Kanyarukiga - JUDGEMENT AND SENTENCE - Refworld

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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
Judgement and Sentence 1 November 2010 (f) Meetings at Nyange Parish on 13 April 1994 250. Witnesses CBK, CBY and YAU all testified about meetings at the Nyange Parish on 13 April 1994. 596 While it is possible that one or more of these testimonies relates to the meeting described in paragraph 12 of the Amended Indictment, none of these witnesses placed the meeting explicitly on Seromba’s balcony. In view of the evidence of a meeting on 12 April 1994 and on Seromba’s balcony on 14 April 1994, the Chamber is not convinced that Witnesses CBY, CBK and YAU were testifying about the meeting described in paragraph 12 of the Amended Indictment. Rather, the witnesses appear to describe one or more additional meetings that were not pled in the Indictment. Because the Amended Indictment is neither vague nor ambiguous with regard to the number of meetings that the Accused is alleged to have attended, the Chamber has disregarded the testimony of Witnesses CBY, CBK and YAU about a meeting(s) at the Nyange Parish on 13 April 1994. (g) Meeting at the Communal Office on 13 April 1994 251. Prosecution Witnesses CDL and CBR both testified about a meeting at the Kivumu commune office on 13 April 1994. 597 Witness CDL placed Kanyarukiga at this meeting while Witness CBR did not. The Chamber notes that neither the commune office nor 13 April 1994 appears in the Amended Indictment. For these reasons, the Chamber finds that the meeting at the communal office constitutes a new allegation that was not pleaded in the Amended Indictment. The Chamber further notes that the Prosecution deleted a reference to meetings at the communal office when it amended the indictment in 2007, 598 thereby suggesting that it would not pursue this allegation at trial. 599 The Chamber therefore has disregarded the testimony of Witnesses CBR and CDL regarding a meeting at the communal office on 13 April 1994. (h) Meeting at Mutanoga Centre on 14 April 1994 252. Prosecution Witness CDL testified that, on 14 April 1994, Kanyarukiga attended a meeting at the Mutanoga Centre, where he incited members of the population to attack the Tutsi at the church. 600 The Amended Indictment does not mention either 14 April 1994 or the Mutanoga Centre. Because the Indictment is neither vague nor ambiguous with regard to the meetings the Accused is alleged to have attended, the Prosecution’s omission of this meeting cannot be cured through subsequent submissions. Rather, this meeting should have been added through an amendment to the indictment. 601 As this information was in the possession of the Prosecution long before the indictment was amended in 2007, 602 the Prosecution could have included the meeting at the Mutanoga Centre in the Amended Indictment. 603 As it did not, the Chamber has disregarded Witness CDL’s testimony on this point. 596 Witness CBK, T. 2 September 2009, p. 70; T. 3 September 2009, pp. 65-66 (CS); T. 4 September 2009, pp. 4-7, 9; Witness CBY, T. 8 September 2009, pp. 39-40; Witness YAU, T. 15 September 2009, pp. 10-11 (The Chamber recalls that Witness YAU did not provide a date for the meeting but placed it on her first day at the parish, which the Chamber believes was most likely 13 April 1994.). 597 Witness CDL, T. 10 September 2009, pp. 46-47; T. 11 September 2009, pp. 7-9; Witness CBR, T. 9 September 2009, pp. 7-10. 598 [Original] Indictment, para. 8. 599 See Setako, Judgement (TC), paras. 44, 46. 600 T. 10 September 2009, pp. 26-31; T. 11 September 2009, pp. 1-3. 601 Karera, Judgement (AC), para. 293. 602 Defence Exhibit D29(A) (Statement of Witness CDL, dated 10 October 2001), p. 3. 603 See Setako, Judgement (TC), paras. 60, 63; Muvunyi, Judgement (AC), paras. 99-100. The Prosecutor v. Gaspard Kanyarukiga, Case No. ICTR-2002-78-T 58
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