Hategekimana - JUDGEMENT & SENTENCE - Refworld

The Prosecutor v. Ildephonse Hategekimana, Case No. ICTR-00-55B-T
83. Nevertheless, the Chamber considers that such a defence is implied in the testimonies of at
least four Defence witnesses as well as in the Defence Closing Brief. The Accused is in effect
denying that he was in a position to commit the crimes with which he is charged, since according to
these four witnesses he was not present in the Ngoma Camp during the period of the alleged crimes.
84. The Defence challenges the Prosecution witnesses’ identification of the Accused because
they did not mention his prominent beard. 82 It relies on Witnesses CBM2, BJ3, CKB, MZA, ZML
and RGF. 83 Nevertheless, apart from Witness BJ3 who stated that Hategekimana had a beard in
April 1994, 84 the Chamber notes that none of these Defence witnesses testified to having seen him
with a beard during the period alleged in the Indictment. As for Witness BJ3’s testimony, the
Chamber considers it not to be relevant as he admitted not knowing anything about what happened
in the Ngoma area and stated that he could only talk about what happened in the ESO Camp. 85 The
Chamber also notes that his testimony mainly concerns the ESO Camp meeting which was held on
7 April 1994 and, therefore, does not apply to the events that followed. In light of the foregoing, the
Chamber dismisses the Defence’s submission on this point.
85. The Chamber concludes that even if this does not constitute a proper alibi within the
meaning of Rule 67, the evidence that the Accused was elsewhere at the time of the crime was
committed must be considered in conjunction with the Prosecution’s evidence that he was at the
alleged crime scenes at the time and that he allegedly committed the crimes. Therefore, the
Chamber will deal with this issue in the course of its preliminary factual findings.
3. EVIDENTIARY ISSUES
86. The Defence emphasises the presumption of the Accused’s innocence and the burden of
proof to be met by the Prosecution. The Defence argues that, in light of the credibility issues
relating to the evidence of the 20 Prosecution witnesses in this case, there is clear doubt about
Hategekimana’s guilt. It submits that Hategekimana has a right to benefit from even the slightest
doubt, leading to an acquittal, and requests the Chamber to rigorously evaluate the evidence. 86
3.1 Admission of Evidence
87. Rule 89 sets out the general evidentiary guidelines of the Tribunal. In accordance with this
Rule, a Chamber may admit any relevant evidence which it deems to have probative value. The
Chamber observes that in this case prior written statements of witnesses were not systematically
tendered into evidence in their entirety. Rather, when the Parties used such statements during
examination, they generally read the relevant portions of the statements into the record. When
inconsistencies were raised between the content of a prior statement and the testimony during trial,
the Chamber’s point of departure was the account given by a witness in his or her testimony in
court. When assessing the evidence, a Trial Chamber has broad discretion to determine the weight
to be given to discrepancies between a witness’s testimony and any prior statements. 87 The
Chamber notes that differences between prior statements and testimony in court may be due to
82 Defence Closing Brief paras. 586, 676: the Defense alleges that “the only visible characteristic that could distinguish
him from the others” was that he had a beard.
83 Witness CBM2, T. 9 July 2009 pp. 20, 30-33; Witness BJ3, T. 24 September 2009 pp. 26-34, 39; Witness CKB, T. 8
July 2009 pp. 5-12, 58; Witness MZA, T. 23 June 2009 pp. 16-22, 33; Witness ZML, T. 22 June 2009 pp. 10-17, 19;
Witness RGF, T. 2 October 2009 pp. 20, 23-27.
84 T. 24 September 2009 p. 33.
85 T. 24 September 2009 p. 73.
86 Defence Closing Brief paras. 731-733; Defence Closing Argument T. 26 April 2009.
87 Gacumbitsi Appeal Judgement para. 74; Kajelijeli Appeal Judgement para. 96.
Judgement and Sentence 24 of 201 6 December 2010