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TRIAL CHAMBER II

Before: JudgeJoseph Asoka de Silva,Presiding JudgeTaghrid Hikmet JudgeSeon Ki Park

Registrar: Mr AdamaDieng C- c ; o rP Date: 6 January2010 c, et r > I_ = l'ttri|-'. c: z: I GEORGESA.N. RUTAGANDA C)rnqa ?5: t \-/ \--, g

CaseNo. ICTR-96-03-R

PROSECUTOR'SRESPONSE TO RUTAGANDA'SEXTEREMLY URGENT MOTION FOR ACCESSTO CONFIDENTIALMATERIAL OF'WITNESS .6CSH"IN RUTUNDOCASE (ICTR-2001-70 -T)

The Applicant Office of The Prosecutor GeorgesA.N. Rutaganda,pro se Mr HassanBubacar Jallow Mr. Alex Obote-Odora Ms. LindaBianchi Mr. OusmanJammeh Ms. MadeleineSchwarz Gqn

A. Prosecutor'sResponse

(A) Overviewof the Motion l. On 29 December 2009, Georges A.N. Rutaganda, the Applicant, filed

"Rutaganda's Extremely Urgent Motion for Accessto Confidential Material of Witness "CSH" in Rulamdo Case QCTR-2001-70-T)" (the "Motion") in which he requeststhe Trial Chamberto grant him accessto the closed sessiontestimony of Witness "CSH" from the Rukundotrial.l

2. The Prosecutoropposes the Motion for the following reasons.First, the Applicant hasbrought the Motion beforethe wrong Chamber.The Applicant oughtto havebrought this Motion beforethe Appeals Chamber. Second,and in any event,the Applicant has failedto demonstratethat the materialhe hasrequested is likely to assisthis caseand thus accessto closed,confidential material is not warranted.

(B) The Applicant has brought this Motion before the wrong Chamber

3. The Applicant has brought this Motion before Trial Chamber II, the Trial Chamberwhich by written decisiondated 27 February2009 rendered Final Judgementon the Rukundocase. However,the Chamberproperly seized of this matter is the Appeals Chamber,since the caseis currentlyon appeal.

4. On 19 March 2009, Rukundonotified the AppealsChamber that he intendedto appealtheJudgement and askedfor an extensionof time to file his Notice of Appealuntil the Frenchtranslation of the Judgementwas available. On 24 March2009, the Appeals Chambergranted the extension.

5. On 5 November2009, Rukundofiled his Notice of Appeal. His Appeal Brief is dueto be filed on l9 Januarv2010.

' GeorgesRutaganda v. TheProsecutor, Case No. ICTR-96-03-R"Rutaganda's Extremely Urgent Motion for Accessto ConfidentialMaterial of WitnessCSH in RukundoCase (ICTR-2001-70-T), dated 23 December2009, filed on 29 December2009. 616/f'

6. When the Appeals Chamber becomes seized of an appeal against a Trial Judgement,it becomesthe Chamber"seized of the first proceedings"within the meaning of Rule 75(GXi) of the Rules.2

7. As a result,the Prosecutorsubmits that, as a party to the secondproceedings, the Applicant shouldhave filed his Motion beforethe AppealsChamber, instead of filing it improperlybefore Trial ChamberII.

8. As opposedto directing the Applicant to file a new motion, the Prosecutor requeststhe Trial Chamberto transferthis Motion to the AppealsChamber and for the AppealsChamber to considerthe following response.3

(C) The Applicant has failed to demonstrate that the material he has requested is likely to assisthis case

9. As statedby the AppealsChamber:

where a party requestsaccess to confidential material from another case, such material must be identified or describedby its general nature and a legitimate forensic purpose for accessingit must be demonstrated. Considerationmust be givento the relevanceof the materialsought, which may be demonstratedby showing the existenceof a nexus between the requesting party's case and the case from which such material is sought.....A Chamber must be satisfied that the requestingparty has establishedthat this materialis likely to assistits casematerially or that thereis at leasta goodchance that it would.a

t See,e.g., Th1onesteBagosora et al. v. The Prosecutor, CaseNo. ICTR-98-41-A, ConJidentialDecision on Augustin Ngirabatware's Motion for Disclosure of Closed SessionTestimony and Exhibits under Seal, 18 September2009, para. 12; Prosecutor v. Dragomir Milosevic, Case No. lT-98-29/l-A, Decision on RadovanKaradzic's Motion for Varianceof ProtectiveMeasures,8 October 2009,para.6. See alsoThe Prosecutor v. Elidzer Niyitegeka, Case No. ICTR-96-14-R, Decision on Request for Disclosure, ll July 200?,paras.4,5. ' The Prosecutornotes that, as this motion is properly made before the Appeals Chamber, it has filed this Responsein accordancewith the timing set out in PracticeDirection on Procedurefor the Filing of Written Submissionsin Appeal ProceedingsBefore the Tribunal, 8 December2006. para. 13, that is, within 10 days of receipt of the Motion. o Georges Rutaganda v. The Prosecutor, Decision on Rutaganda's Appeal Conceming Access to Confidential Materials inthe Karemera et ql. Case, l0 July 2009, para. 13; see also, Decision on Georges A.N. Rutaganda'sAppeal Against Decision on Requestfor Closed SessionTestimony and SealedExhibits, 22 April 2009,para. 10. 6qsl+

10. The Applicant has failed to establishthat the testimonyof CSH in Rukundois likely to assisthis case materially,taking into accountthe full extent of his criminal conductin CyahafiSector, Nyarugenge Commune.s ll. In its Appeal Judgementof 26 May 2003, the Rutaganda AppealsChamber confirmedthe Applicant's convictionfor genocideand exterminationas a crime against humanity,entered an additionalconviction for seriousviolations of Article 3 commonto the GenevaConventions and upheld his sentenceof .6The Appeals Chamberaffirmed the Trial Chamber'sfindings that the Applicant distributedweapons and aided and abettedkillings in Cyahafi sector,Nyarugenge Commune, -Town; ordered,committed, and aided and abettedcrimes committed in the areaof the Amgar garage, participated in the massacres at Ecole Technique Officiel ("ETO") and participatedin the forced diversion of refugeesto Nyanza and the subsequentmassacres there.T

12. The RutagandaTrialChamber found that on l5 April 1994,theApplicant arrived in Cyahafi Sector,Nyarugenge Commune in a pick-up truck. The men who arrived with him distributedweapons that were in the back of the truck to . Immediately after the distribution of the weapons the Interahamwe startedto shoot. Three persons were shot dead, including one individual namedViater Kalinda.s The Trial Chamber madea numberof other findings concerningthe Applicantdistributing weapons on other days.eAs a resultof theseacts, the Chamberfound the Applicant individually criminally responsible for having aided and abetted in the preparation for and perpetration of killings of membersof the Tutsi group and for having causedserious bodily or mental harmto membersof saidgroup.lo

13. It is worth noting that the Applicant was not convictedof the actual killing of Viater Kalinda. The Applicant's conviction was based on his involvement in the t Georgtt Rutaganda v. The Prosecutor, Case No. ICTR-96-3-R, Decision on Rutaganda's Appeal ConcemingAccess to Confidential Materials inthe Karemera et al. Case, l0 July 2009, para.28. o GeorgesRutaganda v. The Prosecutor, CaseNo. ICTR -96-3-A, Judgement,26 May 2003 ("Rutanganda Appeal Judgment"), Disposition; The Prosecutor v. Georges Rutaganda, Case No. ICTR -96-3-T, Judgement,6 December 1999,('RutagandaTrial Judgement"), Verdict. '^ RutagandaAppeal Judgement,paras. 294-341 o RutagandaTrialJudgement, paras, 197,385. 'See for example,Rutaganda Trial Judgement,para. 385. '" RutagandaTrial Judgement,paras. 198, 199,385. 6qr//o distribution of weapons in Cyahafi sector which resulted in killings of different individuals.rr

14. In this Motion, the Applicant seeksaccess to the confidentialmaterial of Witness CSH who testified in Rukundoon refugeesand abductionsof refugeesfrom the Kabgayi Major Seminaryin GitaramaPrefecture. At no point did Witness CSH testify about eventsin Cyahafi sectoror mention the Applicant.

15. The Applicant noted that he was informed that the testimony of CSH and the publication which was tendered as Defence Exhibit D.6 and admitted under seal, discussedthe death of a certain Viater Kalinda.r2 The Rukundo Trial Judgement summarizesthe testimonyof CSH and his testimonyon the deathof Viater Kalinda,and mentionsa book written by CSH regardingthe testimoniesof Kabgayi survivors(Exhibit D-6 (underseal).r3

16. CSH testifiedthat Viater Kalinda,a journalistfrom Radio Rwanda,was one of the individuals abductedfrom the Seminaryand killed on 24 May l994.ta He further testifiedthat, on 2 June 1994,when he and the other refugeeswere liberatedfrom the KabgayiMajor Seminaryby the RPF,they weretaken to a camp in Byimanawhere some peasantstold them aboutthe killings they had witnessedon24May 1994,which was a Thursday(a market day). The peasantsexplained that they had heardgunshots and Viater Kalinda had tried to run away but was struckdown by a machete.l5This is the extentof CSH's testimonyon Viater Kalinda. It is hearsaytestimony based on what he heardafter the event. It did not form the basisof any convictionof Rukundo.

17. The AppealsChamber has noted that in a situationsuch as the Applicant's, the "only legitimatepurpose to seekdisclosure would be in relationto a requestfor review of his judgement pursuant to Rule 120 of the Rules."r6 The Appeals Chamber has

tt RutagandaTrialJudgement, paras. 385, 386. 12 Motion, para.I l. " RukundoTrial Judgement,paras. 455-460. 'o- Ruktndo Trial Judgement,para. 457, 497. " Ruhtndo Trial Judgement,para. 497. tu Georges Rutaganda v. The Prosecutor, Decision on Rutaganda's Appeal Conceming Access to Confidential Materials in the Karemera et al. Case. l0 July 2009, paras,2l and 22 confirming Trial Chamber'sstatement. 613/n confirmed that significant factual, geographicaland temporal overlap can establisha tt legitimateforensic purpose.

18. The Applicant has failed to demonstratethat there is a legitimate forensic purpose,or a close nexus betweenhis caseand the case from which such material is sought.ls There is no geographicalor temporal overlap betweenthese cases. The evidencecontained in CSH's testimonyspeaks to the circumstancesof the abductionsin Kabgayi in May 1994. This has no bearingon the Cyahafi arms distributionsand the preparationand perpetrationof killings in April 1994,including the shootingof a Tutsi namedViater Kalinda.

19. The only potential factual overlap may exist in the circumstancesrelating to a Tutsi victim killed during the genocidein 1994. However, even here, no legitimate forensic purposehas been established. Witness J in Rutaganda mentionedvery briefly that Viater Kalinda was one of the Tutsi individualsshot after the distributionof weapons in Cyahafi in mid-April 1994. WitnessCSH in Rukundoalso mentionedvery briefly a refugee named Viater Kalinda who was abducted from Kabgayi Minor Seminary and killed in May 1994. This doesnot constitutea significantfactual overlap.

20. Disclosureof CSH's closedsession material will not assistthe Applicant's case. The Prosecutorhas reviewed the testimonyof CSH, includingExhibit D-6, and notesthat no furtherinformation about Viater Kalinda,the journalistwho was abductedand killed, is providedeither in the closedsession testimony or in Exhibit D-6.

21. By way of comparison,Trial ChamberIII, granteddisclosure of documentsfrom the Karemera caseto the Applicant noting that there was a significant factual, geographic and temporal overlap betweenthe Karemera et al. caseand the Rutaganda case.teIn this case,there is no significant factual, geographicor temporal overlap betweenthe Rukundo t' Georges Rutaganda v. The Prosecutor, Decision on Rutaganda's Appeal Conceming Access to Confidential Materials in the Karemera et al. Case, l0 July 2009, para.21 confirming Trial Chamber's statement. t' Georges Rutaganda v. The Prosecutor, Decision on Rutaganda's Appeal Conceming Access to Confidential Materials inthe Karemera et al. Case, l0 July 2009, para. 13; see also Decision on Georges A.N. Rutaganda'sAppeal Against Decision on Requestfor Closed SessionTestimony and SealedExhibits, 22 April 2009, para. 10. te Prosecutor v. Karemera et al., ICTR-98-44-T, Decision on Appeals Chamber remand regarding Rutaganda's Appeal Conceming Access to Confidential Materials in the Karemera et al. Case, 29 September2009, para.4. en/a caseand the Rutaganda case. While there is a possibility that there is factual overlap in a victim, Viater Kalinda, the Prosecutorsubmits that the nexus is so far removed from offering any materialassistance to the Applicant'scase that it doesnot warrantdisclosing protectedand confidential information, particularly as none of the allegedly relevant materialrelating to Viater Kalinda is found in the closedsession material.

B. Relief Requested

22. There is a need to strike a balance betweenthe protection and integrity of the closedsession material and the Applicant'sright to haveaccess to it.20 As the Applicant hasfailed to demonstratea legitimateforensic purpose to gain accessto the material,and as thereis no further informationconcerning Viater Kalinda and his murderprovided by WitnessCSH beyondwhat is availablein the open sessiontestimony and the Rukundo Trial Judgement,the Applicant shouldnot be ganted accessto the sought-aftermaterial.

23. The Prosecutorrequests that the Applicant'sMotion be dismissed.

Word Count: 2,072

Signedat Arushathis 6fr day of January2010

Linda Bianchi SeniorAppeals Counsel

'o Eliezer Niyitegeka v. The Prosecutor, Case No. ICTR-96-14-R75, Decision on Elidzer Niyitegeka's Appeal Conceming Access to Confidential Materials in the Muhimana and Karemera et al Cases,23 Ootober2003 , para.23. TRANSTISSION SHEET FOR FITING OF DOGUMEilTS WITH CTS

@ffiUnhodHrtions COURTMANAGEMENT SECTION i{rtionrUniee (Arl.27of theDirective for the Registry)

I . CENERAL INFORTATIO]I Dbc the Ghamberr / ll TrialChamberI X TrialChamberll ll TrialChamberlll l_JTrial Chamber lll To: N.M. Diallo R. N. Kouambo C. K. Hometowu A. N'Gum LlChief, CMS ll AppealsChamber / Arusha LJ AppealsChamber / The Hague J.-P.Fom6te Chamberll K. K. A. Afande F.A. Talon R. Muzioo-Morrison From: l_l Chamber ll Defence X Prosecutor'sOffice LlOttrer: ,{ (names) (names) (names) - ffR";:Wo)'^ CaseName: The Prosecutorvs. Rutaganda u CaseNumber: ICTR-96-06-R Dates: Transmitted:6 January 2010 Document'sdate: 6 January2010 No.of Pages: 7 OriginalLanguage: X English I French f] Kinyanrvanda Title of PROSECUTOR'SRESPONSE TO RUTAGANDA'SEXTREMELY URGENT MOTION FOR Document: ACCESSTO GONFIDENTTALMATERIAL OF WITNESS "CSH" tN RUKUNDOCASE (|CTR-2001- 70-T) ClassificationLevel: TRIMDocument Type: Ex Parte n Indictment ! Warrant I Correspondence n Submissionfrom non-parties StrictlyConfidential/ Under Seal E Decision D Affidavit I ttoticeof Appeal X Submissionfrom parties Confidential I Disclosure I order fJ AppealBook fJAccusedparticulars Public E Judgementn Motion I Boot

NB: This form is available on : http://www. ictr.org/EN G Ll SH/cms/cms 1 .doc CMS1(Updated on 01 August2008)