Kanyarukiga - JUDGEMENT AND SENTENCE - Refworld

Judgement and Sentence 1 November 2010
from the Amended Indictment, the Prosecution gave clear notice that 13 and 14 April would not
form part of the Prosecution’s case. 818
322. The Trial Chamber acknowledges that 13 and 14 April 1994 do not appear in the Amended
Indictment and that references to these dates were withdrawn from the original indictment when it
was amended. 819 The Chamber notes, however, that none of the paragraphs that were removed from
the indictment described the attacks on 13 and 14 April 1994 as recounted by Prosecution
witnesses. Accordingly, the Chamber is not convinced that the effect of removing of these
paragraphs was necessarily prejudicial. Moreover, the Chamber is satisfied that
13 and 14 April 1994 fall within the timeframe set forth in paragraph 13 of the Amended
Indictment, which alleges that armed attackers surrounded the Tutsi at the parish “from 12 April
1994.”
323. Notwithstanding that 13 and 14 April 1994 fall within the temporal scope of paragraph 13 of
the Amended Indictment, the Chamber is not convinced that this paragraph put the Accused on
notice that he was charged with attacks on these days. Thus, because an accused can only be
convicted of crimes that are charged in the Indictment, 820 the Chamber has disregarded the evidence
of Witnesses CBY and YAU that Kanyarukiga was present during an attack on 14 April 1994.
Moreover, the Chamber has only considered the evidence of the attacks themselves to the extent to
which such evidence supports the general allegation that assailants surrounded the Tutsi at the
parish from 12 April 1994.
324. The Chamber recalls that Prosecution Witnesses CBS, CBN, CBY and CBK all agreed that
Hutu assailants attacked the Tutsi at the Nyange Parish on 13 April 1994 and that the Tutsi
defended themselves by throwing stones at the attackers. 821 This evidence is consistent with the
evidence given by Defence Witness KG15, who testified that he did not leave the presbytery on
13 April 1994 “because the situation was tense.” 822
325. The Chamber has also considered the evidence of Defence Witness KG19, who denied that
the parish was attacked on 13 April 1994. 823 Witness KG19 testified that, from his vantage point at
the Nyange Trading Centre, he could observe everything that happened at the Statue of the Virgin
Mary and did not see any attackers in the vicinity of the statue on that day. 824 The Chamber recalls
that Witness KG19 did not go to the church on 13 April 1994. 825 Although the witness testified that
he could see everything that happened in the vicinity of the Statue of the Virgin Mary, he did not
say that he could see the parish. The Chamber recalls from its site visit that the Nyange Parish could
not be seen from either inside or immediately outside the shop where the witness said he was. 826
The Chamber therefore does not consider Witness KG19’s testimony sufficient to cast doubt on the
eye-witness testimony provided by Witnesses CBN, CBY, CBK and CBS.
818 Defence Final Brief, para. 446.
819 [Original] Indictment, paras. 11-13. Compare Amended Indictment.
820 See, e.g., Muvunyi, Judgement (AC), para. 18.
821 Witness CBS, T. 17 September 2009, p. 10; Witness CBN, T. 1 September 2009, pp. 54-55, 58; Witness CBY, T. 8
September 2009, pp. 36, 39-40; Witness CBK, T. 2 September 2009, p. 70.
822 T. 11 February 2010, p. 14 (CS).
823 T. 27 January 2010, p. 9. See also Defence Final Brief, para. 169.
824 T. 27 January 2010, pp. 9-10; T. 27 January 2010, p. 21 (CS).
825 T. 27 January 2010, p. 9.
826 See Registry Exhibit R1 (DVD Site Visit Day 1, 2, & 3), at Day 2, 1:07:36-1:09:15; Registry Exhibit R3(II) (T. 20
April 2010, pp. 43-45 (CS)). The Chamber notes that these observations were made from in front of Kanyarukiga’s
pharmacy. However, the Chamber finds that its observations also apply to the shop where the witness says that he was.
Depicted in Prosecution Exhibit P46 (Colour Photocopy of Photo (K027-1743) as marked by Witness CNJ). Compare
Registry Exhibit R1 (DVD Site Visit Day 1, 2, & 3), at Day 2, 1:00:10-1:01:23 (illustrating that the Nyange Parish can
be seen by someone standing in the road in front of the Nyange Trading Centre and the Statue of the Virgin Mary).
The Prosecutor v. Gaspard Kanyarukiga, Case No. ICTR-2002-78-T 77