Kanyarukiga - JUDGEMENT AND SENTENCE - Refworld

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Judgement and Sentence 1 November 2010 alleged were outside the scope of the Amended Indictment. 36 The Defence’s motion for a stay of proceedings was dismissed because the Defence request was not based on delay or pre-trial misconduct, as required by the jurisprudence of the Tribunal. 37 41. After considering the jurisprudence of the Tribunal regarding notice, the Trial Chamber excluded Witness CBN’s testimony that the Accused was at a roadblock on 13 and 14 April 1994 and Witness CNJ’s testimony that the Accused went to fetch a bulldozer with a member of the interahamwe. 38 The Chamber dismissed six additional Defence requests for exclusion of evidence on the basis that there was sufficient notice of the particular evidence adduced. 39 In an interlocutory appeal from the Trial Chamber decision, the ICTR Appeals Chamber upheld the Trial Chamber’s finding that there was sufficient notice of Witness YAU’s testimony that Kanyarukiga threw food intended for the Tutsi at the parish onto the ground. 40 42. The Chamber reserved until the judgement its decision with regard to evidence provided by Prosecution witnesses that related to meetings the Accused was alleged to have attended. 41 The Chamber has addressed whether the requisite notice has been given for this evidence in the relevant sections of its factual findings below. 42 2. Evidentiary Matters 43. Article 20(3) of the Statute guarantees the presumption of innocence of each accused person. The burden of proving the guilt of the accused beyond reasonable doubt rests solely on the Prosecution and never shifts to the Defence. The Chamber must be satisfied beyond reasonable doubt that the accused is guilty before a verdict may be entered against him or her. 43 44. While the Defence does not have to adduce rebuttal evidence to the Prosecution case, the Prosecution will fail to discharge its burden of proof if the Defence presents evidence that raises a reasonable doubt regarding the Prosecution case. 44 An accused person must be acquitted if there is any reasonable explanation for the Prosecution evidence other than his or her guilt. 45 Refusal to believe or rely upon Defence evidence does not automatically amount to a guilty verdict. 46 The Chamber must still determine whether the evidence it does accept establishes the accused’s guilt 36 Decision on Defence Motion for a Stay of Proceedings or Exclusion of Evidence Outside the Scope of the Indictment (TC), 15 January 2010; Motion for a Stay of Proceedings, or Exclusion of Evidence Outside the Indictment, filed on 18 December 2009. 37 Decision on Defence Motion for a Stay of Proceedings or Exclusion of Evidence Outside the Scope of the Indictment (TC), 15 January 2010, para. 9. 38 Decision on Defence Motion for a Stay of Proceedings or Exclusion of Evidence Outside the Scope of the Indictment (TC), 15 January 2010, paras. 22, 30, Disposition. 39 Decision on Defence Motion for a Stay of Proceedings or Exclusion of Evidence Outside the Scope of the Indictment (TC), 15 January 2010, paras. 19, 24, 26, 32, 36, 40. 40 Kanyarukiga v. Prosecutor, Case No. ICTR-02-78-AR73.2, Decision on Gaspard Kanyarukiga’s Interlocutory Appeal of a Decision on the Exclusion of Evidence (AC), 23 March 2010, para. 11. 41 Decision on Defence Motion for a Stay of Proceedings or Exclusion of Evidence Outside the Scope of the Indictment (TC), 15 January 2010, paras. 17, 28, 37. 42 See paragraphs 243-249, 250, 251, 252, 450, 568-571. 43 See also Rule 87(A) of the Rules (“A finding of guilty may be reached only when a majority of the Trial Chamber is satisfied that guilt has been proved beyond reasonable doubt.”). 44 Prosecutor v. Nchamihigo, Case No. ICTR-01-63-T, Judgement and Sentence (TC), 12 November 2008, para. 13. See also Prosecutor v. Kayishema and Ruzindana, Case No. ICTR-95-1-A, Judgement (Reasons) (AC), 1 June 2001, para. 117; Niyitigeka, Judgement (AC), paras. 60-61 (discussing alibi). 45 Prosecutor v. Delalić et al. (“Čelebići case”), Case No. IT-96-21-A, Judgement (AC), 20 February 2001, para. 458; Nchamihigo, Judgement (TC), para. 13. 46 Nchamihigo, Judgement (TC), para. 13. The Prosecutor v. Gaspard Kanyarukiga, Case No. ICTR-2002-78-T 9
Judgement and Sentence 1 November 2010 beyond reasonable doubt. 47 Where an alibi is properly raised, the Prosecution must establish beyond reasonable doubt that, despite the alibi, the facts alleged are nevertheless true. 48 When the alibi does prima facie account for the accused’s activities at the relevant time of the commission of the crime, the Prosecution must “eliminate the reasonable possibility that the alibi is true”. 49 45. The general principle enshrined in Rule 90(A) of the Rules is that witnesses should be heard directly by the Trial Chamber. 50 However, there are well established exceptions to the Chamber’s preference for direct, live, in-court testimony, including the taking of witness testimony by deposition, 51 and the admission of written statements, in lieu of oral testimony, which do not go to proof of the alleged conduct of the accused as charged in the indictment. 52 46. While direct evidence is preferred, hearsay evidence is not per se inadmissible before the Trial Chamber. 53 The Trial Chamber has the discretion to treat such hearsay evidence with caution, depending on the circumstances of the case. 54 In certain circumstances, hearsay evidence may require other credible or reliable evidence adduced by the Prosecution in order to support a finding of fact beyond reasonable doubt. “The source of information, the precise character of the information, and the fact that other evidence corroborates the hearsay evidence are relevant criteria in assessing the weight or probative value of hearsay evidence.” 55 47. In general, a Chamber can make a finding of fact based on the evidence of a single witness if it finds such evidence to be relevant and credible. 56 Corroboration of a witness’s testimony is not a requirement in the practice of the Tribunal. 57 Similarly, even if the Trial Chamber finds that a witness’s testimony is inconsistent or otherwise problematic, it may still choose to accept the evidence because it is corroborated by other evidence. 58 48. Two testimonies corroborate one another when one prima facie credible testimony is compatible with the other prima facie credible testimony regarding the same fact or a sequence of linked facts. It is not necessary that both testimonies be identical in all aspects or describe the same fact in the same way. 59 Corroboration may exist even when testimonies differ on some details, provided that no credible testimony described the facts in question in a way which is incompatible with the description given in another credible testimony. 60 47 Nchamihigo, Judgement (TC), para. 13. 48 Zigiranyirazo v. Prosecutor, Case No. ICTR-01-73-A, Judgement (AC), 16 November 2009, para. 18. 49 Zigiranyirazo, Judgement (AC), para. 18, quoting Kajelijeli v. Prosecutor, Case No. ICTR-98-44A-A, Judgement (AC), 23 May 2005, para. 41; Kayishema and Ruzindana, Judgement (AC), para. 106. 50 Simba, Judgement (AC), para. 19. 51 Rule 71 of the Rules. 52 Rule 92 bis(A) of the Rules. 53 Prosecutor v. Muvunyi, Case No. ICTR-2000-55A-T, Judgement (TC), 12 September 2006, para. 12; Rutaganda v. Prosecutor, Case No. ICTR-96-3-A, Judgement (AC), 26 May 2003, para. 34. 54 Rutaganda, Judgement (AC), para. 34; Prosecutor v. Aleksovski, Case No. IT-95-14/1-AR73, Decision on Prosecutor’s Appeal on Admissibility of Evidence (AC), 16 February 1999, para. 15. See also Rule 89 of the Rules. 55 Karera, Judgement (AC), para. 39 (internal citations omitted). 56 Karera, Judgement (AC), para. 45; Musema v. Prosecutor, Case No. ICTR-96-13-A, Judgement (AC), 16 November 2001, paras. 37-38. 57 Karera, Judgement (AC), para. 45; Musema, Judgement (AC), para. 36; Ntakirutimana and Ntakirutimana, Judgement (AC), para. 132. 58 Ntakirutimana and Ntakirutimana, Judgement (AC), 13 December 2004, para. 132. 59 Bikindi v. Prosecutor, Case No. ICTR-01-72-A, Judgement (AC), 18 March 2010, para. 81, quoting Nahimana et al., Judgement (AC), para. 428; Karera, Judgement (AC), paras. 173, 192. 60 Bikindi, Judgement (AC), para. 81, quoting Nahimana et al., Judgement (AC), para. 428; Karera, Judgement (AC), para. 173, 192. The Prosecutor v. Gaspard Kanyarukiga, Case No. ICTR-2002-78-T 10
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