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Tribunal: ICTR
Accused:KAYISHEMA, Clement; RUZINDANA, Obed
Type of Decision:Judgement and Sentence
Case Number:ICTR-95-1-T
Date of Decision:21-05-1999
Heading:Introduction - Procedural Background
Articles:Statute-ICTR-4 / Statute-ICTR-20
Keywords:Non-Compliance With The Rules
Reference to case-law:
Note:-
ALC:Volume 2, p. 701-708
Paragraphs:13 - 30

1.4 Procedural Background of the Case

Pre-trial

13. Kayishema and Ruzindana were initially charged in the original Indictment submitted by the Prosecutor, Richard Goldstone,[4] on 22 November 1995 together with six other suspects. The charges included conspiracy to commit genocide, Genocide and Crimes Against Humanity and violations of Common Article 3 and Additional Protocol II. The Indictment was confirmed by Judge Navanethem Pillay on 28 November 1995. Judge Pillay ordered that the Indictment be amended on 6 May 1996 to remove the conspiracy charges. It should be noted that a second Indictment was brought against Ruzindana on 17 June 1996, the trial of which is still pending. That Indictment was confirmed by Judge Tafazzal H. Khan on 21 June 1996.

14. Kayishema was arrested on 2 May 1996 in Zambia and transferred to the United Nations Detention Unit Facility (the UNDF) in Arusha, on 26 May 1996. His initial appearance was held on 31 May 1996 before Trial Chamber I. Kayishema, represented by Mr. André Ferran, of the bar of Montpellier, France, and Philippe Moriceau of the bar of Montpellier, France, pleaded not guilty to all of the charges.

15. Ruzindana was arrested on 20 September 1996 in Nairobi, Kenya and transferred to the UNDF on 22 September 1996. His initial appearance was held on 29 October 1996 before the Trial Chamber II. Ruzindana, represented by Mr. Pascal Besnier, of the bar of Paris, France, and Mr. Willem Van der Griend of the Bar of Rotterdam, the Netherlands, pleaded not guilty to all of the charges. The Chamber set a date for trial for 20 February 1997 while reserving the right to join with Kayishema.

16. At the pretrial stage, the Trial Chamber received and decided many written motions from the Parties. Some of the more pertinent ones are detailed below.

17. Kayishema filed a preliminary Motion on 26 July 1996 in which he requested the annulment of the proceedings, and consequently, his provisional release. The Parties were heard on 5 November 1996 and the Defence request was rejected. Kayishema filed a further Motion on 23 October 1996 for postponement of the trial in order to enable him to prepare his case. The Prosecutor did not oppose the Motion but on 5 November 1996, filed a Motion for joinder of Kayishema and Ruzindana. The Tribunal ordered the joinder of the two accused. The trial date for Kayishema consequently was postponed to the trial date set for Ruzindana, which as mentioned above was 20 February 1997.[5]

18. On 30 December 1996 Ruzindana filed a preliminary Motion objecting to the form of the Indictment and against joinder of his case with that of Kayishema based on various alleged procedural difficulties with the Indictment and the warrant of arrest. The request for annulment of the two Indictments and for his release was rejected as was the objection to the joinder.

19. On 27 March 1997, the Prosecution brought a Motion for leave to sever and to join in a superseding Indictment and to amend the superseding Indictment in the cases against Kayishema, Gérard Ntakirutimana, and Ruzindana on the grounds of involvement in a same transaction. The Chamber rejected the Motion because the Prosecutor did not offer any evidence that demonstrated the nature of the common scheme.

20. Kayishema brought another Motion on 7 March 1997 calling for the application of Article 20(2) and (4)(b) (Rights of the accused) of the Statute of the Tribunal by the Prosecution. The Defence further requested the Prosecution to divulge and limit its number of lawyers, consultants, assistants and investigators working on the case. The Chamber ruled[6] that the rights of the accused and equality between the parties should not be confused with the equality of means and resources. The Chamber concluded that the Defence had not proved any violation of the rights of the accused as provided in Article 20(2) and (4)(b) of the Statute.

Trial

21. On 11 April 1997 the trial of Kayishema and Ruzindana commenced before Trial Chamber II, composed of Judge William H. Sekule, presiding, Judge Yakov A. Ostrovsky and Judge Tafazzal H. Khan, based on the First Amended Indictment filed with the Registry on that day. The Prosecution team consisted of Mr. Jonah Rahetlah, Ms. Brenda Sue Thornton, and Ms. Holo Makwaia. Kayishema was represented by Mr. Andre Ferran and Mr. Philippe Moriceau. Mr. Pascal Besnier and Mr. Van der Griend formed the Defence team for Ruzindana. The Prosecution completed its case on 13 March 1998, having called a total of 51 witnesses and having tendered into evidence over 350 exhibits.

22. The Prosecution filed a Motion on 18 February 1998, pursuant to Rule 73 of the Rules, requesting the Trial Chamber to order the uninterrupted continuation of the trial of the accused and the consultation of both Parties in respect of the scheduling of this continuation. The Chamber was of the view that pursuant to Article 20(4)(b) of the Statute, the accused should be accorded adequate time and facilities for the preparation of their case.[7]

23. The Defence commenced their case on 11 May 1998 and closed on 15 September 1998. It should be noted that at the conclusion of the Prosecution's case, the Defence requested an adjournment in order to prepare its case. In the interest of justice, the Trial Chamber granted the Defence Teams a generous two-month adjournment to prepare. The Defence presented a total of twenty-eight witnesses, sixteen of whom testified on behalf of accused, Ruzindana, seven for Kayishema and five for both accused persons. Kayishema testified on his own behalf. Over 59 Defence exhibits were admitted.

24. The Prosecutor presented closing argument from 21 October to 28 October 1998, Ruzindana's Defence from 28 October to 2 November 1998 and Kayishema's Defence from 3 to 16 November 1998. The Prosecutor presented the argument in rebuttal on 17 November 1998. The case was adjourned the same day for deliberation by the Trial Chamber.

25. During the trial, numerous written and oral motions were heard. On 17 April 1997, the Defence challenged the credibility of a witness, where the oral testimony varied from the previous written statement taken by the prosecutor's investigators. The Chamber opined that variation may occur at times for appreciable reasons without giving cause to disregard the statement in whole or in part. [8] The Chamber ordered that when counsel perceives there to be a contradiction between the written and oral statement of a witness, Counsel should raise such question by putting to the witness the exact portion in issue to enable the witness to explain the discrepancy before the Tribunal. Counsels should then mark the relevant portion and submit it as an exhibit if they find that the contradiction or discrepancy raised was material to the credibility of the witness concerned.

26. On 9 July 1997, Ruzindana filed a Motion pursuant to Rule 75 of the Rules seeking protective measures for potential witnesses noting that this protection should not extend to providing immunity from prosecution by an appropriate authority. The Trial Chamber[9] granted the Motion. A Motion filed by Kayishema seeking general protective measures for witnesses who would testify on his behalf was also granted by the Chamber in its Decision on 23 March 1998.[10]

27. On 12 March 1998 the Prosecutor filed a Motion requesting the Trial Chamber to order the Defence to comply with the provisions of rules 67(A)(ii) and 67(C) of the Rules of Procedure and Evidence. The Prosecutor submitted that if the Defence intended to offer the defence of alibi, it should notify the Prosecution as early as practicable but in any event prior to the commencement of the trial. The Chamber opined that Kayishema should make the necessary disclosure immediately if they intend to rely upon the defence of alibi or special defence. However, the Defence filed a joint Motion on 30 April 1998 requesting the Trial Chamber to interpret the notion of 'defence of alibi' and 'special defence' as stipulated in Rule 67 of the Rules of Procedure and Evidence. The Chamber dismissed the Defence Motion on the ground that it can not define rule 67 of the Rules in an abstract form without a specific problem to address. [11]

28. Due to the Defence's continued non compliance with Rule 67(A)(ii) of the Rule of Procedure and Evidence, the Prosecution filed another Motion on 11 August 1998, seeking, inter alia, an order prohibiting the Defence of Kayishema from invoking the Defence of alibi or any special Defence. The Defence responded that, under Rule 67(B), failure of the Defence to notify the Prosecutor of the Defence of alibi or any special Defence as required by rule 67(A)(ii), does not limit the right of the accused to raise the Defence of alibi or special Defence. The Trial rejected the Defence's reasons for not providing details noting that the accused himself could have provided at least some details. The Chamber therefore reiterated its previous decision on this matter.[12]

29. On 22 June 1998, the Prosecution filed a Motion, seeking for a ruling that evidence of a Defence expert witness, a psychiatrist, be ruled inadmissible. The Chamber noted that it is important to observe the rights of the accused to a fair trial guaranteed under the provisions of Article 20 of the Statute in particular 20(4)(e) which provides that the accused shall have the rights to obtain the attendance of witnesses on his or her behalf. The expert was heard.[13]

30. On 19 August 1998, the Chamber dismissed a Motion filed by the Defence requesting to re-examine witness DE. The Trial Chamber found that the case of Kayishema would not suffer prejudice in the absence of additional evidence from this witness and rejected the Motion. [14]

Footnotes:


[4] On 1 October 1996, Louise Arbour succeeded Richard Goldstone as Prosecutor of the Tribunal.

[5] Decision on the joinder of the Accused and Setting the Date for Trial, the Prosecutor v. ClJment Kayishema, Case No. ICTR-95-1-T, 6 November 1996.

[6] Order on the Motion by the Defence Counsel for Application of Article 20 (2) and (4) (b) of the Statute of the International Tribunal for Rwanda, the Prosecutor v. ClJment Kayishema, Case No. ICTR-95-1-T, Obed Ruzindana, Case No. ICTR-96-10-T, 5 May 1997.

[7] Decision on the Prosecution Motion for Directions for the Scheduling of the Continuation of the Trial of ClJment Kayishema and Obed Ruzindana on the Charges as Contained in the Indictment No. ICTR-95-1-T, 12 March 1998.

[8] Order on the Probative Value of Alleged Contradiction between the Oral and Written Statement of A Witness During Examination, the Prosecutor v. ClJment Kayishema and Obed Ruzindana, Case No. ICTR-95-1-T, 17 April 1997.

[9] Decision on the Motion for the Protection of Defence Witnesses, the Prosecutor v. ClJment Kayishema and Obed Ruzindana, Case No. ICTR-95-1-T, 6 October 1997.

[10] Decision on the Motion for the Protection of Defence Witnesses, the Prosecutor v. ClJment Kayishema and Obed Ruzindana, Case No. ICTR-95-1-T, 23 February 1998.

[11] Decision on the Prosecution Motion for An Order Requesting Compliance by the Defence with Rules 67 (A)(ii) and 67(C) of the Rules, the Prosecutor v. ClJment Kayishema and Obed Ruzindana, 15 June 1998.

[12] Decision on the Prosecution Motion for A Ruling on the Defence Continued non Compliance with Rule 67 (A) (ii) and with the Written and Oral Orders of the Trial Chamber, the prosecutor v. ClJment Kayishema and Obed Ruzindana, Case No. ICTR-95-1-T, 3 September 1998.

[13] Decision on the Prosecution Motion Request to Rule Inadmissible the Evidence of Defence Expert Witness, Dr. Pouget, the Prosecutor v. ClJment Kayishema and Obed Ruzindana, Case No. ICTR-95-1-T, 29 June 1998.

[14] Decision on the Defence Motion for the Re-examination of Defence Witness DE, the Prosecutor v. ClJment Kayishema and Obed Ruzindana, Case No. ICTR-95-1-T, 19 August 1998.
Last Modified: 14-08-2009 17:20:49 (Documentation SIM)