL du TPIX

4g. Aprds que Bernard Munyagishari eut assassind Augustin Karimunda, dgalement

connu sous le nom de Kalimunda, iei avril 1994 ou vers cette date, un certairlGa..a ql4.-egi!--.=---

le subordonnd de Bernard Munyagishari dans Les Interahamwe et son groupe-detueurs ont

enlevd Maria, la femme tutsie de-Karimunda, Cgalement connu sous le nom de Kalimunda, et

I'ont emmende A la < Commune rouge > gtr ils I'ont tude et enterrde. Bernard Munyagishari

t2Pr05-00 r 5 (F)

: . : . : . : ] : . . : : : i : ] i . - ] , ' ' . : ' ' . ; . - . : : . ' . - : : _ . ' : ' : : ' . : . . . - - j : : ] : : . -

L-e-Procureur i. Eernard Murryigknaii, affaire no lCfi-ioOs-SS-l - ,2BB

d'une aitaquo gineiaiis6e ou systematique dirig€e !Jn;,rE cettc population civile en raison deson appartenance ethnique ou raciale.

EXPOSE SUCCINCT DES FAITS RELATIX'S AU CIIEFs

Re sponsab ili td pd nale indiv idue ll e

50. En application de I'article 6.1. du Statut, I'accusd Bernard Munyagishari estindividuellement responsable de VIOL CONSTITUTIF DE CRIME CONTREL'HUMAMTf pour avoir ptanifid, ordonnC, incitd i commettre, commis ou de toute autrernanidre aidd et encouragi d planifier, prCparer ou exdcuter ce crime. De plus, l'accusC aparticipd sciemment et dClibdrdment i une entreprise criminelle colnmune dont I'obje! le butet la consdquence prdvisible dtaient le viol de- femmes du grogpg. racial ou ethnique tutsipartout au Rwanda, et de hutues opposCes d la division ethnique. Pour rdallser ce desseincriminel, I'accus6 a agi de concert avec le bourgmestre de la commune de Nyamyumba,Augustin Bagungo, et avec des dirigeants et des membres du mouvement Interahamwe, telsque Damas Karikumutima, un oertain Michel, Zainabou, dgalement connue sous le nom deZainabu Mukundufite Faiziri, et d'aufres personnes, soit directement, soit par I'intermddiairede coauteurs, pendant au moins lapdriode allant du ls janvier au l7 juillet 1994. Les faitsddtaillds i raison,desquels sa responsabilit6 pCnale individuelle se uouve-engagde sontexposds aux paragraphes 5l et 52 du prdsent acte d'accusation.

51. Au cours de la piriode allant du 7 awil au 17 juillet 1994; BernardifrnriiCgishari'acr€i un groupe spdcial de jeunes Interahamwe appel€ les << Ntarumiluta >>, chargds de violeret tuer les femmes tutsies. Par la crCation de ce groupe, Bernard Munyagishari a aidd etencouragi ses Interahamwe d violer les femmes et jeunes filles tutsies avant de les tuer.Bernard Munyagishari a aussi aid6 et encouragC sa femme, vne Interahamwe comme lui,Zainabou, connue aussi sous le nom de Zainabu Mukundufite Faiziri, et le groupe de femmesqu'elle dirigeait d torturer sexuellement et violer des femmes tutsies. Les femmes de cegroupe ont enfoncd des tiges de fer dans les organes gdnitaux des femmes tutsies et mutildleur corps.

52. Entre le 7 avril et le 17 juillet 1994, Bernard Munyagishari a enlevd une jeunedtudiante tutsie du nom de Frangoise, fille d'un certain Emmanuel, en lui disant que c'6taitpour la protCger des massacres qui se ddroulaient dans Gisenyi d l'6poque. Blle-a-6td retenuecaptive pendant hois semaines dans la maison de Bernard Munyagishari. Celui-ci I'aviolde, La jeune fille a ensuite dtd tude et son cadavre jetd d un endroit appelC << Mu Makoro ,>i Gisenyi.

Responsabiliti pinale du supirieur hidrarchique

53. En application de I'article 6.3. du Statut, I'accus6 Bernard Munyagishari estresponsable de VIOL CONSTITUTIF DE CRIME CONTRE L'HUMANITE en ce gueses subordonnds ont commis certains actes criminels et qu'il savait ou avait des raisons desavoir qu'ils s'appr€taient i commettre ou avaient cornmis ces actes, mais n'a pas pris lesmesures ndcessaires et raisonnables pour emp€cher que lesdits actes soient commis ou pouren punir les auteurs. Au nombre de ces subordonnis figuraient des dirigeants et des membresdu mouvement Interahamwe comme Damas Karikumutima, un certain Michel, Zainabou,

Pr05-001s (F) r3

277

Ls Frt?*urew c. fierrand;ifmluglsijzri, ailbire n* ICTR.2005-E9-I

egalemont cortnue sous le nom d6 Zainabu Mukundulite Faiziri" et d'aulres personne$. Le$fairs d4tailles relatifs i la pa:ticipafion des subordonnds de l'accusd ir Ia cornmission de cecrirne sont expo$es eur Farag$phes 54 i 56 du pr€sent acte d'*ccusaticri.

54. Au cours de la periode allant d'svril i juillet tr994, des viols, des agressions sexuellesst d'autres crin'les i caractere sex*el cnt dte commis sut une grand* echelle et de &$annatoire dans Gisenyi. Ces crimes ont dtd perpdtrds par des fnteraharnwe qui itaient dessubordonn{s de Sernard Munyagis}rsri conke des fernmes et des jeur:es filles tutsies.B*rnard Munyngishsrl savait ou avait des raisons de savab qrre ses Interah&m**e av*iantcommis ces crimes et n'a pas pris les mesums ndcsssaires pour lee ernpCIcher ou pour en punirles auteurs.

55, En*e le ? avril et le 17 juillet 1994, Bernard Munyagishsri a *nlevd une jeune

drgdia*te tutsie du nCIm de Franpoise, fille d'un certain Emman$el. en lui disant que c'6taitpour la prctdger d*s massac.res qui se ddrculaient dans Gisenyi i I'*poque. Psndsni ies troisiemaines quta dur6 sa d6tention dans la maison de Bernard lltunyagishsri, deux des{ntsrahaywe de Bernard Fluny*glshrr| Damas Karikumutima et un csrtein Michel, ont

---vial6 Frangoise. Celle-ci a sn$uite'dt€ tu*e et soti cadavre-jete.i r.ln endroil appslisutr*a:-:==:;:::::::::M*karo > A Oisenyi. Bernard Munyagishnri savait ou avait des ralsons de savoir que sesIfiter*hemwe avaienr viol6 Frangoise et n'a pas pris les m*sures ndcessaires pour emp$cher0u p'lur en punir les auteux.

56" Entre le ? avril et le 1? juillet 1994. la femme de Bernard Munytgi*hsrl ddnommdeZainabou, {galcment co*true sous le nsm de Zainabu Mukundufite Faiziri, a dirig€ un grsupede f€rrune.s lrrtarahaffiwe qui €taient des subardonn*es de Sernsrd *{unyagishari, et csnnupour infliger dss tortures sexuelles aux {bmmes tutsies avant de les tuer. Les femm*s de cegroupe enfonqaient des tiges de ler dsns les orga$e$ gdnitaux des femmes lr1t$-1-qq3J1€.$-..,-.....-,-tuaisnt ensuite. Ces actes 6taie;:t des vialso Berrcrd Munyagishsri savait ou avait desraisons ds savoir {ue ses subordsnn*es avaienl commis ses crimes et $'a pas pris les mesutes**cessaires pour les emp$eher ou psur en punir les autaurs,

Lgs ectes et omissions ds Bernsrd Munyagishlri exposds dans le pr€sent act* d'accusa{ionsont punissables selon les dispositio** des article* 22 et 23 <iu Statut.

Fait i Arusha {Tanzanie), le S septembre septembre 2005

ISignd]

Le Procureurl{assan Bub*car Jalk:w

lSceau du Bureau du Procur**r]

ptilS-oul5 {rJ

Traductian certifl4e la SSL dr T?lR

l {

TRAHSMTSSIOI{ $HEET

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ilt - TRAIt$LATlOtt FRIORITISAT|OH {Fsr Ofllclal ure oltLY}

No" of Pages: : 14

lrlal Charnbet IN . M.0 ia l !0

ACTE S'AECUSAfIOH

Triai Chaxbet ltR. l{. K*u*rcb*

Orisinal Language: l] English

Trial Criarnber lllC. K. Han:*tow'r.r

Appeais Cha$ber r' Atu$riaf , A. Taton

I Kinyarwanda

:T:i g.'rer, cus .' *JTg

diliybni-r, cu$*iH,chl.{JFU, CM$- -il

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r,.P.ron:ets j -

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: AMINA lB&AHlttd; {ntmes}

Cas* Harne: ine piosecutor vs. Seruard IJtUHYAGI$|'iAR|

Trffi-l-s@

I kd:ctrnei$ [ warrant

il Secis;on fi Affidavil

I Disclssur* ! Order

l] Corr*sp*nd*r:r*il hot,te.if App€aJ[f Appeal Sosk

D Sr:bmission ftotr: fior-gariles

* $ubmrssion from Pec:es|f Accusec Par{rcuiats

Classifcation Lsv*l:S gtrictty Cqnfldentiai I Undet Sealil ConfidentiatI puutic

ffiE-SHAtL take neiessary aclion ragarding tfan$laiicn'

I Fiting party nsreby submils cnly the original, and wlll not 5ub|nit any tra*slated vefsisn-

I Relara*ce 'llat€riat is provided in annex ls faciliiate translation. i:

T a . n a ? l r n n r r l n o f q l i r- , . .; i--r,rn -

il Frencil f] Kinyanvandfi- - ,

CMS SHALt Nof tate anv actl*n regarding lranslolisn'

f] rit;ns Pariy hsfeby suhnritx B6TH the origlnal and lhe translatpd version for filing' as fcljows:

Tfailslalrsr'l

cME $HALt|.,lOi tat<e any action regarcing translaticn' ;'"}

I fiirng Farty will be rubmltting th€ translatnd version{s} in dve csur$e in the fcllowing languagels):

, hnQl lsn iJ rrencn " - tl KinyarwanKlilgLY r:LL lll ?HE 90xea aELctYL

r-rx; *--

Tt" ;;";;;;i i'*iiiiiJc'iot t'*ti"rion to' i ftre cocument is sjrbmi!{sd tg ul accredited $€ry.cq &rl l l € u u L U l l l u l l t l ) > v u i { l ' l \ s u r s { r ! s I e ' e \ r v i r ! v '

I The Language 8enlces Section ot lhe lcrR J Arusha' i translation {fees wi}l be subari*ed to DCD}"{S}:

Eff",u;"nj"*{*servir*s$ectiong{lhe1CTXlTheHague. if{ameof 6oniactper$on:I g" **oicrtid service for translatiorti gee deiails b*'orv: i Name of seruice:

AddrassiNarnesictn{ac lperson: i S_;a( ITel . iFax:Neme 0f ssrvio€:ACdrsssjE - rna i l l Te l . JFax

C Required cate:ll:lop pncrity ifl i-learing date

| Otner deadlines:

N8t This fsrm iE avai lcbte on: hirp: i iwww"ict.orgl€NsLlsH.'cmslcnsl . loc Cld51 {Updat€d on 31 February 3005i

)7r

Annex F

REPUBTIC OF RWANDANATIONAL PUBTIC PROSECUTION AUT}IORITY

ORGANE NATIONAL DE POURSUITE JUDICIAIREUBUSHINJACYAHA BUKURU

P.o. Box : 1328 KIGALI-RWANDA- Phone : +25o 0252 589500- Fox : 2fi o2s2 s89s0lE-mail : lnfo@nopq.qov.rw Website : www.nppa.gov,rw

27(

Kigrri,..l,fr ,1. I 9... z o r rour ref . Y" . 4ftfttt fu{t(NlP rt

Hon. Chief Prosecutor,

Refere_pce is made to your letter N" OTP/Z0L1/P /165 of 22"a September= :t:: ==0llroncerning-th e-iase of Prosecutor - Vs B ernard MUNYAGI SHARI, a:--:-:R-Fandan

suipeit indicted by the ICTR foi Genocide and ciimei againstHumanity in connection with the 1994 Genocide in Rwanda.

In this letter, you have indicated to us that under the completionstratery of the ICT& this case has been earmarked for a referral to anational jurisdiction for trial,and whether Rwanda is willing to accept

.-- -:.!he=case and to prosecute him in accordance with the requisite fair trialguargntees;

, .. The-Government of Rwanda has taken various constructive steps toprepaie for the transfer of cases and is ready to conduct its first trial of acase from the ICTR.

n+We hereby advise you that Rwanda is willing to accept this case fromthe ICTR and prosecute it in accordance with the requisite fair trial andwell-established international standards.

Honorable Prosecutor, it is on this note, that we hereby support yourfuture request under rule I1 bis of the ICTR rules to the judges of thetribunal, to consider ordering the referral of this case to Rwanda.

Please accep! Honorable Prosecutor, the assurances of my highestconsideration.

Hon. Attorney General/Minister of lusticeDr, Mohamed AYAT, Senior Legal Advisor, OTP, Kigali, Rwanda.

4z

^ ^-tAnnex |.r

Umwuku wa 46 no idasanzweyo kuwa 19 *lterurwe 2007

277

Year 46 no specialof 19 March 2007

4d* AnnCe no spdcialdu 19 mnrs 2007

lgazeti ya Letaya Repubulika

tu Rwanda

Official Gazette ofthe Republicof Rwanda

Journal Officielde la R6publique

du Rwanda

Ibirimo/Summary/Sommaire page/Urup.

Amategeko/Laws/Lois

No 09/2007 ryo kuwa 1610212007Itegeko rigena inshingano, imiterere n'imikorere bya Komisiyo y'Igihugu yo Kurwanya JenosideN" 11/2007 ryo ku wa 1610312007Itegeko Ngenga rigena kwimurira muri Repubulika y'u Rwanda imar:za zivuye mu RukikoMpanabyaha Mpuzamahanga Rwashyiriweho u Rwanda n'izivuye mu bindi Bihugu.

No 09/2007 of 1610212007Law on the attributions, organisation and functioning of the National Commission for the FightAgainst Genocide.No 11/2007 of 1610312007Organic Law concerning transfer of cases to the Republic of Rwanda from the InternationalCriminal Tribunal for Rwanda and from other States.

No 09/2007 du 16/02/2007Loi portant attributions, organisation et fonctionnement de la Commission Nationale de Luttecontre le GdnocideNo l1l2007 du 16103/2007Loi Organique relative au renvoi d'affaires d la Rdpublique du Rwanda par le Tribunal PdnalInternational pour le Rwanda et par d'autres Etats..

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O.G. no special of 26/05/2009

Umwakawa 48 no idasanzweyo kuwa 26 Gicurusi 2009

Year 48 no specialof 26 May 2009

48tu" Annde no spdcialdu 26 mai 2009

lgazeti ya Letaya Repubulika

ou Rwanda

Official Gazette ofthe Republicof Rwanda

Journal Officielde la R6publique

du Rwanda

I b ir imo/S ummnry/S o mmaire

A. Iteseho Ngensa/Orsanic Law/Loi Orsaniq ue

No 03/2009/OL. ryo kuwa 26/05/2009Itegeko Ngenga rihindura kandi ryuzuza Itegeko Ngenga n" ll/2007 ryo kuwa 16/0312007 rigenakwimurira muri Repubulika y'u Rwanda imanzazivuye mu Rukiko Mpanabyaha Mpuzamahangarwashyiriweho u Rwanda n'izivuye mu bindi bihugu........ ........................3

No 03/2009 / OL. oI 2610512009Organic Law modiffing and complementing the Organic Law no ll/2007 of 16/03/2007concerning the transfer of cases to the Republic of Rwanda from the International CriminalTribunal for Rwanda and other states.......... ........ 3

No 03/2009/OL. du 2610512009Loi Organique modifiant et compldtant la Loi Organique noll/2007 du 16/03/2007 relative aurenvoi d'affaires i la R€publique du Rwanda par le Tribunal Pdnal lnternational pour le Rwandaet par d'autres Etats. . . . . . . . . . .3

B. Iteeeko/Law/Loi

No12/2009 ryo kuwa 2610512009Itegeko ryerekeye izahwa ry'ubucuruzi n' irangiza ry' ibibaz o biturutse ku gihombo . . . . . . I I

N" 1 2/2009 of 26 | 05 12009Law relating to commercial recovery and settling of issues arising from insolvency..............11

No12/2009 dn 2610512009Loi relative au redressement commercial et au rdglement des probldmes d'insolvabilitd..........1 I

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Annex H

2+o

Observations in intervention

of the Government of the Netherlands

concerning Application No, 37075/09':: ' _ -,_---'

V.

_ : : ' _ ' : - : : : . - ; - l - - l a - - - _ - l - _ l - " ' ' - ' j . l - - : ] : : " : : - j - f

Sweden

x7

1 .

2 .

The Government of the Netherlands ("the Government") has taken note of the

present application and of the observations of the Government of Sweden of

24 September 2009, 2 March 2010 and 28 May 2010, respectively.

The Netherlands, l ike Sweden, considers it of primary importance that suspects of

international crimes such as genocide are brought to Justice. These cases should

preferably be investigated and prosecuted by the State within whose jurisdiction

the offences were committed. Distant trials may be unavoidable, but, dqe to

several practical difficulties, will be confronted with more difficulties in achleying a.

proper administration of justlce. Furthermore, a distant trial wil l not provide the

same appeasement opportunities for the society where the offences were

committed and thus wil l contribute far less to the important aim of reconcil iation.

Notwi thstandingi tsaforement ionedpreference, theNether |ands,asthecentreof

international justice, is more than willing to take up its responsib!!ity._tl:!9ca.L_:. . - l J

authorit ies are unwill ing or unable to prosecute international crimes within their .-.- ' '--

national jurisdiction. The Dutch Public Prosecution Service and the Dutch National

Bureau of Criminal Investigation have in this respect created special teams to

investigate and prosecute violations of international crimes under universal

jurisdiction. They have investigated and prosecuted several perpetrators of

genocide, crimes against humanity and war crimes,

.4.-TheNetherlands,.|ikernany.9qhqrEurop994j.q!|.g'!q!9.:,-=!u-sJs.3..99!F!d9I.9rF.nuinnG

of persons that fled Rwanda after the genocide in 1994. Next to victims, this group

also comprises of persons against whom there are substantial indications of - often

high-level - involvement in the genocide. Prosecuting these suspects in the

Netherlands - or elsewhere in Europe - is a time consuming and extremely

complex and difficult task. Crimes committed over fifteen years ago have to be -:

investigated in a different part of the world, witnesses are often severely -

traumatized, and language and cultural lssues substantially coirfplicate ': '

communication and the gathering and interpretation of, for instance, documentary

evidence. Police detectives, judges, lawyers and prosecutors also have to become - - -

fully and thoroughly acquainted with history, polit ics, policy, culture and

landscape, of Rwanda. In spite of very substantial efforts, due to the tremendous

complexity of investigating and trying these cases in the Netherlands chances are

that a substantial number of these suspected perpetrators wil l never be held

accountable and have thus in effect found a save haven here. The first Rwandan

case in the Netherlands, for instance, has been under investigation since 2005,

while a ruling of the court of appeal is not expected unti l mid-2011. Recently a

second arrest was made, after two years of investigation. Basic calculations lead to

the conclusion that - considering the time taken up by prosecuting these cases - a

substantial number of suspects wil l never be tried in the Netherlands. This causes

- :::t*r;

7 .

great concern to the Government, especially when taklng Into account that the

Netherlands, besides Rwandan nationals, also hosts a large number of persons

originating from other countries who are suspected of international war crimes.

5. Since 1994 the Government has been a strong material supporter of the build-up

of the Rwandan justice system after the genocide, as is evidenced both by financial

contributions - for example the financing of the building of court houses, the state-

of-the-art prison in Mpanga and the Institute for Legal Practice and Development

(ILPD) - and by the exchange of know-how, among which the trainlng of Judges

and the IlPD-director. As a result, the Netherlands has closely witnessed the

developments and substantial and fundamental advancements in the Rwandan

justice system over the past f ifteen years. Following a visit to Rwanda in June

2010, th; Dutch Minister of lustice agreed witn his Rwandan counterparLto further

strengthen bilateral relations in the field of justice, inter alia by the exchange of

expertise concerning witness protection programs and training on the job of legal

and judicial professionals, involving the ILPD.

6. The Government is also exploring the possibil i t ies of concluding an extradition ___

t rea tywi thn*un lu inorder tobeab|e toex t rao i tesusp |c ts toR*u" i

Furthermore, the Netherlands has been investigating genocide cases in Rwanda

since 2006 and Dutch detectives, prosecutors and investigating magistrates

frequently visit Rwanda for this reason. This year alone an investigating magistrate

has been on at least six two-week missions. The assigned Rwandan judiclal

officials have been very helpful in assisting the investigating teams, our

p rosecu to rsandou r i nves t i ga t i ngmag is t ra te in the i rwo rk inRwanda , l heyhave : - : - - . - : - : ' '- : . " , : - _ - = ' 1 : : i " - ' - - - - - _ - " ' . - -

' = =

also on very short noticei - providbd'aiffdieitt*typds-bf -as3iCtantd]anging

from

prov id ing ' su i t ab le l oca t i ons f o r conduc t i ng hea r i ngs , l oca t i ng and -o rgan i s i ng - ' . . , . - - -

transport for requested witnesses (d charge as well as i d6charge), assisting with

witness protection as well as arranging psychological and medical attention for

witnesses to the overall organisation of the necessary paperwork and permissions.

The officials never inquire after the ongoing investigation, after the witnesses - - - -

- -

e.g. if i t is a witness d charge or ir ddcharge -, or after the co4lelt of.their:- - --,*- ' - ' '

testimonies. Overall, the co-operation of the Rwandan judicial authorit ies has been

found to be exemplary and there are no indications of interfere4-cg-Ylt[,.the

investigating teams, nor witnesses for that matter'

8. The Government has closely followed the development of the Rwandan justice

system and is of the opinion that over the years, including recently, Rwanda has

made substantial and fundamental progress In furthering the rule of law. Besides

measures of institution building and training, among which the measures

mentioned above, the rule of law has been improved by adaptations of relevant

laws and changes ln judicial and legal practice. The most relevant developments in

the Rwandan Justice system, especially with regard to extradited genocide

suspects, include the abolit ion of the death penalty and of l i fe imprisonment in

isolation, the building of the Mpanga prison where genoclde suspects and convicts

are to be detained - which fully complies with the international prison standards

and which currently hosts persons convicted by the Special Court for Sierra Leone

- modification of the law concerning the transfer of cases of genocide suspects to

Rwanda, and the introduction of the possibility of the use of remote- witness

t e s t i m o n i e s i n c o u r t , f o r i n s t a n c e v i a v i d e o - l i n k , v o i c e r e c o r d i n g o r d e p o s i t i o n s

made before a specific official, appointed by the judge. Also the establishment of a

specialised Fugitive Tracking Unit - which falls directly under the responsibil i ty of

the General-Prosecutor - and its qualif ied staff needs to be mentioned in this

regard. Finally, the Rwandan judiciary attaches - as it has emphasized during the

visit of a delegation from the Dutch Ministry of Justice - great importance to its ,

impart ial i tyandRwandan.:9rdinaw.court '1u! 'sq1-",:".-s:n: '" i lJ,]elso.%European and International Criminal Tribunal for Rwanda (IqfR) peers, consideied-

- - ' = -

to be impartial,

9. It is true that there have been rejections of extradition requests by, notably, the

ICTR, but the Government notes that these rejections precede the above-

mentioned changes in the Rwandan justice system. The Government notes that

recently the Office of the Prosecution of the ICTR has transferred twenty-five cases

10. It is also true that crit ical comments have been made by Human Rights Watch and

others concerning the Gacaca-proceedings and the circumstances in the (ordinary)

Rwandan prisons. As mentioned in the observations submitted by the Swedish

Government, extradited suspects of genocide wil l not appear before this type of

court and extradited suspects and convicts of genocide wil l be detained in pri ions

that fully comply with international prison standards;'such as the aforemdntioned

Mpanga prison. Furthermore, the doubts expressed about the fairness of the trial,

relate for an important part to the use of vldeo links and to the use of.written

witness statements in court. According to well-established case-law of the Court,

however, article 6 of the Convention does not grant the accused an unlimited right

to secure the appearance of witnesses in court, The Court has moreover accepted

the use of video links and of written witness statements as being in conformity

with article 5 of the Convention.l

11. The Government respectfully requests the Court, to take the above information

into account in its decision in the present case,

1 E.g. ECHR 29 september 2009 Delili v. Germany, appl. no. 15065/05.

a34

The Hague, 27 July 20t0

L.r't l

#"flbr:==='::I/

Liselot Egmond

Deputy Government Agent of the Netherlands r ::il:

23-r

Annex I

ffi+

/',Ve

rrrL-, r= i:ilu€ o i #ncitl ^r.p : e i;U : :.';--

N'tremorandum o f U ndersTendinq

Berrx.'een

The Special Court for Sierra Leone

Tt u G,overnrne$t of the Republic of R$,anda

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{1U

...:o2

szts

1 , t ' :* F ' : 1 1

l " ! - ' J

, i,f€;tLr:.,:,:iijiJfi .:._ iili,:je:..r;al;,j::::,:;

.ii''::r,:-i' ti:.e Aqrue:rrc::r lretwctrr rhc l--nitei N'rljr.r:r-* arrtl thc (ic,,..crnnici.r; ,ii.:l!,:rjr i-r.,{.,1]r: -;::ii:r l:.sFhLslrurcat of a $pecr,al t]lcriurinr Sjcu:r Ltnrrc:;.ltogdutr

''i(r-i::rti;:rrt'lri,..rJ e:ir:l,iii,.:,-

thr:rpecj'ii f-,:rut- tbr:.$rcrrl Le.:,ne {hert:rr:iii'tcr rJte "Sprr::.:r.l C,irrirr"' ,.:L '':t-ii."; +:r r.it:..c::-ji:r.'.-;;:J p.rti."ec:tre drosc rvlxt Lrcrr rhc greatest rci:)ri:insib.ilit., r'r',r ::r:r:,..,rr.i -:i|l*iir,i:..r ,..t:''lisrneiiuca! hrur:arriu.ri4rt larr- iind Siel:'a l-r'.r.rucan iiaig coitrn:!trt.r! .ir;, ii.,cr !..iri.",.1;.r.'..1i i:;rr:::ri, :r..rp.1; ;s1s* 30 l.'or,cmber .l !j9d:

l, 1,.'r;,:.; ihr: Spe.rai Couti: r.,:rr *srr.bli*.rletl a^: rc i:ldepenclenr :nrf.rn:;.trr:.-.rri i,scit:i:r.l ur..:.j1.:ii,:,.

ii,:.i;c:;:,':t rirc $pecr*i Coulr rr'il!, lt'o! cornpleiloo rrf ns ior.ircinl acur.iuc:,. llc ;11cr;c(rir,; i). j:

iir:srJuai Both &ar: lr'iJ]'bc:ir*ndatcd to ciisci:arpe aii <,:rgoi::p arrd ^r rl:,rr r,;:*iiiuC iirour.i:rr' ,,i1:rc l)1..'t1ie:1g. lrrdges. Pt<,sectfor anC Eegisuar crf &e Spec'aii i.{)i.d:i ihcrri.lr:eilir ,.!.r; ii-\ . t \ | : '

iii i.'r:;.i' :\tncic 2l crf tbs Skicute of the Spccud Court F'rr:ides tirat in:p:-isrrilrucal i.ri'lt-,r:i,,:l'- a , , . ̂ ';rilicr:t:ed ir1' dre Spectal Courr sha'I bc. sersed rn Sierra lccrilt:; c,i ii circ,uinltilirf(:.ii ..t,

lirilrtc'. i:r aa,v State dr,rt has €onCude.d Nirb the lrrren:griorleJ Cimin'l'rl'rin*l;} ;'ri iX -;*"" '-

. ' i l r i :e ln te rnar i< rar r i { t i run l r l " f r ib : rua ] f0 r t i l c r : l r : rY t rgus la . ' . : : r : i : l : t l ' [ i cc l r l ! : . i . . . | . | | i ' : . ; ! ,

ur:ftlrcc.rncr! of s,citteu,cei rr:d tx.hict, lvrs i.sdrcaed t$ thc: S'.pr.:i,li {1,-1urr if.: irj!iii:alc,.: 'i

::i:((pi cluvi"ci.eC 'per-s.oit:i; r:r elietr:a:i.,'el.;. rn ,'Ln,\,; si:et: tr.idr tci:tr tl :i',,.. ii.i.ccurl ilr.,,.lr i, ..,:r :Iriiutlq'.1, srniiJar a.grcci'rr{:!i !.s ;

;i..ivlo* oa iLl ,tvi.4ich ?tli)t) the Spetr-.ll (.r:,url t:r,'t Sres,i J-coi:e ni;rj ,.ii<, (r11s11,1;!;l1r::it i,i 1j.r:1-l.tnublc <ri Rrr':rrlcla ("rlre G.:.etrunertt r:f Rit'ailda"r] siatrr-rj r$ .,1.t{{cr-.r.r*tlr. i:i .i.":::.,:i:i\';rltria, iex tire Erlforcr=Ii.:or rrf S.acrenr:es jmlr.isc.ci 'us

thc snc<:.xl r.".;t:rl ii.,:',i"::r, l.i::.:.,h uri :nafrer the "-f.nf,rrccrntn| ..\grer.:r.rent'j;

,\.a*r.e that Ae Prcsrciect of thc Sp,:ciat Ccrurr arryr pur$'.rarii rri lLilc iaii S' oi, ire i:.lii,:..i ,-.r'i)rc'.edurc aad Erid.roce, dcsigaate rhc Repubiic of itrx'andn as rh(: sr3rc ir: 'rlrir:h. it i)riso.!: ,.,:.

Pcrs')r'ts ccr$victed h5 ftc Special Cou;t is i(, sqr$e his sen&:llce uf uri,.nsanm,:nr ihrcu* i:r::rlrc ' Corrtrcrd Pcrsons"i; .. .i-".€;,ti-*..,,_.:- .,.-

li'ii1:'e31.1' :irc ()rrr"esunc::t. od lltr.'ancla rt(:Gpruscs a*<i urrd.,'rrak.i :/.) d.(,:r.:r:'j .-';..ti, :.i:,. .,,:,.:... .j':((TBdfretnaticir:.q}5t*'1darci$governir'g.rbetIe&tii1ct.lit.lfini.ptls,..rr.l*li{

::rr:lullieci unds'the $u*dar.d i\firarr:run Rnlas for the Trei.lsncr:r.,jri.l,,"i\(rui11-= tri.;11.1ri,:g 1...!( .L)SUC P*ese' lur: ion-s 66i C {:S.FV' ef 3i Jd1 19i. j .anct 3(16l i l . \ i l : i \ i . :- i : .- : . , ' . - 1!--". . i r ,i.i,r,iv oi Frinciples ior rlrc Prot(.clillri. cf :ill l)crs:o..r:.s r.rnder rn.,

'l:(',::;i ,-,i I)c.ic:ii:r.,r, ,'

i.'npr:*on-rnerlt adrrprc'.ri bi Ccuerel :\rsi:arl>i-r r(:solu{orr'{3r'il'i ,,,1 i l.)v,:.t:::r.1.;r;i l'.':r:,:,,.F,lr-ic ?inciplcs for rJre'lieam:elt c,J: Pr:sr>tcls ad,oirreci 11r; (-',r;rr:.rtl -.i.rrr;ri-,li '.,, j).i1rlj..:,.ii ! i 1 oF 1.i Dcccrnbrr 199i.i:

llti+n,zt d:rs \tea:c'ta,nium crf l-lrrdersuadlg f':\dOl-:": is rrrrref*j urlir, Di'i,:i! lrr.i..l'!(r: i i::rllllai (OLtrt, Er()lr.ldi:,1g, s'b.ere thc citrrifdi so alir.:'*;,.r.:fcre!:r1q:r tt., i.i:r; Rr::lijie-i ilri.j , i :i.

Ms:tr.;1ra ndtlie c''i tr-:dei-{ !'l Jc'ic ;l'

1,,"i-'c.'*iR-sc$tr-),'-oo3-:*.11"1'::*1?:trffit':f*;'X'i1iil,*#;:;;:li,iir C.otut {R'SLIL)' on --srEl-rccs, facrlitics rrci rupi>ort 1:ctz]l't.$

["a':""*"i-.**g'..i"*lii."g.*f,::].:"f..j:,sed 1rr dec srreciy-r s.,,.r,* i:r:,.i:cr;#:::':t; ::,[$;::ffi';ffiff:? fi ffi;;;*'o rr 6c srreciv.r i ui u:'* iil :r'i:co'*::3 :'(

,'irh ,b.-:esrq.* uf, che Ii'ot-*m:rJ}rgnt '\63ctrrc:ru

'...rr:;.' r'-,:irrrlrg, :he Speeiai ("loullt aorl ci:rl !i"1'crunte*t,, j;' 1;

-;:- *"

"'n"to*i'' z$ts" a:rd i':tti;idu'a'11-r' as

. ':'ilorrs:

r;f $"arn6d4 i;er.l i.u:rLrcr c":'ijc'r'Jr.t:i'1'o-'p*rua"yg.rrr". lla:':-c ia;j'$:'l'':

Pemgcapb 7Purpose

.i'nis docuur.crJr Lr aa iruBlcntotog. $oL: e.r the Eafotcc:,ilr:nf \re't:eer:I

-']'lit s':t': o"rr

ir*'eaci.glaldceriainoth€trcoF$irsrenrs''ftn"p*oi"tp"rrttrrode'l'ritutt*r'n.-"3J}616e;1ij!uoii:'.;i d:ai:lgreertenr

Frrrag:aph?Pri:riPles

.ilc pcrlorrrance of &e SCSL's. <lr R-SCS.I-'s' cgramiltrreqT. "'*t *" 1ir-'rU 1l'ii :rv'

trrplngc uporr &e ;udict *a.p*e"*..t ,L. ilii-* '4";g rl:t R-SC":I' q'lricb'sili tr: eil

irncs coadauc io ba\ic dt" l"g't sr:ttus of aa istl+ecd€sl efflqv'

j.i€;t ,? ::a :: dr:n

Effiffi, ,i..;;

Paraemph 3 .t.*usfet of C,,of,vi4dl Pe'rsons

t

ior Convicted Pe:b'rr:"

: , ?

) . : r

.[sper.\rt ldelioit l lcEof<'rccl]]erl lAgteeare'lrLtbc$CSJ..:rR.*<Cili,si i i 'ra:r.:sufEgietrt finils to proviie' 6oa r'hc upkeep aud rnaurterr''uee o{ the Coni'ic'"i:r!

pcrsors dudd ,h* pffi; ***o,if tr"fu sss*flces ur R'au'la' Spcc;Fcilir'' rj:c'

s(aclorR-scsl.'aacre,rr"s@-ttrr-:,',t;dt'"'tll-t*.j!T::rrl:,',tr+ -sel-r-ds.' u-lr':@ #t:ili.gif " Li;;lfr'FtoF ent jgjrsgg*'=9*-""=T---"' -- '- "--""-- .-' '

apfrrpa*rc:--- > -*-y-*"s,-^ '*-^'E'In additit-* ryifg t.i,,!=g;;"!*rti'aruii-Bcdica:

c'rm d:ar gc't":' trcr'r''ti';

., $at shicih s iiroutiEii?'ivRrp'ac'l4n a;$1riA;:el:g.t1-a-'urder tic rrzti'"'r:r]

in$arrnce Db,'L inchidhgsurgerres,-sPeql{-l-a9fgie+"t? i!i-"'[*'i' cr1{'!ir''r

*31

' , l

vniilte disbur,sed oo o 661sfrul5crge{rt uds}s'

Paurgraph 5(ionloriunenLs of thc Goreraqert r:d Rrvagda

lfeno,ranCrr:m cf Ltndg::s tar:Ci :i'g-

il be esti:eate<i arrrnrel cssrs drai wiil bc b.rrne b;r the SCSI" -crr rlrc I--SC$I -arc lii**t*:r:-+

6 'eose

d;ici-il)c'd rn rbr.r NfOI"i.-is <icmilcd ir ;\one-r 1 -

[ffi-.h]fi""ffiw*h g.*sagephe 4.] a,,d 4.3 abur;e are <lrsburscri

sc the Goveqppgear o{ R.ssi;ld-n, a* apFIaF$4e, fbe SLSL c,{ tbe R-SC$. retais+ r'uii

contc+t onerthe mpn2gefisnt '>fihese finds.

+..)

+-+-

'fire Goreoraen[ oi Rq'asda .rgi]l s.nsutc &gt &e Coo*'rceerl lircY:scns'4rc try4i-ed ;"1

.,*.Iion,-o s'+1' ili* -ria"f* n ncotcd icrctnaaooal str*rdaJds orl iae *"ioG?

ffiocecs ""9.*vsncpd.lioth ia the

l@--i-be Gorrerrrrnerrt ot ltlrlendA Wrrderekes lr3ruol each SCSI. (-,:r:1-icted Person ir:' it:

r,:rciorul -.din*t ;o**,tto ELg.''6 S cSr of tle-t+-Sl5[.-.'{,,S$g-pr $1f :+'ucqr.-g*=dg4gg _rh c co-;'i:teilg

*zamfto6aiJ pe-rsclr$ sbdr ne Foon.xil'd to tbe-SeSI'qSgSt:B:{*:S$ltcdicel Offcer pdor to trassfsr.

Iu rhc e.veot &ar Speciahse*l or U1q€lrt naedJical carc, qoi Co\:t!€:d uOder ri:.c psl,

be-comes neei$sef,c i* tA" ireag&c1,t of a Ccrsricted Pe,,srn sefi''inq a se11retrc€ .rr

R*anda, &e Goveuornngt of Rw'a:lja rir"ill itpt'ediarelv takc ,ilj n:t:asures Erccssarl

for the pfoper rncdical 4qefltir;g m be pr-orrd*d ts thc con';iclcd pcnr'.tr-Ir *dj

irrfonr L.'$CSL or R-$CSI* as scqo iis possibla. Tfue S;CS[., ot R-SICSL r.':il

rei,,=bgrse t6e Goveanrrrent of ilrtar.rda, or its irsr"ice-prcirider, ibr 8re {}:.?cn:ii:i:i

hctr:red',rs Fer Pa:*graprh 6'3 be-low-'

The Govero-crenr of Rrratrdo wjlt crxiuE the: rbe gr$-'Xt.:4]S'-'.-"-cn=tlpiggs:l-- -_-----

gr+P+j-p's!.''ennes+9+ ;r:eq'r,',"s= tr- p;t:::jt +1',**m-1 . -

fE&'rd.cflce w.ith lrare5paBh +-l of fiis )'i.oi..-' tJrc -'sPe:rar-i:!'--- -dLvq,ts4rsv wrru r 4r*ar!=d* -- _r. -_

coltibute to $re """gfg:*FSgfgl9l-.95

Cc':Irtcteql Patsort

Tl*-C;...8*errt of Rr*:enrln ulrdef"akcs to glace.a- potligp of ''c[:e'Cor::-ir::rt't.-

Persoa-*' ,xrrriog ie ai ioteretr-gso,'9grglg-.1l.i::rlgs-.1":'r'f: tn-l - -Coiti.roffipEsor, nr!;i6[ slialt'be #iEi-io iliern u]oii riittir release. ln casr.: c: a

fimi\r em6ge1EX;;Corr-sicted FcEsorN w'ili bc allo'*'cd ro reclucsi *rc ugp-sfqi;r.t-"iqal1-.

or,al|oft}-iasc6.rlrdstq,en*ccc1uflt-o-{$*:Fg:jaelE99-8gt-:.-r3:}Jsl'.-.-.'::.

Thr Go1;erqg1egt r';f R:*:arrda *ili qpy.gt all o&r4,-e'rnefte€:i ioclure!- ]r'1 rhc

;,f"".=;m +t-dtft55y-t[S-- j;ffi ffi * io'\'.i'r*'' j t'z i'ii ri:: e

Enforcernco t A greerrr€n t

Faragraph 6Trausfer df fiE+ds to Rwarida

ir.l. [,ii$n onc noatb: ot tbe ialial u:crst-ltof a con'ria;e':l pc'sscnis,r rti Rt'anifu' rht:

SCSL ,cr R-S(:SL or its. desgnrre w,;jl treasfer to dre U.;i c'mrltc.rit Lr:' il'-';ill.':i''

t i : ' i .

A . l

puagraph 6.2.a"txrvc.

Parag*ph 7U ri{rircs een Expeediture

Paragra$8Audlt of Acsouor$ .:J€e.::::::

---* -"lhgGrrlilmiuenr of l\*'aacir ugr{ctshes to $ubn:.h;o a rrg.irnc oi su.iir o-1: ar:c,ruili-.

ruiaric'n ttr fr:c frultli uansfened puts:raor to this. IvIOtj, as a1a: b/j r{qrriicd bi' tjre it-.>j.it SCSI* The.panicipzrots ag:oe !r) o-udir-s bs au iadqreodcot aucl,iq,-';.

- Pff?g-tephgilccess &:Coun-gcl

In accorciaocc \r.it& lrtic.te ?E of L:rrs ltto 38i2C-W6 .of 25,1f9-irlprj esabiislrjrlr udOcteln:arlg t'llc org*sisarion of 6e Nasonal Frisous Segricc,3-jbg._**:

ea?

:rJan L. ie ncli:::: :.:,f ijn rj;e ls: g a,?r: i.r i:

sr.rfEcieot.tuods as. detcrilre{ rn paeug:taph 4.1 af tbis i.,f(lj L,r co?e{ Cfe upros-,:s,rhar rr.dl be incun:cd dudlg uir:.6rtt o..ru

"f er:{orccnerrt of i;lre se.u.reoce.

l'bercafret, aa"l no irrcr thco qire ulafld) beforc the ccxarnerrcqluctlr ,:..t rire. frriirr-:rrrl,;t'ear of errf$fcsea.car: c.r{ the se{rtcr:ce jr:r Rv',anrla" thc SC.SL .:,r R. Srl.SL ,-is i;: <ie.r.iipa*r:dl! transfec fuads .dsscrib*d -.4 pa.urgraph 4.1 of,:&i* lfol- lrr ilr(: G,.rrcrrrrrit"r, ,iiR$raslla in ardnral.icsual]1c$s

As desc:rfued' i*r P:aragpagh 5J o.f tbis b.[ou, cccapti,o+al sosts drat mar be incurr*d

: ^ tTY of d*ccptrona{. mcdieel care cot cq\rsred b1. rtrc sad,)r:dl iaJurzr}r,c pler.r nii

be._reipr.br:rsed to R'r.:rnda ai'q rse rics! or R-sc3t;;ff"}tffiCoorrneart ia siryporr of tbe cos* irrcrrrzed. l}c craosfer oi fucti.r 11€cessarl. ?,t (t.;t t:tsuch expeases rrill jie effected'$iddn oae rnosth pf rerceiot ot rhe sirrr-pcr&rg&>cumcne.

In rle etcllt of tel*nrq..^tion of. &e Eoforceareat .\ge.+mear r.ratjer arry circrnrsi{u)ce-r

T*.eo$..q usdei' ;\rtic{€s 9 ox lli}. af &e narorcenn:rrr ."i.grecueri! iri;r,Goverugiri:ct.bf Rrx-'anda #, rs.iftirr rhree snoo*hs of terenrnrtiog crf rbr Enjorcenrer:r.i$qq@efit rrifirnd'a. ptoeted. po,nioir of t.hc Rrntls g.ir-.i$r..ecl -iu .accorci:ri!r1r-'. .:,-r!:

ewRw*a*i r*i[ af<r.v riie Co$'icted Pess$4,! ta hn'u'c aec"'-:"_;i..5.-:liS.[S-J cuu'asc]s s:: 0it{E

gm "&ffifi'F:ihda-iiiiriiui,uTi-rli*

ec;;rc:ii

il!$G""" oiR*urlda wdJ nlelic tr*cq\sarY Provlsit>cs--to facilir,'re i;m;t':;1ti!attOraey.sfiefllb cpr:^elr]trrti,qq$ d:qgtpg &e :peri<d of epfr:rcern$]t of srr':ences 'u:

R**d* Any;legal ,ccluruhhtion botween ":: "SCSL Ct)nrjr:tr:d licrs,:u and ius ';o-stsc;

sbaii iloi h"' mat'trond.

( ) 1

i i!.1

Eriil besrlr

e!1 rclcrdot iu.fotmerir;u conceruqg-'g..qi1i rild-.

c'lffi --c,

rhJi:GH"lTr"-**; - r- e' !r d:

P*tag*aph 1$Dis ciplinc aud Complaints

'! i'I ?F

t P6la,Es:estue ctlver+raedr ,J,f,._Rsraxnrb rl4rtcrtabes to prorrde a. corrr,i:ia-ir,lt m4clxr'fisru r:':

accorcladce *idr Stas&td Migipa$q' Rplss <>n rbe Tleanncot o'f Prisor*erii'

!' 4

Paragraph 11 iPubtic Com*mication

.y;-/ Notivirhsqan.{ing t}r, lawt of Rrgande cooccrrfiag access ro-pri-soners in thc cusiq2d;'--':'i'

Ru,andao ewholkies, *re Goverr:seyltgjSl1attda-:sl$.-+g-i-gscio*e to rire pubhc r';r li:":

arer]ia, oo' 1,*"."ir*4; to dle' SI.aErIs- of d,e -iCSj.

iFudcqedasrs-olsrglho*,t @ jr'c-Lqll-% $. 5 !st=

ParagreP&i12!a qltitetion

"f l*+1V9t iS"-

1.2j. .Duriflg their fanril.icd asd fri:slds'sr,ef in Rsrenda, Ct--rr'r*icie-rl Pcrsoas sl:oil br: rri:le r'''

+eceiYl :is{tpsr s"eT:qrgl dl]li: -1.,Yjtt

ea7,

'/

rit:J::i,3r-e ; d'r:fi .:;f r.Inde rs i a.-.r,ji.r r:

Paragtaphll .Ia5pccrionbrv theIGRC!. l+---_

A.s per Amic,lc 6 of rhc Entbtcemeur Ageeruent. the (ir:t'enrcasnr uf lu:r:.lri:r '.!-d.

eliow petiodic aacl p+linqited !:sper:gorr of che c-ondiuor:s r:.f dcrention ai.ii ijr,;tseLaent of priscrne,rs by rhe Inematircaal Corrrrl,rircc tor Bcd Cross or ai.lr ,:,ili'l'r

Persr)tr or bo$,r desiguated'b1: rhe SC^SL or r.hc .RSCSI to uncierurke $u<:i:r J'oir.'jir.g"Po,lonr 't- '- -

Ia rbe eroar ti."jt ri:&rnrgrcEdrltiqn-s ate laacle bi' dre :nspccting body on ciian4es i:;hc cffgcd ng ea*r-e qile{ptlass+ r*,idr infiigatiooal stacdards, &e Prddegt ci ri:cSCSL,or R-SCSL.rs4r re+!es{ &e Gorcrn&cat of Rte'a$& re rdport.oB. .a*asu:r$talen er: efFect srqb char4gs.

-Petagaph tf :- Sctdecreat of }:gprgres -

The p'ettrcipartts Nrdeccalilie ro accol* cach other thc x.itlcsL uae4su{-e- ot coq>craacp u:---.r-rriDcct oit tbis lcIOtX Dispntrs b-e!-.w,aeg tire' arisbg orit of c,[ irl u)sn€cti,:n .rjri:

rle irrpltru*ratioa bf .thir lilClU \$dl be scttled thgoqgh c.sdsulia'ti<io bcr.nec-s the Rr:ifsinr

lf th. *{CSL or R-qCSf* ot en officitrl desig&1t€d ,b_q the }leglqrr:rr, 4ad,Lhc -\Iir:isttr f':,rFc,rdg'o..tfi;qi$ arxi C-+olrecerir:n, or their of-iidil de*+grr*r*. Sil;it* '-trey Etrl i(i:)rfr:ie:!:riclispure drro€ir ccirsulttrio4 it q'ill be refesed to a. urutualb rgr.*.ed thud parr';. f.i',tParticipacr" rrlJl agter to r,lre rhird p;rnr wjthlp tn'o rnor:.d:s.

Patagaph 15

l - r . t - fha },IOU vnfl enter.into effect paci,r-isigeally .uPoa irs sqg,jur.Lrc aud defuinei.',' uporr-the haodirrg oser of Convlsted Personfr) m &E lilmpCignr RnjrnAm--.rli<tr.:rir';sqdff the itterrtic'n of ttrre EnforeesrenrAgrcenrcuc

The .i\fOU rtilt ftircaia r-alid urtil euiecr the corrpleucra r.ri ibe lorigest :ie$i"'rlcescwecl b-v a coarricred pstsofl trarrcferyed to Rrvanrla. Dr uporr terr:rin:rrial of ri,cti,rrforcceacot Agretrrrlr. plusaatr. to rhe -t*iclcs I and lti of-&e--lEdf.itaelr.*rt ----.---'-

furerr*r*.

P'aragapht6Arneqdneqt

- Thc \ft)t-' may be.sub.jecr iu reriss, at, ani tiarc upon writi.cr: rcque$t a palaciuarri .tti,:i i.'wr:irrcn ag$enre.l$ bcnrcsn rheparticip+nrs in order to:

&tcmi're f.lle need ibt irs coru:ruitorL rnodi6ca,ri+c rr ts.i;:tiniu,-,1r.

meke a.tliuctrrents in arr.y'c.f thc areas covrtrxj is lrl ter:u*.p)

j"je,Ag::arr.d,*n Cf r;::'jerSr: a n*': i:g

Paragraph L7Nodccs

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slBo Bssco To: Rog_er Tchinda Kouamba lcTR <kouambo'tchinda@un.org><slbobosco1969@Yaho cc:o,co.uk> Subjea: MoU between SCSL and GoR

02t23t201103:30 PM

Dear Roger,

The dosu:nent attached hetevyith is the Memotundun of Understanding benreen the Specid

court for sietra Leone and the Govetnnrent of the Republic of Rwanda. It is novr complete,

thete are Eleveo pages signed by both parties. considet this one and ignore the prwious ones - € '

sent with the brief as it lacks some Pages.

$7e hrlmbly tequest that the Kinyatwaoda document which was sent in the Exhibit F of

Theoneste KARENZI, Cootdirrator of the !flitness and Victims Protection and Assistance Umt

withi. NPPA be reraoved. The Kinyatwanda document was effoneously attached and we-

request not to be considered. It is neither refered to in our^ k:t:t l*t":"d,"t i", i:":P*t

"lA. aJa""ao- na:rg of the Affidavit of Theoaeste I(ARENZi (refer to the Addendum

C -

Iisting Exhibit F). ;;

Kindly, inform all parties of this change.

Regards,

John Bosco SIBOYINTOREprosecutor & Actirg HeadGenocide Fugitives Ttacking Unit(GFfU)National Public Prcisecution Authotity ' '-Republic of Rwanda

Mannrundum of btn SCSL and 6oR.pdf

I

C-J

n

-@Underctanding

;&ist.,

iitlt*l i.irlioilei.lirii':;:ii Ljniel

| - GEHERAL II{FORMATIOI{ {To be

TRAHSltillsSloH $HEETFon FtLtil€ OF SC1CUmGHT$ UUtrH Cfi[S

CO.URT UATIIAGEIIIEi{T SECTIOH(Arf. 27 of the Dnectht€'for;the RoglEtry)

${'''t""-

the Gharnbers / Fillng

II. TBAT'ISI-AiION STATUS OtiI T}tE.FTLII'TG DAIE e b e

nt - TRAUSLATIOI,I PRtoltlrlSATloil Offrcial use ONL

Trlal C.hamber lllC. K. Hom€tonu

Appealq Chamber / The Hague(Appeals/Team lV) i K K. A. AJan<le

Trial Chamber IN. M. Diallo

Trial Chamber llR. N. Kouarnho

I fl Prosecutor's Ofiice' -I

Defenae I LJ Prosecuto/si

(narn$) 1 (names)

Frosecutor vs. jtarn ,$oSC.O UdtN{et t }A I

Original Linguage: fl English flFrencn D Kinyanrvanoa

hteuofluNb.tlrd d uAlbeRsTA"+E:ltJ6 Bgi*€N sesL @^d GSP

ll lndiatrngnt BwanEntE Deaiston .flnmaavnil Disdosure E qroer[;udgemen! E.wto(ion

p CorrespondenceE ttotice of AppealE Appeal BookE Book of Authorilies -.

D Submission from non-partiesI Submission from parties

Classificatlon Level:E Ex Parte

Strictly Confidential/ Under SealConfidentialPublic

CM$ SHALL take necessary action regarding trenslatign. rr1

F\)14,

!

fl f iting Party hereby subrnits only the original, and wil1 not subinit any tran

E Reference rnaterial is provided in aandx ta fucilitate tFnejalian,

E Rlng party will be submitting the lrenslated version(s) in,due Cdurs ln thefollowrng i"ttSqiC€(")t

tr rngli"n Ef Frenen D Kinyan'vandalsrolvrtLt lH YHE.Bo,{Es BELow

The document is submitted for tr€nslation to:

fJ The Language Ssrvicas Section of the IGTR lArusha.! The Languag e Seruices Section of the lCITR / The llague'E Rn accreOitid service for translation; €ee dekils below:

Name of contact Person:Name of service:Address:E-mal l /Tel . /Fax:

The docrment is submitted to an accredited service fortranslation (fees will be submitted to DCDMS):-

Name of conbet person.Name of 6er'vice:Address;Ermai l /Tel . /Fax;

I Required date:

NE: This fortn is avallable on: http://wv.rw'ictr,org/ENcL[SH/cms1oms1 'doc CMSi {Updated on 22 January 2010)

aal'

Annex J

W;

e20

ORGANE NATIONAT DE POURSUITE JUDICIAIREUBUSHINJACYAHA BUKURU

" P.O, Box : 1328 K|GAI|-RWANDA" Phona : +250 0252 589500' Fox :250 0252 589501

, '

i?

Hon. Adama DiengRegistrarInternational Criminal Tribunal for RwandaArusha-Tanzania.

YiF:.tiff:NN;]^4aul,lNJ20ttar.Ml#rfI

Dear Sir,

The Government of Rwanda would'like to seek your assistance in-ensuring that the attached amicus curiae supporting brief be filed before

" .omputent Trial Chamber in the Case, Prosecutor vs. Jean Bosco

UWINKINDI, No.lCTR-2001-75-1' ,--

IDTFroFFttE 0F Tl i i t aEGi$TnAi: iBUREAU DU 6;TiUi : :Fi [ i i

RECU LE

?FT

i.i.1rlII

I O FEB 2011RE C Et {F :U t , , i - - - - . . - - * - .

(:(--'

:Yours Sincerely,

P

,?1.1

International Criminal Tribunal for Rwanda

Trial Chamber II

Before:

Registrar:

Date:

Judge Florence Rita Arey, Presiding

Emile Francis ShortRobert Fremr

Adama Dieng

18 Febmary 2011

THE PROSECUTOR

v.

Jean-Bosco UWINKINDI

Case No. ICTR-200 1-75-I

AI,IICTJS CURIAEBBIEF FOR THE REPUBLIC OF RWANDA

rN suPPoRr b-F THi: rnoq-npuToR's APPLTCATIONFoR REF;inei' punuser'lT To RULE 1l Brs

oThe Prosecutioni;t;" Bubacar JallowJamee J. ArguinGeorge MugwanYaInneke OnseaFrancois Nsanzuwera

The DefenceClaver SindaYigaYaIain Edward'sBettina SPilker

A*i;"; cJu"Republic of Rwanda

I

TABLE OF CONTENTS

I}TTRODUCTION

SUBMISSIONSINRESPoNSEToOHAMBERSQUESTI0NS. . . . . . . . . .2

Pase. . . .1

A. The accused is able to secure adequate legal representation in Rwanda

because ,fr" ,lgfrr1" Ilgal aid is enshrineJ in Rwandan law, and Rwanda

has d.emonstr;a its clmmitment to ensuring that the defence can

investigateandpreparetheaccused'scasewithoutanyoffrcialimpediments. . '.

I

1r.

lU.

The Rwandan legal system is able in practice to provide the accused

with adequate legal representation' '

TheRwand,anlegalsystemisableinpracticetoprovideappropriatefi.nancial support to an indigent accused

TheRwandanlegalsystemisableinpracticetoprovidetheaccused'with assistauce in rr.iut*ti"g investiiations, includi-ng the production

of documents and ""..r,

to d.etainees, and travel of defence witnessee

and team *"*b""r-tl-""Jf"o^ Rwand'a " ' ' 9

B.

b. Facilitating defence travel to and from Rwanda' ' ' ' ' ' '13

iv .TheRwandanlegalsystemisable inpract icetoprov idetheaccusedw i thass i s tance inensu r ing ,u . ' ' " i t v fo rde fence teams . . . . i . r . . . . . . 15

Rwanda'ewitnessprotectionprosrant:t:l-itg*T"?i:""Tffi:"ffiffi'""ffi#1il;;h".;'*ii""T:',f^'9*-t:"-beforad'unD$;:--^-i] #ffi ffi ;;il"i"rv p*'id'es for the

"seT1.a-11:t'9fcff;ffi ;:;i;;;'i'J""i;1tnessesr""':.1ry]t^ltnRwanda;:ffiffiffii;"*'e;iil#, the safe and secure travel of

a. Facilitating defence investigations' ' ' '

witnesses for trial'.2L

and

i. Rwanda's laws provide the necessary framework for the

provision "t "li""a

array of victim and witness services

rhat are ""-;;;;;ilfre-lctn

**" policies and procedures- ' ' ' '21

22u.

'

?t+,_

22WVSU.

wvu.

lU. The Tribunal utilizes Rwanda's witness protection service

programs to assist in the ICTtrlls own cases'

iv .Rwandahassevera lv iab leal ternat ives inplacetopermi twitnesseswhoareunableorunwillingtotravelfromabroadto testifY remotelY.

Provisions governing arrest and detention' ' ' ' '

ii. Provisions governing conditions of detention'

The accused's right to trial by a fair and impartial judiciary

;; htt right to ih" po""tption of innocence are secured by

Rwandan law. .

i. The Rwandan legal system is able in practice to ensure the

accused with a fair trial before an independent' impartial' and

27

a.

b .

28

29

C. Theproceduresgoverninganaccuged'sarrestauddetentionunderRwandan law are ."U.i"iti"ely id.entical to the procedures available

;;i;; ih" T"ib.rrral'" Rrrles, and, Rwanda's detention facilities for

transferred. cases comply with internationally'recognized standard's' ' ' ' ' ' 3l'

31

38

42

42

D.

competent judiciarY.

11. llre Rwand'an }egal systen is able in practice to secure the48

accused's right to presumption of ittnocence' ' ' ' ' '

IN\TITATION TO CIIAMBER TO VISIT RWANDA'

CONCLUSION.

ADDENDTIM

- - i i z

ll-r

I

49

50

INTRODUCTION

l .The lgg4genoc idea f fec ted ' t heen t i rewor ld 'bu t theScarsa rebo rneby the

peopleofRwandaalone 'Thecr imeswereperyetratedbyRwandansonRwandan

so i l .Thevas tma jo r i t yo fv i c t imswereRwandans .And , thoseRwandanswho

survived have suffered and will continue to suffer the pain of loss from now until

the end of their lives.

2. For the people of Rwand.a, national reconciliation and healing can only begin

when the guilt or innocence of those accused of participating in the genocide is

determined through open and fair judicial proceedings' The Tribunal' with the

cooperation of its member states, has made great progtess in bringing those moet

respons ib le fo r thegenoc id 'e to jus t i ce ,Bu t ,as theTr ibuna lsnanda tenears

completion, it is imperative that alt options be pursued to ensure that other persons

responsible for the atrocities perpetrated in 1994 not escape with impunity'

3. The ICTR Prosecutoy's pending application for refenal of this case (and other

cases) for trial in Rwanda is one such option. And, it is an option that the people

andgovernmentofRwandafi 'rmlysupport.Byallowingthisandothercasestobe

tried in Rwanda, the chamber will enable Rwandans to witness fi'rst hand the fair

admin is t rat ionof just ice inthei rowncountry .amajorsteponthepathtoward

t,7_J9,

international etandards. All of these reforms were undertaken to secute an

accuseds right to a fair trial in any case that may be referred to Rwanda for trial'

b. To be sure, there are individuals and organizationg that have criticized and'

undoubtedly, will continue to criticize Rwanda's many reforms as being insuffrcient

or as-of-yet untested. But, these criticisms are largely grounded on unverifrable

hearsay statements made by unidentified. persons, expressing personal opinions or

beliefs. Rwanda cannot meaningfully respond to such phautom criticigms' Instead'

through its submissions below, Rwand'a will present tangible evidence

demonstrating that its commitment to ensuring the accused's right to a fair trial in

th i so ranyo the r re fe r red ' case isne i the r i l l uso ryno r theo re t i ca lbu t rea land

demonstrable'

6 .TheChamber inv i t ed .Rwanda toadd ' ressn inesepara te i ssuesonnxa t te$

relating to the (1) accused's ability to secufe adequate legal representation (ssues I

and II); (2) functionality of Rwanda,s witness protection progTams (Issues III, Iv, v,

and w); (3) comptiance of Rwanda's detention facilities and laws governing arrest

and detention with international standards (Issues VII and VIII); and ( ) any otber

issues affecting the accused's right to a fair trial (Issue ID' Rwanda will address

each issue in turn.

7. To provid.e the chamber with further insight into the true state of a{fairs

exieting in the country's courts and detention facilities' Rwanda also invites the

chamber to conduct a site visit so it can evaluate first hand Rwanda's submissions

on these important matters'

,- ,/ ,'''-1t+

The accused is able to secure adequate !"gll representa-tion in

Rwanda because the right to legai aid is enshrined in Rwandan law

and Rwanda has i"-oi"ttatedlts commitment to ensuring that the

defence can investigrt" and prepare the accused's case without any

official imPediments.

The Rwandan legal system is able in practice to provide the accused

A"

g. The Rwandan legal system is adequate to meet the needs of any accused

person whose case may be transferred. currently, there are 686 attorneys admittetl

to Rwanda's bar.I Approximately one'third of those attorneys (23? members) have

morethanS.yearsexperience,includinginthedefenceofgenocidecaseg.2

g .Bywayo fcompar i son , i n2003 'whcn the ICTRProsecu to rp rev ious l y

attempted to refer cases to Rwanda for trial, there were only approximately 280

attorneys ailmitted to the Rwand'an bar's Nevertheless' both t]ne Gotete and'

KonyarukigaTriat chambers had "no doubt" that an adequate number of attorneys

were available to represent the accused in any referred case'4 That conclusion is all

themoreappropriatetoday,giventhat,since200s,Rwand'ahasexperiencedal4S%

increase in the number of domestic attorneys available to represent the accused"

10. Moreover, Rwandan attorneys must meet stringent qualifi'cations before

being admitted to the bar. They must have been awarded' a university degree in

law or its equivalent, have no criminal record for conduct that is "dishonourable or

lack ing in in tegr i tyormoral i ty , "completeaZ'yeatapprent iceshipundevthe

, Affidavit of Maitre En*ou". IlfTq'l: l:T*,:i:f,"u:1: .T"*.fff* ;lilfril""i:*"I Affidavit of Maitre r;mmanuer ttt"*"ll#ii""ermult.q,intheAddendumtothiebrie$'

C'.k";;i""Aff.),para,2(acopvd:t:l;^1:r^-"" Ltnrooahitnana. ffi;il.1c'in.oo-rse-nr:l-ffi ff #".*,'il?;lll;:1":8il:fi iiffi 7;"s";t;;"'"3x,[";Jfl L';.'#":lf l?;i;}ilH"#;"1ili;,;"il:fi1,fi"?#;fif d;-c""" oina"phonse Hategekirnana to Rwanda" 19

;;i!.zooa, para. 64 (Hategekimano qq);PA:::"TT1:::ffi:*T"H;L:"i:'r-I:;1ry-**3,'#1',ii'*o""liii,"i"'ff $Si;tffff ?Jil,,'{;:;tr"#:"S,8fi.iiii#4;,lii:ng"m:'dH,1;"n'"i";3::"$:};ffi;;H'r.'*i*f i-riiiri"invr1 jase.N:',LT*'"t"to'-':* igo (TC).Request for Rpferral t9 !i; ffiifl'"l}Yt|' ljune

2008,

'r-

,:y,gE

supenrision of a member of the bar' and pass a professional comFetency

examination.6

l l .Approx imate ly lsOlawschoolgraduatesarecrr r rent lyawai t ingadmiss ion

andapprox imate ly thesamenumberareant ic ipate i l toseekadmiss ionover the

next several Years'6

t2.Toensurethatmembersof thebarhaveaccesstocont inuedlegaleducat ion

and professional development, Rwanda, with the support of the Govetnment of The

Netherland,s, established the Institute of Legal Practice and' Development 0LPD) as

an institute of higher learning'? ILPD's mission is to promote excellence in legal

practiceby,amongotherthings'offeringpost-graduatetrainingsforjudgesand

attorneys.s The goal of ILPD',s trainings is to "contribute to the development of

justiceinRwand.a"byensuringthatjud.ges,attorneys,andothersinvolvedinthe

justicesystemfunctioninaccordancewithinternationalstandards.g

13 . In2010 , theK iga l iBa rAssoc ia t i onsponsoredSnewat to rneys toa t tendan

ILPDpract ica l t r ia lsk i l ls t ra in ingwheretheylearned,anongother th ings,

effective techniques for cross-examining witnesses.l0 In past years, the bar

association sponsored 5-to'6 attorneys to attend similar ILPD training proglams'll

|4 . Inaddi t iontoanexpandingnumberof t ra inedd.omest icat torneysavai lab le

toprovidelegalrepresentationtotheaccused,Rwandaallowsforeignattorneysto

beadmittedtopracticebeforeitscourts. lzTogainadmission,theforeignattorney

musthavebeenawardedalawdegreeandbeamember ingoodstandingof thebar

of their home state.ls In additiou, the attorney's home state must aglee to provide

reciprocal admission to members of the Rwandan bar'la

1997 EstabUshing a Bar in Rwanda' Articlee 5' 13' and 16 (Law

lb. In the past 4 years, Rwanda has extended bar membership to attorneys from

the United. States, Canada, Uganda, and Cameroon.l6 Given this past success in

accommodating requeste from foreign lawyers to practice before its courts, Rwanda

has every reason to believe that the ranks of its domestic lawyers can and will be

supplemented by attorneys from abroad if the Tribunal refers this case and other

cases for trial in Rwanda. Indeed, both the Gatete and Kanyarukiga Tttal

Chambers previously recognized that attorneys from abroad eould represent the

accused in referred cases and rejected unsubstantiated claims that foreign lawyers

would refuee assignments as defense counsel in referred cases.rG

16. Thus, the ICTR'g Prosecutor's application for referral should be allowed

because Rwanda'e legal system is able in practice to provide the accused with

adequate legal rePresentation.

ii. The Rwandan legal system is able in practice to provid'e appropriate

Legal aid to vulnerable persons, including indigent accused, is deeply

engrained in the Rwandan legal system. All members of the bar, including

attorneys admitted from abroad, are obliged to provide pro bono legal serwices or

legal aid.rz with regard to referred cases, in particular, Article 13(6) of Rwanda's

Transfer Law expressly provides indigent accused with the right to free legal

representation.l8 In adfitionr persons detained. by the police likewise have a right

to appointed counsel under Article 39(2) of the Rwandan Code of Criminal

Procedure.re

t7.

to Rukangira Aff., Para- 7'ro Gatete (TC), patt. 46; I(anyarukiga Qtr), para' 55'rz Article 66 of the f,"*-nri"UUrfing nwanaan Bar (providing lhat a lawyer ehall not ''refuse or

neglect the defence of an accueed or t-o asgist a party rihere they have been appointed tp do sd'); see

olso Article 60 of the Law Eetabliehing Rwandan Bar (directing the..Law Society Council to prrovide

legal assistance to persons who hlve "insuffrcient frnalcial t-"*,"Y{):;.ffiff"b1ir;""'J;;;oi'-i" io"-"uv known as organic Law flo. 7ll2o07 oI 16 March 2407'

t - - : L - - - - 1

Coicerning Tranefer of Casee to the Republic of Rwanda from

for Rwanda and From Other Statee.i;-L; No. 13/2004 of 1? Mav 2004 relating to the Code

Procedure).

,^//ir..qt.{,-. t . ' .1,1 'ut , '

18. Rwanda's legal aid program is administered by the bar association' To obtain

Iegal aid, an applicant must present a certilicate of indigency from their local

administrative authorities.zo Ind'igency determinations are not limited to

consid.eration of the applicant's income; instead, consideration is glven to the

applicant,s broader fi.nancial circumstances and general ability to pay'zr

l g .Eachweek ,a l ega la i do l f i ce remp loyedby theba rassoc ia t i on rev iews

app rox ima te l ySS- to .40app l i ca t i ons fo r l ega lass i s tance tomakegu re the

applications are complete.zz An attorney then reviews all completed applications to

assess whether the matter can be resolved without going to court by providing legal

ad.vice or guidance.zs If it is determined that a formal representation is required'

the application is referred to the defence bureau for appointment of counsel'24

Appointment of counsel is usually completed within one week'25

20. During the past 4 years, the bar association provided free legal assistanee to

approximatety 4000 accused.26 Legal aid clinics operated by local universities'

includingtheFacultyofLawoftheNationaluniversityofRwanda(l']"[IR)'provide

another source of free legal advice on both civil and criminal cases' During 2008' for

i ns tance , the lega la id ' c l i n i cope ra tedbyNURsFacu l t yo fLawserv i ced l ,98T

cases.27

21. Rwanda's Ministry of Justice provid'es financial support to underwrite the bar

association,s legal aid program. For transfer cases' in particular' Rwanda's current

budget for 2010 to 2011 includes 92 million Rwandan Francs for legal aid'28 An

additional 30 million Rwandan Francs have been designated for ICTR'related

zoRukanerraA-ff.,para.8;Article2€ofLawNo'09/2006of2March2006modifyingandcompletingI,aw No. r8/2o04;ft;;"*-zob+ r"r"turl';;'-;;coi" or ci*'it' coro*"rcial, Labour and

Ad.ministrative Procedure'zr Rukangira Afr., Para' 8'3e Rukangrra AIf., Para' 9'2s Bukangrra Aff., Para. 9.zr Rukangrra Aff., Para' 9'zl Rukangira AIf-, Para' 9'aaRukangrra AIT., Para 10' 6 FebruarY 2011).,r'iluR ;;Jeid bu"i", http://www'1":'i"1:TjT1T.: (Karugarama Aff.),

" Afil;;; ;f rharcisee i<r*e*"p., lqT*T :j 1l|111;ali;?;;"* oi*r'i"r"r'" inclidetl as Exhibit B in the

aIta'a.- . -

issues, including, but not limited to, the provision of legal assistance to indigent

accueed in transferred caseg.2e Between these two separate line items, a total of

122 million Rwandan Francs (approximately $205,000 u's' dollars) is currentlv

available for providing legal aid in transferred cases, including this case's0

22. In addition to funds designated for transferred' cases, since 2007' Rwanda s

Ministry of Justice has entered into contracts with the bar association for the

provision of legal aid in domestic cases'3l The most sutrent agreement took effect

on 2 July 2OlO.82 It requires the bar association to provide legal aid to ninors

charged with crimes and female victims of sexual violence but does not preclud'e the

bar association from providing legal aid to other vulnerable petsons, including,

without limitation, indigent adult accused'33

23. In exchange for providing legal aid' services, the Ministry of Justice provides

a monthly stipend of 300,000 Rwandan Francs to each of the 24 staff members

employed by the bar association to provide legal aid services'34 Thus' pursuant to

this contract, Rwanda's Ministry of Justice has committed 86'400'000 Rwandan

Francs (300,000 per month x 24 staff members x L2 months) to underwrite domestic

legal aid. services. In add.ition to underwriting the staff member's work' the contract

requires the Ministry of Justice to pay the bar association 300'000 Rwandan Francs

per month (3,600'000 Rwandan Francs per year) to defray communication and other

operatingexpensesassociatedwiththelegalaidprogram.ssAlltold,theagreement

commi t s theM in i s t r yo f Jus t i ce topay lngg0mi l l i onRwandanFrancs

(approximately $151,260 U.S. dollars) this year alone to support the bar

association's provision of ilomestic legal aid eervices'Bo

2e Karugarama Aff', Para. 3,$ Karugarama Afr., Para' 4'at Rulangira Afr., para. 11.llt*:13::Trf.,"il?;lii; Arlicre !s,.c:tt ( !.:::,:!y:,:'^*-::o'€'entation

en iwtice'r lurv

;;l;6:T#J;#;;il;'-u"Jlotr'"ema""itof MaitreRukangira)'. . -r s' -^-:-'^-no ar io ronrisentalinn en iustiee't JulV 201O'

it liia" pt" miet, Contrst d" aseistance,et de reprdsen'd*n,::-sr fu'gjsls 8.L, Contrat d,' sssistotuce et d'e reprdsentation en i'zqlO; Rukansira Aff., Para'

t2.fA.tici" 8.2, Contrat d'assistonce et de reprisentotion*;J;; a,;,, Co"t

"t d'assistan'ce et dc reprdsentation

{LI

tp' n'1'1, ',",,

--,2ffi, // ' , ,,f i --

; ! . - {

24. The funds that Rwanda has allocated for legal aid services specifrcally in

transferred cases (122 million Rwand'an Francs) and more broadiy in domestic cases

(90 million Rwandan Francs) amply demonstrate its practical abitity to provide

legal aid seryices to an indigent accused whose case may be referred to Rwanda for

trial. Ind.eed, the funds that are currently budgeted for legal aid services (a total of

212 million Rwandan Francs or approximately $356,300 U'S' dollars) are significant

and comparable to the amounts Trial chambers deemed adequate in prior Rule 11

bis proceedings'37

25. The Trial Chamber, in atl eveDts, should not "venture i'nto tbe question

whether [the amount budgeted for legal aid] is suffrcient," nor should Rwanda be

under any "obligation to establish in detail the suffrciency of the funds available as

a precondition for referra.l."38 Instead', it should be suffrcient that Rwanda has

provided the Chamber with tangible proof of its commitment and practical abiuty to

provide legal aid to the indigent accused in this case or any ofthe other cases where '

referral has been sought. should any future financial constraints emerge' the

Tribunal,s ability to monitor referred cases and., if necessary, revoke the referral

would provide Rwanda with a powerful incentive to allocate whatever adfitional

funds may be required to remedy the situation.se Resort to any such extreme

measures is unlikely, however, because Rwanda stands ready to meet its legal aid

obligations.

26. For all of these reasons, Rwanda's legal system is able in practice to provide

appropriate financial support to an indigent accused should the ICTR Prosecutor's

application be allowed.

pata.55,at See Gatete (TC), para' 48 l{anxrcrukqlGc)' para' 67;es Gotete(t0), para. 48; KanvarukWo-(tQ,e::?' 57' ,n Eii n"i"eii[^or* (IC), Para 55; Ga.tetc (TC), para'

w8

tu. TheRwandanlegalsystemisable inpract icetgr lov idgtheaccusedwith assistance in i."iUt"tittg investigations, including^the production

of do"rr*"rrts and access to d.etainees, and travel of defence witnesses

and team members.to and from Rwanda'

a. Facilitatingdefenceinuestigations'

27. Rwanda,s }egal system puts the defence on the same footing as the

prosecution with respect to the investigation of criminal offences' Under Rwandan

law, the judiciai police (subject to the control and supenrision of the prosecution) are

responsible for investigating alleged criminal offences'ao Investigations must gather

evidence both for and against the accused. Thus, like continental systems colnmon

in countries such as Beigium, the Netherlands, spain, France, Norway' and

Denmark, Article L9 0f the Rwandan code of criminal Procedure requires the

juilicial police to "gather . . . evidence for the prosecution and defence"'

2g. In condusting a criminal investigation, the judicial police are authorized'

among other things, to take witnesses statements'al To be admissible at trial' any

witness statement must be recorded, either by hand or electronically'as It must

reflect a complete written record of all the questions asked of the witness and all the

answers glven by the witness.as To ensure the accuracy of the statement' both the

investigator and witness must affrx their attestations (ty signature or fingerprint)

at the bottom each page of the statement and beneath the following written

declaration on the last page of the statement: 'T hereby declare that this statement

contains nothing but the truth'"44

29. Following an atrest, an accused has a constitutional right to inspect the

entire investigative frle compiled by the police'a6 If the accused beueves that the

witness statements are incomplete or inaccurate, the defence may ask the police

a0 Articlea 18'19 of the Rwandan Code of Criminal Procedure'

n, A"U"i" 26 ofthe Rwandan code of criminaf Procedure.

* A"tiJ; ia of tu" Rwandan o{e_ot-!11igr1l Proced;1:e,'.; iftil;;ii".tl.", Manwat of Jud'iciat ?!ba

pp' 46'48'* gttla""zs of the Rwandan iode of Criminal Procedure;

Police,9. 46'48,;-jJi,i; 18 of the Conetitutiron of the Republie of

of Criminal Procedure.

IIII

investigators to follow up with the witness.eo similarly, if the defence believes that

there are witnesses suppofting the accused who have not been interyiewed' the

defence may tequest the police to interview these additional witnesses'47 under

Article 19 of the code of criminal Procedure, the police are obliged to accommodate

defence requests for further investigation'

30. The Presid.ent of the Kigali Bar Association reports that defence counsel have

not e:cperienced any difficulty in obtaining police cooperation in conducting further

investigations, including additional interviews of potential defence witnesses' in

domestic criminal eases.48 Furihermore, he reports that' even if the police declined

to cooperate with defence requests for additional investigations' the defence could

applytotheprosecutionor, i fnecessary'thecourtforanorderdirectingthepolice

to do so.ae

31 .Thed 'e fence ,o f cou f se ' i s f r ee toconduc t t he i r own inves t i ga t i ons

inilependent from the police investigation to d'evelop new leads or information'

Indeed, since 2005, Rwanda has hosted more than 200 ICTR defence team missions

to Rwanda.sp During these missions, it has been common practice for ICTR defence

teams to request assistance from Rwandan government offi'cials in obtaining

documents and access to detained witnesses'

92 ,RwandasNa t iona lPub l i cP rosecu t i onAu tho r i t v (NPPA)se rvesas the

primary contact for all such ICTR reguests for assistance and' maintains a log of all

the requests for assistance it has processed'61 As the following chart establishes'

ove r t heyea rs theNPPAhasp rocessedove r l 00 I0TRde fence reques t s fo r

production of documents, access to detainees, and for assistance in locating

witnesses to be interryiewed or provid'e testimony:

ffi f J_udicior Potrice, p. 6r..t ;;;ilJ; is

"i th" n*u"a"" Code of Criminal Procedure'

as Rukangira A-fr,, Para' 13'

|| ffiffiffi;1?l"rll;ecuto_r Generar.Arph:i::^TTlf*"l5$yaremve Arr.), para' 2 (a copv

"r'ifrti, i".r"ala "r s*ntit c in rhe Addendum *'*ffii;.r..

or Hitiyaremye Afr., para. 2. l{{:irHi'..r.i;lf.:^:r,

ffi#*H

t

33. of of the uttt'"""y of prior Trial Chamber

assessmen ts tha t .TCTRde fence teamshavegene ra l l ybeenab ]e towo rk i n. ^^ t t l i

ilu,,"i"l;:;;;" sure, there have been isorated instances when documents coultl

notbereadi ly located,but iso latedc le laysarenot ind icat iveofany, .widespread

abuses.,,54 In fact, although regrettable, difflculties in locating d.ocuments are

commonplaceinanylargeorganizationandnotatal lsurprisingforagovernment

likeRwand'a'sthatisstrugglingtorebuildafteryearsofconflict'

S4.Furthermore,mostofthedelaysassociated'withdocumentrequestsinvolved

Gacaca court records' Until recently' many of those records were located' in the

eountry,sruralprovincesand'thus,sometimesd,iffrculttoquicklyaccesg.SsGacaca

courtrecordshavenowbeencollectedfromtheprovincesandarecurrentlybeilg

a rch i ved ' i nacen t ra l s t o rage fac i } iW ' s6Th i seen t ra l i zeda rch i veshou ld

substantial lyreduceanyfuturedelaysassociatedwithrequestsforGacacacourt

DefenceAccess tow'itnesses

totat ICTRDefenceRequests

Year DefenceDocumentRequests

DefenceAccess toDetainee

4 1 12006

ffi0 7

273 1 1 I U

1 1 2 t I2008

2oot2010

43215 IU

. 1 48 9. 4

Aff., para' 4.65 Ilitiyaremye Arr'' Para' ''

u. Hiti*rnremYe Af[', Para' 4'se Hitiyaremye

records.S?

3S.Simi lar ly ,wi thregardtorequestsforaccesstodeta inees, iso latedinstances

ofd 'e lay inarrangingaccessmayhaveoccurred.But , thosedelayswerelargely

attr ibutabletothefactthattheindividuald'etaineewastransferredtoanother

6s Hitiyaremye Aff., Para' 3'o"-iiiti"Pi*"no (fC), Para' 58't tni&"ni*ono $C), Para. 58'

rr Hitiyaremye Aff', Para' 4'

,2og,

t t :

Iocation or was on a work detail when the defence team attempted the visit'68

Because many work details are assigned' to rural areas' the detainee may not have

been irnmediately available to meet with the defence team'be In the future' these

t5 rpeso fde layscou ld ' beavo ided i f de fence teamsp rov ided the respons ib l e

government officials with better advance notice and clearet communications about

their intended meeting date and time'60

86. In all events, the occasional delays experienced by some ICTR defence teams

in connection with reguests for documents or meetings with tletainees did not stand

in the way of past referrals and it should not stand' in the way of this referral

either.61 What matters :nost is Rwanda's commitment to making reasonable efforts

to accommodate all defence requests for accees to documents and detainees'62 The

emp i r i ca l da tap roves tha t , no tw i t hs tand ingsome iso la tedbumps in the

administrative road, Rwanda's commitment to acconmodating defence requests is

meaningful and real'

3? .Fu r |he rev idenceo f th i scommi tmen tcanbe found in theass i s tance tha t

Rwand.a has provided d.efence and prosecution teams from foreign countries that

have traveled to Rwanda to conduct investigations in connection with prosecutions

pendingintheirnationalcourts.Mostrecently,theCanadianHighCommission

requestedandreceivedRwanda,sassistanceinfacilitatingdefenceteaminterviews

of witnesses located in Rwanda in connection with a case pending in the ontario

Superior Court of Justice'63

" 6-t- : ' :2:.

I

'-/ o)r{o+

38. similarly, the Netherlands has been investigating genocide cases in Rwanda

since 2006.64 Dutch d.etectives, prosecutors, and investigating magistrates

frequently visit Rwand.a to conduct these investigations'G5 In fact' in 2010 alone a

Dutch investigating magistrate conducted at least 6 separate 2'week missions'

gathering evidence both in support of and against the accused'66

39. In a frling with the European court of Human Rights, the Dutch government

summarized its years of e:rperience in conducting investigations in Rwanda in the

following terms:

The assigned. Rwanda:c, judicial officials have been very helpful in assisting

the investigating teams, our prosecutors and our investigating magistrate in

their work in Rwanda. 1,U"V n"ut-l o' very short uotice - provided

differentt5pes:ofassistancu,"',,gio.gfromprovidingsuitablelocationsforconducting heari:rgs, locating and- organizing transport for requested

witnesses (e "h;;;;

well as-e d6charge), assisting with witness protection

as weII as arranging psycholoeit"i-;i medical attention for witnesses to

the overan o*g;;rJion-of the necessary paperyork and permissions' ' ' '

Ouerall, the co-operation of tn" nwiiii;iaicUt authotities has been found'

to be etcemplary and, there on -no-

iniications of interference with the

inuestigating tei'ms, nor witnesses for that rnatter'67

b. Faciliating d'efence trauel to arud frorn Rwanda

40.Ar t ic le13(10)ofRwanda,sTransferLaw,guaranteestheaccusedther ight to,,obtain the attend.ance and examination of witnesses on hie/her behalf under the

eame conditions as witnesees against himflter'"68 In addition' Article 14(2) directs

the Prosecutor General to "facilitate the witnesses in giving testimony including

those living abroad, by the provision of appropriate immigration documents'

personal security as well as providing them medical and' psychological assistance"'

4 l .Rwandahasseve ra l l ega ibases fo rdemand , i ngcoope ra t i on f romo the r

governments in facilitating the travel of witnesses to and from Rwanda' As the

;; il: '#il:ffiffi' il;;;;i;;;', t'12..t t"^ryF::"::1n-l*

::ff 8'#ff iiffi fi :1ffibT:*Til#ffi{a;1*!'r1!:1hffi ;gl*ltheorganicLawNoltffi.?Tr"ft'"T'Xii"dot"ii"i,;iltrrGandcomplem"'g#-'l-*)'\

ffi of the Government of the Netherlands concerning Application No'

31[76t1g,para, ?, ar"ij" lrr" guropeal co"tiliii*"n nigtt", Ahorugezn v' swedcn' Application

No. 3?0?6/09 (2 September iOfOl fftt" Netherlands'Obeervations)'; Ci; N"th."iattd"l obsentations, Pata' 7'*fta tl"ttt"rlands' Observations, pata' 1', r ^^:- --.--riai\

i'; ,:;i t 'i' j - $ , f i I't ,fnf ,t4,,{../

: : : : , i : , i : l : j i , . j r . : . t r t t ! r . , : : ja . i : : : ' t : ;1 j i r l , : i : - i : . , . . i ; :n : ; : : ,u ; : t : : t i : : : t l t r : / : ; - : t j : . . t t . :

Appeals chamber previously recognized., "Rwanda has several mutual assistance

agteements with states in the reglon and elsewhere in Africa, and [has] negotiated

agIeements . . . with other states as part of Rwanila's cooperation with the Tribunal

and in the conduct of its domestic trials."6e Additionally, uN security council

Resolution 1503 requires all states to assist national jurisdictions where cases have

been referred and, thus, ,,provides a clear basis for [Rwanda] requesting and

obtaiuing cooperation" from other states in securing the attendance of witnesses

from abroad.To

42. In addition to these multiple legal bases for international and regional

cooperation in facilitating the travel of defence witnesses' there is a practical basis

as well. Over the years, Rwanda has accommod'ated numerous requests from other

countries to facilitate the travel of witnesses and attorneys to and from Rwanda'?r

Many of these requests were based' on informal agleements of mutual assistance

and cooperation, including requests submitted. by Belgium, Canada, Denmark,

Finland, Ftance, Germany, the Netherlauds, New Zealand, Norway, Sweden,

switzerland, the united Kingdom, and the united' states'72 Rwanda' in fact'

recently concluded arrangements to facilitate the transportation of several defence

witnesses to travel from Rwand'a to the United States to provide testimony in

suppor tofAkobagayaLazato,agenocidefugi t ivebeingprosecutedbyUni ted

States-73

43. In each instance where the witness was traveling abroad' the Prosecutor

General coordinated with the Director General of Immigration and Emigration to

6s T?w prosecutor u. ild.ephonse llotesekimoy, 9^"",*"; 1,T,l,O;ti"*i:y;:,offtnTi":3.'l;6s T'lw Prosecutor u. tt'cteDnonse rzu,vBzn!t"*fi"I-;;; i,.,t" tro;r, 4 DecemberJ!0_8,^nara. 25

pr*"i,.,ior;, Appeal against Decision on Referral if'*'"1y":ititt^ooo Nn ICTR-9?-36-Rl1bis,ii':;";Y::"#tff tx;"#W;*:;i:,'iii;i-x::*:;#ff "iliJff l*i",l"ili*:g:Y;:'K#"liiihf,tli ;#";":;:i;:;D.^.*:i:#iff;iu"aer nut 11b's' 8 october 2008';;;.' ;; ib{ ;ii aha"i (AC)), ancl Kanv aruki sa (AC)' p ara' 3 2'

:i'#f:Yf:fr$:);"ffii"Tn-Boeco sibovintore^(sibovintore Aff), para- 2 (a copv or whieh is

ijilJi;; E;hibit D in the Addendum to thia- brieO';;-iiiiitna (AC), para. 4!i Kontatuhigo (AC)' para'

Aff., para.2.?3 Siboyintore Afr., Para' 2' 'I

(AC), Para. 25; SiboYintore

i : .:: , i l .1 i:::. i l :::,: : :

' l<\ rfrClZ\U t<,. , r 6 . \ , i

t

assist in obtaining the necessaly passport and' exit documentation'7a In addition'

the prosecutor General, working with Rwanda's Ministry of Foreign Affairs and

Cooperation, coordinated with the host government to aruange for the witness's

required entry visa and other documentation'76

4. similarly, in those cases where the wj'tness or defence team member was

traveling to Rwanda, the foreign embassy submitted their request for assistance

through Rwanda's Ministry of Foreign Affairs and cooperation, which referred the

request to the Prosecutor General's Offrce.?6 The Prpsecutor General's Office then

coordi:rated the neceesary visas and other entry documentation'??

45, Having assisted these other countries with their requests for mutual

assistance, it is practical to believe that Rwanda will receive similar assistance from

these and other countries in facilitating the travel of witnesses and defence teams

in connection with this or any other case the Tribunal may refer for trial in

Rwanda. And, in the unlikely event that the requested assistance is not

forthcoming, Rwanda bas ample legal authority, particularly under uN Security

Council Resolution 1503, to insist that it be given' rs

46. There are no circumstances existing in Rwanda today that would materially

impede the defence in the preparation or trial of tbis case or any other case that the

Tribunal may refer. Based on prior Rule 11 bis submissions' Rwanda anticipates

that the accused and his amici will argue that referral should be denied because

defence teams and, witnesses fear potential artest and prosecution under Articie 13

of Rwanda's constitution, which prohibits revisionism, negationism' and

trivialization of genocide.?e

?{ Siboyintore Aff., Para. 3.?6 Siboyintore Aff., Para' 3.76 Siboyintore Aff., Para. 4,?? Siboyintore Aff', Para. 4.ft See Hotegekimana (AC), Para' 25'tt 1" f"rinule 11

'bu'proceedines, d1{ence counsel

inti.oiiation and harasedent for cooperating with the

iv. The Rwandan legal system is able in practice to provide the accused

t:M:'-' ;:;Z ,

47. As an initial matter, Trial Chambers already have recognized that Article 13

of the Constitution "is in itself legitimate and understandable in the Rwandan

context.,,80 Ind.eed, "many countries criminalize the d'enial of the Hol0caust' while

others prohibit hate speech in general'"81

48. The problem, the accused and his amici likely will say, is that Rwandan

pol iceandprosecutorscould 'broadlycongtrueandapplyAr t ic le ls .Weresucha

broadconstructionorapplicationapplied,defenceteamsandwitnessesfearthat

theymightbearrested 'andprosecutedunderAr t ic le ls fors tatementsmadeor

actions undertaken in connection with the d'efence of an accused' These fears' in

turn, allegedly would. have a cbilling effect on the defence and' thus' interfere with

the accused s right to a fair trial. To reach this ultimate conclusion' however' the

Chamber would have to accept each weak iink in a speculative chain of logic'

49. It also would have to ignore concrete evidence establishing each of following

points: (a) defense teams and witnesses ale afforded multiple guarantees of

immuni tyunder theTransferLawand'otherprov is ions, (b) there isnotas ingle

reported case where a defence team member or witness was prosecuted under

Article 13 for words or acts undertaken in connection with the defence of an

accused, and (c) Rwanda's President and Minister of Justice have publicly e:rpressed

the governmenf,s commitment to consiclering amendments aimed at clarifying the

meaningofArt iclelsandlimit ingitsscope.Eachpointisaddressedbelow.

S0.Rwanda,sTransferLawprov id.esdefenceteammembersandwi tnesseswi th

multiple guarantees of immunity from arrest and prosecution:

r Article 15 provides that d'efence teams are guaranteed the 'right to enter into

Rwanda *,od -o.r, freely *ith* R;;;a" tJ p""torm their d'uties' T1'w shall

not be subject to searclt, ,"i,ruu,'i)ril-ii a"i"tion in the performance of their

legol d'utins'"8z

iff*t?"*:"*i"*:.i*:":lil5-##:! J""J'"rt#;;# a"e'att' to provide securitv and

aeeistance when reguired';Aflegai, pu"". ez; Koruxarukigo (TC)' para' 71't il;liici, i"*' 62;Kaivorykwa(Tc)' para' 71'ae A;;cle 16 of Rwanda s Tbansfer Law'

i,i -w

Article lS likewise provides immunrty for witnesses' It states that "[w]ithout

;;;j"di"" to the rievant laws of contempt of court and perjury ' no person

slwll be criminalty liabte for anything saii o, d'one in the course of a trial'"88

Article 14 provides an additional guarantee of immunity for witnesses who

travel from abroad to testifr ir, ,ui""""a cases. It proviiles that "[a]Il

witnesses who travel from au*o^d t" ;;;it in the trial;f cases transferred

from the ICTR "rr"n-n.t.

iimunity from "eorch, seizu,re, arrest or d'etention

d,uring th,eir testinv,i"iZ"a iirW tLii, trouel to and, from the triols;'ol

t

51. In add,ition to the immunities conferred by Rwanda's Transfer Law, defence

counsel in referred cases, which remain subject to the Tribunalls monitoring and

revocation of referral, Iikely would benefrt from the immunity conferred by the

Tribunal for ,'words spoken or.written and acts done by them in the course of the

performance of their duties" as defence counsel for the Tribunal's5 Recently' the

Appeals Chamber clarilied that this immunity extends to time spent on journeys or

travel in connection with official d.efence missions'86 In large part' therefore' the

Tr ibuna l , s immun i t y fo rde fencecounse lappears tobecoex tens i vew i th the

immunity conferred by Article 15 of Rwanda'g Transfer Law' signifrcantly'

however, Article 15 is broader than the Tribunalls immunity in that it extends to all

defence team members, not just counsel'

52. In l ightof thesemul t ip lesourcesof immuni ty 'anyargument thatdefence

team members and witnesses ailegedly fear arrest and prosecution for words or acts

related to the investigation or trial of a referred case would be unfounded' lbe law

expressly shields them from any such incidents'

SS .Mo teove r , t he re i snop rac t i ca l r eason tosuspec t t ha t t he respons ib l e

government offrcials, including police and prosecutorg, would purposefully or

ffintingtheTransferLaw,Artic1e2_Guaranteeofrightsofanaccusedpefson. o ,r ^-_-iie"tiA" 14 of Rwanda's Tbansfer Law'';H#;:,:'E#iy:l':i:i."w".ho:::y1,_:.g::"^Ji;lgi"'gi;#Jfi:'#""H;l1,"fr';#i,f nff"T";;f:j"1"":;i[!'fi"ilr'4;";;;11'j;tXt#f J:"^ffi:tJ:t*Yl#ffi "'"*i"":i%

jl1;li'i1:TiffiH':;dil;-ilrd;;;.2e@ecisiononNtabakuze'sMotionlor Iniunction (AC))'?n Th,6ottBste aocoro'ri-'"i al' u' The -hosecutor'--t::

"Il;

Motion for a StaY (AC)).

)'.,"-'?'It11

intentionally violate the immunity protections extended to defence teams and

witnesses for words or acts related to the defence of a referred case'

54. Because no cases have yet been referred, the Transfer Law's immunity

provisions obviously have not yet been tested. But, it cannot be lightly assumed

that governm.ent olficials of a sovereign nation, like Rwanda, will disregard their

solemn legal obligations. Instead, the usual presumption of good faith and diligence

on the part of government offrcials in the discharge of legal obligations should

control.

55. Ind.eed, there is not a single case where a defence team member or witness

has been charged with a crime under Article 13 for acts or words relating to the

investigation or trial of a criminal case.s? The arrest of ICTR defence attorney Peter

Erlinder on charges of genocide denial is no exception' As the Appeals Chamber has

found, all of the documeuts (save one) that formed the basis of the Rwanda

government's investigation against Erlinder were private commentary unrelated to

his work as defence counsel.ss As to the one document that the Appeals Chamber

believed to be related to Erlinder's work as defence counsel, and for wbich immunity

thereby attached, Rwanda promptly ceased all legal action based on it'8e

56. Erlind,er's case, therefore, aptly illustrates that the immunity afforded to

defence team members in counection with referred cases will have practical force

and effect. Additionally, it provid.es affrrmative proof that Rwanda will honor those

immunity protections by not prosecuting defence team members for words or acts

related to the defence ofa referred case'

57, Equally unfounded are vague allegations that, notwithstanding the multiple

immunity protections afforded to witnesses under the Transfer Law' defence

witnesses, particularly thoee from abroad, nevertheless may be unwilling to travel

to Rwanda for fear that they might be arrested and prosecuted under Article 13'

E1 See Hategehimana (lC), para.69 (finding tbat, althoue-n.tUg possibility eyste{ for abusive

application of Article li, ";; such cases it ,oiirrg members o? the defence teams have been brought

to [the Chamber,e] "tt*ittr.

Therefore, such concerns are speculative at this point')

iJ o"arioo on Ntabakuze'g Motion for Injuuction (AQ, para. 28. _Ee Decision on Ntabakuze's Motion for Injunction'(Rii,'p"t*. 31; Decieion on Ntabakuze'g Motion for

a Stay (AC), Para. 10-

58 .Asd 'e ta i l edabove ,Rwandahas fac i l i t a ted t rave ] toand f romRwanda fo r

numerousd 'e fencew i tnessesandhascoopera ted 'w i thhundredso fde fence

investigative missions in connection with cases pending before the Tribunal and

na t i ona l j u r i sd i c t i ons ' i nc l ud ingCanada ' t heNe the r l ands ' andF in i and '

Furthermore, as detailed in the following section, Rwauda has taken affirmative

stepstoprevent instancesofwi tness int imid 'a t ionorharassnent ,andi thasa

traineil team of professionals dedicated to ensuring witness safety and security' In

i ightof thesesubmiss ions 'anyal legat ionthatunident i f red.wi tnessesmaybe

unwil l ingtotraveltoRwandatotesti fuorofferevid'encefortheaccusedbecause

they fear arrest and prosecution under Article 13 is baseless'

Sg. Indeed,nosuchfearswereevident , le ta lonereal ized, incorr r rect ionwi ththe

EiehthNationalDialoguethatRwandahostedonlyafewmonthsagoinDecember

2010. over 120 representatives of the Rwandan Diaspora traveled from 25 foreign

countries - ranging from Afghanistan to Zambia - to attend the Dialogue where

theyd iscussedmat te rs re la t i ng topo l i t i ca iandeconomic l i f e inRwanda .s

A t t endeess tayec l i nRwanda fo r3o rmoreweeks 'g lDu r i ng the i r s t ay , t he

attendees traveled about the country freely and without incident.gz In addition, aII

we lepe rm i t t ed to leaveRwandaw i thou ta r res to rde ten t i on , i nc lud inga few

a t tendeeswho rema inunde rsusp i c i ono f commi t t i ngac t so fgenoc ide .9s

Furthermore,al lattendeeswereabletore-entertheir2Scountriesofresidence

without any adverse consequence to their refugee status'e4

60 ' I t a l sobearsno te tha to the rcoun t r i es , i nc lud ing theUn i tedS ta tesand

Ugand.a,havere jected 'chal lengestodepor tat ionordersbasedonthedeta inees,

a l l eged fea rso fpe rsona lsa fe tyandsecu r i t yuponre tu rn toRwanda .g6These

offrcialdeportationdecisionslend'addit ionalsupporttoRwanda,sposit ionthat

vagueallegationsofwitnessfearsofpersonalsafetyand'securityehouldtheytravel

tls

l

' i " =' i r ' = ' '

. - - : . - -

s Siboyintore Afi[', Para' 6'$ $iboyintore Aff', Para' 6'oz Sitonntore Alf., Para' 6'ts glSoyitttor" Aff', Para' 6'

tn SiUoyintote Aff', Para' 6'

* Sitovi11tote Aff', Para' ?'

ta>ttr' * - t ' ' , - j

to Rwand.a are unfounded, particularly in view of the immunity expressly conferred

on w'itnesses und,er the Transfer Law'

61. Lastly, Rwanda is not d,eaf to the criticisms that have been leveled against

Article 13 by human rights activists and other grcups' Many of these criticisms are

based on what are perceived as ambiguous operative terms and the potential for

overbroad application that might chill freedom of expression'e6 Rwanda's Minister

of Justice has respond.ed to these criticisms by commissioning a study to examine

potential problems with the law.e? Among other things, the study is examining how

other countries with similar laws have defined operative terms and differentiated

between legitimate freedom of expression and' prohibited incidents of hate speech'e8

President Paul Kagame has publicly stated that, if the study frnds ambiguities in

t he languageo r thepo ten t i a l f o rove rb roadapp l i ca t i on ,amendmen tso r

modifications to the law will be implemented'ee

62. In addition to this ongoing study, additional clarification and guidance on the

interpretation and application of Article 13 undoubtedly will be provided by the

Rwand.an judiciary, including the supreme court of Rwanda' tbrough decisions

rend.ered in pend.ing cases, There is no reason to believe that Rwanda's judiciary

will abdicate its responsibility to fairly and impartially interpret Article 13 and to

do so in a manner that will redress any potential errors in the law's application'l0o

68. For all of these reasons, Rwanda's legal system is able in practice to ensure

security for defence teams. No circumstances exist that would materially impair

the defence team,g ability to conduct an investigation or present witnesses or other

evidence at trial.

ffina|,Sa!er.!.StatSiIent^T?wChiIlinsEffectofRwonda\I'awson'c;;;ii; i;;;st'Lni1*"to';,,oiami p' 13' 18 (Aueuet 20-10)'

s? Alfrdavit of Jean Piene Kayitare, Assistan"titti*"v O"i'e-ra!(Kavitare Afr')' para' 2 (a copy of

which is inctudecl * E;htbil;-Jirr" eaa"trd;;;;hir brieD; Bwanda Newe Agencv' Gouernment

;;;;;; n ;"* if c"iint;oua Genncide La'u)"' 5 April 2o10'

llf;HllXlff;.tfr:":;, Gouentment Announces Beuiew of contenti,ous Genocid.e l-a,w,6 April 2010;

see u'llrc KaYitare AIf., Para' 4'i**C" f"G"gs and impartiality of Rwanda's jucliciary ie

i . . r ' - i . _ . 1 : . - i - - i : . - . j : . 1 , 1 r : r ' i : . ' , j r ; l : . : n l r : : : 1 i : : r . ^ i r ' 1 ! ' : . i : : r r . : : : l j : : r ; ; . r r : : : _ r : l r - ! : ; - i , : . . j : : :

B. Rwanda,s witness protection program is functional in practice and

responds efncienitfi" tn""ot"iiio"tt"t might face before' during or

afier trial; it adequately pro"id"s for tUe secure and safe

acconrmodation ;J;;tport- of o'ito"""ut for trial within Rwanda;

and it effectivelv r."iiit"tes the safe and. secure travel of witnesses

for trial.

i. Rwanda's laws provide the necessarv T"*:yt:l j:-^:1"-t^:"*t:t?: :i:

64. The legal framework for Rwanda's victim and witness protection progralu 13

provided, by the Transfer Law, which reguires that the following services be

provided in all referred cases:

. secure and safe accommodationvictims to the Place of trial;

and transPort for witnesses and

o facilitation of safe and secure tra-vel for witness"::1-j11-Tf*"t1

ff:';::H#* *;nr,irom a eafe passage to a..-d,frou-Rwanila;

adequate protection against "o.y.l:.ttible

threat both witnesses might

i"."i"fo"", during and after trial'101

65. Article 14 of the Trausfer Law further provides that' in cases transferred

from the I.TR, the High Courb ,,shall provide appropriate protection for witnesses

and shall have the power to order protective measures similar to those set forth in

Articles53,69and?softhelcTRRulesofProcedureandEvi-d'gncg.1

66. Add.itional protections for witnesses are provided by Article 145 of Rwanda's

CodeofCiiminalProcedure,whichoffersanexqeptionto.!he99ua11'y}ethq!gl. l- :+_-

hearings are held in public. Pursuant to Article 145' hearings may be conducted i-n

closed session if the court frnds that a public hearing would be detrimental to public

order and good morals'

67. In connection with

acknowled.ged that Rwanda

and that its Provisions for

T

prior Rule 11 bis

has a legal framework

proceedings, Trial Chambers

for the Protection of witnesses

witness safety and security are comparable to those

Rwanda,slawsprovidethenecessaryframeworkfortheprovisionofabroadalTayofvictirrand'witnessservicesthatarecomparabletothe

ror Artisle 14 of Rwanda's Transfer Law'

provided by the ICTR Rules of Procedure and Evidence'lo2 As demonstrated by the

precedingparagraphs,thislegalframeworkforvict imandwitnessservicesand

security has not changed'

Rwanda s programs for victim and witness services ancl safety

6s.Moreover ,Rwanda,sprogtamsforv ic t imandwi tnesssenicesandsafetyare

fully operational and functioning. Rwand'a has two state-of'the'art prograns for

witnessandvict imsupportandsecurity;thewitnessandVictimsProtectionand

Assistance unit (wvsu) within the NPPA and the witness Protection unit (wPu)

within the Rwandan supreme court.lo3 Both wvsu and wPU are available to

provid.e victim and witness services in any referred case'104

a.. WSU

69. ,

wvsu was,cieatedr-in 2006 with the advice and guidance of a group of

external experts in the frsld.ros In accordance with the recommendations of these

external experte, wvSU was designed to be neutral body that would provide

assistance and protection to both prosecution and defence witnesses before' during'

and after tria1.106 The unit's mission is threefold: (a) providing emotional ancl

psycho log i ca l suppor t tow i tnesses ; (b )p ro tec t i ng thesa fe tyandsecu r i t yo f

witnesses; and (c) accommodating witnesses in secure environments such as safe

houees.lo?

ractical experience-in meeting these goals'108?0.

' WVSU now has over 4'Years P

It is staffed by a group of professionals with the ed'ucation and practical experience

necessary to meet the unique d.emands required' for servicing the needs of crime

ffi Gaute{gl 1".". 66; Hategekimana. (TC), para. 62.

1o. Alndavit of tt"or,*Itli<"*"tr, c-"-"ia;;#;i;i; wtii!ry l"altictims Protection andAeeistanc€

unit (Karenzi Aff.), p;a. 2 (a copy of which i] r""riia"J"" n.rtiuit F in the Addendum to thie brie0'

10a Karcnzi Aff., Para. 2.106 l(arenzi Af[', Para' 3'rm Karenzi Ai[., Para' 3r0? (apnzi Afl, para' 4.,* il"-X"iriit;e Gi), pata'67; Hategehimano (TC)'

qe-')r- - 1

11.

l@ Karenzi Aff., Para' 5rro Kslqn2i Aff., Para' 5'lu l(ql€nzi Aff., Para. 6'1r2 l(af,enzi Aff., Para' 5'rra I{s16Pl Aff', Para' 5'u4 l(arenzi Aff', Para' 6'

victims and witnesses.toe Indeed, the cabinet session that established the unit

requiresthatal lprofessionalstaffmembershaveamasterorf i ' rstdegreeinlaw,

psychology, or social science, plus several years of practical work experience in the

fie1d.110 The Coordinatorlllead of the Unit, for example, must hold either (a) a

master or equivalent in law, psycholory, or social science with l-year working

exper ienceor(b)anundergraduate in law,psychology,soc ia lsc ienceorother

relevantfreldwith3-yearsworkingexperience'r lrsimilarly'avict imAssistance

andPro tec t i on0 f f r ce rmus tpossesse i the r (a )amas te ro requ iva }en t i n law ,

psychology,orsoc ia lsc ienceor(b)anundergraduate in law'psychology 'soc ia l

science, or other relevant freld. with 2-years working e:rperience'llz Each of WVStl"s

12 staff members possess the minimum professional qualifications required' for their

position'113

71. In ad.dition, WYSU requires all staff members to pamicipate in ongoing

professional trainings and certifrcations to further develop their expertise'Ila For

instance, in the past several years, wvsu staff members have participateil in the

following trainings:

witness and victims protection, sponsored by the ILPD (s April 2007);

Witnessand,Vict imsProtection,sponsoredbytheICTRWitnessandVictimsS"pp"* Section (? to 8 June 2007);

Cru jsResponselnteruent ipnWorksJ lopsp-ons.oredbythelnternat ional#;;;;il; io' vi"tit Assistance (23 April2008);

Witnessand,VictimProtteetionsponsored'bytheILPD(1?.1sJuly2'008);

Rightsand'Protecti'onoftne-!!'!a'1loinstViolence;andJud'icialAssistoncetuVctims,rpo','o'"-J Uy the ILPD (22-26 October 2008)'

Irnplcmentation of Srnooth Transitio-n of ICf!- Witnesses and Victims to

Rwond,an lrlstitufio;s'.;;;."""d by the tcTR witness and vigtims support

b-".iiot (11to 14 December 2008);

HLf

a

a

a

a

113a - 4 e

. ICTR Witness Protectinn Programrne sponsored by the ICTR Witness and

Victims Support Section (16 to 18 November 2009); and

o Famili.arization with the United, Nations Internati'onal Criminal T?ibunal for

Rwanda, Wi,tiess ind, Vicfirn Support and, Protection Prograrwne sponsored

by the IOTR witness and victims support section and ILPD (13'14 october

2010;' t to

72. The United Kingdom's Department for International Development (DFID)

and, the United Nations Development Program ([INDP) have provided substantial

frnancial support to assist wvsu in these training initiatives and its day'to-day

wofk.116 From 2006 to 2009, DFID and uNDP provided approximately 430 million

Rwandan Francs (approximately $?23,000 u.s. dollars) to support wvslls

miggien.ll? The foliowing chart summarizes these contributions:

7g. In addition, Rwanda has committed substantial funds to support WVSU'g

mission.lls During 2010 alone, Rwanda budgeted 46 million Rwandan Francs for

the unit.l20

74. with this frnancial support, wvslls trained professional staff has been

actively providing a full range of services to witnesses' Indeed, from 2008 to 2010'

the unit has assisted nearly 1000 witnesses: 287 witnesses in 2008; 431 witnesses

in 2009; and' 281 witnesses in 2010'121

75. More particularly, wvsu has prwid'ed services addressing the emotional and

psychological. needs of both victims and witnesses (the unit's frrst mission)' In this

regard, wvsu evaluates the mental and' psychological health of each victim or

t16 t(srenzi Aff,, Para. 6.116 Ibrenzi Aff., Para. 7.ll? I(arend Aff., para. 7.118 Karenzi Aff., Para. 7,tts l(s1sn2i ffi, Para. 8.r2o I(arenzi Afl, Para' 8.r21 l(arend Aff', Para' l'0'

104.414.36243,304,111

-- 24

-- t93

witness to assess whether the individual' requires or would benefrt from nedical'

counseling, or psychological services.12z If necessary, WVSU arranges for the victim

or witness to receive outside professional services to address any physical or

emotional needs that may have been identified during this confrdential

assesgment.r2s

76. From 200g to 2010, WVSU successfully arranged for nearly 400 witnesses to

receive outside medical or psychological services provid'ed by local hospitals'l2a The

breakdown of referrals made each year is as follows: 2008 (97 witness referrals);

2009 (158 wituess referrals); 2010 (140 witness referrals)'126 These statistics

demonstrate that wvsu is ready and able to assist witnesses in any referred case

in obtaining any necessary med.ical or psychological services they may require'

TT .wvsua lsohasaproven t rack reco rdo fp rov id ing fo rw i tnesssa fe tyand

security (the unit's second mission). WVSU has d'eveloped a four-stage protocol for

responding to any reports of witness iltimid'ation or other safety concerns'l2e The

response procedure varies, depending on lwsU's assessment of the seriousness of

the threat or risk to the witness'Iz? The four stages are as follows:

stage one is called, "advocacy rendered." It applies to relatively low'Ievel

threats. At this stage, wvsu ad't ocates for the witness by frling a formal

complaint witu trr" iocal authorities, who ar1,t!'_n-required to investigate

the threat.rza ffis1the complaiot i.'-"ae, WVSU follows up with the ]ocal

au tho r i t i e sand thew i t ness tocon f i rm tha t t hes i t ua t i onhasbeenremedied.l2s

stoge Two is called "witness security awarenes-s'" It applies to an

intermediate.Ievel threat that arises, for instance, when a witness continues

t22 ftslsrtTiAff,, Para. I 1.rzt Karenzi Aff,, Para. 12.r2a Ksrsq"i Aff., para. 12.t26 l(arend Aff., Para' 12.126 Karenzi Afr., Para- 13.

, +ql- .-;

to be harassed or threatened. aft,er the filing of a formal complaint. At this

stage, wvsu informs the local police, ilrnx, local defence, or local

administration that a witness has been threatened and that formal

protection measures should be implemented. The responsible authority is

ih"r, ""q,rired

to take affrrmative steps to protect the witness' such as'

posting a gUard or increasing patrols around the witness's home' In some

i"."., if iiir determined that neighbors are the source of the harassment,

the local authorities may convene a communiff meeting to warn neighbors

that such behavior will not be tolerated.lso

Stage Threeis called "placed under security protection." It applies to serious

threats or those that persist despite prior warnings. At this stage 2417, on'

site protection is provided by the police, illtry, or community policing

Patrol'131

Stage Four is called "shifted provisionally." It applies to the most serious

c^te"gory of threats. At this stage, the witness will be temporarily removed

fronthe hostile environment and moved to another location, such as a safe

houge, in a gecure area at government expense'132

78. The following chart summarizes the number of threats reported to wvsu

from 2008 to 2010 and what category response was provided:

IWSU Threat ResPsnsc li08-20

79. As these statistics demonstrate, nearly ^Qo/o of. a}l the threats received during

2008 to2010(211ou to f434 )were low leve land reso lveda ts tageone . I . ess than

3% of the threats were assessed at the highest level (13 out of 434), requiring

witness relocation. Moreover, regardless of the threat level, these statistics

lso Karenzi Afl, para. 13. Theee meetings arte in keeping with a directive that Rwanda s Prime

Minieter issued to local governmente .rrgiog it"* to'taie Btrong measures to end incidents of

witnegs harassment. Karenzi Aff', para' 13'r31 Karenzi A.ff., Para' l3'132 Karcnzi Aff., para. 13,13lr Karenzi Aff., para. 14.

Year Stage One Stage Two Stage Three Stage Four Total

2008 70 43 27 6 L46

2009 62 39 40 o t44

2010 7g 4L 20 4 144

Total 27t 123 87 13 434

liir:..

demonstrate that WVSU is able in practice to assess any reported threats against

witnesses in transferred cases and take appropriate action in response to those

threats.

80. Ad.ditionally, wvsu is able in practice to provide witnesses with safe

accommodation and transportation (the unit's third' mission)' WVSU has two safe

houses that are fuIly equipped and operational.ls4 One safe house can accommodate

? persons; the other safe house can accommodate 8 persons.lg6 Both safe houges are

located in a secret and. secure location, with restricted accegs and guards on eite'136

81. To ensure that witnesses ale able to travel to and from the safe house to the

place of trial without interference, a vehicle and driver are assigned to each safe

house resident.l37 These provisions are similar to those provided by the ICTR'

b. WPU

82. wPU is a newer victirn/witness unit created in response to concerns

e:rpressed by some Trial Chambers that defence witneeses might be reluctant to

avail themselveg of WVSU'g services because it is housed within the prosecutor's

sffrgg.lB8 Although the Appeals Chamber largely rejected these concents,lse Rwanda

nevertheless established wPU and made it part of the judicial branch to remove

any lingering concerns that witnesses might have'140

83. The law that created wPU stipulates that wPU has to inform witnesses of

their rights to witness protection and how they will be implemented'l{r The WPU is

charged with assessing requests made by witnesses for protective measules and

rB{ I(arenziAff., Para- 15.r'au !(61snzi Aff., Para. 16.ros Karerrzi Aff', Para. 16'l8? Kalend Aff., Para. 16';; tr;;;"k""tidq;; BB; Kanvarukie? 6cll1":-1i;f Hffift?;11?117i:;,;;;"tl'l'-#;.-il":g::i:'::,:.,'-1"":":'*:iffiff ;L|il:;yt&tr"3rn"'d":il4#'d;:ff: .': il; ;"; neceeearuv render the service inadequate");

Konyoruhigd (AC), Para' 27 (eame)';;;'fi;;;;;iteCl,p."".38;Konvarulis:6?'PT337;::'&y;:ffi::ii;';n;;d;;-f;';;"8i";l;;s ioo,1 !:-!::Y:^*,3^?::'^':#ffu,#il"X:t*ii'iiiiiriirir"'a i-oi"iainn dcs timoins d'ans te td':9X ires d lo RePublique du

Rwand,a par le I'ribunafiJnii tnt"*rlt;onal pour le Ruand'a E cts (Ordinance

1No.001/2008).

t !

:rt3

reporting those requests to the coud.l4z It also has to ensure that all protective

measures imposed by the courb under Article 14 of the Transfer Law are, in fact,

implemented.l43 In that context, the law states that wPU should work

cooperatively with other witness protection services, including the \4rySU'144

g4. For cases referred by the Tribunal or transferred from other countries, the

Registrars of both the High court and supreme court are charged with providing

ad.ditional protection services.r46 In each court, 2 Registrars are currently

responsible for witness security and protection, and are assigned to work on witness

protection.lao

85. Because no cases have been transferred so far, the WPU is not yet fully

operational.l4? But, to assist the new unit in becoming operational, the Pmsecutor

General has mad.e one of the wvsu safe houses available to the \4rItA'148 In

add.ition, in October 2010, the ICTRs Witness and Victims Support Section

provid.ed a specialized. training to the unit.14e Once operational, the wPU will

complement the victim witness services already provided by the wvsu and frll the

perceived gap id.entified by Trial chamber in earlier Rule 11 bis proceedings'

The Tribunal utilizes Rwanda's witness protection senrice

oroerams to assist in the ICTRjs own gases'

86. Perhaps the most concrete evidence establishing the practical effectiveness of

Rwanda,s witness protection services is that the Tribunal itsel-f relies on those very

progxams to lend assistance in ICTR cases. Over the yeats' the ICTR Registry has

rs Ordinance No. 00V2006.r43 Ordinance No. 001i2008.raa Ordinance No. 001/2008.rab Qdinsnc€ No. 001/2008.116 Allfidavit of Olivier Rukundakuwga, Chief Regralrar of-t!'9 Supreme goyt gf Rwanda

(Ru3undakuvuga Aff.), para. 2 (a copy of *,hich is inciuded as Exhibit G in the Addendum to this

brie0.117 Rukundakuvuga Aff., Para' 3'r4 Rukundakuvuga Aff., Para. 3.rae fukundakuvuga Aff., Para' 4'

relied. on WVSU to help investigate and response to 73 separate incidents of threats

against ICTR prosecution and defence witnesses'160

g7. Given that the Rwandan authorities have been instrumental in assisting the

ICTR in locating witnesses, m6k'ing suitable arrangements for their safe passage

and, if necessary, relocation to safe houses, there is no logical l€ason to believe that

the same officials will be unable to provide the same services for witnesses in any

case that the Tribunal may refer for trial in Rwanda'

iv. Rwanda has several viable alternatives in place to permit

witnesses who are unable or unwilling to travel from abroad to

testifr remotelv. .,

88. Despite the services and protections available to secure the attendance of

defence witnesses from abroad, Rwanda anticipates that there may be some

witnessee who for medical, emotional, or other reasons may be unable or unwilling

to d.o so. To ad.dress these circumstances, Rwanda has provided alternative means

to obtain the witness's testimony or evidence remotely' Article t4 bis of the

Transfer Law, as inserted in 2009, provides that a witness may testifr (a) by

deposition in Rwanda or in a foreign jurisdiction before a presiding offrcer,

magistrate or other judicial ofricer appointed by the Judge for that purpose; (b) bv

video-link hearing taken by a judge at trial; or (c) by a judge sitting in a foreign

jurisdiction for the purpose of recording such uiva uocetestimony' Testimony g1en

in any of these ways must be transcribed' so it can be made part of the trial record

and shall carry the same weight as testimony given in court'151 These procedures

are consonant with the ICTR Rules of Procedure and' Evidence' and its

jurisprudence. 162

89. The supreme courb in Kigali and two High court branches at Rusizi

(Cyangugu)and'Musanze@uhengeri)alreadyareequippedtoreceivevideo-l ink

tso Karenzi Aff., Para. 19-6r jfi.1" t+ b,ii otRwanda's Tranefer Law (Law moffiing and nting the Transfer Law,

Akayesu, Case No'i

-{

g"tiJ" S - Testimony of a witnese residing abroad)'iir 56, Rulee 70, 90 (A) of the Rulee of Procedure; Tfte

ICTR-96-4'A, Jud'gement, 1 June 2001, paras' 134' AJ6'

;. IBT. - \ / - -

- ; ' i . -_ ,

testimony.r$ ths Intermediate Courts in Butare and Kibungo also have vid.eo'link

facilities that will be used by the High Courts of Nyanza and Rwamagana.lu In

add.ition, the German government has provided additional funding to expand the

Supreme Court's vide'link facility.trs For the time being, the High Courb located' in

Kigali plans to use the Supreme Court's video-link for any referred cases that may

require this technology. rso

g0. Rwanda's existing video-link facilities already have been used by foreign

states, such as, Finland and Canada, to hear witnesses in cases pending before their

national coults.l5? Thus, the technology has proven to be fully operational. A few

recent examples, drawn from genocide pmsecutions taking place in other national

jurisdictions, illustrate this point. In the trial of FYangoie Bazarambo, the accused

and his defence team remained in Finland. to conduct cross-examination of

witnesses in Rwanda uio video-link.16s Similarly, in the trial of Desird Munyannza,,

which took place in Canada, 14 prosecution witnesses and 7 defence witnesses

testifred from Rwan da uiavidge-link.trs

91. With regard to the two other alternatives for Iive testimony in Rwand'a, no

sophisticated technology or expertise is required. Depositions and the recording of

testimony taken by a judge or other judicial offrcer are commonplace and easily

implemented should either alternative prove necessarX/ in a referred case. In fact,

Rwanda recently assisted a Dutch investigating judge in ananging the examination

of 48 prosecution witnesses (including all other logistical needs, including travel,

courtmom facilities, transportation, security, etc.).160 All of the witnesses testified

in a Rwandan courtroom in proceedings presided over by the Dutch judge in the

163 Rukundakuvuga AIf', Para. 6.ls4Rukundakuvuga AIT., Para. 6.166 Rukundakuvuga Aff', Para. 6.155 Ilulkundakuvuga AfT., Para- 6.t6? I(al€nzi Afr., para. 1?.t58 l(ar€nzi Aff., para. 17.rs Karenai AlL, para. 17.t6o Karenzi Aff,, para. 18.

presence of the Dutch prosecutor and Dutch defence counse1.161 According to the

Dutch govenrment, Rwand.a's cooperation with this and other Dutch investigations

wag ttexemplary."162

gZ. Moreover, as noted. above, Rwanda has reserved 30 million Rwandan Francs

to fund. IgTR-related issues, including referrals. These funds are available and

could be used to cover any travel or other collateral expenses related to the taking of

depositions or testimony in other jurisdictions'163

gB. Viable and practical alternatives, therefore, exist for the defence to receive

testimony and evidence even from those witnesses who are unable or unwilling to

travel to Rwanda to provide their testimony i-u person. For this reason as weII, the

ICTR Prosecutor's application for referal should be allowed.

C. The procedures governing an accused's arrest and detention under

Rwandan law are substantively identical to the procedures available

under the Tribunal's Rules, and Rwanda's detention facilities for

transferred cases cornply with internationally-recognized standards'

i. Provieions eovernine arrest and detention'

94. Rwanda is party to "several humau rights instruments, including the

[International convention of civil and Political Rights], which prohibits unlawful

and arbitrary deprivation of uberty (Article 9), requires that all persons d'eprived of

their liberty shall be treated with humanity and respect (Article 10), and outlaws

torture and cruel, inhuman or degrading treatment or punishment (Article 7)'nrc4

In ad.d.ition, Rwanda's Constitution secures every person "the right to physical and

mental integrity and provides that no-one shali be subjected to torture, physical

abuse, or cruel, inhuman or d.egtading treatment (Article 15)' The liberty of persons

is guaranteed by the State (Article 18;-"ter

161 Karenzi Aff., para. 18'162 Ahofltge'e v. Swedcn, The Netherlands'Obeervations, para'res $lffidsvit of Permanent Secretary, para' 3'L& Konlaruhiga (TC), Para. 86.166 l(snysTvftiea (IC), Para. 85.

:\$h* " (

. -\,99,,._ ?'*

95. Rwanda's laws governing the rights of persons detained or anested reflect

these fundamentai principles. In fact, as demonstrated below, Rwand'a's laws for

arrest and d.etention are substantively id.entical to the Tribunals own Rules of

Procedure and Evidence.

96. The ICTR Rules of Proced.ure and Evid.ence and the Rwandan code of

Criminal Procedure both provide regimes for provisioual detention during

investigation. In essence, the regimes allow for a provisional detention of 30 days,

but only if ordered by a judge. This period of 30 days can be extended by a judge'

after having heard the parties. In addition, Rwanda's Code of Criminal Procedure

provides for two other regimes of provisional d'etention during investigation' in

which a judge is not involved. But, these regimes only allow for provisional

detention of the suspect for very short periods of time. Ali of these points are

summarized in the following chart:

for Provieional

malaat potice "ffr"er

can arreet and detain aauspeet for 72 lwurs in the police station, if it is

rr".L."t"y for the purpos€ ofinvestigation or if

flight risk exists (72 houre cannot be extended)(Art. 3?)

2, Order ofarrest iesued by Prosecutor canjustify in exceptional circumstances a detention

of 7 daye (not renewable) (Art. 5Z)tee

3. Prosecutor may also place accused underprovisional detention, after having interviewed-him,

when there are concrete grounds toprosecute him or there is a fearthat the suspect

will escape.Ho*"rrer, thie order should be confrrmed by ajudge within 72 houre (Art. 96)-S""ft

"n order ie valid for 30 days, and

Upon tequeet of the Prosecutor, a ajuctge may

o"d"t "

request for trangfer tp and provisional

detention of a auspect in the detention unit ofthe

Tribunal, when it is a necegsary measure toprevent the escape ofthe euspect or f91 t!9. .-conduct of the inveetigation @ule 40 bts (A)' (B)

Provisional detention may be ordered for a period

of 30 days, which can be extended by a J1{Ce-

eubsequlnt to animter partes hearing and before

the end ofthe period ofdetention (but only for a

maximum pe;oa of 90 davs) (RuIe 40 bis (C)' (H))

Ifafter the 90 days, an indictment is notconfirmed and an a:rest warrant signed, the

suspect shall be releaeed' (Rule 40 brs (H)

The order is accompanied by a statement of the

),q ff1l

g7. Moreover, the ICTR Rules and Rwandan law accord the same rights to

suspects d.uring this initial period of provisional detention, including the right to

counsel, the right to remain silent, and the right to be informed of his/her charges'

In addition, speci.fic provisions exist regulating the questioning of the accused in the

presence of the accused's counsel. These points are summarized in the following

chart:

98. With respect to arrest, both regimes include speci{ic provisions regarding the

issuance of an arrest warrant. According to Rule 55, a warrant of arrest sbould be

signed by a judge. However, in Rwanda, a public prosecutor can issue an order to

arrest a suspect. This d.ifference ie justified by the differeut purposes of the warrant

under ICTR and Rwandan procedure. The warrant issued by a judge of the ICTR

authorizes an arrest and detention of an accused' in the context of a coofirmed

indictment. The warrant of arrest issued by a Rwandan prosecutor only authorizes

an arrest to "compel the attendance of a suspect whom there is

@ouneelandlegal

"rJi"t"tt"" (aleo for indigent euspects) (Art' 38'

39; Art. 13 (6) Transfer [aw)

Right to remain silent and not to be compelled

to incriminate him or herself (Art. f 3 (f0)

Transfer Law)

Accused will be questioned by prosecutor

assisted by his couneel, unlese he waives this

risht (Ad. 64)

Questioning ofaccused takee place according to

*special procedrue and is recorded in a

statement (Art. 6a)

Accused ig informed ofhis/her charges (Art' 38'

62,64)

(Jse of interprters ie also regulated' by Articles

is to ea of the Qode of Cri-in.l Pro*d*)

Rtght t" a.ttgr"ttent ofcounsel and legal

".Jirt"o"" (also for indigent euspeets) (Rulee 42'

44,45,45 bis)

Right to remain eilent, and to be cautioned that

ani etatement made shall be recorded and used in

evidence (Rde a2)

Questioning of euspect ehall not proceed-without

tir" pt"a"to of counsel, unlese in caee of waiver

(Rule 42)

Questioning of accused proceeds i-n acco-rdance

with epecific procedure and shall be audio'

reeorder or video'recorded @ule 43)

Suepect ie informed ofhis charges (copy ofthe

ota"", i"tt"aing the provieional charge, are served

;p*iti" .o"p"-.t "od

hit counsel (Rule 40 br^s (E)

Right to have ftee aesistance of interpreter (Rule

\:,::: *

incrimi:rating evidence or who has refused to

, T8J

do so by a public prosecutor." (Art. 51). Each of these points is summadzed in the

following chart:

99. Upon arreet of the accused, both regimes provide for the possibility to keep

the accused in pre-trial detention awaiting trial. The ICTR anegt warrant issued

by a judge authorizes transfer of the accused to the seat of the Tribunal and,

detention in the detention unit of tbe Tribunal @ule 64). In Rwanda, the public

prosecutor can place the accused under pre-trial detention, but the accused has to

appear within 72 hours before a judge in order to assess whether specifi.c gounds

exist to justify pre-tria1 detention. In both regimes, an accused can only be detained

awaiting trial when concrete grounds exiet for prosecuting the accused, and the

accused should be informed of this in writing. The ICTR arrest warrant should be

accompanied by a copy of the confirmed indictment, whieh has to be served upon the

accused when arrested (Rule 55 (A), (C)). The order issued by the Rwandan judge

i.'g1rd "specifr the concrete

ICTR RwandaWarrant of arrest is iseued by a Judge at therequest ofthe prosecutor, accompanied by a copyof the Indictment and a statement of the rights ofthe accueed(Rules 54, 55)

Authorizee arrest AND detention(Rules 57,64)

Statcment of the rights of the accused include therights set forth in Article 2O of the Statute, Rules42 ar.d 43, together with the right of the accusedto remain eilent, and to be cautioned that anystatement he makee ehall be recorded and may beused in evidence G.ule 56 (A) - see below 5. Rightsd,uring orrest ond pre-trinl d.etention)

The arreet warrant is accornpanied by a copy ofthe Indictment (Bule 65)

Warrant of arrest is not iesued by a judge, butpublic proeecutor, becauee it does not authorizeae euch a detention

Written order iseued by a public proeecutor tocompel attendance of euspect or a personagainst whom incriminating evidence exiet€(Ar t .5 l )

Remains in force for 3 months (kt. 51)

Normally authorizes an arrest but NOTdetention (Art. 5l)

Only authorizes a detention in exceptionalcircumstances; dztention of 7 daW (notrenewable) in a police station cell (Art. 52)

In that case, accused need to be informed ofhis/her eharees (Art. 62)

authorizing pre-trial d etention should

- A '

u')

grounds for suspecting that he or she committed the offence" (Arf' 96)'

Furthermore, the Rwandan regime is more favorable to the accused because it

explicitly limits the period of pre-trial d'etention to l year (Art' 100)' Each of these

points is summarized in the following chart:

lations Govern ing Pre-trial

ICTR Rwanda

Aneet warrant iesued by Judge authorizestransfer ofthe accueed to the Tribunal anddetention at seat ofthe Tribunal (Rules 55' 64)

Upon transfer to the Tribunal, the accused ehall

be detained in facilities provided by the host

country ot another country (Rule 64)

The arreet warant is accompanied by a copy of

the Indietment (Rule 65)

Upon hie transfer to the Tfibunal, the accused

.h"tt t" brought before a Trial Chamber or Judge

and shall be formally charged (Rule 62)

After iaterrogating the accused on hie own or inthe preeence ofhis couneel prosecutor mayplace accused under provieional detention when

there are concrete grounds to prosecute him(Art.96)

Within 72 lwurs, the accueed should appearbefore a juilge (Art. 96)

After hearing the prosecutor' accused and

counsel, the judge will decide whether to issue

an order for preventive detention (fut. 9&99)

The order for preventive detention needs be

iesued within 24hours after the hearilgtookplace (Art. 99)

The order for preventive detention neede to be

motivated, especially specifying concretegrounds for auspecting that the accused

committed the offence (&t. 97' 100)

The ord.er remains in force for 30 fuys, and can

be renewed for 1 month by order issued by a

Judge after hearing the par*ies (fut' 99'100)

Maximum period to remain in pre-trial

detention ie 1 year for felonies (crinr'es) (Art'

100)

100. During arrest and pre'trial detention, accused

protections under both the ICTR Rules and Rwandan'

counsel, right to silence, and right to be informed of the

points is summarized in the following chart:

are afforded

including the

charges. Each

similar

right to

of these

- ;4f_Ij . i r n , .

Anest an

101. Both regimes also provid.e for the right to apply to a judge for provisional

release d.uring pre-trial detention. similarly, both systems include provisions

aliowing appeals as-of-right against decisions allowing or denying provisional

release. Moreover, the Rwandan code of criminal Procedure sets stringent time'

lines for the hand.ling of euch appeals (while the ICTR Rules of Procedure and'

Evidence are silent on this issue). Each of these points is summarized in the

following chart:

nlgftt to assignment of couneel and legalassistance (aleo for indigent accused) (fut. l3(6) Transfer Law)

Right to remain silent ald not to be cornpelledto incriminate him or herself (Art' 18 (10)

Tranefer Law)

Accused will be queetioned by proeecutorassieted by his counsel, unless he waives thieright (Art. 64 - this questioning has to takeplace before prosecutor decides to place accusedunder pre-trial detention (Art. 96))

Questioning ofaccused proceeds according to a

special procedure and is recorded in a

slatement (Art' 64 - this questioning has to

take place before prosecutor decides to place

a."o."d under pre'trial detention (Art. 96)

Accused is informed ofhis/her charges at themoment he ie interviewed (Art 64'thisquestioning hee to take place before prceecutor

decides to place accused under pre'trial

detention (Art. 96))

(Use ofinterpreters is also regulated by the

Code of Criminal Prqse4ClgiArt

Right to assignment of counsel and Iegalaseistance (also for indigent accueed) (Rules 42,44,46,46 brs)

Right to remain silent, and to be cautioned thatany statement made shall be recorded and used in

evidence @ule 42)

Questioning of euspect shall not proceed vrithoutthe presence of couneel, unlese in caee of waiver(Rule 42)

Questioning of accueed proceeds in accordancelyith specifrc procedure and ehall be audio'recorder or video-recorded (RuIe 43)

Accueed ie informed of his/her charges ' the arrest

warrant ie accompanied by a copy of theIndictment (Rule 56)

Right to have free assistance ofinterpreter (Rule

I']TR Rwanda

@mber,anaccusedmlv be provisionally released (Rule 66 (A))

The Trial Chamber may impoee conditions, such

Upon t" ordet of a judge' an accused may be

oleased on bail or under epecial conditione,

:ffi-ffi'fr{}"n""'""oot-Y

ffi

ffibond andobseruance ofother conditions necessa{/ to ensure the presence

of the accueed at trial and the protection of others(Rule 65 (B))

Right of appeal for both proeecutor and accueed

"giitttt decisione tegarding Prwisional reJease by

fiIing an appeal within ? davs (Art. 66 (D)

Right of appeal for both prosecutor and.accueed

.gii*t o"ie". of preventive detention and

,JI"."" on bail by filing a notioe of appeal

witbin 5 daye (Art. 107, 109)Appeals glaU Ue examined within 6 daye (Art'

112)Decision shall be taken in 5 days (from the ilate

the proeecution handed in its eubmiesions) (Art'

rL2)Appeal doee not preclude trial of case on the

merits (tut. 108)When an accuaed ie succeseful in his/her

appeal, the accused cannot be eubjectetl to

"oottr"" warrant of arrest based on the same

1 1

102. Finally, the Rwandan criminal cod'e specifically states that the accused $'ill

remain in custod.y until time of judgement (Art. 116). However, it also specifres that

the period. of detention shall not exceed l year for'felonies' (crimes) (Art' 116' 100)'

The ICTR Rules has no comparable provision limiting the d'etention of an accused"

103. Both regimes offer specifrc provisions on the formal charging of the accused'

According to ICTR Rule 62 (A), an accused shall be brought before a Trial chamber

or Judge, upon his transfer to the Tribunal, an'il shall be formally charged' The

indictment is read out to the accused in a language he und.erstands, and he is asked

to enter a plea of guilty or not guilty on each count (Rule 62 (A))' In Rwanda' when

the public prosecutor initiates a criminal prosecution against an accused' he must

transmit the complete case flle to the court (Art. 1r9). At trial, the offences charged

are read out to the accused, who is asked to admit or deny the charges (Art' 14a)'

104. In gum, the Rwandan regulations governing arrest and detention afford the

accused substantially the same protections as those available under the Tribunal's

Rules.

"I

Fn,( : - - :

11.

70. In ad.dition, Rwanda's laws governing the detention of an accused' comply

with internationally-recognized standard.s adopted by the First United Nations

Congress on the Prevention of Crime and the Treatment of Offenders'168 Indeed'

the rights afforded to prisoners under Rwandan 1aw16e are in aII material respects

identical to the rights recognized. under prevailing international standards'l7o The

following chart illustrates this point:

AnyE;m of Ainrirnination base don ethnicity , color, sex, language'religion, Political oPinion'nationality, gocial and economic

status, birth or anY other ground

is prohibited (Article 23)'

The right to Perform activities to

relieion affilia!!qn-.(44j

No dtsc"iminaiion on grounds of

race, color, sex, language, religion,politicat or other opinion, national

or social orign, ProPertY, birth or

other status.

Respect of the religious beliefs

and moral PrecePts of the grouP to

Basic Principle

Exietenc" of an aPProPriateregister in which reasone for

imlrisonment, the authoritY that

approved it, daY and ilate, a

committal order bearing the date,

number, signature and the names

of the iesuer, stamp of the Court

tbat ordered the imPrisonmentand the identities of the Prisoner

A bt"ne rectst"ation book withnumbered Pages with informationconcerning the identitY of the

Drisoner, the reasons for his

commitment and the authoritY

therefore and the daY ancl hour of

his admission'

I'tisotters io categories andd.ifferent compaltments of prisons

considering sex' age, healthstatus ot sentences rendered bY

separate institutions or Parts of

lnstitutions taling account of sex,

age, criminal records..,

Ditr*t"t *t"c"ries of Prisoners inSeparation ofcategories

ffirthe,TreatmentofPrisoners,Ado.pted.bytheFirstUnitedCongtesson the prevention of Crimsand the Treatme;"f Offt;;'"' ft"ta

"t Ge-neva in 1965' and approved

by the Economic and #::-glil;gl!:1"::$'H"1*.:.S;l-"i.t"51d" tstz anil20?6 (LXID

:lrfin#ilr?is##dMtui.r- Hules fo" the Treatment of Prisonere).r6e !6qr No 88/2006 "izo

s"pt"-uer 2006 establishing aud 9*ffiHH

National Prisons Senrice'rro $bndard Minimum Rulee for the Treatment of

!. i i ::: i .,!:., \:::), -::rri: j i :1.::r!; i ::::,:t.::,r _rI : j:1ji I .:rt;

n8--.;-J

t]t Th" minieteriat regulation ie formally known ae Th,e Rules and Regula,tions No. 01fi3 of BlOctober 2009 of tlw Minister of Internal Secwrity Concerning Special Treatment of thc hisonere Sentto Rwand,a frorn Special Court ol Sicna I*one to Serue their in Rwonda. Theseregulationr already have been implemented for the United(SCSL) and also would apply to prieoners in any cases

Personal hygiene Providing water and toilet articlesnecessary for health andcleanliness

Prisoners are provided hygienicmaterials (Article 4 of MinisterialOrder on Regulation ofPdsons),171

Accommodation Individual cells or rooms.Where dormitories used, theyshall be occupied by prisonerscareful lyeelected.. . .

Prisoners quarters with minimumphysical standards with respectto hygiene, water, adequateventilation, Iight and space. . .(Article 26)

Food Food of nutritional value adequatefor health and strength anddrinking water.

Daily food rations in sufficientquantities with a balancednutritional value and adequateclean drinking water (Article 26)-

Exercise andsport

One hour of auitable exercise inopen air daily

The prisoner hae a right to go outofdock in open space andbreathes open air in the enclosureof the prison. He ie entitled totime for entertainment in sports(Article 26).

Medical senrices Availabiiity of at least onequalified medical ofEcer at everyinstitution

Every prison shall have a medicaldoctor charged with making afollow up of health issueo. Rightto medical care (Article 2fl.

Discipline,punishment

Discipline and order withfrrmness, no more restriction thanis necesear5r for safe custody.

A disciplinary measure shall bedecided by the Prison authorities.It sball be weli founded andexalained to the prisoner. Thesanction shall never whatsoeverdegrade a prisoner norjeopardizethe fundamental rights asprovided for by this law (Article32\.

Contact withoutside world

Communicate with the family andreputable ftiends. Communicatewith the diplomatic repreaentativefor foreim Drisoners.

Right to be visited by familymembere and friends (Article 28).

Religion Appointment of a qualifledrepresentative of a religion if thereis a sufEcient number of prisonersof the same religion.

Right to practice religious beliefso long as he doee not violate therights or security ofotherprisoners (Artide 8 of MinisterialOrder on Rezulation of Prisons).

for Sierra Leone

Retention ofprieoners'property

Money, valuables, clothing andother effects belonging to theprisoner in gafe custody.

Before entry into prison,materials of the prisoner that areprohibited in prison shall becounted and recorded in theappropriate resister (Article 21).

Institutionalpersonnel

Prisone personnel with adequatestandard. of education andintelligence

Each prieon has its own director,one deputy director, prisonguards and others prisonmembers of staff(Articles 13-19).

Inspection Regular inspection of penalinstitutions and services byqualifred and experiencedinspectors.

Regular inspection of prisons bythe National Prisons Services(Article 68).

Regular inspection by the publicprosecutor (Article 58).Inspection by the NationalHuman Rights Commiseion(Article 58).

State organs, non governmentalinternational or localorganizations working in thehuman rights protection can visitprisone (Article 59).

105. In 2004, the ICTR Regrstry conducted an inspection of the newly'constnrcted

Mpanga prison, which would be used by for the detention of any accused that the

Tribunal may refer to Rwanda for trial, to determine whether it complied with

standard.s required for the detention of ICTR prisoners. Based on that inspection,

the Registry found that the "construction works . . . need only little alterations to

meet internationally minimum standard requirements as proposed by the ICTR

delegation."ll2 lsbring the facility into fu1l compliance, the Registry proposed a list

of 20 iteme that need.ed to be addressed.l?3 All of these items have since been

implemented.l?4

u? Alndavit of Mary Gahonzire, Commissioner General of Prisons for the Republic of Rwanda

(Gahonzire Aff.), para. 3 (a copy of which ie included ae Exhibit H in the Addendum to thie brief)'

attaching the lGfort of the Joint.Meeting of the IC'IIR and Rwanda Delegations, 24'28 Mav 20O4,

para.6.izs gsport of the Joint'Meeting of the ICTR and Rwandar7{ Qghgnzile Aff., para. 5

o

106. In fact, four years later, in connection with a prior Rule 11 bis proceeding, the

Kanyarukiga Trial Chamber found that the Mpanga facility met international

t1.ttdarflg.l75 It described Mpanga and a new custom-built remand facility in

Kigali, both of which would be used to houee prisoners in any referred casea, as

follows:

[Mpanga prison] has a special wing with ?3 cells built to internationalstandards. Budgetary appropriations have been earmarked and areavailable to complete the partitioning of cells to meet requirements set bythe ICTR. The Mpanga prison is situated in Nyanza, about two hours drivefrom Kigali. During trial, the accused will be detained at a custom-builtremand facility at the Kigali Central Prison in close proximity to the HighCourt and the Supreme Court. It contains twelve cells and six toilets. Eachroom is equipped with a bed, beddings, closet, reading table and a chair.176

10?. More recently, in 2009, the SCSL entered into an agreement with Rwand.a for

the detention of persons convicted by that court at Mpanga prison.l?z Pursuant to

this agreement, 9 convicts from the SCSL are currently serving their sentences at

Mpanga prison under conditions that meet international standalds.lT8

108. Given that Rwanda s Mpanga prison and the custom-bui1t remand facility in

Kigali meet the international standards required for the detention of persons

convicted by the SCSL, it logically follows that these same facilities satisfy the

standards required for the detention of any prisoners the Tribunal may refer for

trial in Rwanda.

109. Furthermore, pursuant to Article 23(2) of the Transfer Law, "[t]he

International Committee of the Red Cross or an observer appointed by the

President of the ICTR ehall have the right to inspect the conditions of detention of

persons transferred to Rwanda by the ICTR and held in detention." This right of

iaspection, together with any monitoring mechanism that may be imposed on

- ' 1 . 2 ! -

u ( . t ' . " . ' ib - t i " - -

llr

refenal, provide additional safeguarde that the detention of a prisoner in any

referred case will comply with international standards.I7e

D. The accused's right to trial by a fair and irnpartial judiciary and hisright to the presumption of innocence are secured by Rwandan law.

i. The Rwandan legal system is able in practice to ensure the accused afair trial before an indenendent. imnartial and eomnetent iudieian'

110. The independence and impartialif of the judiciary, including the High Court

and Supreme Courf that are tasked with hearing any referred cases, are deeply

engrained in Rwanda's legal system. Article l4O of. Rwanda's Constitutioa provides:

"Tbe Judiciary is independent and separate for the legislative and executive

branches of government. It enjoys frnancial and administrative autonomy." These

same principles are enshrined in the Organic Law governing the organization of the

Judiciary, which provides that "Courts shall be independent and separate from

other state instituf,iqtlg." 180

ll1. To ensure judicial independence and impartiality, judges of both the High

Court and Supreme Court hold tenure for life or until they reach the mandatory

retirement age of 65 (subject to a further 5-year extension if the judge so chooses).181

They may be removed from office only on grounds of bad conduct, incompetence, or

serious professional misconduct.l82 Moreover, the determination of whether any of

these grounds exist is made by the High Council of the Judiciary, a body within the

judiciary itself.183

r1s See lfdntarukiga (IC), para. 9l; Gatete (TC), para 83.r80 Article 65 of Organic Law Nr. 5U2008 of 9 September 2008 Determining the OrganizatiorlFunctioning and Jurisdiction of Courts (Law Determining the Organizttion, Functioning andJurigdiction of Courte).rat {16inleg I and 14 of the Organic Law Nr. LI20O4 of 29 January 2004 eetablishing the

Organization, Functioning and Jurisdiction of the Supreme Court (modified in 2005 and 2006) (Law

of the Supreme Court); Article 24 of the Law No. 06 bis/2004 of 14 April 2004 on the Statutes for

Judges and other Judicial Pereonnel (Law on Statutes for Judgea and other Judicial Personnei).1E2 Articles 30-46, ?0-?8 ofthe Law on Statutes for Judgee and other Juilicial Pergonnel.rse Article lE? of the Conetitution; Articles L2, 2L-28 of thE O.rggiif ilaw. Nr. OU2004 of 20 March2004 determining the Organisation, Powers and Functioni"g.6jil,SSfherioilGouncil of the Judiciary

,l+T^ - ' l ) ' - . i l

ll2. To ensure judicial competency, Rwand.an law establishes minimum

qualifications for persons eligible to be appointed to the Supreme Court and High

Court. Judges of the Supreme Court, for instance, must (among other things) hold a

Bachelor of Laws degree and have 8-years professional experience.lsa Similarly,

jud.ges of the High Court must hold a Bachelor of Laws degree and have 6'years

professional experience.rsd In praclice, however, many of the 14 judges currently

sitting on the Supreme Court and the 26 judges currently sitting on the High Court

possess far more experience than these minimum requirements'186

118. Once appointed, all members of the judiciary are subject to a stringent code of

ethics that, among other things, imposes on all judges affirmative obligations of

ind.ependence, impartiality, diligence, integrity, and confrdentiality.taz To this end,

the Code specifrcally preclud,es judges from joining political parties or supporting

political candidates through fundraising or other partisan activities.l88 A judge who

violates these standards is subject to d.iscipline, ranging from a warning to

dismissal.lse

114. In add.ition, all judges are subject to annual performance evaluations

conducted by the presiding judge of the court in which the judge sits.1s0

1f 5, To promote transparency in judicial decision'making, Rwandan law provides

that (except in exceptional circumstances) all court hearings "shall be conducted in

publif'lel and. every judgement must be supported by a statement of reasons that

"shall be read in pub]ls."lsz

rca Article 9 of the SuPreme Court.r85 Article 12 ofthe Law on Statutes for Judges and Other Judicial Personnel'186 See l(anynrukiga CIC), para. 4I; Hategekimana (TC)' para' 44rar drfislss 4 to ld ot l,aw Nr. 09/2004 of 29 April Zb04 relating to the Code of Ethics for the

Judiciary (Code of Etbice for the Judieiary)'re8 A*icl€e 2L-22 of.the Code of Ethice for the Judiciary'ru Articlee 23 of the CoJu ointnics for the Judiciary (incorporating the provisions of Article 30 of the

Statutee for Judgea and Other Judicial Personnel)'i* AJid" 47-62;Ithe Statutee for Judges and Other Judieial Pereon:rel'rer fu{idg 166 of Law Determining the Organization, Fung[iIs2 Article 16? of the Law Determining the Organiza

of Courts.of Courts.

t73*, \J

116' Based on these and other substantive provisions, Trial Chambers previouslyrecognized that "Rwanda has ad,opted a legal framework concerning fiudicial]independence and impartiality."les fljs situation has not changed.LL7. Moreover, there is tangible evidence that judges of the High Court andSupreme Court are in practice independent and impartial in adjudicating cases. Inaddition, because of the expertise that they have acquired from presiding overnumerous domestic genocide prosecutions, these Rwandan judges are uniquelycompetent to preside over this or any other case that the Tribunal may refer fortrial.

118. One reliable indicator of judicial independence and impartiality is the rate ofconvictions and acquittals in trials before High Court judgeg.rsa Serious questionsconcerning judicial impartiality and independence would be raised, for instance, ifevery accused who stood trial before the High Court were convicted. Statisticsdemonstrate that this threat does not exist. In 2008, for instance, there were 2gBcriminal trials before the High Court.1e6 Slightly over 200 of these cases resulted inconvictions; the remaining 80 cases resulted in acquittak.roe Thus, for 200g, theHigh Court had an acquittal rate of 33%. This healthy acquittal rate is tangibleproof that persons tried before the High Court are ensured a fair trial before animpartial and independent judge.

119. Another reliable indicator of judicial independence and impartiality is therate of High Court judgments affirmed or reversed by the Supreme Coud.te?Meaningful appellate review is afterall one of the quinteseential requirements of afunctioning judicial system. For transfer casesr in particular, Rwanda applies a

res $nlgryhrsa (TC), pcra. 36; Gatete (lc), para, 84; see also Hategekimana (TC), parae. gg, 46.rs{ See Kanyarukiga (TC), para. 3? (rejecting allegations on partiality on the

-part of ilwandan

judiciary because "the acquittal rate in Rwanda in genocide casee is considerabld'); Catete (TCj,para. 35 (same).1e6 Rukundakuvuga Aff,, para. 7.ue ftft11adaftuvugaAff., para. 7.tfl See Kanyarukiga (fC), para. 3? (rcjecting allegatione of on the part of Rwandanjudiciary because, in part, many "convictione were(eame).

Gatete (TC), para. 35

l "

.i

stand.ard of appellate standard of review identical to that applied by the Appeals

Chamber.les For all other cases, Rwand.a provides d,e nouo appellate review.lee

120. As the following chart demonstrates, from 2006 to 2009, the Supreme Court

has reversed a signifrcant percentage of High Court criminal convictions (that is,

granted defence acquittals) based on legal or factual errors:

t2l. Apart from these statistics demonstrating an independent and impartial

jud.iciary, Rwanda has established. procedures for addressing any allegations of bias

or partiality that might arise in a referred case.201 Under Rwandan law, a party

may seek to recuse a jud,ge on grounds of personal or financial conllict of irxterest'zoz

These grounds are substantively similar to the grounds upon which recusal may be

sought under the Tfibunal's rules.2os And, if recusal is denied by the trial judge, the

disgruntled party has a right to appeal'zo4

122. The Rwandan judiciary also has extensive practical experience in presiding

over both trials and cases. From 2006 to 2008, for instance, High Court judges

presided over 2,860 cases and supreme court judges heard 755 appea1s.206

Lss Mutuyokazi (Ac), palf,.,27 (discussing Article 16 0f Rwanda'E Tranefer Law)'

tse Aligle l?4 of the Rwandan Code of Criminal Procedure'zoo Rukundakuvuga Aff., Para. E'z0r 6r1i.1". 121 to 1ZB oithe Organic Law Nr, 51i2008 of 9 September 2008'

ma tticte 1?1 of the organic law Nr. 61/2008 of 9 september 2008' _nx compareArticle 1?t;'ti;o;"ni" r,""'N:. o1/2008 of 9 september 2008 withraBRule 15(a)'

zoa flsftq1dafuvuga Aff., Para. 10.

Year Number of HighCourt

JudgmentsBeviewed

Number ofJudgementsAffirmed by

Supreme Court

Number ofJudgementsRevereed by

Supreme Court

Peroentage ofIligh CourtJudgmentsReversed

2001 t73 L44 29 l70A

2008 226 204 22 l0%

2009 238 2L9 19 8%

4w

L23. Additionally, because a significant number of these cases involved charges of

genocid.e and crimes against humanity, Rwandan judges are uniquely qualified and

e:rperienced to adjudicate the substantive charges in this case or other cases that

may be referred by the Tribunal. For inetance, from 2006 to 2010, the lligh Court

presided over 36 genocide cases; and, during 2006 to 2008, the supreme court

heard 61 appeals or other post-conviction proceedings in genocide cases'206 In

addition, there are currently 9 genocide cases pending before the supreme court: 2

cases are on direct appeal from the High court, and 7 cases are waiting post'appeal

sentence review.2o?

lz4. Few, if any, other national jurisdictions have judges as experienced and

fluent in these complex legal areas as Rwanda's judges. Indeed, as recognized by

both the Hategekimana and. Kanyarukiga Trial chambers, "Rwandan High and

Supreme Court judges arr experienced in adjudicating cases involving genocide and

crimes against humanitY. . ."zoe

L25, Moreover, the Rwandan judiciary has a demonstrable conmitment to

continued. legal education and training. Every year, the judiciary establishes a

calend.ar for professional traiaing that alt judges and clerks must attend'zoe prcp

2008 to 2009, for instance, the Supreme Court's trainings focused' on matters of

substantive international criminal law.2r0 Judges of the High court received

similar professional training on substantive legal issues and other matterg relating

to judicial administration.zlr The foltowing list identifres the wide'range of

professional trainings that judges of both the supreme court and High court have

participated in over the past several years:

oTrainingonhowtohandlecross.bordercases(2006)

r Training on gender'related law (2007)

2@ BukundakuvugaAff-, Para' 11'20? Rukuudakuvuga A-ff., Para' 11';';"#;ffi;;;; ?ici' il; i4;,, " "k: ry"f::&:.9:^9?-i:":#i"ds;;ii; ii*;d"i-if L vo1n9, thev elearlv have experience'zos

iukundakuvuga AfT., Para' 12'zlo Rukundakuvuga Aff-, Para' 12'zrr flukuadgkuvuga Aff., Para' 12'

Training on international law (2AO7)

Training on international criminal law (2008)

Training on human rights and administration ofjustice (2008)

Training on internet research (2006, 2007,2008)

Language courses (2007, 2008)

Training on pre-trial hearing and judgement drafting (2008, 2009)

Training on archiving and document control (2008)

Training on court management (2009)212

126. These trainings demonstrate that the Rwanda is committed to expanding its

judiciary's capacity to handle s6mFlex litigation and remai:n up'to-date on

developments in the law. This commitment is a further indication that the

Rwandan judiciary is able in practice to ensure an accused's right to a fair trial in

any case the Tribunal may refer to Rwanda for trial

IZ7. Rwanda has d.emonstrated this practical ability and commitment in other

ways as well. During previous Rule 11 bis proceedings, concerns were raised that

trials before a single iudge ia the Hieh Court might violate an accused's right to be

tried before an independent tribunal. The Appeals Chamber firmly rejected these

concerns.zl3 Nevertheless, to remove any lingering doubt on this issue, the Tranfer

Law now provides for the possibility that referred cases could be heard in the frrst

instance by a bench consisting of 3 judgss.2rn Thus, even though the Appeals

Chambers found that a 3-judge panel was not necessary to protect an accused's

right to a fair trial, Rwanda has put this extra procedural safeguard into place'2rb

128. Another significant proced.ural safeguard is currently pending before

Rwanda,e parliament. This measrrre would allow foreign judges, inclufing judges

from international tribunals, to preside on cases involving international or cross-

a

a

a

o

o

a

a

a

zrz Suhundakuvuga Aff., Para- 13.?rs Munlakszi (AC), Paras. 26, 50.zu Sxisle 2 of the TYansfer Law, as amentled in 2009'zrs l'1[vnys,l142i (AC), paras. 26'31, 50; I(anyarukiga Gc) (IC), parae. 37-3E;

Hategekimano (lC), Para. 41.

| | ,/-)tb4,

/2 - :

border sri6sg.2l6 Cases referred by the Tribunal obviously would fall within this

new law. If approved by Rwanda's Parliament, this law would enable the President

of the Supreme Court to invite foreign judges to preside at trial along with national

judges.ztr The President could extend an invitation to a foreign judge either upon

his own initiative or following a request by the accused, his counsel, or thep"ot""u11ea.2l8 In such a situation, a bench of 3 judges, including a foreign or

international judge sitting side-by-side with national judges, would hear the case in

first instance. This new legislation is only the most recent initiative on Rwanda's

part to further secure an accused's right to a fair trial in any referred case.

ii. The Rwandan legal system is able in practice to secure the accusedsright to or.esumntion of innoeence

L29. "Article 19 of [Rwanda's] Constitution provides that every accused person'shall be innocent until his or her guilt has been conclusively proved in accordance

with the law' . . . This provision is in conformity with several human rights treaties

to which Rwanda is a party [and] is reiterated in Article 13 (2) of the Transfer Law,"

as well as Article aaQ) of Rwanda's Code of Criminal Procedure.zle Tbus, there can

be no question that "the presumption of innocence clearly forms a part of Rwandan

law."22o

130. It also is a right recognized in practice. As demonstrated in the prior section,

judges in the Supreme Court and High Court are independent and autonomous.

They also are held to a high ethical standard that obliges them to decide cases

based on the law and facts, not external influences. More particularly, judges are

2rc Draft Organic Law establiehing the Organizatior\ Functioning and Juriediction of the SupremeCourt, Article 13.2r? Drafb Organic Law eetablishing the Organization, Functioning and Juriediction of the SupremeCourt, Articie 13.2r8 Draft Organic Law establiehing the Organization, Fu of the Supreme

Court, Artide 13.zte l{onyaruhiso (IC), para.43.2n Kanyarukigo ftC), para. 43; Gatete (IC)' para. 40;

tLs: l ' -y ' '

prohibited from publicly commenting on the guilt or innocence of any accused prior

to the completion ottr:al.z2t

f 31. Admittedly, there have been past instances where Rwandan political leaders

made comments about an accused's guilt or innocence prior to the conclusion of

trial. But, as Trial Chambers previously recognized, none of those incidents

involved a member of the judiciary.zzz And, the isolated instance that has been

raised in the past regarding a comment allegedly made by the President of the High

Court at a professional conference did not involve the guilt or innocence of any

specific person and, thus, did not transgress any ethical rule or the presumption of

innocence.223

132. In all events, the healthy rates of acquittals in High Court trials and

reversals of High Court judgements on appeal to the Supreme Court are further

proof that the presumption of innocence is not an abstract or theoretical concept

reserved for legal texts. Instead, it is a viable right in the day-to-day functioning of

Rwanda's judicial system.

133. For all of these reasons, the ICTR Prosecutor's application for referral should

be allowed because Rwanda's legal system is able in practice to provide the aecused

with a trial by a fair and impartial judiciary in which his right to presumption of

innocence will be ensured.

INYITATION TO CHAMBER TO YISIT RWANDA

L34. These submissions demonstrate that, should the ICTR Prosecutods

application for referral be allowed, tbe accused wiII receive a fair trial in Rwanda.

Paper submissions, however, are not always suffrcient to convey the full picture.

Thus, if the Chamber has any remaitting doubts concerning the accused's ability to

receive a fair trial in Rwanda, Rwanda respectfuIly invites the Chamber to conduct

a site visit that would allow it to see first haud the:

zzt See Artidel6 of the Code of Judieial Ethice (preduding "any 1, laneuage and statementofdqdicial Ethicg ("Everywhich may put a judge's imparbiality to queetion"); Artide ? of

judge shall in private and public life, avoid anything whichmight compromiee the reputation and honour of the judiciaryn2 Kanyarukiga (TC), paras. 44-45; Gatete (IC), parae. 422x Katuy@ruktg@ (TC), pataa. 44-46; Gatete (TC)' paras. 41

-/

;*fti"rt*nce or which

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t97| 1.

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. courtroom where the trial likely would take place, including availablefacilities for simultaneous translation and video-Iink testimony;

. safe house(e) where protected witnesses could be lodged; and

o detention facilities where the accused would be housed during trial and, ifconvicte d, during any p eriod of incarceration.

135. A site visit also could include meetings with the Rwandan ofricials most

responsible for ensuring the accused.'s right to a fair trial, including the Chief

Justice of the High Court and the Prosecutor General. Rwanda is confrdent that

this type of site visit would resolve any remaining doubts that the Chamber might

have regard'i.g its commitment and ability to ensure that the accused in any

referred case will receive a fair trial.

coNcI,usIoN136. In the years since the genocide, Rwanda has demonstrated its commitment to

judicial and penal reform. It has addressed all of the concerns identified in the

Tribunal's prior Rule 11 bis decisione and is committed to ensuring that the accused

will receive a fair trial in any case that may be referred for trial in Rwanda'

Allowing the people of Rwanda to witness frrst hand justice being administered -

whether it reeults in a conviction or an acquittal - is a crucial step on the path

toward national reconciliation and hearing. Rwanda is prepared and able to take

that step.

Respectfully su

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:rt+i,

A.

ADDENDUM

Afridavit of Maitre Emmanuel Rukangira, Acting President of the Kigali Bar

AssociationAttacheme nt: Contrat d' assistance et d'e reprdsentation en justice,L

July 2010

Afridavit of Tharcisse Karugarama, Minister of Justice and Attorney General

Affrdavit of Alphonse Hitiyaremye, Deputy Prosecutor General of the

National Public Prosecution Authority (NPPA)Attachments: Canadian High Commission, Note Verbale No.

WAGR0089, 27 July 2010, and Rwanda's response'

Affrdavit of John Bosco Siboyintore, Prosecutor NPPA and Acting Head of

NPPA Genocide Fugitive Tracking UnitAttachment :

-[Jnited, States u. Jean-Marie Mudahinyuka, U. S.D. C. No.

10-C-5812, slip op. (N.D. IU. 15 October 2010)

Affidavit of Jean Pierre Kayitare, Assistaut Attorney General

Affidavit of Theoneste Karenzi, coordinator of the witness and victims

Protection and Assistance Unit within NPPA

Alfrdavit of Olivier Rukundakuvuga, Chief Registrar of the Supreme Court of

Rwanda

Affrdavit of Mary Gahonzire, Commissioner General of National Prisons

Senrice of the RePublic of RwandaAttachments: Report of Joint Meeting of the ICTR and Rwanda

Delegations, 2+i8 Mry 20A4; and Memorandum of understanding

betw-een the Special Court for Siena Leone and the Government of the

Republic of Rwanda, 2 October 2009

B.

C.

D.

E.

F.

G.

H.

,,,.f 4s-" -(3r! ';. ' t

A.

ADDENDUM

Affidavit of Maitre Emmanuel Rukangira, Acting President of the Kigali BarAssociation

Attachement; Contrat d' assistance et de reprdsentatinn en iustice,LJuly 2010

Affi.davit of Tharcisse Karugarama, Minister of Justice and Attorney General

Affrdavit of Alphonse Hitiyaremye, Deputy Prosecutor General of theNational Public Prosecution Authority GtfPPA)

Attachments: Canadian High Commission, Note Vetbale No'WAGR0089, 27 July 2010, and Rwanda's response.

Affidavit of John Bosco Siboyintore, Prosecutor NPPA and Acting Head ofNPPA Genocide Fugitive Tracking Unit

Attachment: United States u. Jean-Marie Mudahinluha, U'S.D.C. No'l0-C-5812, slip op. (N.D. Il1. 15 October 2010)

Affrdavit of Jean Pierre Kayitare, Assistant Attorney General

Affidavit of Theoneste Karenzi, Coordinator of the Victim Witness Services

unit within NPPA

Affrdavit of Olivier Rukundakuvuga, Chief Registrar of the Supreme Court of

Rwanda

Alfidavit of Mary Gahonzire, Commissioner General of National Prisons

Service of the Republic of RwandaAttachments: Report of Joint Meeting of the ICTR and Rwanda

Delegations, 24-28 May 2004; and Memorandum of understanding

betwien the Special Court for Sierra Leone and the Government of the

Republic of Rwanda, 2 October 2009

B.

C.

D.

E.

F.

G,

H.

tL+

Annex K

,::f#

oRDoNNANcE N"'O01'vzoos DU 15"080'?nffiJ pnEslnenT DE LA couRsupREME poRTANT tNSTRUcnoN RELATTvE A ua paorEcrlcru ces lEFrolhls

DAHS LE oADRE DU RENVOI D'AFFAIRES R LA nEpUSLIAUE DU RwANDA PAR LE

TRTBUNAL piruel TNTERNATIONAL POUR LE RWANDA (TPIR) ET PAR D'AUTRES

ETATS.

Le Pr6sideni de la Cour Supr6me et Prisident du Conseil Sup6rieur de la tv'lagistrature;

Vu la Loi Organique n" 0112004 du ?910112004 poriant organisation, fonctionnament et

comp6tence de la Cour Supr€me telle que modrii6e et compl6t6e i ce jour, sp€cialement

f'article 23. alin€a 4l

Vu la Loi organique n"1112007 du 16/03/2007 relative au renvoid'atfaires i la Republique du

Rwanda par le Tribunal Penal International pour le Rwanda ffPlR) et par d'autres Etats,

sp6cialement I'article 14 ;

Consid6rant la ndcessitd de prendre des mesures appropri6es en vue de protEger la vie

Drivee et la s6curite des tdmoins conform6ment aux dispositions de I'article 14 de la Loi

organique n" 11/2007 du 16/03/2007 relative au renvoid'affaires i la Republique du Rwanda

par le Tribunal P6nal International pour le Rwanda (TPIR) et par d'autres Etats, qui habilite la

Haute Cour i prescrire les m6mes mesures de protection que celles qui sont pr6vues aux

articles 53, 69 et 75 du Rdglement de Proc6dure et de Preuve du Tribunal Pdnal

lnternational pour le Rwanda [fPlR) ;

O R D O N N E :

Article Unioue

La Haute Cour, et:la Cour Supr6me au niveau d'appel. doivent cr€er au sein de leurs grefies

respectifs un seruice de protection das t6rnoins, assur€ Par un ou plusieurs grefiiers

sptcialement y affect6s, sous la direction et la supeniision du Greffiei' en chei

'l{?

Ce service sera nolamment charg€ de :

- Recevoir, €tre i f'5coute, orienter les t6moins, enregistrer leurs requBies et en iaire

rapport d la Cour ;

- Informer les i6moins de leurs droits et des conditions de leur exercice ;

- Mettre en ex6cution les mesures de protection ordonniies par la Cour conform€ment

aux dispositions de I'article 14 de la Loi organique n'11/20O7 du 16i03/2007 relative

au renvoi d'affaires A la Rdpublique du Rwanda par le Tribunal P6nal Intemational

pour le Rwanda Cl"PlR) et par d'autres Etats;

- Etre en contact avec les autres services impliquds dans la protection des t6moins,

pour assurer le suivi de la mise en ceuvre des mesures de protection ordonndes par

la Cour.

CYANZAYIRE Aloysie

Pr€sidente de la Cour Supr6me et

Pr6sidente du Conseil Sup€rieur

Fait i Kisali,l". 1..5: 0f0 Z00S

,^rWffiTwl

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Annex L

l(o

t v 1 ) t 4 , , 4 . , ,. t | . i : l ' i l .

r * \ /

International Criminal Tribunal for Rwanda

Before:

Trial Chamber II

Judge Florence Rita Arrey, PresidingEmile Francis ShortRobert Fremr

Registrar: Adama Dieng

- THE PROSECUTOR

v .

Jean-Bosco UWINKINDI

Case No. ICTR-200 1-75-I

AFFIDAVIT OF MAITRE EMMANUEL RUKANGIRA

I, Maitre Emanuet Rukaagira, hereby depose and state ""

follo*",

1. I am the Acting President and Board Mereber of the Kigali Bar

Association. -Unless

otherwise indicated, the statements contained in this

affrdavit are based on my own personal knowledge or belief. I submit it

in support of the Republic of Rwanda's amicus brief in the captioned case.

2. curreniiy, iher-e arri 686 attorneys hdmitted. to Rwanda's bai.Approximately one-third of those attorneys (28? members) have morethan 5'years experience, including in the defence of genocide cases.

3. Rwandan attorneys must meet stringent qualifications beforebeing admitted to the bar. They must have been awarded a university

degree in law or its equivalent, have no criminai record for conduct that

is dishonourable or lacking in integrity or morality, complet e a z-year

apprenticeship under the supervision of a member of the bar. and

p rofessional compete ncy examination.

- - 1 - -

ts7

4. Approximately 150 law school graduates urre currently awaiting

admission and approximately the same number are anticipated to seek

admissioo over the next several years.

5. In 2010, the Kigali Bar Association sponsored 8 new attorneys to

attend an Institute of Legal Practice and Development (ILPD) practical

trial skills training where they learned, among other things, effective'

techniques for cross-examining witnesses. In past years, the bar- .association sponsored 5-to-6 attorneys to attend similar ILPD gy";nirg::'-

pro$ramg.

6. Rwanda also allows foreign attorneys to be ad.mitted to practice

before its couris. To gain admission, the foreign attorney must have been

awarded a law degree and be a member in good standing of the bar of ""

their home state. rn addition, the attorn-ey's-home state must agree 't6-':----:-=-

provide reciprocal admission to members of the Rwandan bar.

7, In the past 4 years, Rwanda has exbended bar membership to

attorneys from the United States, Canada, Uganda, and Cameroon.

8. Rwanda's legal aid program is administered by the bar association.

To obtain legal aid, an applicant must present a certificate of indigency

from their local administrative authorities. Indigenry determinations are

not limited to consideration of the applicant's income; instead,

consideration is given to the applicant's broad.er frnanciai ci.rcumstances

and general ability to pay.

9. Each week, a legal aid offi.cer employed by the bar association

reviews approximately 35-to-40 applications for legal assistance to make

sure the applications are complete. An attorney then reviews all

completed applications to assess whether the matter can be resolved

without going to court by providing legal advice or guidance. If it is

determined that a formal representation is required, the application is

referred to the defence bureau for appointment of counsel.

of counsel is usually completed within one week.

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l l . ,'

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10. During the past 4 years, the bar association provided free legal

assistance to 4000 accused.

11. since 2007, Rwanda's Ministry of Justice has entered. into

contracts with the bar association for the provision of legal aid in

domestic cases. The most current agreement' a copy of which is attached,'

took effect on 2 JuIy 2010. It requires the bar association to provide legal

aid to minors charged with crimes and female vj'ctims of s;iual 'riolence

but does not preclude the bar association from providing iegal aid to other

vulnerable persons, including, without limilafien, indigent adult accused'

12. In exchange for providing legal aid serrzices, the Ministry of Justig:,_- ,., =- ==-:'-

p"o,.ii", a monthly stipend of ibO,OOO R*andatt f't.tt." to each of tine 24

stalf members employed by the bar association to provide legal aid

seryices. Tbus, pursuant to this contract, Rwanda's Ministry of Justice

has committed 86,400,000 Rwandan Francs (300,000 per month x 24 staff'

members x 12 months) to underwrite domestic legal aid services' In

add,ition to underwriting the staff membey's work, the contract"requires=:-:

the Ministry of Justice to pay the bar association 300,000 Rwandan

Francs per month (3,600,000 Rwandan Francs per year) to defray

communication and other operating expenses associated with the legal

aid program. AII told, the agreement commits the Ministry of Justice to

paying 90 million Rwandan Francs (approximately $151,260 u.s. dollars)

- this y"a" "iorr"

- lo .rpport the bar association'i provislon of tlomesiic

legal aid services.

13. Based on my owlr personal erperience in practicing law in Rwanda

fot 2L years and. based on my experience as President of the Bar

Association, I am not aware of any diffrculties th'at defence counsel have

experienced. in obtaining potce cooperation in conducting further

investigations, inclucting additional interyiews of potential defence

witnesses,-in domestic criminal cas€s' Indeed, even if the police declined

to cooperate with defence requests for additional investi

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defence could apply to the prosecution or, if necessary, the court for anorder directing the police to do so.

signed under the pains and penalties of perjury this _ day ofFebruary 20I1 #S

Acting PKigali Bar

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, -L2h(

ItI

, C*ntrat d'Assistance et cie Repl'dserltation en. l! Justie e

En{.re l":s soussignis :

Le N{ilistdre de lu .lu:.iice. (ci-aprd:; dinomni'i < Le N{inistdre ))' icpr6sent6 ic'i par

N\:IRASAIIARI L.slrfrance. la Secrdiaire Perrnartente/ Garde des Sceaux Adiointc. d'une part ;

Et

L,Ordre des Avocats,Baneau de Kigali. (ci-aprds d6nommd rt Le Barreau l, rellrdsentd par le

BAtonnier tvlaitre Vincent KARANCWA, d'autre pari ;

Prdambule :

Colsiaerant tttrsence d'un systdme durable d'assistance judiciaire gratuite en fuveur des'vutnerables au Rwanda :'---'

Considdrant_la,vqlontd exprimie par le Ministdre et le Baneau de travailler ensemble afind'exdcuter lcs activitds d'assistance iudiciaire ;

Considdrant le souci de renforcer [a capacitd de gestion et de supervision du lvlinistdre et dune d'assistance judiciaire ;

Article premie{ : Objectif du contrat

Le prdserrt contrat l'ise sp6cialement I'assistance judiciaire au b€ndfice des personnes vulndrables(les Clients) notamment les mineurs poursuivis et les femmes victimes des violences sexuelles :

:---: NB :''Ce-programme n'enrp6che pas d'autres pratiques de consultation. d'assistance et de]'.t reprdsentation au proiit des personnes vulndrables en g€ndrale.

- ' - - .FLesact i . . . i t€sr, isdesdansleprdsentcontr3tcomprennent:: '* - -

": -

. L'assistance judiciaire dans toutes les piocddures pdnales aux Clients ;

I

t,It

At ' t ic le 3 : l - ' i rss is t : rncc judic ia i rc :

I - 'ass is tance. jLrc-r ic i l i : s consi -<{e not_ainnrcr i i i .

. As-sp1'gv' ' :. ie:i cri;rsultui";ons aux clieri i.r irr. i . i .,,a' i les ar.ri i ,entr:r. arr;:reseriie;.dri i. i lr. i I les Cour-. et Tri i:,rrnalx :l )onne' Ies a' is jur idi i rues au.r cr ient.s cor iccr iraf ; t rc Jrr i , rrrcrr i i , i ; .1; iEtudier le dossier des Clienr.s :A.ssister et rcpriscnter ie Client devanl t'ut:s ies i'sta'ccs:Rddiger le.s conclusions et Ies nores de nlaicJr-. i r ie ;hite;'jeter appel. faire opposition et exercer d'autrcs i,cics tir, i.cc{rLr.:As.sister le-s g1i.nrr dans toutes les dtapes de la prc,ccdure :

Art ic le 4 : Responsabi l i td des part ies :

Responsabilitd du Rarreau

Le Barreau s'engage A :

. Gamntir la rnise en ceuvre du contrat de prestation de services entle les Avocats et le

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: Ddterminer, de commun accord avec le N,linisrere. Ies criter.es <i'eligibiliti des Avocatsddgirant prdter leurs services au programme et de laire irne sdlectio' transpare,te des:,4,E;:::: :T':J#::'#!Fii: :j;;:ff;,,."; ;*: "n " o. rac i, i ter, a sa i s i e e t, etraitement des inforinations venant du teriain er faire

".li;;l; canevas par te cornitd desuivi mentionn6 en I'article 5 de ce contrat.-'- coordonner' avec I'appui du Ministeie,.les effofts du Barreau et ceux cres instansesjudiciaires {cour supi€me, organe National d. p";;;; Judiciaire (oNp.r), Irorice.i!t!;lfi ;HJ*;*'J:illt:,'"""fi t*i:l#:::"{:,rie,a'Ministdre

atreau ;

#esponsabilitd rlu Ministire

I l s'engage d :. Faciliter la communication

:ii, :, ::, 3:T."1,"11.,,:'^.tlull.T j udic i ai res (co ur s up rG nr e,8)li;.T l'' e Natio n ar e. i r r prls i J# ;;""ffiil;fi l"l:'Jif fiT, lr#,' ililT::

Informer la population de I,existence duchronique jua;"iiir" Jirzusde srrr res n,,,ro. r^ 3:1-.nfo3*e et en faire mct-rsion dans3i.:#i1::1ljj,.j:[:1,,j,]]":..""..;i";;;,;fi .:-#,,[",#,."' organiser pdrjodiquernent, de concerr ;;';";;:""11"il ,s.dances d'dchange d'informatio.; ;; '1" .fo.^,,r-,-.^.-. , lnstances jucliciaires, de-s,Xr"-:.*";..i::: j'::l:yt:;;;i',.r"iJl,,i,iff "X*'?,iseances d' dchan ge d' informati ons sur r. JJr"" r JI Jl;' ?,l'l;:j:"nj "ji: ::lan: ce programixe -v pariicipent, sur invitari<

Faci l i te i t"_"o,","r" ; lnr i^, . - , . r .^ r_ n )n cu sur leur propre ini t iat ive.

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3:llfi :, l: " T::'l:11:,:i :: i;:i:I ffi . j;,' ",H 'i |:J#'|i' i :' H:ifPoint Focal dans lacoordination des acti'irds ., ru .onir.,Ln;;T*pil*:

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Jy l j_ch_Q : N ' i i c : rn !sn t r i l i r s i : i , i ' : i d r [ ' r : r , : r l .u l l i i r . ; r r .

. r . r - t i c - lg . ( i .1 : C r t l r t i t i r l : l s ; i ! ' , i : : : i j : ( i ' ! ra l t r ; r t iun e l s r r r / . , in l ) r )s !a i ( j i l -

I i cs t c r i c i u i t Cor : r i t t i dc ! i r i i i ' : - ' t d 'E l r i lu l : io i ' ; dc cc p r i )u l iu r :n i r .i -u C.omit i de Sui i ' i se rdult i t tous les tr i , ' is ntois et l i rssi , . le niarr iere extrur: ic l i r rairc a i i i denrani je

cle I'une des parlies. [-,edi', C.orrrite esr composd cle :'L'Assistallt Al.tonrey Gcnei-ai cirargd du Sen,ice ii la C-oliectivitd ou son Rcnriser.ltant.

Pr€sident :- Le Bdtonnier ou sor'l Reprdsentant et le Point Focai.- Le Reprdsentant de la Cou; Supr€me ;- l-e Reprdsentant de I'Organe National de Poursuite Judiciaire (ONpl) :- Le Repr6sentant de [a Police Judiciaire..

--- " - l l r l ige 6.?. I .es attr ib ir t ions c{u Comit€ de Suiviet d 'Bvaluarion.

le,Comitd de Suivi et d'Evaluation est chargd de :' Faire le suivi et I'dr,'aluation du programme au minimunr tous les_trois rnois ;

'-: ' : ' :r j:-==:==-:'. Taire le point sur I' itat d'appl[.itioi.drr prdsent contrat ;' Examiner les quesrions soumises par le lJarreau et le Ministdre ou foute personneiinstitution intiressde:

- ----- r procdCer d I'dvaluation de I'impaot du programme ;' Rdfldchir sur toute autie action pouu"niu,odlior.r ie fbnctionnement du pl.ogramme;

Art ic le 7 : Exdcut ion de Bonne Foi.

___Article 7.1. : Bonne F-oi.

chaque partie s'engage i assumer de bonne foi la responsabilit€ de.s obligations qui luiincombent en verlu du prdsenl contrat.

Article 7.2. : Collaboration entre les parties :

Les parties Tsij".:it

conjoin^temetlt et loyalement la responsabiritd nlorale de la rdussite du- programme' Les rappons. infb'nations. rdsultats d'dvaliraiion ou aon,.,e.Jri"iirtiqu", relativesau programme doivent 6tre tenus i Ia disposition de I,autre.

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Ar ( i c l e 8 : F ra i sde l : r c i l i t s t i on de ! 'A toca t . des f ra i s , mr rda l i l 6 - s r l c i i c s t i on .

Al i ic le t i .1 : F: ra is de Lr lc i l i i : r t ion dc l ' , , \ r ' r rcat .

i , ' . r .vor l i percevl 'a 3{) ( r . i i0r ) 11 '11, i l tors i r rxes et aui rcs chi r rs ,es, r ; :ar nt i r i ) i . : l , t p lLrs i i r ru j l iJ . iour ' : 'anitr; ltceptioir ciu raprptirt t:arr;l i i i par lc Baneau ainsi qirc la i irstri ir. i-t: [3il i 'r 'cau cl ' l i l t:r.rratri l l ' , 'c:;t; ' ie,i icment le travail des Avocets ct seril resFe;ristrblc r,r-rvcri i k: lvl ini.stere Lie ir:Lllrer'}l l) i i] : e i'tr eilt en c eS C e n c l r jl gi' fof

".'r ii ;'r c g.

$$Sb J2: Des frais de t '.omrnunicatiou et t les fourniturcs du IJur.tr;r rr

-{r i ic le 8.2,1 : I )es frais de ccnununlcat ion

lg f'-rnci couvrira les fi 'ais de communication ne ddpassant pas deu.x cerrt nrilles lrancs rrvandais(200.000FIiW) par mois.

Ari ic lc 8.2.2 : Des fourni tures du Bureau

i.e fond couvrira le frais de fourniturc du Bureau ne ddpassant pas cenr rnille fi.arrcs rrvantlais(I00.000Frus) par mois.

Article 8.3. : IVlodalit€s de Gestion des fonds.

I-e Barreau est ddpositaire des fonds d'au moins d'un trimestre des la siEiratuJ.e du prdsoiit-:-t r--- ::=r .=--- : .at- assure leur gestion et eu reuci comF,te tous les trois mois auprds du Ministire, Ainsi, il

doit fournir un rappon financier, un rapport narratif et une demande d'approvisionnen)ent ducompte en soumettant un budge.t ddtailld pour le trirnestre suivant au pl,,i tard dans lC jq;;,apris rdception des fonds.

Quant au lv{inistdrede la justice, il aura 10 jours dds rdception du rapport du Barreau de Kigali.de procdder au virement,

--.' ---Le--Barreau de Kigali ddtiendra un Compte s€pard pour la gestion des fonds cl,Assistance' - - . . .

- ' T ; :? : , - l ; : - ^ l . . r - - r - - , - t - . - - r .r-r-iiidiCiaire' Aprds analyse dei rapports prdsentds et de la demande d'approvisionnement, leMinistdre fera un versement pour alimenter le compte du Barreau de Kisali.

3

Article 9 r V6rification et audit des comptes.

Le MinistOre a Ie droit de r'drifier.les comptes du progranrme et de les faire autjiter dur"n, [0.,'alicitd de c'e contrat et au pius tard dans les six mois cJmptes des Ia fin du contrat. Les rdsultatsde la verification sont notifids au Bareau cians les quinzelnurr iuiuur,t ta fin de l,opr{ps1isir.

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Ar t i c l e 10 : i l u r t c du con t l ' l r i '

-- =-=..:A!!i!I913 : Date de prise d'effets'

Le pr6sen: ccntrat prend effet ri la date du 0l ' iuillet 2010'

t l l i u i i l c t 2 0 1 ( i '; ' i - ;1 t lu i t r Id 1 ' , ; t r i c

E'1!SfC--l-i- : li €silia tion'

c.e corrLrrt :er. : : l is i l ic de picin dr i ; i t a i l i ; r i l ' rv i r r ju ierme 5'1ql ' r i ' . r : t '1 ir ' l t : r l :ct : l expl ic i te l ia i le-*

i lat ' t ie: i '

cependani, ii .or.rrre €rre mociiild 0u rcsiiid rrvani le'tenne i I ' irl i"iati 'r: i lc i 'utlc des pafltes e:-t

cas dc r.rr'-r r(isD.cr lr.r,;;;;;ic ile ses or:lig;,;ns contracttrelles' aDrts urlc t' ise eu detueuie

restde inliuciueL,r" p.nall-,i-ri,c p6riod"..je li iours et ce. mover'tlattt r-tn preavis de l5 jours

"tttltd;l; ;n'ti" aefuittunte' avec accusi ie idception'

Article 12 : Rdglement de diff6rends'

En cas de contestation relative a l' inteqrreiation.ou i Iexeiu-t111-ilu prdsent contrat' les parties

.---- _- privit6gieront un "runffi;;;;tJi;

i aiiitr le litige seras':umis ir l'arbilrage' chaque partte

se choisira un arbitre n"urrc et le troisidm. r.ru ae.igni conjointernent par les deux arbitres'

Pcur [e Barreau de Kigali : Pour le MinisteLe de la Justice :

NYIRASAFARISecrdtaire Perm

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Annex M

,150

I i , i

I IAI IREAT' DE KTGALI

International Criminal Tribunal for Rwanda

Before:

Registrar:

Date:

TRIAL CIIAMBER II

.ludge Florence Rita Aney, Presiding

Judge Emile Francis Short

Judge Robert Fremr

Adarna Dieng

26 Apri l20l I

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The Prosecutor

UWINKINDIJean

Case No. ICTR-200 t-75-Rule I I Dr,r

Amicus curiae Brief of the Kigali Bar Association

tn the Matter of thc Prosecutor's Request for the Referral- *ofths Case of-U.ITUiEINDI

Rules I lDts and 74 of the Rulcs of Procedure and Evidence

- The Prosecution

Hassan B. JallowJames J. ArguinCeorge MugwanYalnneke OnscaAbdoulaYe SeYeFrangois Nsanzuwera

The Defenca

Claver SindayigaYalain EdwardsBettina Spilker

Amiggt-Curloe

Kigali Bar

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l. This is a brief filed before Trial Chanrber II ("Referral Chamber") of the

lntefnaiional Crintinat Triburul for Rwanda ("ICTR'), by thc Kigali (or Rwanda) Bar

Association ("KBA-). appearing as Amicus L'uriaet in tlre lnatter of the ICTR

Prosecutor's request for the refernrt of the case of UWINKINDI Jean to Rwanda.2

2. The KBA supports tlre Referat Request. The KBA was established by [.aw No,

3/97 of 19 March 1997.3 Its nrernbership is made up of all practicing advocates in

Rwanda as reqnired by law, and the interns who aspire to be enrolled on the rollof the

Bar, sole rcpresentative of the legal profession in Rwanda. thc KBA therefore

accompanied the irnplementatiotl of alt the reforns put in place in the years since the

genocide, devoted to establishiug and stlengthening a jtrdiciat system capable of

prcr,iding pe6ons accused of genocide and other crimes with fair and irnpa(ial rials in

Rwanda, Its members arc playing a centrdl role in the day-to'day administration of

justice in Rwanda. They accumulated considerable experience and experlise in defe[ding

p€rsons accused of genocide and otlrer crimes, Potentially. they will also play au

important role in the administration of irrtenrational crintinal jusrice *itfr'ritpict-to:tliis=- ' : - '--:-

.ur. oi uni oth., ,ase, that may be rel'ened to Rwanda for trial beforc the High Court'-

3. .Ihe KBA.s subnrissions below demonstrate that in today's Rwanda. accused

Pe$ons are. in practice, (i) abte to Sccule adequate |egal representatiorr by competent and

cxpericnced tawyers inctuding. *h.r. n..errary, (ii) through legal aid and pro borio

services. Notwithstauding mirror problenrs most lawyers may face throughout the world,

(iii) the lawyers. Rwandan or fore ignerc, all mentberc of the KBA, wo'k freelyfnd und€-i- -=::-:4

good conditions, withottt any undue intert'erences from the executive or impediments

marerially affecting their inlSLrgqtigns and the presentatiou of the defence case'atall:

levels of j urisdict i on, before llwandan c ourts'

' I CTR Rulc 74 of the Rules of Procedure and Evidcnce'2 l,rosecutor's Reqrest lor tne'irI*:;'a, - a'iri o.[Jean-Bau'o tArlnlht<{i lo R$'andtt Pu'suant to Rnle I lbis

"iiiii,n,it.., irl"riy rreri,,.| nrri'fi'1'!rr"r. 4 Novcmbcr 20 | 0 ("Referral Requcsr").

r lnfornration on the KBA lan Ue founa on the- wcbsites HltP://Wu v,Bslleaudurwanda'Otq'Rw or

hrtrr://4t.?4.l65.znunx_anj"tir.*p*ria=lri. Although funcrtonatJhc-se wrbsites;ontain infornratioo that is

sontetime datcd.

ouduruqndo I 99?Carnoll'con

t4q4. This is the reality members of the KBA are practicing in, every day, in Rwanda. '

This is the reason wfty the KBA can attest that all corditions exist to secure the right to a

fhir trial fbr UWINKINDI Jean and any other accused person transferred to Rwanda for

trial. t6e saile way such a right is guaranteed and inrplemented in domestic cases. The

subnrissions below demonstrate this reality, nol based on fictional or outdated rumors or

incidents. but based on concrcte experiences in today's Rwanda'

B. Background

S. On 4 Novenrber 2010. the ICI'R Prosecutor filed a Referral Request for the trial

of UWINKINDI Jean belore the High Court of Rwanda. On 18 February 20ll' the

Repr.rblic of Rwanda fltled, at the invilation of the Referral Chamber'a an amictts curiqc

brief in support of the Refcnal Request.s On l4 March 201l. UWINKINDI Jean filed his

response opposing the Refenal Request.o Fluman Rights Watch, t6e Internatioual

crinrinal Defence Lawyen Association and the Intemational Associatiolt of Dernocratic

Lawyers also filed amicus drfue briefs in opposition of lhe Refenal Request on 17

Febrtrary 2011. l I March 201 l. and l7 Marc|r 20| l, respectively,T

and conditions of work of defence lawyers and the availability and protection of

witnesses in Rwanda.s On I Aprit 200t. thE Refenal Chamber granted the application'

noting that.'tlre KBA is uniquely placed to address three issues rclated to the ll,is

Motiorr,"e The Referral Chamber requesterl the KBA to address: (i) Tlre Legal provisions

arrdpract iceregarding|ega|representat ionandaccessofaccusedPersonstoDefence

' - o w { a t o n u l c . r t r i a l i . t . r i r r l r r a . t A m i c u s C u r i a e , p r r r . . r t r a n t t o R u l c 7 J o J , t h a' t,..!)-..-... ^,. ,i;',i,';*;"tt,rr ir / /bis llotion.16 January 201 l. ' "-:' '-.' -

t(t.ll Rtrtes,yfn oit,i" nnl E,lidence,o,,hi !'.osea'urinak //bis lfotion. 16 JanuarvZuIl' -

-r: l l l l i r t . tCuriueBrie.f , [or lhel1eplht lc"tx"",, ] i . . i , - i , , t ,Pi ' to|fProsttutor: ' , :

ptu'sue,il to Rnle I lbit. I I February 20 | | '., Dqfenr? Retltonse 'u 'no i|i^ii.'ii,]is Reqt/zst Iu' the Refenut qf th:^l'!to ql Jean Lhfini.ittt{i ro Rvcntda

,,,i',{,ii,r,- ,i n,it" I lbis o/ the Rute uJ' Proce.clti'" .'il-E."ileilc"' t'l March 20 | I ''Arnicus Curiael lr ieJ'olt lunnnRightsl l 'atchiuOpltasit . tonutt luletthisTnnsfer '

l7February20l l ;Amicus

Crtrirc Brlef tt lu'o"utlo'ut il'iou'iint tl"l,,u" totrycr. 'ltrtocidlion' I I March 20l l ; Anricus Cwiae Btiet ot rhe

i,i'r,',iniiiiiti',,t"ii'iart'rn o! Denocrutit lrrrt;tvrs' t7-March 201 | ', Lh.sent ,tppricatim t y ,h, ;;;;;'i;;;,1 l.r,'riiu.,,'ou .f,, ,l-eori

r, .tppecr at Snilcus.c.nriue in ttw lt'lauer qf 'l'he

!'rotectilrr't lletlne,st.[or the Referrul ti tlrc (tne 'il''lpan !h''l'inhitiili - tt't' 71 o! ttn Rnles o! Procedm'e and

Efldence. I APril 201 l.', Deci:rion on .lpplit.ttion h), rhe Klgalt llur ;lssa-kniou for Leave to .lppear ils ln'lcns (nriae' 8 April 20 | I '

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11{+cogpsel; (ii) The Access of Accused percons to legal aid services and pro bono seruffi; -

and (iii) The working conditions of n:ernbers of the KBA,

Tlris lrnicas curiae btief tirnely follows'

Submissions on the issues identified by the Referral Chamber

(i) In practice, lccused penont are abte to secure or access adequate legal

representrtion

8. In order to properly appreciate the adequacy ofthe Rwandal legal system and the

access of accused person:i to defence counset in Rwanda, the Referral chamber should

lrave regard to the applicabte laws as well as the current number. competence and

practical experience of lawyers currently practicing in Rwanda'

a) The right lo legnl representallott is guaranteed

9. As fecalled in Article 88 of the Bar Internal Rules and Regulationsr0' in criminal

marters. the afiorney is chosen by his client or designated by the Presiderrt of the Bar'

10, Rwandan Constitution and laws guarantee fair trial rights, including the right to

r.g"ilpt"t.ntation before coutls of law' for any accused persont including !Lose$9F-

case nay he transferred to Rwandan for trial. The Constitution of 26 May 2003 provides

sufficient legat guarantees concemittg fhe right to legal representation'rr In parlicular'

pursuant to Article l8 of the constiturion. "the right ro be infornted of ttre nature and

cause of charges and the right to defence ure absolttte at all levels and degrees of

proceedings befote administrative. judicia! and alt otlrer decision making organs"'|2

Pursuant toAr t i c le lgo f thecons t i t r t ion . "Everypen ionaccusedofacr in re :Y l l l t - -= -

presunred innocent until his or trer guilt has been conclusivcly proved in accofdance with --'---- -

_-tlre lalr ill public and fair hearing in wlrich att the necessury guarunteet 'for defence

t r r : l ]hqve heen nrade available,""

", Ordre des AvocaG, Barrcau dc Kigali. RlXlenrcnl d'ot'dre lntlrlenr ("Bar Jntcrnal Rules and Rcgulalions")'

Anncx I to lhis bricf., ,Ar r i c les tSand lgo f t l r cConst i tu t ion . SceatsoAr t i c lc . tS(4)o f^ thcOrgan icLuYNl ; l l /200?of l6Marc l t

2002 conceiling trre rransteil;l;;;i; ihc n"puuti" ol Rwarida fronr thi International Cdminal Tribunal lor

Rrvanda and othcr Statcs ("Transfer L$w")'r: Ernphnsis added.'] Enrphasls addcd.

8f-?6' Ktr"n r-l Ta-5r5S06m--mcil' bsrrroudurrondol99TGgnall.coo

I 1. The Rwandan code of crirninal Procedure also was amended in 2004 to

arrestees ttre right to legal counsel at all stages ofjudicial proceedings, including

interrogations.la

12, Accused persons in Rwanda are thereforc guaranteed the riglrt to counsel' the

right to sitence, and rhe right to be informed of ihe charges against them, including during

arrest and pre-trial detention, A reading of the legal provision applicable in Rwanda'

together with Article l3 of the Transtbr Law, shows that an accused persoll transfentd to

Rwanda for trial will benefrt from:

a. The right to have adequate tinre and facilities for the preparation of his or

her defence, and to cotnmunicate with counsel of his or her own choosing;''

b. The right to defend hirnself or herself in person or lhrough legal-assislance

of his or trer ourn choosingl to be iufomed, if he or she does not have legal

assistance, ofthis right, and-to have legal assistance assigned to him or her, in any

case where the inter-csts of jusrice so rcquire, and without payment by him or her

in any such case ifhe or she does not have sufficient means to pay lor lt""

b) Adequate lega! represenlalion is nvailnble in lodoy's Rwando

13 , Arry accused person transfened from the IGTR will firrd readily available counsel'

in ternrs of number, competence and experience;'t There is a sufficienl number'olj:::::::-='='

conrpJtent lawyers available to represent thiS accused or any other accuscd penion' Ttte - - -

currcntmembershipoftheKBAisapproximately686lawyerswhoplayacentralrolein

the day-to-day administration of iustice in Rwanda. Approximately 360 new members

should be adnritted in two months time. All these lawyers tneet standards similat to lhos€

required in rnost countries. including possession of the relevant university degrce' lack of

criminal record, successful professional competency exanrinalion and comPletion :u7'

year apprcnticeship. In this regard, the KBA is a ntember of several ledal fiiiGniilie's-

including amongst them Pan African l,awyers' Union, tlre Inten:ational Bar Association'

the conference Intenrational des Baneaux de Traduction Juridique conrtnune'1he-!:*-::

African Law Society, and hence op€n to all foreign legal practitioners' Its members are -'..

also eligible to qualify irr England and Wales as legal praclilioners'

r{ Law No, | 3/2004 of | 5 May 2004 Relsting to the codc of crinrinal Proccdure. Amcndcd by Law 20i06 of 2l

April 2006, Articles 39, 64' 96 and I 85'iii;; i. ib of rhe Constitution rnd Articlc I3(4) of thc Transfer l-aw''' nniri., I 8 and l9 of rhe corrtitution and Anicle 13(6) of thc Transfer Law'

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'w5:14. with regard to experience, approximately 30 current members of the KBA have

been practicing for more than 15 years. 67 for 10 years of n]ore and 76 for 7 years or

more. Hundreds of lawyers have experietrce dealing with criminal cases' There cannot

therelbre be any doubt that there are sufficient lawyem available to defend the case of

UWINKINDI Jean.

15. In sunr, there are currently several Rwarrdan lawyers who tneet the pre'requisites

for assignnent of counsel before the ICTR, including the requirement of at least seven

years relevant experience.rT In facl,5 members of the KBA are cunenlly enrolled ig the

ICTR list of porential defence counsel, from which indigent ICTR accused persous are

allorrad to propose 3 names to the Registrar tbr their assigrrrnent' They are: former

Batonnier GATERA Gashabana who has been practicing for about 25 years (since 1986);

NIyIBIZI Jean-Baptisre who has been practicing for 20 years (since 1990);

NKURUNZIZAJean.C l r rysos tomeandKABUREGEPro jec twhohavebeenbot l r

practicing for 18 years (since 1992); and BUHURU Piere'c€lestin who has beetr

practicing for rnorc tlran 10 years (since 2000). All five lawyers nonnally are resident

and practice in Rwanda, Their enrollment in the IcTR list of defense counsel is evidence

of their willingness to undertake the defence of any accused Person before the IcTR'

including.UWlNKIND|Jean.GiventhattheseRwandan|awyersmeetthepre.requisitesE':=

for assignnrent of counset before the ICTR. there cannol be any serious argument that '

uwINKlNDl or any other accused transferred will not be able 10 find in Rwanda counsel

capab|eofdeferrdingtheircasestotheICTRstanclardofexperienceandadvocacy.

16 'Notab ly . thepre- requ is i les fo rass ignnrento fde fencecounse lbe fore the ICTRdo

not inc ludeprac t ica lexper ience indea l ingwi thgenoc idecases .o iventhec l ra rges

against UWINKINDI .lean, the KBA finds it however important to point to the faeFtha1.-----:.i,=--::-- -- '

Rwandan lawyers are necessarily arnong the nost experienced lawyers in the world in

relation to genocide cases. The genocide and crimes against humanity at issue oqqqq€q

\ ' --L^-- ̂ *L- ,zDA hq ocide lrials since=ihEll' -= -in Rwanda in 1994. Members of the KBA have been involved in genr

beginning of such trials in Rwanda, albeit sornetime together with foreign lawyers' Many

of them are, more than any other lawyers in the world, exposed to and engaged in Juch

'7 Arf icf c l3( | I of lh€ ICTR D/recrile on the '4sslg:lrrtent of De,fen:e Counsel'

umordcl997Qgndll'con

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trials involving genocide and crimes against humanily.ls There cannot be any serious and

ressonable dcubt regardi.g the kncwledge and expertise of hunJre.ds of Rwandan

lawyers on these Natters. All or most defence counsel assigned at the ICTR certainly did

not have sinrilar practical experience in dealing with genocide cases at the time of their

firsl assignmenl to represent an accused person at lhe ICTR.I

17. Besides. the case of UWINKINDI Jean, concernirrg inter aliu what happened in

Mwogo sector snd Kayenzi church in 1994 is certainly not rnore conrplex than the

hundreds of similar cases deah with in Rwanda, al all level of iurisdiction,:since 2006'

Former B6tonnier. Me GATERA Gashabana, who is also enrolled in the ICTR list of

potentiat defence counsel, have handled several genocide related cases in Rwanda. He

also handled and is still handling. as defence cowrsel, several high profile cases'

involving lhe famous ongoing case of INCABIRE Victoire case, the case of

MUSHAYIDI Deo and nrany others. For his part, the currenl Bfionnier, Me

RUTABINGWA Athanase has harrdled several genocide relaled cases' including

sensitive case, He was also the lead Counsel representing Bligadier-General

GUMISIRIZA Wilson in the famous Kahgayi case - a war crimes case that started in

2008 and was finally handled in 2009'

lg. tn oddition. an accused person can also be represented hy foreign lawyers

admitted to practice before Rwandan courts.le This has lrappened in the past, repcatedly'

with foreign lawyen acting as defence coutscl before Rwandan courls' These included

lawyers from Avocats sans Frontidres (l.awyers without Borders)' Recenlly' Peler

Erlinder, an American citieen and lead counsel for Major Nlabakuze at thC ICTR, has

benefired of lhe services of defence lawyers assigned by the Kigati Bar under the legal

aid progranr (Me KAZUNGU Jean Bosco, Me RWIHANDACAZA Rich6rd,*Me-.' '..---..-

GATEM Gashaban4 Me MUCYO Donatien' Me BUHURU P' Celestinzo; and two

--other Kenyan lawyers of his own choosing (Kennedy Ogetto and Gersho,m-pl-4c!o-,:-'.-- .-,

- Bw.ornanwa) wlro applied and were accredited by the Kigali Bar Association in-ohFday'-------

The Ertintlercase shows that. when required, the KBA can assign more lhan one counsel

rr Mcntbcrs of the KBA psrricipale in tnany cotrlinuous legal cducation programs with various panocrs'

including lhc ICTR.,o Articlc 6 of thc Law No. 3ilqql of 19 March 199? Establishinga Bar in-Rwanda. Official Cazeltc of the

n.p"[ir. "f

n*rna., N"S. tS lprit ryl'l (Law Establishing a Bar). S€e Ann€x 2 to this brief'il if" dnftnn and Mc BUHURU are cnrolk:d in thc ICTR list of dcfencc counsel.

under the legal aid progarn and accredits any foreign counsel who meets the

requirements. lt also shows thti Crrt$s1 defendirg cases at the ICTR do not run the risk

to be aneste{ simply because of their work as defence coutlsel. It is noteworthy that the

two Kenyan tawygrs wtro were accredited by rhe KBA and worked in the defence tealn

for peter Ertinder in Rwanda, were also defending an accused person in the same case as

Peter Erlinder, before the lcTR, They were accedited by the KBA. performed their

tasks and left the Country freety. In fact, foreign lawyers continued to seek admission to

the KBA after the Erlinder case, The KBA readily accredits them insofar as they meet

tbe applicable requirernents. lmportant to note is that among the defence team for

uwINKlNDl before the lcTR is one lan Edwards who applicd for accreditation and was

approved to practice in Rwanda on the same day of application ou 2nd November 20tl'

Bar membership atso has been expanded to many lawyers from various countries'

including tlre United Slates, Canada, Uganda, Cameroon. and Burundi' The most recent

adnrission of foreign lawyers took place on 25"'Novenrber 201 l.

19. Iu these circumstances. no ol'le can seriously claim that there will not be suflicient

tawyers in Rwanda. in terms of number and expedence. to deal with this or the few other

cases that could potentially be transferred fronr the lcTR. Also, nothing prevents

uwlNKlNDI.s curent corursel, Mr. claver sindayigaya. fronr Rwanda, to-register'with:

the KBA and to participate, togeurer with Mr. lan Edwards who is already accredited to

practice in Rwanda and any other counsel tlre KBA rnay assign if required, including

tlrrough the legal aid scheme. in the defence of uWINKINDI Jcan or any other accused

persons. should tlreir cases be transfened to Rwarrda'

20. ln all events, there are experienced and competent lawyers capable and willing to

represcnt effectively uwlNKINDl Jedn or any Other accused p€rson in Rwanda''-This is

the reality!

(ii) Accused p€rsons have ac,cesl t9 legal rid andpro 6aro services

Legalaidisacons|itutlonalilghtwellgrouudetlinRwontlanlawandpracticea)loday

21. Access to qualitY justice is a

Constitution. Legal aid to irrdigent

basic human right as enshrined in the Rwandan

and vulrrerablc persons, including children and

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women. is guaranteed under Articles l8 and t9 of the Constitution. Article 13(6) of thd

Tia:.sfcr Laur aiso expressly provides indigent accused with tt'.e riglrr to free legal

representation. Artictes 39 and 185 of the Code of Criminal Procedure further provide for

a right to tegal representation, reaffirnring that lhose who cannot afford counsel can seek

legal services from the Rwandan Bar.rl Notably. persons detained by the police have a

light to appointed counsel under Articte 39(2) of the Rwandan Code of Criminal

Procedure.

22. Legal aid is also provided for under the Law No. 3/97 of 19 March 1997

Establishing the Bar in Rwanda,22 Pursuant to Afiicle 56 of this law, a lawyer member of

the bar shall not "refuse or neglect lhe tlefence of an accused or lo assisl a party where

they have been uppointed to do so.'J3 Legal aid is considered and implemented by the

KBA as an essential component of the riglrt to fair trial in Rwanda. Access to justice for

all is one of the core values members and employees of the KBA commit themselves to

upholding. The KBA makes every eflbrt to meet this core value, in cooperation with the

Rwandan Government and also with international and national non'governmental

organizations, taking info account that many Rwandans cannot afford legal counsel ald

adequate legal protection.

b) Legnt oitt is functioning in practice

23. The legal aid scheme prinrarily is adrninistered by the KBA. ln practice, any

suspect or accused wlto wishes to be assigned counsel can make a request to tlre KBA'

Members of the KBA are under an obligation to provide legal aid or pro bono legal

services ro indigent persons. Articles 4 and 89 of the Bar lrrternal Rutes and Regulations

* -.orovide that members of the KBA must comply with any missions assigned to-them bY

the Bdtonuier. including in relation to legal aid services. The assignntents nomlally

rotate alphabelically to next counsel on the roll. only flre Bdtonnier can witMraw an

'' as"ig-nmenf if goodliasons are shown. Again. where required or necessary' the Bar can

assign seveml counsel in one case'

t'Articles 39 and lEl of thc Codc of Criminal Procedutc',t,r,rti"lrs j6.60-61 of t6e Law Eslrblishing a Bar in Rwanda.:' Article 56 of the Law Esublishing a Bar in Rwnnds'

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, l'91)' '24. The KBA assigns counsel to r€present an accused upon certifying his or her

indigence, lndigence is assessed by mere prcsenlation ofan indigent certificate issued by

local authorities pursuant to Article 26 of Law no. 09/2006 of 2 March 2006 modifying

and conrpleting Law no. 18/2004 of 20 June 2004 relating to the Code of Civil,

Commercial, Labour and Administrative Procedure. In practice however, the certiticate

of irrdigence is not requested from detainees. The sanre applies to UWINKINDI Jean who

is in the sarne category of detainees, henceforth eligible to benefit from the legal aid and

pro bono services if he so desires. Thus. assuming that UU/INKINDI Jean meets the

requirements for benetiting from the legal aid ptogranr, his right to (free) legal assistance

will be futly guaranteed if his case is transferred to Rwanda for trial, in application of the

legal provisions recalled above. r_

25. Approximately 40 apptications for legal assistance are received every week. The

applications are reviewed on a weekty basis by a legal aid officer employed by the KBA'

There are 24 staff members enrployed by the KBA to inrplement. in pracfice. the right to

legal representation. An Bttorney on duty then reviews the applications deemed complete

to delermine whether the cascs need to be defended in court. If it is determined that a

fonnal rcpresentation is required in a case, the application is referred to the defence

bureau for appointntent of counsel. -The

process takes about one *eek,- i.JEe6iFF:-

counsel is formatty appointed, where necessary, to provide legal representation within the

legal aid scheme. During the pasl 4 years. the KBA provided free legal assistance to

approximately 4000 accused persons,

26. In all events, the KBA. conrprised of hundreds of lawyers well verJ in criminal

laws and procedr.res applied before the courts in Rwanda, is equipped and committed to

make available suffrcient and conrpetent lawyels to attcnd to the interests rc-f

UWINKINDI Jean or any other accused person transferred by the ICTR, in the context of

_ the legal ai d qnd prq bono services. lt hereby reiterates that its members are con'rmitted lo-.. ' - : -

conrply with ttreir duty to provide all tlre legal assistance that would be requiied' shotrtd - --

UWhIKINDI Jean or any other case be transferrcd to Rwanda from the ICTR' including

through the legal aid scheme. Rwandan lawyers. including those enrolled in ilre ICTR list

of defence counsel, are witling to take on UWINKINDI's defence or any other ICTR

cases transferred to Rr+anda for tial, Members of the KBA are also willing to take on

lhe case together with any foreign attorney duly registered with the Bar, as the case may

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be. Again, following the anest of Mr. Peter Erlinder in Rwanda, ttre KBA extended the'

legal aid services to him by assigning 5 Rwandan defence counsels (subsequently

reduced to 2, upon his request) who worked with two foreign counsels from Kenya.

c) The fundhg of the Rwondon legnl aid progrnm is odequate when ptoperly

assessed agoinst tar$ appltcthle ln Rwanda by members of the KBA

27. Articles 60 to 63 of the Law Estabtishing the Bar stipulate thal lawyers, members

of the Bar, provide legal assistance and reptesentation to indigent people and are paid

from a legat aid fund, which draws its resources mainly from government subsidies and

other contributions. The Rwandan Government makes available in its budgel funds for

providing legal assistance, inctuding for transferred cases, These funds are disbursed to

the Bar through an agreement with the Ministry of Justice. other fi:nds are disbursed

througlr the Maison tl'Acc|s a Ia ,luslice (MAJ) set in each District throughout the

Rwandan territoly. Budget lines are reviewed every 6 months and can be amendcd where

necessary, The Covernment flrough the Ministry of Justice therefore established a

working relationship with fte KBA to effect legal representation for vulnerable and

indigents persons.

2g. The KBA has been enrering in contracts -ryith the Ministry of Justice ti$t2007-o:. .:--::==::--

implement legat aid to vulnerable and indigeflt persons in donrcstic cases' The current

contract took effect on 2 Juty 2010.24 [t mainly concerns legal assistance to minors

charged with crimcs and female victims of sexual viotence, but does not prevent the Bu

from providing legal aid to other vulnerable Persons' inctuding. without limitation'

indigent adults,2s The Minislry of Jtrstice provides a monthly stipend of 300'000

Rwandan Francs ('RWF-) to each of the 24 staff members employed by the KBA to

work in the legal aid program.26 Th, Ministry of Justice also pays the KBAi00;[QQ---*-- ---

RWF per month to cover communication and oth€r operating expenses associated with

the legal aid program.l? Thus, the Ministry of Justice is already committed to pay a:-----'-:

2u ('ontrct d':lssislonee I De Reprdsentallon En Jilrtice'tt c'ontt'al d'Assislance E! De Reptisentatiou F'tt Justice '2o ('oulral d'Asslslonce El De Reprdsenlatiott EnJutlitv'17 ('ontrut d'.lssktance B De Rept'dsentatioa En Justicc'

Juty 2010. Anncx 3 to thls brief'July 2010, Artislc Premier.luly 20l0' Art iclo 8' | .Juty 2010, Art iclc t . l .

ermtt ; bcr:oudurtondot 97€gnoll.con

-,

, i3og tmininrunr of 90 nrillions RWF to support the Bar Association's provision of domestic J

legal aid services in the 3'ear 201 1.28

29. T[e funds allocated by the Rwandan Governmetrt for legal aid services are

significanr, First, it should be recalled that lawyers do not thenrselves charge any fee

under the tegal aid scheme (pro bono cases), notwithstanding the nature of the case or the

accused person, For example, the counsel assigned by the KBA to defend Peter Erlinder

eould nor and did not charge any fees in relation to that case, It is mandatory for every

Bar member assigned to provide the required legal aid. Second, a proper as,sessment of

the adequacy of the funds available for legal aid and pro bono services can be done more

appropriately against tariffs applicabte in Rwanda. In this regard, the Gsneral Assembly

of the KBA has adopted and lawyers apply the Rdglement sur le Bardme des Honoraires

et des Frais, in application of Arricles 7l to76 of the Lsw Establishing the Bar. These

rules detail the rariffs and fees the KBA deemed adequate and applicable in Rwanda.

Lawyers in Rwanda calculate their fees based on the value of the case in liquidated terms

(first nplhod), based on the services performed (second method), or based on time spent,

To calculate the fees, the anorney takes into account, inter alia,lhe number and nature of

...: =. -...services, the urgency of the matler qnd duties required, the conrptexity and importance of

rhe case in borh law and in facl the risk and r-sponsibility assumed by rheailom-ey;Fis =:: -

conrpetence in the subject matfer or the time sp€nt. For example. in crirninal cases?-

including genocide cases, an attorney can charge belween ?5.000 and a maximum of

500,000 FRW for defending the case at first instance, whereas a maximum of 750'000

FRW on appeal level,

30, comparing the arnount available with the cost for the defence of an accused

person in the United States, France. South Africa, Kenya. other countries, or at the ICTR': -

would be nrisleading and ludicrous. ln order to nrake any such comparisott, one should

bear in mind thar at the ICTtsol in other countries, the tarifls applied are deternrined.

taking into considemtion factors that do not apply in Rwanda. Fot example; the cost for

the defence of an accused person at the ICTR certainly includes pafnents that are not

trecessary in relation to a case handled in Rwanda (at least for a Rwandan attorney

residing iu Rwanda), including the several travels to and fronr Anrsha and field nrissions

2' ('ontnt D',4ssistance Et De Reprilsentation DtJrtstice, I July 2010' Articl€ E'2'

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t-

of members of the defence team. For a case in Rwanda involving a crime committed in

Rwandan tenitory. a large part of the investigations would be conducted locally.

Importantly. such investigations would be primarily conducted by the judicial police.

which atso lakes the writlen statements required for the dossier or by the parties. The

judiciat police uses its own funds allocated to thern through the Ministry of Internal

Affairs.

31. Finally. the KBA recalls that num€rous cases similar to that of UWINKINDI

Jean, in tenns of lhe crimes alleged and the position or influence of the accused at the

tinre of their conrmission, his classificalion as Calegory 1 offender, have betn tried in

Rwanda over the years.

32. The KBA also notes that notwithstanding the availability of funds. it never turns

down a request for legal aid services, when and if the applicant meets 1he requirements,

d) Orher inltiatives supplement the provisiott of legnl aid sertlces funded by the

Governnrcnl

31. There are also other initiatives that supplement the lcgal aid program provided by

the KBA and funded by the Rwandan Coventment, ensuring a wider provision of legal

aid throughout the country, For example. as mentioned above, the Ministry ofJuiliC-Stf=-

up the Maison d'Accis a la Justice (MAJ) - legal aid centres - which provide legal

assistance to people who cannot afford such services, In July 2009, the Ministry of

Justice also paid for the legal representation of numenous youllg ofl-enders whose cases

were pending before the courts, As part of the Legal Aid week program also put in place

by the Governmenl of Rwanda in 2010, lawycrs visit prisons and hold group sessions

wilh prisoners. giving them legal infomation and advice; raise awareness a{nongst the-

gencral public on the existence and role of the various legal aid providers likc the KBA'

Such a Legal Aid Week was organized in collaboration between the Ministry of Justice'

the Legal Aid Forum. LINICEF, DANIDA and the Embassy of the Kingdom of-the.--.='- '

Netherlands during the week 8-14 November 2010. Sonre 162 young offenders benefited

t'ronr the program during that week and their cases were fast tracked and heard befone

courts across the countrY.

\

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,i434. International non-governmental organizations such as Avocats sans Fronti0res

(l.awyer: v'ithcut Borders) also provide and fund legal representation for vulnerable

pe1sons, Lawyers without Borders pay lawyers to represent defendants. The KBA work

closely with Lawyers without Borders. This cooperation is an antrual one but which has

been in existence since 1997,

35. The KBA also supporls lnternational Bridges to Justice (lBJ) in the "Know your

Legal Rights" canrpaign, which teaches people, through posters and tows throughout the

counlry, to denrand that legal rights are upheld. On 2 and 3 July 2010, the KBA and IBJ

also held a two-day legal skills development training in Kigali, focusing on skills and

confidence lawyers need to mount vigorous defense ofindigent accused.

36. Finalty. national non-govenmental organizations such as HAGURUKA also

provide and fund legal representation for vulnerable persons. HAGURUKA is an

association founded in 1991, devoted to protecting the rights of vulnerable people,

particularly won:en and chitdren. including by providing legal assistance and, where

applicabte, paying the fees ofthe lawyers representing such people'2e

(iii) In prectice, Rwardsn lawyers work in good conditions withosl:,:{n}::.,:=

imiedim"nis materially affecting their investigetions and the prescntation af the

defence csse before Rwandan courts

n) Rwondo lnwyen ore legolly protecterl nncl lrove no lear to coffY out their work

ontl present vigorous defence

37. lrr today's Rwanda, lawyers, nembers of rhe KBA, work in fairly good

conditions, that is without interferences from Govemnren! agents or impediments

materially affecting t5e discharge of their duties or the defendants' fair trial:rights;sueh-- *:=-

as the right to obtain altendance and examine defence witnesses or the right to conduct a

defence of one's choice. Decisions of Rwandan lawyers to r€present or decline to

reoresint clieuts therefofe are not influenced by any fear of possible reprisaltthreats;-

political or econornic consequences. This is valid for defence teams defending all kinds

of criminal cases. Defence teams in genocide trials have not encountered particular

difficulties that had mat€riatly impair their ability to mount and Pre.sent proper defence,

t h ltp :. r'lnr. hagwrita, or2. nr/.

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38. Rwanda lawyers are legally protected in carrying out their mission by stalulory

and practica! im::runitirs, which allow them to conduct investigationsi prepare lheir case

and present evidence at trial. There are legal provisions on thc immunities for both

lawyers and witnesses, wlrich exempt then fiom prosecution for words spoken and any

posirion taken in court. For the case of UWINKiNDI Jean or any other case that nray be

transfened to Rwanda for trial, the anrendment to the Transfer Law also provides that

..Without prejudice to the relevant laws on contempt of court and perjury, no person sl'ra[[

be criminally liable for anything said or tlone in the courses of trials."lo In addition. the

KBA is also capable of defending and always stands for any of its members' It is

noteworthy that in the past and whenever it was necessary, rnembers of the KBA publicly

defended the integrity of their profession and the immunity and rights of lawyers against

any undue interferences by Rwandan authorities, the police or other state agents.

39. Members of the KBA have therefore defended and continue to defend vigorously

high profile cases, involving head of local govemm€nts, the former President of the

Repuhlic BIZIMUNGU Pasteur, or the political opponent INCABIRE Victoire, Deo

MUSHAYIDI Deo and many others. They can attest that tlrey were able to conduct

investigations and present witnesses to det'end against the prosecution allegations' In all

the aforesaid cases. the defence teams had favourable conditions of work. with=higll'-.:--:':-'='

capacify to investigate, find and call witnesses. They also defended persons accused of

genocide effectively. As trained professionals' they dissociate lhemsclves from the

crinrinal charges teveled against any of their clients and defend them elfectively. The

KBA is nol sware of any accused person who has ever failed to find a counsel of lris/her

choice simply because lau,yers were scared to defend the case'

40. Contrary to unfounded atlegations. there has never been any case of a defence

counsel in Rwanda who has been persecued or evetr fled the country and seek asylunt

abroad, due to Governrnent threatl after he or she defended clients in sensitive cases or=:='-:==:

genocide cases. The rcality is that Rwandan lawyers have defended sensitive daaa and-- ' --

- '

continue to practice in Rwanda. Cases in point are Me MUTEMBE Protais and Me

KAZTNGU Jean Bosco, who were Counsel for former President BIZIMTNGU Pasteur

r0 Sec Artacle 2 of the organic Law Modifying and Complemcuting the organic Law No. I l/2007 of l6 Marclt

:OOi Conccrning rhe Tra;sf;oiCascs o ih"iepublic of Rwanda-from the lnternational Crinrinal Trlbund fot

Rwanda and othcr Stales [enrphasis addcd].

; E-ntoll t borrcoudurrondal9gTOgmlll.cottt

and NTAKIRUTINKA Charles and Bishop MISAGO Augustin, Me MUTEMBE whci

was Counsel for the genocide case of Belgian Father Guy Theunis, Me GASHABANA

Gatera who was Counsel for opposition leader MUSHAYIDI Deo and currently Counsel

for INGABIRE Victoire, and rnany other lawyers who are all $ill discharging freely their

professional duties in the Country.

4t. In genocide cases, mentbers of the KBA have been able to present the fullest

defence possible, by adducing evidence refuting the allegations and charges against tiern,

without advene consequences or interferences fiom the executive against the lawyers or

defence rvihresses. In this regard. Article 44 of the Code of Criminal Procedure stipulates

that,.ifevidence proving the offence has been adduced. the accused or his or her counsel

should submit all the gounds of his or her defence, indicating why the claims should be

dismissed, proving that the allegatiorrs against him or her do nol constitute a crinrinal

offence or that he or slre is innocent nd all olher grounds to counter attack prosecution's

cas.."3' Thus, nothing prevents a defendant to mount a defence that, i.e. the crime he was

charged with was conrmitted by otlrers, including Tutsi, RPF soldiers or else.

42. The number of acquittats obtained at all levels ofjurisdictiou is another indicatiou

tlrat defence teanu arc able to conduct their wo* effectively and have been successful on

numerous occaslons.

43. Again, members of the KBA, who are still residing and practicing in Rwanda,

exprcssed their wiltingness and agreement to be assigued as defeuce counsel by the ICTR

to represent any Suspects or persons accused of genocide, crimes against huntanity and

war crimes before the ICTR. Their narnes have been already included in the list of

potential defence counsel from which the. ICTR Registrar allows accused-

indicate three names of counsel they would like to bc assigrcd to tfieir case'

persons to

A There is ni material'iipiaiiliini ii the eonduct of delence inv*tigtttlons .-_:;::.;;-='-.:,-

44. It should be lirst recalled tlut

responsibility for investigating crimes.

documents relating to the offences.

in Rwanda, the judicial police has the primary

The judicial police also receives complaints and

searches for perpetrators of the crimes, their

rr Emphasis added,

: . ' ] . ; 1 : : : . ' . . . : j * : , i . : : ; l - ] i : ] ' ' . . : i : : } : ! ] ' : ; , ! : : : : : : : : , : i ' j ] l : i ; : ' : : . . : : - : i : : ' ] l . ] : i l : :

"'' f 3q'- - . r - - | -

accomplices and accessorics.32 Pursuant to Articte 22 of the Code of Criminal Procedure,

,.Judicial police ollicers shall rammence criminal investigation on their own initiative,

following a complaint or upon instructions from the public prosecution." Article l9 of the

Code of Criminal Proccdure requires the judicial police officer to gather evidence for

both the prosecution and defence. The judicial police officer tlrerefore intenogates

suspects and all potential witnesses and records their statements.ll After the

investigations. the Judiciat Police olllcer transmits the file or dossier, containing both

exculpatory and inculpatory evidence, to the Public Prosecution Service' which will

transfer the case to court for trial, onty if the dossier is complete.3a

45. The judges who receive the case can send it back to the pros€cutor for further

investigation if they consider that the case was not fully investigated' Pursuant to Article

46 of the Code of Criminal Proceedings, "Upon request by a public prosecutor, or parties

or on its own motion. a coult can issue an order to tender any evidence which it thinks

can settle disputes. In order to decide a case' the court is under an obligation to search for

evidence that has escaped tle attention of the prosecution, the complainanl and the

accused person or the ir counsel." The judges also may travel to the crime scen€ or travel

to location of witnesses so that they tesrily with reference to the surroundings where the

crime was committed.

46. An accused penron has a constitutional right to inspect the dossicr compiled by

the judicial police.ls Defence counsel may, when and where he or she deems it

rrecessary, ask the judicial police to complete the investigation, including by

supptementing statements found in the dossier'36 Defence eounsel can also investigate

and develop new teads, inctuding during trial. They can request the police to interview

and take ,t"t"*"nt, from additional witnesses tlrey identilied' Pursuant to Articleil9 of - - - - "

thc code of criminal procedure. the police are obliged to comply with defence's requests

for further investigatioru including by interviewing additiona! witnesses they identifieo- - -= -'--

Where necessary, the defence can requesl the intervention of the prosecution' which is

responsible for the judicial police. or r€quest an order from the tribunal directing tbe

rr Articlcs I E- 19 ofthe Code ofCrhninal Procedure'

" Article 26 of the Code of Criminal Procedure'!t Articlcs 43 and 43 of thc Code of Crirninal Procedurc'rr Article 18 of thr Constirution-oiim nepublic Of Rwnnda; Sae "llto

Aflicle 64 of the Rwandan Co& of

Criminal Proccdurc.'6 Ministry Of Justice, llannl ofJucliciol I'olice,p'51'

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. "

l T i j-.8-\tz_{police to act fully on their requests. In practice, the judicial police complies with such

requests for additional investigaticns or supplentental information.

47. Rwandan lawyers also routinely conduct their own criminal investigations both in

Kigali and in the provinces, withoul interference or paflicular difliculties malerially

affccting their work. Where defense counsel want to interview a detained witness, they

orally asks the prison authorities to rneet him/her, and within a few minutes, they are

allowed access and can talk to the witness for as long as they want. Of course, no prison

offrcer can deny a counsel access to his or her client. All this is done in total rcspect of

the right to privacy at the prison prenrises, In practice, where defense counsel want lo

satl a witness fi.om abroad, they are also able to do it freely without any intervention from

the authorities. In case the witness needs a visa, then counsel can contact the immigration

authorities to facilitate the witness' entry,

48. Thus, irr practice, defence counsel are able to produce at trial supporting evidence

through defence witnesses. Thcir and their ability to find, interview and produce

supporting witnesses during trial in Rwanda havc not been materially inrpaired in recent

years.

c) In practice,delence

wltnesses arc willhtg and even come lorwird to teitify lor the

49. Members of the KBA have dealt with numerous genocide and other criminal

cases before tower courts, high courts and the Supreme Court. In tlreir experience,

accused persons are able to avail themselves of their right to Pres€nt witnesses in their

defence. They can attest that, in practice, the rights of accused persons' such as

UWINKINDI Jean, to obtain attendance of and examine defence witnes5gs, ,al€=.0ot -- .

infringed.

50. Witnesses and victims have come-forward freely to give testimony for b,o!h t!q;1, ,-- -

prosecution and the defence, Th€re is no particular difliculty to convince them to teEtiff

on behalfoftlre defence, including for persons accused ofgenocide,

51, Accused persons have been testifying in theirown defence and calling witnesses

to refute the allegations against them or explaining what according to them happened at a

particular location whcn and where tlre crimes charged were committed. Accomplices

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-,38have also testified in numerous trials. In facf. any witness (whelher as an accused or not;

is allcr.:red lo testify on th€ facts he cr she has knowledge of in a nsrticular case, with tire

exception of a suspect who may not be heard as a witness against his fellow co-accused

in tlre sarne case as specified in Article 59 of the Code of Criminal Procedure. However,

in practice. such a suspect can be heard as court infotmer, although his or her evidence

has to be supported by other evidence. As a result. he or she does nol testify under oath.

52. Allegations rhat witnesses refuse to testify for the defence because of potential

threats. harassment. and violencc before, during and after giving testimony therefore are

against the reality experienced by Rwandan lawyers on a daily basis. Article 13 of the

Colstitutiorr prohibits revisionism, negationism and trivialization of genocide, ln

practice. Article 13 of the Constitution does not qffect the working conditions of defence

counsel and the right to fair trial. In other words. there is no risk of accused persons not

beirrg able to adduce evidence in their defence because of the law on genocide ideology

or other prospective or imaginary threats. Tlte President of the KBA is not aware of any

case w6ere a witness has rcfused to testify specifically because of the alleged fear for

reprisals, tfureats. harassment, arrest or accusations of harbouring 'genocidal ideology'.

Hc is not aware of any genocide case where a defence witness was arrested_ * h_"1t::9

by police sinrply because he or she was a defence witness. He also has not experiened'

any situation where an attorney was prosecuted underArticle 13 of the Constitution for

his participating in the defence of a genocide suspect or accused, or for putting a strong

defence in defcnding agairrst genocide allegations. ln fact, members of the KBA have

det'ended persons accused of "genocide ideology" and it is well-krrown that a fairly good

number of such trials also resulted in acquittals'

53. The KBA notes that for nrore than l0 years, witnesses residing in Rwan-da hair€-

been testifying on behalf of the prosecution and the def'ence in proceedings held in

foreign countries. such as Belgium (BuUre Four Case) or Canada (Munyaneza)---d -' - -' "

parricularty ar the ICTR. in relation to criniCs eohrmitted in Rwanda in 1994. Witnesses - -

were able to testify for both the prosecution or the defence in various cases and no one

prevented any of them from retuming to Rwanda. Witnesses may decide to stay abroad

for nrrmerous personal reasons, But the reality is that tlrey returned in their very large

/ i ; r : l , l r : : j * r . : ; : r : : : i : : , i . ' : " : : i : : i : : r r ' : t - : t i . : i : , . t : ' , r ' ! : r . 1 . r . : r ? .

-&l ;

55 ,

majority.lT 'l'he KBA is also awane that prosecution and defence tearns frorn foreign

couniries conduct investigations in Rwanda where they hear Rwandarr witnesses for both

the prosecution and the defence. Such witnesses are heard in Rwanda and remained

frecly in the Countty.

54. lmportantly, where nccessary, there are legal rneans and enforcement mechanisms

to facilitate or ensure att€ndance of witnesses residing in Rw'anda. These provisions are

applicabte to both prosecution and defcnce witnesses residing in Rwanda,

notwithstanding any risk of arrest for personal criminal activity or other hypothelical

concern. Tlrus, pursuant to Article 54 of the Code of Crinrinal Procedure:3E

A public prosecutor can Sunlmon by using written notice, sunlmons toappcar or wanant to bring by force, any P€rson he or she thinks hassome ilnportant information to give ['..]'

Any person summoned hr accordance with the law is obligated toapp€8r.

Pursuant to Article 55 of the Code of Crirninal Procedure:

A public prosecutor can isstte a warrant to bring by force any witrresswho has defaulted to appear.

Any witness who is legally suntmoned and fails to aPp€ar without anylawfut reason, or wllo refuses to discharge the obligation of testifyingcan be handed over to court withorrt furtlpr formalities.

A witness who defarrlts to spp€ar after being summoned for the second

lirne or who, after being called by warrant to bring him or her by force

advatrces legitinrate reasons is absolved from punisltment.

Pursnant to Article 57 of the Code of Criminal Procedure

A witness who fails to appear to testify without advancing anyjustifiable excuse after being sumnroncd in accordance with the law orrefuses to take an oath or to testiry after being ordercd lo do so can be

sentenc€d to a tnaxintunr putrishment of one month and a fine which' does not exceed fifty thousands (50.000) or one of them' If need b9,

public force can order his arest following a warrant !o bring him or her

tt For cranrple, nurnerous witncsscs testificd. sometintes in scveral cases. before the ICTR and returncd frcely itt

Rwanda, n't andans tcstified in Belgium in the famous Butarc Four Case, conccrnin8 thc arial of Vinccnt

Nteziman4 Alphonsc Higaniro, and two Bcncdictinc Nuns Consolata Muhangango (Sccur Genrude) and JulicnncMukabute6 (S'cur Kizito) from Sow Covcnt, Eubrc Pftfecture, See ArCt, Cour d'Assises de Bruxelles, E fuin2001 (www.nssiseslwanda2(D | .8e). Morc rcccnaly, Rwandan citizens testificd in the,t Law No,20AOO6EZZ lpril 2006, ttorligtng om! Conplenenting lhe Llll,r No. 13,2004 of 17 t4o1'2{n4Relating to tlu Code of Crininal Procedrre.

lp, STCa Kgnll ; Ttl, 292580600 ; E-irall I barrccrdtrmgndat99/€grnotl.cott

56.

,f3Oby force issucd by a public prosecutorcharged with investigation ofthecase.

57. In fact, victims and witnesses can be compelled to give testimony as early as the

investigation phase. Pursuant to Article 26 of the Code of Criminal Procedure. a

"Judicial police officer can as well intenogate arry person presumed to have any detail to

clarify. and compel him or her to give testimony." Pursuant to Article 27 of the Code of

Criminal Procedure, "Persons summoned by a judicial police officer for investigation

reasons are bound to appear belbre him or her. Failure to do so. he or she may issue a

wauant compelling them to appear."

58, Furtherrnore, there are suffrcient guarautees in place to protect witnesses before.

during and afler trial. Rwandan witness protcction proglam, particularly through the

Wiuress and Victims Protection and Assistance Unit (WVSU). works well in preventing

intimidation and harassment of witnesses, responding to any allegation of tlrreats or

irrtimidation witnesses may face and ensuring their security and safety, including by

providing accomnrodation and transport for trial when necessary. The experience of

menbers of the KBA is that both proseculion and defencc witnesses are equally entitlcd

to and beuefit from fte WVSU's protection nleasurss. This proteclion is usually put in

place durigg the initial phase of the investigations. Thc prog;ram also deals with incidenrs:::'

4

related to witness security and safety'

59. protective measures can be also ordered by judges in domestic cases. Judges can

order that a hearing be conducted in ctosed session, in application of Article 145 of the

Code of Criminal Procedure. The KBA noles lhat in case of transfer, Article 14 of the

Trarrsfer Law provides that the High Court "shall provide appropriate protection for

witnesses and s|all have the power to order protective measures sinrilar to tliose set fofth

in Articles 53, 69 and 75 of the ICTR Rules of Procedure and Evidence."

60. In all events, no judigi{ systgrn can guarantee absolute witness prolectioqsrthe --"--''=-

attendance of all nnd any witnesses the parties to a trial wish to call. Victims and

witnesses also may have tons of reasons to accept or be reluctant to teslify for either the

prosecution or the defence. including personal reasons, The KBA however can attest that,

in practice, victims and witnesses resident in Rwanda have willingly testified in favoc of

the defence in nurnerous cases, including genocidc ca.ses or high profile cases. Here too,

8,P. 376e Kgolt ,' Ttl, 2a25/|W), E-n€al I borlcoudurcn&1997e9n'all.con

-t21the important acquittals rate in gerrocide case attests to such a reality. Defendants have

r,-r"ril :c.{uitlec! ei tho: tria! level in light of compelling evidence fron defence wiinesses

exculpating them. Some convictions also havc been overturned on appeal. This is the

reality in today's Rwanda!

D. Conclusion

61. No legal system in the world is absolutely perfect. The KBA is not claiming that

Rwandan justice system is more perfect than other legal systerns tlrroughout the world.

The KBA sirnply attests that in practicc, there is no impedimcnt rcgarding adequat€ logal

representatiorr and access to defence counsel, including through legal aid to indigent'and

wlnerable percons. or the working conditions of lawyers, which systematically prevents

or mateilally irnpairs the implementation of fair trial in Rwanda. Allegations to the

confary are unfounded. unfair, and based on fictional or outdated rumors or incidents.'lhey ignore the reality of the current functioning of the Rwandan legal system.

62, This reality and of the infonnation given in this amicls brief can be ascertained, if

need to. through a visit in situ by the Referral Chamber and the parties. Such a visit will

further convince the ICTR judges that Rwanda is willing, ready and adequately equipped --

lo render fair and proper iustice in all respects, in the case of UWINKINDI Jean and any

other case transfened to it fortrial.

6J. The Referral Chamber should therefore allow the ICTR Prosecutor's Refenal

Request" under ICTR Rule l16is, to transfer the case of UWINKINDI Jean to Rwanda.

Such a positive decision witl be in the interests of justice and national reconciliation in

Rwanda.

RESPEC'IFULLY S UBMITTED,

t3sl. Me. RUTABINGWA Athanase, Lawyer and Prcsident of the Kigali Bar Association,certify that this amicas curiae brief is submitted on behalf of the Kigali Bar Association.It is filed in compliance witif thc lC'fR lTeferral Chamber and in support of tiieProsecutor's Request, under ICTR Rule llbis, for the transfer of the case ofUWINKINIJI Jean to Rwanda.

The statements corrtained in tlris brief are truthfulto the best of my knowledge and belief,

Signed in Kigali. Rwanda. this 26'r'day of April 201 l.

Association

E,P,3762 Klgalt ; T{1. 25?5|o6,0o I E-nrcll r bqrcasd&rryordolggTOgnotl.corn

HI

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24

t,:r; ! i ' t- i: i :.:t:r:.::r 1..;-:t: l ::t:::r:t!.:::rri:::._:: i: jr j,!..: j . l

,J,47,,,

Annex I : ordre des Avocats, Barueau de Kigali, Rdglement d'orclre intirieur (,,BarInternal Ruies and Regulations"),

Annex 2 z Law No. 3/l 997 of l9 March 1997 Establishing a Bar in Rwanda, OflicialGazelte of the Republic of Rwanda, No8. l5 Aprit 1997 (Law Esrablishing a Bar).

Annex 3; Contat d'Assistance Et De Reprtsentation En Justice,l July 2010.

25

Q4

Annex N

, r t - /

/

REPUBIIC OF RWAI{DANAIfONAI PUBIIG PROSECUIIOH AUI}IORITY

ONCNXC NATIONAT DE FOT'RSUITE JI}DICIAIREU BUSf{IT*IJ ACYAFTA EU XUNU

, TRJAL CI{AMBEB II

Judge Florence Rita Arrey; hesiding

Judge Emile Francia ShortJud.ge Robert Fremr

Mr. AdamaDieng'20 June 9011

TNE PROSSOUTOR

v.

JEA}il UIVTNKIND]

C; t". tcrn- aatait' /s-r r rut

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r':fie' .='!ll= t\)| , = - c l. > 2 1

.r*l-- >Regietrar:'

Date frled:9oa

Ofii.ce Pf.$Fe lr+s*cPtottlassan Bubacar JallowJamee J. ArguinGeorge MugwanYa ..,:!iInneke OnseaA'bdoulaYe SeYeFrancois Nsanzupera

C$rqsel fsr thP,A,,PoqSqd

Claver Sind.aYigaYaIain E'd*ardsBettina.spitrker

Aptous SutiseBepublic of Rwanda

p.o. Borc 1328 KlCAU.tUfAllEA- Fhone: +350 o2t2 5&?500- Fcx: 250 0852 59t501

B$PUBLICoFnwA}IDA'sREsFof,{$ET06JUNEzCIlroRDsRTO PR0VID.E fusftllicruronu*rr'oN nEGAnDING s6

GENOCIdS CA,SES AT TIP IIIGII COI'AT

{I,:,G"'-,':,:ffi

ffiffi

1Lq.

RSgP0Ns$

r.. Tho Repubric of Rwanda welcones the oppodunity to provide

additional information for the. charnbeds cunsideration in connection with

the ICTR Progecutoy's pending applicatiou fo'r referr'al 0f thie ease to Riwanda

fo r t t i a } 'TheChanherhasasked tha tRwandaprov ide the fo l i ow ing

information rel,ating to 36 genocide cases that the HQh court presided ovor

f rom200t i to2010:(a)numberofprosecut ionanddefencewi tnegeeswho

rcstifred in eacb case; ft) IIaDne$ of counsel representirrg the nccused ih each

cass; (c) verdicts in each pasei. and (d) infotmation regarding arrang*Tuo*

made for witnesses living abmad in thoss casos'r

Bofore addressing tbese issuee, Rs,anda fust recalls that'' wilhlqapoct

t 'oanyreferredcas€s'Rw.anda,gi lYansferl,aw.guaranf,eestheaccusedthe

fo'uowing riglrts relev,ant to the Chambey's questione about the 36 domest.ic

: - -

rtherrghtto..obtaintbeattetdanceande,xaminationofvitnesseson

his/herbehatfqndertheeamecondit ioosaswitnesnesagainsthimor

hor";r

r the direction to the Prosecutor General to "{acilitate the witnesses in

grvingtestinonyincludi4gt,ho'cel iviogabroad,bytheprovisionof.appropriataimmigration.documents;personalsecrrrityas.rt'e[i:as+:-=--:.'.

prrrviiligg them medical and psychological a$sistaoce;"s and :

. ld de[i of an isdigeat aesuse'A to free ]ega] repreeentationJ

ffi case No. te?Rrz001-?E,.n11bie, order to the (lovernmenl of

Rwanda to provide r.rrti**r-ioror-"tiga Hegar;ir; 86 Genoeidle casee at the Hieh court' 6

i1iltt1li*e 18(10) of orgar-ric L3w l'io'. -04ru00s of ?{i Mav l00e' Moddvlng antl

complemo$ing t+roa-r*oie d;;f* i;, *rrid' ie io.*"Iv knorrn- ae orgnnic lraw No'

111200? of 16 March 9O0?, Cofleetnisg tr""sfo"-o{ el"t* t" tU" nepublic of &wanda fram the

lnternatioual Criminal tth""Ji"" n"*anqa and Frcnr Other $tatee'i arricle t.4ts) of ore"ni;L-;*wi' tilvsO@

"f s6 1't; s0og' Moaifving and complementing

Rwanda's Transfer Law'; Art;"l" ls(6) of Rwanda'sTransfer.Lav'

hra,F

ta3

3. With parf.iculal regard to the 36 domestic genocide ca$es over which

the High Conrt has presiiled, Bwanda observes that all of those cases

involved ap1rcals or re'riew prrcceedings.from Intormediate Court judgemenrs,

ssutences. or ordets.s The 36 Seqpcide case6 wgte no1 trials in the funt

in*tance beforcr the lligh Court; genocide trials ia the first instance aro heard

by the Intermediate Couris.6 As detailed belory, the 36 g'enocido cases over

which ihe High Court pre*ided involved judicial review of jurisdic'tional

issues, appeals &om Intermediate Court judgoments and sentence*, and

application* forpost-convictitr.n revie'nv.? *

4- In each case, tbo High C.asr.t interpreted and applied sulr*tantive or

pnroedural law relating to the prosecution of domestie genocide cases' llt; wa*

this familiarity with genocide iaw and practico that. Rwtrndtr e,ubmitteti in it's

anicus brie{ reude:ed its jueticiary "uniquely quali$ed to adjudicate the

substantiye la$' iu this case ot othsr Casos tbat may be refen'ed by the

Ttibunal."s lndeed, even the Defenee has csnceded tbat "RwantlaE judges are,--..-,-- ,

almost certainly more erperiencqd in trying germcide ea.ses than would be the

judges of almsst any othOr j'urisdiction in the rtrotrlcl."$ The records in the 36

domestic genocide cases, which ats summ&rized. balorp, trear thip Out.

A. Geuocide Cases on J$tisdictional R.qvielY

5. lesa Gahwo:yq et, a1,., case.No. BFA/GEN/005/0S/HC/KIG. Tbis €s =

involvetl en ftppeel flled &om a judguont and sentence* imposed by the

5 Pureuant to Artide 106 of Organic.lnw No. 51/3008 of I September t008 Dete:;uining the

Organisgtion. Functioning and Jurisidiction of Courte, the High Oourt hos jbriadiition to

hcau appeatn from crjrninal casec tried in tho fifet iuetanee by the Interuediate Oourcs.rt*Se.e Articlss 73 and 89 of Organic Law Nq, SU.S008 of I Seprember 2008 Determining the

Organisatitrn, F'unctioning and J'rrieidictiorr of Cou4ts-t tfie g.lmmar:ies bolow were armpiled bso€d on revidw of the relevanf, High &rurt files-

Copies of ihe relevant ordors and decigioog iuaued by ihe High Court in Kinyarwanda are

"oiilrblu for tbe Chamber's review. Because tbese naterial* arne voluhinous, Rwanda ha*

not attaehed thenr to.thie *ubnieeion'A Tlw r?rcer:rdo,r u. U.atinkindrl. Case No. lCTR-2001-76-&f fbin, Anicua Curirre Brief for thc

Republic of Rwanda in Suppo* of nhe PrOeecutor'g ApFliCaiion fcr Reforral Purguant to Rule

t 1-bis, tB b-ebruary 2011 (Rwanda Auisus BrieD, para. I2$,il The. Prosecutor u, tlwinhindi. Oaae No. t0T&900f-tFRl1bi6, l)efence Eeaponse tu the

Frseecutor s Reqq3st for the Re.fernirl. of ths Case of Jeau Uwinkfui*i to Rwanda purerrani to

Rule 1l bis sf tbe Rules of Ploced.ure and Evidence" 14 btar,cli 2011, para. 901.

3!rLI

,laq

Internediate Court on 21 December 2001. Ten of the convicted per{foil$ wet.e

sentenced to life; two were sentenced to 10 anil 15 years, respectively' In

2002, all of tbB convic,ued persons appealocl their eonvictioas. Becarrse tjhe$€

appeals wer€ iodged prior to the establiehment of the t{igh Court, it was not

ciear rrh*tt Cbanher of the High,Court p-ossessed territorial jurisdiction over

the appeale. Ttre prosecution ehallanged tbe conpei;euc'v of the Hieb court in

Kigali to resolve the appeais. O;n 25 July 2006 "the l{igh Court in Kisali

referted the appoals to the High criurt, chanber of Rwamagana' 'All 12

appeals remain pending befcrre that cotrtt. Me Ajsene Rutiyomba

reprcsentodthecouvictedpertonstrttri.raland.onappeal.

6. Celestine Higirp, Bertln Mwemezi" Charlea Basomlngero,-Case

No. RPA/GEi\rl001l/o4/\ryA. This case involved" an hppeal of a 2003

Intermediate Couri judgpment, ssnteueing l{rgrro tO six'y'ears imprinoament

and Baeomingera to lifo. Thg lntermediate cour! acqreitted tbe third

, , accuse.d, Mwemezi. 'l5nenty-eight prtreecution and eisht defence witnesset+-: -;:t:

ceatified at trial, Higiro. and Basomiugera appealecl their convictions' to the

Hieh Court. The prosoctifiorr ditl oat appeal Mwemezl's acquittal' As a result

of a changC in the law tegardiry,the competrdnce of Gacaca Courts' the lligh -

Court referrod Higisioi$ and Baeonmingelu's caSeg to the Gacaca Court for

tetrial. foIe Je*n Dam4scine Salagondoza and Mo Jean Christome

uwir,oyimarur replEeent€d the asrueed at trial acld on *ppeal.

7. chrittophe Ntohansgi/'e et ol., ctrse No- RP'1J0016/HC/KIO' The

I)efence appealed to the High Cor;r-,t to resolve a question of te;torial

jurisdiction ae to which }Iigh Court Cbamber had competence to review the

Inteumeiliate courtls judgenent and Efe:BenfqEm. The Hieh fturt referld

the rrHs€ to the lligh court, chaubet'0f, &.I$amagana, where rel-iew of uhe

lntelmediaG court';s judgement and seatebe rerrains pending' T?re accused'

is represented by Me,I,aurent Bugabo" Begau$e of the jurisdietional nature of

the proceeding, infornatio:r olt the nr'lmber sf witnesses who testified at tr{al

before the Intermediate court is nolreJl,e€ted i"'FHigh Court frle'v

4Ft

lal

B. GenocideCasgsonAppellatgFeview

8. Jesn Baptiste Bogera, case No. RPA/GEN0OO3/05/HCIRWG. This

cnse w&s an appeal from a 2000 Intermediate Corr:t j'udgpment, sentencin€l

the accused to death. Prior to tlial, the Interm6diafe Court allowed Bogera

additionai ti:me to abtain counsel. tle subsequently informed the

Intermedia.te Court that ho would represent hitnself. Tlwo defencp witnesses

and two prosecution rffitnessos tegtifretl at tr"ial- On appezrl, the HiSlx Cour['

by decision d.ated 99 June 200?, acqrdtted Bogera nnd vacated his $eut€nce'

g. ,4nastagp Bayingons, Datnien Ko,bwuae+ Felix Nd,ehezi,

Aphrcd.ice H6rrelig;nuna, Evari&Q l/1anyempa'rs' Qamten Kamenyer-a,

ond, Faustin iYsisobira, Case No. B,PA/GEN0019/04/HOCTYG'- ThiS is a

multi.accuse.d appeal fium a 2001 Intermediate court iudgment, sentencing

five acrgsed to lile and two accus€d to, de4th. Ten defence witnes$es End 12

prosecution witnesses testi{ied at tr{a}. On appeal, the F{igh Court acquitted

Kamen]rero an{ vaeatsd hie tleath sentence. It, affinned 'tbe leaaiaing

convictinns, but reduced Munyempara's death $ent€nce to life imprisonment

and reduced all of tbe remaining septences from life to 30 year$

imprisonment. Tbe accused were represented by h{e Paecal Gashirabake and

Me Theoaeste Niyonzima tturing trial, but it i"s not clear from the t{igh Court'

caso 6le if they continuqd to represen:t them on appeal'

10. Job ltad.ari. and PauI l{4tnunt&girc, c*se Ntr.

RPA/GDt{0O09/04/itrCI/I\fYA. Thiri, Base wa$ an appeal from q 2OOz

Intermediate Court iudgmeut, s-.qntencing Hotlari to Ufe imprisonmo'nt and

KanEmugire to death. Tventy'lhree defence witnesses and 24 pmeecution

witnesses testified at trial. Both convlcts appealed. Oa 15 June 200?, the

High Court affir-med the-Igterusdi;ate CoUrt's judgement and sent€nces. IVle

Vincent Ka*ngwa and Me C,hristian Ndondera represented Hcrd*ri and

Kanamugire at trial *nd on aPPeaL

11. Jean Marie Yionney Jyarlbu und Emanuel HUhizirncpc. Case

No. RpAJGEN/0004/HCffiWG. This q'as nn appeal by two convicted pcr$on$

s#F

HD

from a 2000 Intdrmediatg Cqum judgement and seutence-c. Jyaribu was

sentenced to life iOprisonment; ltakizimana wa$ sentenced to rleath'lo Six

defence and six prosqcutirrn witnes.ees testified at brial. On appeal, the High

Coqr!, by decieion dated 2? Oetober 20O6, acquif$ed,Jyaribu *nd vacated hip

senience. fhe High Court affircred. Hakizimanais eolrvietion and sentence'

lvle Emile RukUndo represonted the accrrsed at tr{al. &nd on appeal'

12. Walloce Kaytnamaro, Ca$e No. RPAJGEN0011/09/I{IG' Thir: ease

involved an appeal from a 199? Interuediate COugt conviction' Se;r'en

proseoution witnessee *nd twq defence witneeses testifred at' trial'

Kal'inanura was so.Eteqcsd to life imprisonseDt- He appealed bis conviction

to the Appeal$ Cowt, w,bicb affirmed the isterTnediate court iudepg+.1'-'---Oq- -,

2S February 2010, the tligh cou* confirnred the judgemont cif the Appeals

court. Kayinanruga was rep{s$entod at trial and on appeal by }'Ie Kerry

Brahlma, Me Kader Chsibu, andJvle Diahira'

13. Stanislas Nhtilihilirttw'a' snd Nw'u Sibprnana' Casb-N6-: -- --

RPAJGEN0010i04/HC/|.|YA. Thin case wa*q an appeal from q 2003

Iutormodiate Court judgement, seutencing Nlulikiyimfura to 14-yeare

inp:,isonment arrd sibomana [o tro-yeare i"mprisonment; :Ten defence - -

wir.oesses and tr6 prosecution wil,nesses tsstified at trial' On appeal' the

Iligh court, by decisioa dated 29 May 900?, asquitted both accused, l{3

Theophile Kazenezs repteeented. the Bccuqed before the High Court; IvIe '

Fabius Ga'rsana and Me tibelatha Mukahinenyi repre$ented the accused

before the trntelrrediare Court'

14. Anastaee Ntahirend,e. case No. RFA/Genl0001/05ft{c/RwG' on 18

December 2000, the Interroet{iatc Cstpt conVicted Ntakir"ende and sentenced

him to li.fe imprisonnent. Five' prqpecutisn rvitaesses antl three defence

qritnesssr t€$ti.fred at trial. I'Itakirende'appoaled his convistions to the High

,0 sEee Orgaaic l,aw No. 6trg00s of 2r {yepber ?008, Modiiyins and Coarp.lementing

0";;;i.-I;;r.tu. :tltzoiil "i

g5 .Jttty 900? Bslatine f,o tle rlbolitturn of t'he Death Penaltv

(#ffiirC the derath ;";dtt ani subetitrtlilS Ufe impri^sonroent a's the maximum

p,lni.h***t uvaitabtre'i;b referred meos)' 6w, L

Court. On 30 August 2006, the High Court acquitted Ntakirende of tlre

charges and vacated his sentcnc€. Accorcting to the c&se filc', Ntakirentle

declined cgunsel and eloCted to repreeqnt hinrselfat trial and on appeal.

15- Agnes NtomabXariro, Leonatd, Ilategehimana, and. Fonnel

Naengiyutnuo, case :\0. RPAJGEN$Qfl?QS/KIG. This wa5 prosecutlon

appeal frour 'an lnternediate Court fuling, allowing a defence motion tr:

require I prosecution witnees to appear ss &n Aecus€d besause the wiiness'

through his testimony at tr:i41, imptieated himself in the crimes' On appeal

from this interlocutory ruling, the Higtr Court dismissed the prosecution

appeal. Mc f iateur N*engiyumva and $'1e Simon Ndiuubanri represented

the accused at trial and on aPPeaI,

1.6. Antoine Ntibingirn d, Case No. RPA/GEN/0(,91/071HC/1\{US' This

case involve<l prosecution appeal fuom a 200? IUterrlrediate Coitt ju'dgement

of acquittal. Eighteen prosecutioa witnessBs and eight rlefence wifnesseo

testified ar trial. on appeal, the High court con-fi,rmed the acquittal- Me A:

Thadee Barisebya and Me Gaehabana Gatera represented Ntibingiftva at

trial and on aPPeaI

I7. FII| Nyirim{rnzi, case No. nPI{./|GEN00S0/06&IC/IilG. In 1909, the

Internediate Court convicied l$yjrinranzi of genocide and crimee agabst

humanity, and s€ntenoed him to 16 yel8rfl imprisonrnent' Fivq.:d-qfentg -

witnesses and sir proseeution wirnees*e testified at trial' Nyirimanri

appealed his convictions to the Appeals court, As part of tbe reformation ot

Rwanda's judicial *ystem, the Appeals CourD was abolished and Nyirimanzi's

srpeal was tranef€rred to the }Iigh court. In Juns 2006, the Higb Court

affrrred his c.onvishions and sentence. Me Celine Karugu ropresenttrd

Nyirim*tnri at both n'ial a-nd on appeal'

1.8. ,Sorrson Hl,ibanie, Oase. No, fiP#GENI000?JO6/-fICEjI-fG' This case

involved an appeal frorn a 2000 I'Btermodiary Court judgementn sentencing

Ribanje to death. Following his srrast, Ribanjt wns presented wit'b

statemeuts frorn 30 prosecution witnessee. Ile wrote a letter confessing his

r{fI \

gu.ilt and pleaded guilty. Subsequeutly,. he appealed his death sentence to

the. iligh Cor.rrt, which confirmed his sentence on 28 !'ebruary 2007' .]\7l*r

t\lulc*baranga repres€nted Ribanje at tliaL on appeal, ha electsd to rely on

the closingbrief frted' by hiq trial counsel.

19, Dr, Cyrioque Sibotnari'a crnd AWs Kawpayana, C*e€ No'

RPA/CENC004l04/rm/lrYA. This ca8€ wa$ an appeal from a 1998

Intermediary Court judgemeat, 6ent€nxing Kampanyaua tq death and

Sibomana t<l life inprisonment. Fort'v'six prosecution witnesses and two

defence witnesseg teetified at trial. On appgal, the High Court' in 200?'

affirnecl the convictiOos but reduced Kalrpayana's seatence to lif"e and

Sibomar:a's *entence to 18-years impri*onment. Ms Agathe Baroan and I\{e

Sylvestre Mben reprefiented Kampayana nnd Sibomana'

20. Dr. Churlee Zirimwobsgc0Q, Case No' F'PA/GEN000?10/10/HCI

MUS. Tbis case involved an appeal &om an Intsrmediate Court cnqligtion

and seo[ence to life impriSonment. Six defence wltnesses and 2? prosecution

wiinesses tesfifred at, trial. On qppeal, tbe High Court' afnrmed the

conviction and sentence. Two defunco counsel, Me Vita Bizimungu and lJe

Neeu giyumva rep resented tbe cos\ricted p erso n'

2I. The High Cqrurt also presided over appoals from jurlgenents rendered

b1' Intermediate coults located in cyanglrgu provinee, a rural provhcu near

the border with the Democratic Repubtic of Congo' ?heee eases were tried in

the early 2t)001s while the Kiga'Ii Bar Aesociation was still in the prcr:ess of

e:rpandiag ite capaciw. Tbe files associated with t$s cases tried in Cyttngug:tt

province indicate thac, unlike tha othar geaocide cases appealed to tle Higil

Court, the accusett in soyerat of the Cyangugtr p3ovince cas€s eleqt€d to

lppreseng thsneelves. Rwenda r€cogniz€s that, at the tirno these casas were

trie{ lsgal sefeices in Cyangugu,province wore limited bath as a result' of the

provinceis distance from Kigali, wh€,Ie tbe bar aesociatios is based' ancl the

reduco,d sire of the bar association at, that time. Additionally, at the time

the$e cases were tried, the road from Kigali to Cyangugu prol'ince was not

paved, theroby maki'g travel from Kigpli to the province tlifficult'

22, Ia the years since thsse cf,-ces wefe tried, the Rwaudan government

and Kigali Bar Associ*tion havc undertaken outreaeh efforts to educat'e

citiz,enr atrout legal r{ght's and has expanded the evaiiability of legal services

in these remote provinoes. Actditionally', the province is no"v linted to Kigali

by a paved tarmac, ther:oby making it easier ,for courtsel to travel to the

province .

23. And,re Baritonda el al., clase No. BPA/CSN00g0/04fiICmSZ. This

case iw-olved an appoal from an Intorae'diate Coult judgement in a uulti'

accuced genocid€ €a€e. trn the Intermediat€ court, eigbt prosdcution

witneseg* and fsur deflnre witnesses testified. Al] .qeven a<rusgd were

convictoel and se.atonced by the lntormediate Court to sentences ranging from

t2 years to life inoprisonment, On appeal, the High Court alquittel !ry:._91 , .

the aea,used, Pascal Nturanyj aud. Etasto Munyarrshongolt, and vaceted the

life sentences irnposed. by the Intermediate Court. The High C'lourt alsn

reduce.d the life sfnte4ces imposed against the following forrr convieted

persons as indicated helow:

Andre Baritonda 25 years

Damascehe Kany.araehongore 2'6 yeu'rs

EmilP MueabYimana 8CI years

?6 ye*rsFeniya*i Rukemtabaro

24. With regArd to the,seventh convicted BerED:s, Ezokiel Hategehirnana'

the Hish court ilacreaeed the r2.year seotense imposed by the Inte'rued'iate

Court to 26 yegrs, The casq fils does not identi+ the names of any defence

counsel.

25. Jes.n Biiuguska, Case No' RPj/GEN0016/041HC/CYG' This case

invalvecl an appeal frour a 2001,trntermediate Court judgement, sent*ncing

{.

n"L

Bijugushu t<l 16 years. Three defence witneeees and 19 proaecution witnesses

tegtified at trial- On appeal, the Higb Court affirmed. the judgment aud

seutence. According to the decision, Bijugu.shu elected to reptosent himself'

26. Alph.onse Bizimana, case No. RP,.{/G8N0025/04/IIC/BSZ. This case

involver{ an appeal of a 2002 Intorn-ediate court judgement, seRtencing

Blrjmana to lifo imprimnment. Twenty'threie witnesses testified for the

prosecurioq no defeu45 witneeses testified. On appeal, the Higb Court, by

decision clated 28 February' 2006i affrmed the judgerrent but recluced the

sentence to 25 yea$. Accotding to the l{igh Court's decisjon, Bizimana

elec"ted to represent himgelf..

2i. Thomae Hotegehinano,et cI., Case l{o. RPAJGEN00ZS/04/IIC/RSZ'

Thie is an appeal frorn a 20O9 l:atcrnradiate Court jud^gemo'nt in an eight

accu.sed casn. T\nenty'$evea prosecution and eight defence eilitne'ese$ t€*tified

at trial. In March.,2006, the l{igh Corrrt acquitteil three aceueed; ]_u-q!!9d -111.

death sentsnce for one accused to 30 years, reduced the sentence forthree

convicts from life imprisonment to 12 years imprisonment, and severed the

remaining convict's appeel for separate coo.sideration' Accordiug to tfoe High

Coutt's decision, tbe accused electeil self-represeutation'

g8. Anl:oine Hsuugimano, eaee No. RPA/G9N0014/04ffIC/CYG; This

case wa,s an appeal from a ?001 Intermeslate court judgement, eentencing --

Havugirnana to five-years imprisonment' Five def,ence antl 11 prosccution

wirnesses testilied at trial. on appeal, the Fligh court affirmed the

judgement and se,trtence. Although issued in 2005, the High court ilecision

was inclqded in the 2006 furqual Report of the ,Iudiciary. Me Mukansanba

repreeented Elavugimana at trial; H*vugimana repretrented hi:neelf ou

a'Peal'

('z('' ca'Be No'2s. Pawal Ko.,yitvlra 'srrd. Pcscsl Munyansh

RPA/G8N0004/04/HCIOYG. Thrs @€e involved ao appeal fron a 20tX)

jud.gment of the Inter,milodiate Court, sentenciu'g both dccueed to life

impri.sonment. $ixteen prosecution and, two defence witnesses testifred at

10#Ir

il

trial. On appeal, the High Court acquitted Kanyirara and rcduced

Munyanshozas life .sente{ce to eight years' According t'g the decision

Kanyirara an d foluayanshoaa eletted e elf-representa tion'

30, Yamus NeBoleon Mub,iligi, case No. RPA/GEN00I3/04/HC/nSZ.

This case involved an 4ppesl frorn a 2001. Intsrmediate court judgpmeut,

sentencing Mubitrigi to death. 'Thu p"o"ecution called 46 witnesses; no

witnessee testi.fred for the defeccs. On appeal, tbe High Court acquitted

Mubiligi ancl ordered hie immediate release. Accrording to the High Courts

decision, Mubiligi. elected se lf'represeutaticn.

31. F'owstin Munyurabatur1re, Case No' RPA/G8N0004/0?/HC/CYG'

This ease was aR appeal of a 200? Interrcediate Co'urt judgemont;------'-'

Munyarabatware wr*s spntenced to 2Q'years imprisonment' Prior to trial, Che

Intormediate court asked Munyqrabataware if he wanted counsel appointecl;

hc+ dectinetl. Fiftsen pmsecution and two defenss *itnesses teoiifrt jl tria'!

On appeal, the High Court, by deci*ion dated 22 tvlay 2008. affirmed thc - - - -

judgeneni and sextence.

32. Felieien Munyunryeta i:t oL, Caae No' F,PA/G8N0003104/I{C/CT€:

This case is an appeal fesm,a 2000 Interlocutory Court judgment in a multi'

accused case. Twentf-q1e defence And seven prosecution vritnesses lestified

at trial. On appeal, the High Ccurt acquitted two accu$'ed and affirm'ed thc-

17 romai:oing eonvictions. It reduted the death seutence for one accrlsed to

life imprisohm€1t. Tbo relxtliniqg 16 eonvicts wcte sogtenced to botween 30

ycaf$ and seven years. Me Vine+nt Nta'gnuira,.Sfe Francois Kubwabo' lV{e

Innocent Ewagasana, Me Jean Marie Vianney Ngirumpat$e replesented the

accused Bt trial.

33. Muteztrmutio alia.s: Jweph, Mutezi*tsre, case ' No.

ePAJGSN00'1.0/04/fIolR$fi. Tbis ca8p. waB an appeal fton a' 2001

Internediatg Sourt judgament, seRtescing MuteZimana to nine'years

impfisonmeur. On appeal, the High CouIL reduced the sentence to three

years, nix sronths and, ordered lVlutezimana's irnmgdiatg release' Aithougil

i l l l

lL

5

: ] j i i ] . ] : : 1 . : : . . . ' . : : . , . . ' ' . ; : ' : ] ' : : | . ' i : ' : - . ] . - : : : r

ilv

iseued in 2005, the }ligb Court decision was included in rhe 2006 Annual

Ileporr of the Judiciary. Il1e Pa.scal Ahubakar Gashirabake represented

Mutezimana at trial; Mutezinana replesented himeelf on appeal- :

84. Siman llugerv find casi'']|ir Eiritnwobag:abo, case No.

BPA/G8N0008i04/IfC/3S2. This case involved an ,appeal of a 2000

Intermcdiate Court judgernent, seutencing Rugero to }i[e and Zfuinwabago to

six-years, five.month^s imprisonment. On appeal, the Higb Court quashed

Zirimwabago'$ sentence and, instead, inposed an ofd€f of roo-titution for the

Cost of destroycd prop€rfy. !!'ith xegard to Rirgero, the High Court redusld

his life sentence to 3{}-years imprisonment. According to the High Cour* caset

file, Rugern elected self-represc,nflation-

C. Genocide..Sases on Foet-Conviction Revig]'r

35. Augus:tin Hahiaimand, Caee I{0, RPidGEN00f2ru9/I{ClKIG. This

case involved an applicatiou for post-coavictiou review of a 2001 Inte_n:aediate -

Court judgement sentencing the convicted person to deat'h- The juclgement

and sentence wqt€ eubsequeatly affirmed on appeai. Iu connection with this

post-conviction applieation. the l{igh Court tlii'ect€d the sentencing cnurt' to

revies, the case. Me Veuant Nzamukwereka representrd Hakirimana boforo

the High Court.

3ti. Atesd.e Kobolisa, Case No. F,PWGEN008S/09/I{C/IilG' This caso

involvec{ a posi,conviction application fOr review of a 1998 Intermediate

Court judgement and egntence to life:imprisonment In July 2000" t'h* HiSh

Court rejecthd Kabalieais appeal from hie convictisn aqd $ontsnce' Nine

yeags later, Ikbalisi fite.d an applicatiou for posi-conviction review in thc

High cgurt. on 18 $eptem.ber 8010, tbe trIigh court denieil rclief. I{abi}isa

wai{ r€presented. before the Hig! Court by Me Domatille Mukanzigiye' At

trial before the Inter:qediat'e Court he was reppaonted by IvIe Waegebert',

Geet. fh

l 2

3?. Desiyoni Korerangabo, case No. BPA/GENQ042fOf'/I{C/IilG' Thi*

case involved an application for post'eonviction review of a 1999 Intermodiate

Cotrrl juclgement, sentenciug him to li{e. On appeal, the Hi*h Coutt affirmed

the convictions and sentence. Ka,rqrangaho, subsequently filed an application

for post-convictioa relief in the High Coru't. On 15 N<.rvenrbcr 20J-0, tlre High

Court referrcd the application to the lligh Cotlrt, C.hamber of lvlusanzi for

consideration. The case rernains pending in tbe .tligh Court, Chambe'r of

N{u.sansi. }Ie Evariste Nsaltaye?u repr€$€nted Karetaugabo before the High

Cogrt; Me Theophile K-azeneza and Me Francis Ntwali represented

Ihrerangabo before the lutelidsdiate Coult

38. Charles Karuhtiq Cnso Nu. RPA/GEN001S/09/IIC/KIG' This case

involvsd. an application for post-conviction rev,iew sf a tr99? Inierreediato

Court conviction- The Intermediate Court sentencpd Karuhije to death (b-v

statutory amendment leter reduced to life imprisonme6t), an(t Karuhijs

appealed his crraviction to the (fiormel) Appeals court. In 1998, the Appeala

Court affrrmed hi* conviotion ancl senteuce. Eleven years later, in 2009'

Ifurrrlrije frled an application ,for post'conviction review. On 241\{arch 2011'

the High Couut denied levie'w and canfirmed tbe .tp.poaln Court s eallier

judgr:lent- lyle Aimable Rwigema lk1uhije represetrted Karubike before the

High Corut.:

39. Faustin Mugaborigiro, ca*se No. RPA/G8N0009/09/IIC/KIO. Tbis

case was a post-conviction application for review of a 1998 Intenroediate

Court judgemerrt aod sentence to life imprisonmetrt' Me Moetar lepresented

Iuerl.torigira at trial. On 21 July 2000, the. Appeals Cotut affirmed his

convigtion and sentsqae. Me Etienne Ballo represented Mugaborigira On

appeal. In 2009, Mugaborigira frled an applicatlon for roview of hlor

conviction and senteneo. Blr letter dated 96 Auprst 1010, Illugaborigira

aske,tl the High court to'withdraw his application baeed on the atlvice of his

counsel, IvIe Jacqueline Ndekeai. On L3 September: 2010, thp High: Coud

a-llowed bis request for withdrawa].

t13f

revlew.A

14fJTI

,1lz

40. Espfiramce Muhamunni, caee No. RPAIGEN0019/0(jftIC/RSZ, This

ea$e involved an appeal frou at 2001 Intermediate CourJ judgment,

senteneing the accueed to life irnprisonnent. Five prosecution witnesepe and

two defence witue6ses tsstified at trial, While hig appeal was pending, the

territorial jurisdictircn of the Higb Court changed. Itris appeal was refer$d to

tbe lligh Court, Chantber ofRuhengeri. In 2006, the High Court, Charlher of

Ruhengeri referred the qase to tho High Cuurt, Charnber of Rusizi ,as *he

terr{to.rially conpetent court. In 2008, eas*et still pending at the lligh,Court,

is:luding this one, were referled to the Gacaca Corrrts for trial. As, a result

the Intermeiliate Court proeeerlings, ineluding Mukamusonits conviction

were nul,li$ed in favor of the Gacaca Court proceedings.

41. If;1arc.el Munyaborenzi And L1an',ent flarogirirna.no, ca$e No.

RPA/GON001310?/HC6IG. ?his case isyolved an applieution for poet'

conviction review ot'a L999 Lnters-rediate Court jndgCment and sentence$'

IHunyabarenzi was sentonced to death fry stabutory amendmbnilatei;- . -

reducecl to life imprisOnrne.nt); Haregirirnana w&$ eonienced to 20 years

imprisonment. BOth coavietions were effi.r,ned on appeal in 2000, On 30

Novernber 2009, the lligh Ccu* denied post'cqnviction review. Me B;";

Bitorwa represented both co$vict€d pg1gons before tbe High Court.

&. chailes Nkul,ihtyinfto, casa No. RFiVGDN0013/09/HCIKIG. Thht

case involved. an applica.tion for post'cttnvictiorr review of a genocida

conviction. On ? November 2009, the High Court rroferr*d the application to

the High Court, Chamber of Mu.sanze for review. Me trlvarlste Nsabayezu

reprcserted Nkulihildftka in conuection with this application.

43. Fel'i,aien Nyogotowte et aI., Caee No. RPA/G8N0003/09/IICIKIG.

Thie c&FQ invalved an applicedoa for pogt.osnviction review cf 1998

Intormodiate Oourt judpment iiild ;seotenqes of frve F€rsons trj life

imprisonnrent. ltbe dppaals Courf aftrmed the oonvictioas aad. $eiltfitcri$ by

judgemont entered 26 January 2001. In 2010, the fi.ve convicted persons frled

an a"pplication for post'convici,ion The Hieh Ctlurt' denied relief.

: : : : r , a : a : , . . 1 : . i ; t . * j _ r : : : r r . , i i ! :

tll:" , :5

affirming the prior judgements of the Intermed"iate Courl and Appeals Court'

Me D<rnat MutunCi representcd. the convicts on the application ftrr furt'her

review hefore ttp Hieh Court. Me Seydon Drumbia represented the conl'icas

on appeal befor.e tbe appeals court. trqle Oneairue Kaba.yabaya represented

the convicts at tlial before the Intermediate Court'

44. Rrryanda was unable to conclusively determine from its revievr of the 36

genocide case files whei.her any of the witnoscss iro the trialt before the

Intermediate Courts traveled fror:r abroad. But, given that' tbese were

domestic prosecutions, it appear's unlikely that any defence or prosecution

witnesses traveled &om abroatl.

46. Rwanda has nevertbdlesg already detailed its cooperation with foreig:t

goverlrpents in lbcilitating witqe,ss travel bottr tO and frosr Rwanda' 1l

sho.uld the charsber clesire fi,u'ther subn0iesiron6 os this point, Rwanda will

prevail upon:thosg goverpncnts to whom it has provided nutual assistnnce,

including the United Kingdom, Canada, The Netherland$' f,)eRmark, Norway'

and otbers, to confrrm its cooper.ation in the investigation" de'fence,-an4

pro$ecu[ion of genocide sase$. These submis'sioatl would lend furthel suppon

to Rwandng assertion that ibe prrvisions rf the Transf,er Law requiring tbe

facilitation of testimony frono witness€s resialing abroad will have plactical

effect.tz

coNcLUSX'ON

4$. The record* associated with tbe 3s domestic genocide cases ovel which

tho Eligh Court pre*ideil lead fulther suppart to Rwanda s subaissions that

its l,egal eystem i.s atrte in BIA€fi€e to secure the fair trial ngbts of the accueerl

in this of aay other cage thaf the T,tibunal may refer to Rwanda for trial' A's

these racords demonstrats, th6 accused -have the right to call witnesses in

D.

n Rwanda AraiCus Bdof, parar'.3?.4.5r, &e .{rtic}es l$(}$

"oii*flil of Organie l.aw J''i's' 03i?009 of ?6 Mhv 90t}9" nrodi$'ing and

complementing .ftwanda's Trausfer ['aw'

15JT

,', ' IlD

rheir defenee; be represented by counsel ifthey so'choose; abtain nrea$ingful

appellate review of tbet c,onvictions and sentences;rd and' even after their

convicdon$ havo been,affirnod on appea! apply for furthet judicial review'

All of t'heilc proiections are afftrrded in domestic proseeuticns, and they would

apply wii;h equal force to cases that the Tvibuual may rc'fer for te'ial in

Rwanda.

" t"eerJ*tlt"a-r-d in t}re 36 genocidb cases were aoquitk'd either at tri*l or on appeal

I 6

this 20sn day of June 2011' Kigali, Rwanda'

Martin NgogaFrosecutor GeneralRepublic of Rwanda

TRANSTIIS$IOTI SHEETFOR FILI.IIG OF DOGUTilEilT€ Gl,|s

COURT TAilAGEf,ffi ilT SECNO'TJ(An. 27 of the Dttccdra lu h€ Rcaieryl

I - GETIERAL IilFORTATIO}I tlre Gbanrtorg /

II. TRAII$T.ATIOH 8TATUS OIII THE F]UTtIg DATE

Trial ChafllbBr lllC, K Honietiorn

Trisl,Ghamb€r tlR. N; l(oua$bo

Trid Chamber IN. M, Ilallo

F. A.Talon(AppsdlslTearn M

Appaels Chanber/ lhe HagucK. K A, Afilndg.

Proeecuto/s ofrbe i F_"",$f

Ropobrc of , i;.;

(rrme.) i Mr.ltlartln llgpge, J

Ortgin t Lenguag!, Elenefith E rrench tr

INFORIIAT]Ofl REGARDING 3S GEIIOCIOE 6A$ES AT TIIE HIGH GOURT _

E notfirentElDedsionE Dircloture

EJ Conesponcerrce n Submlrsion fr.ofl! non'fariiesEl Notlce ef Appeat I submission fnorn partl*

Appeal Bodt n Acarssd Farthular'3Eciok of AsthoiitieB

Ex PafteStrictly Confidential / Under SealConfidentialPublic

u=N)

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ir?.e.,;iE=-da{"

trake necessafy adion regarding translsdon'

fl fiUng Party hereby submits only th€ original' 6nd rvlll uot tubillt any

E Reference material is provided in annex E facilltate translation'

CilS SHALT HOT take any ection

I ritk€ Party hereby aubmits BOTH tt|e originel and thc translrtEdrylEiln'for filing' as ft

E Hf_[* wiil bo submit$ns the tsansrmf"*"] ih due c!$Ee in

E?'*ffi:Huase(s)'KINSLY rlt|- lt'l rnE !E!!!!9!tr

fl DEFEilC€ ls overs€ehg translation.fre document ls submitte<t to an accrectrIed. service ior@nslation (fess wilt be sqbmitted lo DCDMS):Nanosf oootect PersonlName if sawlce:AddresfiE;meill Tel. / Fax

The OTP is ovErseeing transbtion'The docurn€nt is submited ior trensl€lion to:

flThe Language servlces sectim of the lc-tR {Attu$h*'E The t:nguage'Servlces S€€tion of tln ICTR { The Ftegue.E nn acoriolted sirvjcs for'trensleffbn; eoe"d€tails bdlorj

Name of oontac't peFon;Name.of servic€:Address:

NB: Thlq form ls rt allaFlo on: htp://www. knr'org/ENGLIS H&xns/crnsl'doc CUSJ {Updated on 2i JanurrY 20fl1}

t01

Annex O

t ., ,0.9

lnternational Criminal Tribunal for Rwanda

I

Trial Chamber lI

Before:Judge Florence Rita Arrey, Presiding

Registrar:

Emile Francis ShortRobert Fremr

Adama Dieng

THE PROSECUTOR

v.

Jean-Bosco UWINKINDI

Ca,se No. ICTR-200 I -7 5-I

Affidavit of Tharcisse KARUGARAMA, Minister of Justicel Attorney General

I, Tharcisse KARUGARAMA, hereby depose and state as follorvs:._.--

i:'---l am the Minister of Justice/ Attomey GJneral of the Republic qf Rrvanda. Unless

othenvise indicated, the statements contained in this affidavit are based on my orvn personal

knorvledge or belief. I submit this affidavit in support of the Republic of Rwanda's amicus brief

--:114t 94ionedlase'a 2. The Ministry of Justice provides financial

legal aid prograln. For transfer cases, in particular,

includes 92 million Rwandan Francs for legal aid.

B. An additional 30 million Rwandan Francs have been designated for,ICT[lelated issues,

fnclu-{!ng, but !!st limited to, the provision of legal assistance to indigent accused in ffansferred

cases and to coJ_er any travel or other collateral expenses related to the taking of depositions or

tcstimony in otlrcr jurisdictions.

4, Betwc61 t5*se lwu 51:paratr.. linc itums, a total of 122 million Rwandan Francs

(approximarely $205,000 U.S. dollars) is currently availablc for providing lcgal aid in transfcmcd

cases, including the captioned case.

iupport to underwrite the bar association's

Rwanda's current budget for 2010 to 201I

.1.6.7.

5. During thc summer of 2010, Rwanda's Minister of Justice commissioned a study to

exanrine potential probtems rvith the interyretation and application of Article 13 of the

Constiiurion, which prohibits revisionism, negationism, and trivializztion of genocide. Among

other things, the study is examining how other countries with similar laws have defined operative

terms and differentiated between legitimate freedom of expression and prohibited incidents of

hate speech. The study is ongoing at this time but is scheduled to be completed soon.

Signed under rhe pains and penalties of perjury this 156 day of February 2A1I

KARUGARAMAof Justice/ Attorney

l

t0{.

Annex P

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Internationcl Criminal Tribunal for Rwanda

Before:

Trial Chamber II

Judge Florence Rita Aney, PresidingEmile Francis ShortRobert Fromr

Registrar: Adama Dieng

THE PROSACUTOR

v.

Jean-Bosco UWINKINDI

Case No. ICTR-200 1-75-I

ATTIDAVTT OF FRANqOTS RfGrS RUKUNDAKTT:VUSA

I, Frangois B6gis Rukundakuvuga, hereby depose and state ae follows:

1. I am the Inspector General of the Supreme Court of the Republic of

Rwanda. Unless otherwise indicated, the statements contained in this

affi"davit are based on my own personal knowledge or belief. I submit this

a{fidavit in support of the Prosecutot's Consolidated Response filed in

the capti,oned case.

2. One of the duties of my offi.ce is monitoring the disciplinary process

of judicial offi.cials and conducting disciplinary investigations for

submission to the Supreme Council of the Judiciary.

8. From 2006 to 2010, the $upreme council of the Judiciary removed

13 registrars and 4 judges from offrce on charges related to offi.eialmisconduct, including corruption.

4. During this same period, there were usually 281 regietrars and 2gljudges assigned to aII of Rwanda's courts.

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t01

5. None of the regiotrars or judges who have been renoved Som offi.ce

was a member of the Supreme Court or High Court.

6. I aleo have reviewed the lligh Court's administrative file related to

High Court Justice Fred Mulindwa, the judge who presided over the triel

of Pasteur Bizimungu. Judge Mulindwa requested une mise etu

disponibililid or leave without pay to pursue frrrther etudiee in Canada.

His request for leave wae allowed, and he currently remains on voluntary

leave from hie offrcial duties.

Signed under the pains and penalties of perjury this jttay of April201.1

Srangois Rdgrs RukundakuvugaInepector General

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Annex Q

International Criminal Tribunal for Rwanda

1o\

Ttial Chamber II

Before: Judge Florence Rita Arrey, Presiding

Emile Francis ShortRoberb Fremr

Adama DiengRegistrar:

THE PROSECI.]'TOR

v.

Jean-BoseP UItrINKINDI

Case No. ICTR' 200 1'75'I

pit' of JM Olivier' RUKUNDAKWUGA

S.Becausenocaseshavebeen t rans fe r redso fa r , t heW?U isno t ye t f u l l y^ - ^ - J

operational. But, to assist the new unit in becoming *"::tt":1' li:*T::1"::l:

;;;';;rt;;" antl Assietance unit Owsu) withi:r the National Public

of its safe houses available to the WPA'Prosecution AuthoritY

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4. In addition, in October 2010, the Tribunal'e Witness and Victims Support

section provided a specialized training to the unit' once operational, the wPU'will

eomplement the victim witness services already provided by the wvsu'

5. Trhe Suprrene Caurt in Kigali and two lligh Court branches at Rusizi

(cyangugu) and Mueanze (Ruhengeri) already are equipped to receive video-Iink

testimony. The Intenned.iate Courts in Butare and Kibungo also have video'link

facilities that will be used by the High Courts of Nyanza and Rwamagana'

6. In addition, the German government has provided additional funding to

.rrp"od the supreme court's vide-link facility. For the time being, the High court

located in Kigali plans to use the suprene court's video-unk for any referred cases

that may require this technologY.

7. As Chief Registrar, I am responsible for overseeing the preparation of the

Ju_diciary's annrral reports on the work of the supreme court, High court and other=:=:=:-:::r l

courts. I am personallv familiar with the aontent of those annual reports' The

statistical information that follows was compiled based on my review of the annual

reports.

g. In 200g, there were 283 criminal trials before the High Court. Slightly over

200 of these cases resuJted i-n convictions; the remaining 80 cases resulted in

----.--'--_-acqlffitals., ;1rhe following chart--summarizes the rate of High Court criminal

o convictions that were reversed on appeal to the supreme court during the years

2006 to 2009:

Number ofIligh CourtJudgmentsReviewed

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lao

g.From2006to20oS,HighCourt judgespres ided 'over2,360gagesandSupreme

Court judges heard ?56 aPPeaIs'

l 0 .F r , om2006 to2010 , t heH ighCou r tp res idedove rS6genoc idecases ;and ,

during 2006 to 2008, the supreme court heard 61 appeals or other post-conviction

praceedings in genocide casee'

l l .Cutlently,therearecurrent}yggenocidecasespend.i.ngbeforetheSupreme

Court: 2 cases are on d.irect appeal from the High Court, and 7 cases are waitiag

post'aPPeal sentence review'

L2.Everyyear,thejudiciaryestabligtresacalendarforprofesaionaltrainiugthat

a l l jud 'gesandclerksmustat tend 'From2003to200g, for instance, theSupreme

court,s traininge focused on matters of substantive international criminal law'

Judges of tbe High court received' similar professional training on substantive legal

issuesandothermattersrelatingtojudicialadministration.

,-:=,.==*13.--:::Thefo[owinglietidentifiestheprofessionaltrainingsthatjudgesofboththe

supreme court and High court rrave fa*icipated in over the past several years:

r Training on how to handle c'ross-border cases (2006)

' - o - Training on gender'relateil law (2007)

r Training on international law (2007)

-_- . rraini:rg on interna':iit "T':1T-t:"t:ll' "r,,"r,",-- :--: :.r-: - :-r Training on human righls--Ald ad:ninistration o{ ju'qtic9:(!'008)::--

o oTrainingoninternetresearch(2006,2007,2008)

Language courses (2007, 2008)

Trainins on pre-trial hearine ana iuiryl::l,Y#i"g (2008' 200e)

ilfffi "i"*"rtl*"g and docume:rt cgnlrol (2008)

r Training on court management (2009)day of Febnrary

Signed und'er the pains and' penalties

2011

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?7

Annex R

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Intemational Crlmlnal Trlbunal for Rwandafiibtrnal P6nal Intemational pour le Rlvanda

Atuah. tntrmruon.| CoaErilrcs c€flr' -p.Ofo*aoii,-i.sr,a. Trnzerrlr ' B P' aol6' Aru'li'' T'nzanie

ra: ess z7 iEifri i'i nzgr..jijso'ia.zsa n 25.sooe o{ I 212 e6a 284E.re

oFFIcEoFTIIEPRoSECUToR/BIJREAUItEPRoct.'RstJR

Ref:Date:

orPn0lI/P-IO/O9?24 May20lr

Your ExcellencY,

Ihave thehonor to re fe r tQ :you r le t te ro f2June2006(Re f :AcHPR/ .cAcTR/RK) ' . 'concerning the monitoring by the eaic.ry Commission on Huuran and Peoples'-Xights of cases

referred by the rc'rn to fi'winoa for trial mr ; our discussions on the subjgltt :!-93y1{-t"- - -- - -

letter is attached for ease ofrcference'

being undertaken by the African Comnission'

Inv iewof the imminentdecis ionof theCharnber , i t is r r rgerr tconfirms this rnderstandif"t yo* earliesi cdnvenience and preferably by

llrssan B. Jallow

cory: Ex*urtve Scoaary to thc Cotnmlsslon

Dr. Mtry MobotckeP.O. &ox 673, BaiulThc GstttblsEnull:: *cretarY6';Behotl rc ; qc4bo relt{itnchpnoqs

Cbief Pnosecntorr ICTRUnder Sscretrrv-Gqnera!. United Niltions

IIon. Commissioner Reine Alapini-GansouCheirpenon of the African CommissionAfti& Comnlssion on Euman and Peoples'Rights

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i-uNrncln.micANA *** -** i

RAF: ACH Prylr,no:inru7:e:.uDate: 26 May 2011

lI.[. ]fassen B. ]allowChief ProsccutorInternatinnal Criminal T:ribunal for llwandaP.O.Box 6016Arusha, Tanzania

by !h* lnte.rlati.nal Crimin4l _r'ribqnal for liwanda 0crnt?c' HwaJ"i-r#r.

Your fixceJlency, as you have ildicated in your ietter, in ?{X]ri fhe ;\frir:an Cornmission

lTit.ill":1t^:r:1T.lr-:.'""*,l:blity rc,lonilor.syh.lryr e,"d r;i; sqs,,l1ur rvillingnessto assign one cf our rnemtrrs kr r"rr;;iif "";1rrj iroitffiffi*$;$.tl

fl:vid:t perioriic rg.pclrls to the office of the Prosecuror in relation to-r.hgoo-seffirnie-of faii baii standards, if anci rr'hen the ICTR drxrs clecide to relbr ca$es to Rlvanda. It isttlso understocrd that, all expenscs that n{ght be incurred by the African Comrnissjpn incarrving out this task wouki be covered b)" tt,c tClR.

Please accept, Y'ur F,xcellency, the assura,ces of mv highest cr:nsir,ieraiicrn.

Sincerely,

I r'vrite in response to ycrur retter o( 24 May 2011 (Ref: a'I'r. / z01r/ p..w/ 097)r+,herein yourecallcld our discrrssict.ns regar<iing the possibilitl,oJ the African'cr.rmmission r:n l.{,mananc{ Peopl{ls' I?ighhs-(the;\frican Cornrniss.ion) monitr:ring cases thart c<ru11 5c re6rrc4

Ii I . i

-,t-'-Commissioner. Iteine Alapini-Gaf,sou

c-hairperson of the :lfrican conunission oh Ho*ur, ancl I'e'ples, Itights

. Your l.ixcellency,

st /AG

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flq;g j-* -.* uNrnc}TmicANA *** -** ii i K. T;,X i

U ATKILANA II Af.i.o.r commission on Human & | R lf:f I .. i

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Peoples'Rights

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L'ommrss'o'' Africatureode.s Proits dt l']Iomme & iI

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wffil'lafonr lJnler

TRAl{SttSSlOlt SHEETFOR FITING OF DOGUTENT$ WITH CTE

COURT MANAGEMENT SEGTION(Att, 27 of the Directive for the Registry)

I . CINIRAL lllFORtATlOll (To bo tho Ghmbon /

To:Ll TrialChamber I

N. M. Dialloll TrialChamber ll

R. N. KouamboX TrialChamber lll

C. K. Hometowu

u olc, JLSDP. Besnier

LJOIC, JPUC. K. Hometowu

LJ F. A. Talon(Appealsffeam lV)

Ll Appeals Chamber / The HagueK. K. A. AfandeR. Muzigo-Morrison

From: LlChamber

(names)

lJ Defence

(names) CI Prosecutor's Office lljqtner:

b"ffi6"%l 1 (names)Case Name: The Prosecutor vs. Bernard Munyagisha( / Clse Number: ICTR-2005-89-|

Dates: Transmitted: 9 November 2011 Document's da{e: 9 November 2011No. of Pages: OriginalLanguage: X English n French ! Kinyarwanda335

Title ofDocument:

PROSECUTOR'S REQUEST FORTHE REFERRAL OF THE CASE OF BERNARDMUNYAGISHARITO RWANDA PURSUANT TO RULE 1lBIS OF THE TRIBUNAL'S RULES OFPROCEDURE AND EVIDENCE

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assification Level:I ex ParteI Strictty Confidential/ Under SeallConfidentialI Pubtic

TRIM Document Type:E Indictment tr WarrantE Decision E fffioavitE Disclosure ! orderI Judgement n Motion

! correspondenceI Notice of Appeal! Appeal BookE Boof of Authorities

E Submission from non-partiesI Submission from partiesI Acggsed particulars

* lCt lr:sC l I T E

ll . TRAI{SLATIOI{ aTATUt ON Tl{l FlLllrO DATI (To bc thrCMS SHALL take necessary action regarding translation. fin= /lX fiting Party hereby submits only the original, and will not submit any translated version"{AE fun Reference material is provided in annex to facilitate translation. +F#/1 ,Target Language(s), tt'*

Lfl English n French E t<inyanrandd I :

F

f

l

CMS SHALL NOT take any action regarding translation. ii llI fiting Party hereby submits BOTH the original and the translated version for filing, as follows:

Oriqinal in El Enslish E French E KinyarwandaTranslation in E English French E Kinyarwanda

CMS SHALL NOT take any action regarding translation.

! fiting Party will be submitting the translated version(s) in due course in the following language(s):n French ! KinyanrandaKIilDLY FILL IlI TH! BoxII BELOU

The OTP is overseeing translation.The document is submitted for translation to:

n fne Language Services Section of the ICTR / Arusha.n me Language Services Section of the ICTR / The Hague.! nn accredited service for translation; see details below:

Name of contact person:Name of service:Address:E-mail lTel. I Fax:

DEFENCE is overseeing translation.The document is submitted to an accredited service fortranslation (fees will be submitted to DCDMS):Name of contact person:Name of service:Address:E-mail lTel. I Fax

lll. TRAl{stATlOll PRIORITISATIOI| (For ofllelrl ut. oIrL

nfop priority COMMENTS n Required date:

nUrgent ! Hearing date:

n Normal fl Otner deadlines:

N B: This form is avai lable on: http://www. ictr.org/ENG Ll SH/cms/cms 1 .doc CMSI (Updated on 22January 20101