Judgement and Sentence 1 November 2010 KG15’s testimony was evasive, internally inconsistent and inconsistent with his testimony during the Seromba trial. 623 The Chamber recalls, for example, that Witness KG15 testified in this case that it would have been impossible for people to enter the presbytery without his knowledge, 624 whereas he admitted that, he said largely the opposite during the Seromba trial. 625 Further, while Witness KG15 suggested in this case that he was present during every conversation that Father Seromba had with visitors to the presbytery, he said during the Seromba trial that he was “not an umbilical cord and [that he] could not be with Seromba at all times”. 626 In light of these irregularities, the Chamber finds that Witness KG15’s testimony does not cast doubt on the Prosecution evidence. 263. The Chamber has also considered the Defence submission that Witnesses CBN and CBS could not have seen a meeting on the presbytery balcony from the courtyard in front of the church, where both witnesses said they were standing. 627 The Chamber is aware that, from the courtyard where Witnesses CBN and CBS said they were standing, the view of the presbytery balcony is largely obstructed by the secretariat. 628 The Chamber has no further evidence before it as to how these witnesses could see the balcony from where they were standing. Thus, while the Chamber is satisfied that Witnesses CBN and CBS provided a truthful narration of the events as they remember them, it is reticent to make a finding beyond reasonable doubt that these men specifically met Father Seromba on the presbytery balcony. 629 264. As discussed further in paragraphs 456 to 458, the Chamber has found that Witnesses CBN and CBS are both generally credible and reliable. The witnesses identified <strong>Kanyarukiga</strong> in court, and Witness CBS testified that he owned property near the Accused’s and lived near a member of <strong>Kanyarukiga</strong>’s family in Kivumu commune. 630 Accordingly, the Chamber accepts that Witnesses CBN and CBS could recognise the Accused on 14 April 1994 and saw <strong>Kanyarukiga</strong> and others arrive at the presbytery around 1.00 p.m. on that day and/or depart from there. Furthermore, notwithstanding certain minor inconsistencies between their accounts of the persons who visited the parish on 14 April 1994, the Chamber is satisfied that at least <strong>Kanyarukiga</strong>, Kayishema, Ndahimana 623 In addition to the inconsistencies mentioned below, the Chamber notes that Witness KG15 testified in this trial that he was stopped at a roadblock near the Nyange Parish on 10 April 1994 and that his identity card was checked. T. 11 February 2010, pp. 7-8, 38-40 (CS). However, in the Seromba trial, Witness KG15 denied that his identity card was checked at the roadblock. T. 11 February 2010, pp. 40, 42 (CS), citing Prosecutor v. Seromba, Case No. ICTR-01-66-I, T. 20 April 2006, p. 68 (CS). 624 T. 11 February 2010, pp. 33, 34 (CS). 625 T. 11 February 2010, p. 34 (CS), citing Prosecutor v. Seromba, Case No. ICTR-2001-66-I, T. 21 April 2006, p. 24 (CS). When asked about this discrepancy at trial, the witness said he would not have known if someone arrived at the presbytery after midnight or came to the door of the presbytery without coming inside. T. 11 February 2010, p. 34 (CS). 626 T. 11 February 2010, p. 31 (CS). 627 Defence Final Brief, paras. 183, 186-187. Witness CBN, T. 1 September 2009, p. 57; Witness CBS, T. 16 September 2009, pp. 51, 53, 61; T. 17 September 2009, p. 10. 628 Registry Exhibit R1 (DVD Site Visit Day, 1, 2, & 3), at Day 2, 30:45-32:00, 54:00-54:19; Registry Exhibit R3(II) (T. 20 April 2010, pp. 19-21, 33-34 (CS)); Prosecution Exhibit P19 (Photograph K027-1665 Secretariat Building); Prosecution Exhibit P20 (Photograph K027-1715 Secretariat Building 2); Prosecution Exhibit P62 (Colour Photocopy of Photo K027-1715 the Secreteriat as marked by Witness CBS); Prosecution Exhibit P36 (Colour Photocopy of Photo K027-1715 as marked by Witness CBK). The Chamber notes that, when asked to indicate the presbytery on this photograph, Witness CBK remarked that, “[t]he presbytery is not quite visible on this photograph.” T. 3 September 2009, p. 15. Accord Registry Exhibit R3(II) (T. 20 April 2010, pp. 25-30 (CS)) (discussing whether the front of the church could be seen by someone on the balcony of the presbytery). 629 Given the events in question were extremely traumatic and occurred almost 16 years prior to the witnesses’ testimony, the Chamber acknowledges that Witnesses CBN and CBS’s recollection of the events is likely to be imperfect. The Chamber does not believe, however, that the irregularities in their testimony are a product of deliberate fabrication. 630 Witness CBN, T. 1 September 2009, pp. 65-66; Witness CBS, T. 16 September 2009, p. 58; T. 16 September 2009, pp. 65, 66 (CS). Witness CBN estimated that he had seen <strong>Kanyarukiga</strong> three times prior to April 1994. T. 1 September 2009, p. 65. The Prosecutor v. Gaspard <strong>Kanyarukiga</strong>, Case No. ICTR-2002-78-T 61
Judgement and Sentence 1 November 2010 and Mbakirirehe visited the presbytery on that day and remained for approximately one hour. 631 Given the duration of their visit, the Chamber finds that the only reasonable inference to be drawn from the evidence is that the men were holding a meeting. 265. For these reasons, the Chamber finds that the Prosecution has established beyond reasonable doubt that at least <strong>Kanyarukiga</strong>, Kayishema, Ndahimana and Mbakirirehe visited the Nyange Parish Presbytery around 1.00 p.m. on 14 April 1994. The Prosecution, however, has not established that they met with Father Seromba on the presbytery balcony. 3.4. Conclusion 266. The Chamber finds that the Prosecution has failed to prove beyond reasonable doubt that, on or about 10 April 1994, Gaspard <strong>Kanyarukiga</strong>, Father Athanase Seromba, Fulgence Kayishema, Grégoire Ndahimana and others attended a meeting in the presbytery at Nyange Parish at which the state of insecurity and killings were discussed. 267. On the other hand, the Chamber is satisfied that the Prosecution has established beyond reasonable doubt that at least Gaspard <strong>Kanyarukiga</strong>, Fulgence Kayishema, Grégoire Ndahimana and Brigadier Mbakirirehe held a meeting at the Nyange Parish Presbytery for approximately one hour on 14 April 1994. The Prosecution, however, has failed to establish that these men met on Seromba’s balcony, as alleged in paragraph 12 of the Amended Indictment, or that Ndungutse, Seromba and others were in attendance. 631 The evidence is inconclusive with respect to the other participants. The Prosecutor v. Gaspard <strong>Kanyarukiga</strong>, Case No. ICTR-2002-78-T 62
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