Kanyarukiga - JUDGEMENT AND SENTENCE - Refworld

Judgement and Sentence 1 November 2010
amended, 592 the Chamber finds that the alleged meeting on the presbytery balcony on 14 April 1994
is that charged in paragraph 12 of the Amended Indictment. Thus, because the Amended Indictment
is clear with respect to the number of meetings that the Accused is alleged to have attended, the
Chamber has disregarded Witness CBY’s evidence of a meeting on 12 April 1994 and only
considered the evidence of the meeting on 14 April 1994.
247. The Chamber has also considered the Defence argument that the Prosecution withdrew
references to 14 April 1994 when it amended the indictment in 2007. While the Chamber
acknowledges that paragraph 12 of the original indictment charged Kanyarukiga with a meeting at
the parish “on or about 14 April 1994,” the Chamber finds that the meeting charged in paragraph 12
of the original indictment is the same as that charged in paragraph 12 of the Amended Indictment.
In reaching this conclusion, the Chamber has considered that both meetings are alleged to have
occurred at the Nyange Parish and been attended by virtually the same people. 593 Moreover, in both
indictments, the meeting in question is the first meeting charged after the alleged meeting(s) “on or
about 10 April 1994.” Thus, notwithstanding the revision to the date, the Chamber finds that the
Accused had sufficient notice that he was charged with attending a meeting on Father Seromba’s
balcony prior to the events of 15 and 16 April 1994 and will therefore consider the evidence of
Witnesses CBN and CBS in its deliberations below.
248. The Chamber further notes that the summary of Witness CBN’s anticipated testimony in the
Prosecutor’s Pre-Trial Brief clarified that Witness CBN would testify about a meeting on
Seromba’s balcony on 14 April 1994. 594 Accordingly, the Chamber is satisfied that paragraph 12 of
the Amended Indictment and the Prosecutor’s Pre-Trial Brief put the Accused on notice of the
alleged meeting on the balcony on 14 April 1994.
249. Finally, the Chamber recalls that the Prosecution alleged in paragraph 12 of the original
indictment that, following the meeting at the Nyange Parish on 14 April 1994, Bourgmestre
Ndahimana replied to a request for help from the displaced Tutsi by stating that the “war was
caused by the [i]nyenzi who killed the President.” 595 The Chamber finds that, by deleting this
paragraph from the Amended Indictment, the Prosecution unambiguously indicated that it would
not rely on this evidence at trial. Thus, the Chamber has not considered Witness CBN’s testimony
that, following the meeting on Seromba’s balcony on 14 April 1994, Bourgmestre Ndahimana told
those who had sought refuge at the parish that he could not help them because the inyenzi had
attacked the country and the Tutsi had to be exterminated.
592 Compare Statement of Witness CBN, dated 17 August 2000, p. 4 (English version) and Statement of Witness CBS,
dated 17 August 2000, p. 3 (English version) (describing a meeting on Seromba’s balcony/upstairs on Thursday or 14
April 1994 that was attended by the Accused), to Defence Exhibit D34(B) (Statement of Witness CBY, dated 4 October
2000), p. 4 (describing meetings on 11 and 12 April 1994, after which the church doors were opened, but not
mentioning the presence of the Accused or Seromba’s balcony).
593 Compare Amended Indictment, para. 12 (listing Kanyarukiga, Seromba, Kayishema, Ndahimana, Ndungutse and
others) to [Original] Indictment, filed on 21 February 2002, para. 12 (listing Seromba, Kanyarukiga, Kayishema,
Ndahimana and others). The Chamber further notes that, while the original indictment did not specify that the meeting
on or about 14 April 1994 was held on the presbytery balcony, the pre-trial statements of Witnesses CBN and CBS,
upon which both indictments were based, place the meeting on the balcony or “upstairs.” Statement of Witness CBN,
dated 17 August 2000, p. 4 (English version); Statement of Witness CBS, dated 17 August 2000, p. 3 (English version).
594 The Prosecutor’s Pre-Trial Brief, p. 30.
595 [Original] Indictment, para. 12.
The Prosecutor v. Gaspard Kanyarukiga, Case No. ICTR-2002-78-T 57