Kanyarukiga - JUDGEMENT AND SENTENCE - Refworld

Judgement and Sentence 1 November 2010
119. The day the witness saw Kanyarukiga, the witness’s shop was looted. 273 Kanyarukiga
comforted Witness KG24 and gave him 2000 Rwandan francs. 274
1.3. Deliberations
120. In Zigiranyirazo, the Appeals Chamber recalled the applicable standard regarding a defence
of alibi:
An alibi does not constitute a defence in its proper sense. By raising an alibi, an accused is
simply denying that he was in a position to commit the crime with which he was charged. An
accused does not bear the burden of proving his alibi beyond reasonable doubt. Rather he must
simply produce the evidence tending to show that he was not present at the time of the alleged
crime or, otherwise stated, present evidence likely to raise a reasonable doubt in the Prosecution
case. If the alibi is reasonably possibly true, it must be accepted.
Where an alibi is properly raised, the Prosecution must establish beyond reasonable doubt that,
despite the alibi, the facts alleged are nevertheless true. The Prosecution may do so, for
instance, by demonstrating that the alibi does not in fact reasonably account for the period when
the accused is alleged to have committed the crime. Where the alibi evidence 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,” for example, by
demonstrating that the alibi evidence is not credible. 275
General Observations
121. There are a number of factors that ultimately contribute to the Chamber’s view of the alibi.
The first of these factors is that the Defence filed its short notice of alibi after the Prosecution case,
and then filed its final list of alibi witnesses only a month prior to the beginning of the Defence
case. Secondly, of the Defence witnesses who were brought, all but three had a close familial, close
personal or business relationship with the Accused which leads the Chamber to place little to no
weight on their evidence. The Chamber does not find these three remaining witnesses to be
credible. Finally, the Chamber undertook a site visit in Rwanda, which confirmed to the Chamber
that the Defence witness testimony with regard to 15 April 1994 was unreliable and that the route
described by the Defence witnesses was too long and precarious to be taken at all on 16 April 1994.
Therefore, as discussed further below, these three factors lead the Chamber to conclude that the
alibi is a contrived story, provided by Defence witnesses, who each gave evidence that fits too
neatly in favour of the Accused and the alibi. The alibi is therefore not reasonably possibly true.
122. The Chamber will now discuss its particular concerns with regard to its general
observations.
Late filing of notice of alibi and witness particulars
123. The Chamber recalls that it has discretion to consider whether the late filing of a notice of
alibi undermined the credibility of the alibi itself. 276 The Chamber will consider here what effect the
late filing of the notice of alibi and more poignantly, the identities of the Defence witnesses, have
on the Chamber’s view of the alibi.
273 T. 2 February 2010, pp. 8-9 (CS).
274 T. 2 February 2010, p. 10 (CS).
275 Zigiranyirazo, Judgement (AC), paras. 17-18 (internal quotations and citations omitted).
276 Kalimanzira, Judgement (AC), para. 56, citing Rutaganda, Judgement (AC).
The Prosecutor v. Gaspard Kanyarukiga, Case No. ICTR-2002-78-T 27