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i;"~tional Criminal ~bunalfor ' Tribunal Penal International pour Ie Rwanda

TRIAL CHAMBER III

Before: Judge Lee Gacuiga Muthoga, presiding Judge Seon Ki Park Judge Gberdao Gustave Kam

Registrar: AdamaDieng

Date of filing: 29 February 2012

THE PROSECUTOR v. BERNARD MUNYAGISHARI

Case No. ICTR·2005·89·1

PROSECUTOR'S CONSOLIDATED BRIEF IN REPLY

Office ofthe Prosecutor Counsel for the Accused Hassan Bubacar Janow Philippe Moriceau James J. Arguin Natacha Fauveau-Ivanovic George Mugwanya Majda Dautovic Inneke Onsea Abdoulaye Seye Francois Nsanzuwera Erica Bussey I. INTRODUCTION 1

II. SUBMISSIONS 2 A. THE UWINKINDI AND ECHR JURISPRUDENCE IS APPLICABLE TO THE ACCUSED'S CASE 2 (a) The Uwinkindi jurisprudence is applicable to the Accused's case 2 (b) Jurisprudence on extraditions from regional and national courts, including the ECHR, is applicable to the Accused's case 6

B. NO PRINCIPLES OF INTERNATIONAL LAW PRECLUDE THE TRANSFER OF THE ACCUSED TO RWANDA 11 (a) There is no requirement at the ICTR that the Accused be low or mid-ranking, and even ifthere was such a requirement, it has been met 11 (b) There has been no undue delay 18 (c) There has been no violation of general principles of international law even ifMunyagishari were a citizen of the DRC (which he is not) 22

(d) There is no obligation for the Trial Chamber to consider transferring the Accused to the DRC proprio motu, and even ifthere were such a requirement, there would be no error in determining that Rwanda was the more appropriate forum 27 C. JOINT CRIMINAL ENTERPRISE 30 (a) Joint criminal enterprise is applicable before Rwandan courts, and in any event, there is no requirement that the legal framework of the referral state recognizes all modes of liability charged in the Indictment 30 (b) The Referral proceedings are an inappropriate forum in which to challenge defects in the form of the indictment.. 33 (c) No undue delay would result from any amendment of the Indictment 34 D. Ifreferral is allowed, the trial of this case in Rwanda will respect all of the Accused's fair trial rights 35

(a) Rwanda's Correctional Services ensure that conditions of detention are consonant with international standards in the Accused's case 37 (b) Rwanda's judiciary ensures the presumption of innocence in the Accused's case 41

i (c) The Defence will be able to present evidence under the same conditions as the Prosecution 43

(a) Alleged fears of Defence witnesses 44 (b) Genocide Ideology Law 51 (c) Protection of witnesses 53 (d) Ability to compel witness testimony 58 (d) Rwanda will secure the Accused's right to an effective defence 60

(a) Legal representation 61 (b) Legal aid 63 (c) The ability to provide a full and vigorous defence 67 (d) The Supreme Court's Internal Order serves a legitimate purpose and does not create an inequality of arms 69 (e) The Accused will receive a fair trial by independent, impartial and competent courts 75

(a) Rwanda's acceptance letter ofMunyagishari's case is appropriate 75 (b) Allegation ofpolitical interference is unsubstantiated 76 (c) Judges on Rwanda's High Court and Supreme Court enjoy tenure of office 79 (d) Legislation on foreign and international judges is not vague and provides additional safeguards to the Accused's fair trial rights 80 E. THE MONITORING PROVISIONS OF RULE 11 BIB REMAIN ADEQUATE SAFEGUARDS TO THE ACCUSED'S FAIR TRIAL RIGHTS.... 81

(a) The Defence submission that no suitable monitoring mechanism can be put in place for the Uwinkindi or future referred cases is premature 82

(b) The ACHPR is a suitable monitor for this case 83

(c) Alternative monitoring mechanisms could also provide a safeguard ofthe Accused's fair trial rights 86 (d) Monitors appointed by the Chamber would be afforded protection and facilitation in Rwanda 88

III. CONCLUSION 88

A. Annexes 90

B. Authorities 92

ii I. INTRODUCTION

1. The Defence for the accused Bernard Munyagishari ("Accused") has submitted more than a 1000 pages of material in opposition to the Prosecutor's application to refer this case to Rwanda for trial.! Many of these submissions have been made before in connection with prior Rule 11 bis referrals and have been rejected by the Trial and Appeals Chambers in Uwinkindi, and, most recently, by the Referral Chamber in Kayishema. Contrary to Defence submissions, this jurisprudence is fully applicable to the Accused's case.

2. Furthermore, again contrary to Defence submissions, there are no principles of international law that preclude the Accused's transfer to Rwanda. The Accused's suggestion that his case should be referred to some jurisdiction other than Rwanda - the jurisdiction where he committed the crimes - is entirely unfounded. So too is the Accused's suggestion that the inclusion of joint criminal enterprise as a mode of participation in the Indictment somehow presents a bar to transfer of his case.

3. Likewise without merit are the multiple arguments the Accused has raised relating to his right to a fair trial. As will be seen, most of these arguments have already been rejected by other Chambers. First, Rwanda's legal framework and correctional services ensure that conditions of detention conform to international standards. Second, Rwanda's judiciary is free and independent, and also guarantees the presumption of innocence. Unsubstantiated allegations of executive interference in Rwanda's judiciary are insufficient to rebut the presumption of independence and impartiality. Third, the broad immunity

1 The Prosecutor v. Bernard Munyagishari, Case No. ICTR-2005-89-I, Reponse de la Defense de Bernard Munyagishari a la Requete du Procureur aux fins de renvoi de l'affaire Munyagishari au Rwanda en application de l'article 11bis du Reglement de procedure et de preuve, 1 February 2012 ("Response"); The Prosecutor v. Bernard Munyagishari, Case No. ICTR-2005-89-I, Addendum a la Reponse de la Defense de Bernard Munyagishari a la Requete du Procureur aux fins de renvoi de l'affaire Munyagishari au Rwanda en application de l'article 11bis du Reglement de procedure et de preuve, 3 February 2012 ("Addendum"). See also The Prosecutor v. Bernard Munyagishari, Case No. ICTR-2005-89-I, Prosecutor's Request for the Referral of the Case of Bernard Munyagishari to Rwanda pursuant to Rule llbis of the Tribunal's Rules of Procedure and Evidence, 9 November 2011 ("Rule 11 bis Request"). 1 conferred on defence teams and witnesses under Rwanda's Transfer Law­ renders the Defence professed fears of arrest and prosecution under the Genocide Ideology Law unrealistic. Even if these subjective fears were credited, readily­ available alternatives exist for the Defence in any referred case to obtain live witness testimony. Fourth, Rwanda will ensure the Accused's rights to an effective defence. Fifth, Rwanda has sufficient funds allocated to its legal aid programmes, and the Accused is free to present a full and vigorous defence. And, in all events, Rule 11 bis' monitoring and revocation provisions afford meaningful safeguards for all ofthe Accused's fair trial rights.

4. In addition to responding to the Defence contentions, the Prosecutor also responds briefly to the issues raised by the International Association of Democratic Lawyers ("IADL") in a letter and resolution dated 13 February 2012. Some of these issues were not raised by the Defence in its Response; nor were they raised in any amicus brief that the IADL was invited to file in this case. Nevertheless, as with many of the Defence submissions, the Prosecutor will show that the conclusions contained in the IADL's resolution are unsupported by credible evidence and already have been rejected by both the Uwinkindi Trial and Appeal Decisions, which addressed many of the IADL's same contentions.

II. SUBMISSIONS

A. THE UWINKINDI AND ECHR JURISPRUDENCE IS APPLICABLE TO THE ACCUSED'S CASE

(a) The Uwinkindi jurisprudence is applicable to the Accused's case

5. Contrary to the Defence submissions," there is nothing that distinguishes the Accused's case from Uwinkindi's case such that the findings made by the

2 Organic Law No. 11/2007 of 16 March 2007 concerning Transfer of Cases to the Republic of Rwanda from the International Criminal Tribunal for Rwanda and From Other States, Official Gazette, 19 March 2007, as amended in 2009 by Organic Law No. 03/2009/0L of 26 May 2009 modifying and complementing the Organic Law No. 11/2007 of 16/03/2007 concerning the Transfer of Cases to the Republic of Rwanda from the International Criminal Tribunal for Rwanda and from Other States, Official Gazette, 26 May 2009 ("Transfer Law") (annexed to Rule 11 bis Request as Annex G). For English, French and Kinyarwandan versions of this law, see http://www.amategeko.net/(last accessed 29 February 2012). 3 Response, paras. 5-12. 2 Uwinkindi Trial and Appeals Chambers in relation to fair trial rights in Rwanda would not be applicable.

6. The Defence's arguments that Munyagishari would be subjected to worse treatment in detention by prison officials than other accused because he is charged with rape and is allegedly of Congolese nationality are speculative and unsupported by any evidence. The Defence asserts, for example, that "it is well known" that foreigners are treated worse than nationals in detention facilities­ and that "it is common knowledge that rape is a particularly odious and sensitive crime which in all societies attracts particular condemnation"," without providing any support for these assertions. In any event, as addressed more fully below, the Prosecutor submits that it has not been shown that Munyagishari IS a national of the Democratic Republic of the Congo ("DRC"), given the overwhelming evidence to the contrary indicating that he was born in Rwanda." Moreover, while Munyagishari has been charged with rape, this does not mean that he would be convicted of this charge.

7. The Trial and Appeals Chamber in the Uwinkindi case have found that prisoners transferred by the Tribunal to Rwanda shall be detained in accordance with the minimum standards of detention stipulated in the United Nations Body of Principles for the Protection of All Persons under any Form of Detention or Imprisonment.7 Moreover, Rwanda has confirmed that these international standards will be complied with in the Accused's case.f Principle 5 provides that these principles "shall be applied to all persons within the territory of any given State, without distinction of any kind, such as race, colour, sex, language, religion or religious belief, political or other opinion, national, ethnic or social origin,

4 Response, para. 10. 5 Response, para. 8. 6 See infra, paras. 53-54. 7 Uwinkindi (AC), para. 37; Uwinkindi (TC), para. 58. 8 See infra, paras. 51-54. 3 property, birth or other status."? These guarantees therefore apply regardless of the nationality ofthe Accused or the crimes for which he is charged.

8. The Defence also invokes the Accused's Congolese nationality to argue that he would be in a particularly vulnerable situation vis-a-vis the Rwandan authorities given that he resided in North-Kivu from 1994-2003, and was there during attacks by the Rwandan government on in the region that occurred in 1994-1995.10 Again, this is speculation - the Defence has provided no evidence to substantiate its claim that residents of North-Kivu, solely by virtue of their presence in this area, would be in a more vulnerable position vis-a-vis the Rwandan government based on attacks that took place over 15 years ago, nor that they would be discriminated against by Rwandan authorities ifthey were to face trial in Rwanda.

9. The Defence further submits that, unlike Uwinkindi, who was a pastor with no political or military functions, Munyagishari allegedly exercised significant authority and performed important functions in his capacity as Secretary-General of the MRND in Gisenyi and head of the InterahamuieX- The Defence argues that the Accused's level of responsibility is underscored by the fact that he has been charged with Article 6(3) responsibility.P unlike Uwinkindi who was only charged under Article 6(1), and for his participation in a joint criminal enterprise.P The Defence, however, does not indicate how the Accused's position would affect the fairness of his trial were he to be transferred to

9 UN Doc. AlRes/43/173, Body of Principles for the Protection of All Persons under any Form of Detention or Imprisonment, adopted by General Assembly Resolution 43/173, 9 December 1998, found online at http://www2.ohchr.org/english/law/bodyprinciples.htm (last accessed 28 February 2012). 10 Response, para. 11. u Response, paras. 5-6. 12 Response, para. 6. The Defence returns to this submission in the context of its argument that the Accused was not a lower or intermediate-ranked accused, and therefore does not fall within the category of persons who can be transferred to Rwanda, an argument which has been addressed below (See infra, paras. 34-37). 13 The Defence also alleges that joint criminal enterprise is not a form of responsibility that is recognized under Rwandan law. See Response, para. 7. The Defence returns to this argument in Section III of its Response, where it is tied to an argument that joint criminal enterprise has not been properly pleaded in the Indictment. The Prosecutor has considered these arguments below (see infra, paras. 74-81). 4 Rwanda, and its arguments in this regard are therefore purely speculative and unsubstantiated.

10. The Defence's allegation that these factors, taken cumulatively, demonstrate that the Accused's situation is more sensitive than that of Uwinkindi, and that on this basis, the Chamber should not refer him to Rwanda, is again unfounded, as the Defence has provided no concrete evidence that the Accused would be more likely than Uwinkindi to suffer any discriminatory treatment by Rwandan authorities due to his particular circumstances. In the Uwinkindi case, the Trial and Appeals Chamber found that the accused would "be prosecuted consistent with internationally recognized fair trial standards enshrined in the Statute of the Tribunal and other human rights instruments",14 These protections apply equally to the Accused in this case, regardless of his status, nationality, or the crimes for which he is charged.

11. Moreover, should the Accused suffer discrimination by Rwandan authorities on any of the grounds suggested by the Defence, the monitoring mechanism provided for by Rule 11 bis(D)(iv) will ensure that this is brought to the attention of the President of the Tribunal so that any remedial action, including revocation, can be considered by the Tribunal, or if applicable, by the Residual Mechanism.P

12. Consequently, the Defence has failed to point to any relevant differences between Uwinkindi's case and the case of the Accused which would make the findings of the Trial and Appeals Chamber in the Uwinkindi case inapplicable to the Chamber's determination in the instant case as to whether the Accused will receive a fair trial in Rwanda.

14 Uwinkindi (TC), para. 223; Uwinkindi (AC), para. 87. See also Kayishema (TC 2012), para. 163. 15 See Rule 11 bis Request, paras. 86-95. 5 ,I {::J

(b) Jurisprudence on extraditions from regional and national courts, including the ECHR, is applicable to the Accused's case

13. The Defence has not established that jurisprudence on extraditions from regional and national courts, including the ECHR, is inapplicable to the Accused's case. Indeed, in its recent decision in Kayishema, a Trial Chamber relied upon this jurisprudence, including the Ahorugeze Judgement at the ECHR and the Bandora Judgement in , in finding that it could not "conclude that it is the general practice of States to deny Rwandan extradition requests for fear that the individual will suffer grave human rights violations",16 Although the procedural posture is admittedly different, this finding nevertheless has resonance here because it shows that the Accused's allegations, that he will suffer similar deprivations of human rights should his case be referred to Rwanda for trial, are unfounded.

14. The Defence objects to any reliance on the ECHR's decision in Ahorugeze v. Sweden, that there would be no violation of Ahorugeze's fair trial rights if he were extradited to Rwanda to face trial. It argues that the Ahorugeze Decision is based, in large part, on the Trial Chamber Decision in Uwinkindi, and that as the ECHR applied a standard lower than that which a Referral Chamber must apply in determining whether to refer a case pursuant to Rule 11 bis(C), the decision is inapplicable.l? Contrary to the Defence's allegations, however, the ECHR based its decision in the case on a consideration of several sources of evidence other than the Uwinkindi Decision, including information from the Swedish government and Swedish Embassy in Kigali.t" observations by the Government of the Netherlands.t? information from Amnesty International.s? and extradition decisions of various national jurisdictions.s! Moreover, the

16 Kayishema (TC 2012), para. 3l. 17 Response, para. 14. 18 See Ahorugeze Judgement, paras. 38-40, 80-81, 104-108 (''Ahorugeze Judgement") (attached to Rule 11 bis Request as Annex A). 19 Observations in Intervention of the Government of the Netherlands concerning Application No. 37075179, 27 July 2010, filed in the European Court of Human Rights, Ahorugeze v. Sweden, Application No. 37075/09 (attached to Rule 11 bis Request as Annex H). These observations were considered in the Ahorugeze Judgement, paras. 82 and 110. 20 Ahorugeze Judgement, paras. 41-43. 21 Ahorugeze Judgement, paras. 62-75. 6 Prosecutor relied on the Ahorugeze Judgement in its Rule 11 bis Request, not as a precedent, given the different standards applicable in each proceeding, but for its persuasive value, and its findings in relation to similar factual issues.

15. The Defence also challenges the Prosecutor's reliance on the letter written by the African Union in the Hissene Habre case on the basis that it was a diplomatic letter likely addressed to several different countries.w The Defence argues that in any event, the letter is not relevant as the Habre case has no connection with Rwanda and therefore the same fair trial issues do not arise.23 The Defence has not substantiated its claim that the letter was sent to other countries. The fact that the African Union specifically stated that it considered Rwanda the country "most suitable" to try Habre given the experience of the Rwandan judiciary in trying persons accused of international crimes would suggest that this is unlikely. The Statement of the Steering Committee of the International Committee for the Fair Trial of Hissene Habre also does not mention that any country other than Rwanda was approached.P Moreover, even ifit were the case that the letter was sent to other countries, this does not detract from the African Union's confidence in Rwanda's ability to conduct such a trial. The Prosecutor recognizes that any potential trial of Habre in Rwanda would involve different considerations than a trial of persons accused of crimes committed in Rwanda. However, the Prosecutor relied upon the letter only to demonstrate the confidence of the African Union in the capability of the Rwandan judiciary to conduct trials of persons accused of international crimes.

22 Ben Kioko, Director/Legal Counsel, African Union, Letter to Martin Ngoga, Prosecutor General, Republic of Rwanda, 22 July 2011 (copy annexed to Rule 11 bis Request as Annex C). 23 Response, para. 15. 24 Annex 6 to Response, Statement of the Steering Committee of the International Committee for the Fair Trial of Hissene Habre, A Real Solution or More Dilatory Tactics, 27 October 2011. As noted by the Defence, the Steering Committee questions the motives of the African Union in making this request to Rwanda, rather than supporting Habre's extradition to Belgium. However, even if these were indeed the motives of the African Union, this does not detract from its confidence in Rwanda's capacity to hold the trial. The Steering Committee itself stated that "the offer brings honor to Rwanda, which has also suffered from atrocities committed on its territory and therefore understands the stakes and the need for justice for the victims to foster national reconciliation" (p. 2). 7 16. The Defence also notes that the case of Habre was not actually referred to Rwanda and that Bandora and Ahorugeze can still appeal the decisions in their cases.25 It has not yet been determined where the Habre case will be tried, and therefore it remains possible that he may be tried in Rwanda.s" Moreover, while Ahorugeze had the opportunity to request the referral of his case to the Grand Chamber of the ECHR,27 the Oslo 's decision that Bandora could be extradited to Rwanda has now been affirmed on appeal by the Borgarting Court ofAppeal and the .sf

17. The Defence also notes that a French court recently refused to extradite Agathe Habyarimana to Rwanda to face triaI.29 According to the news articles submitted by the Defence (Annexes 7 and 8 of its Response), the Paris based its decision on the lack of precision in the facts alleged against Habyarimana, and concerns that Rwandan law provided no sanction for the alleged crimes at the time they were committed, rather than on the basis of any fair trial concerns relating to Rwanda.w Moreover, this decision is an anomaly in

25 Response, para. 16. 26 In the face of Senegal's failure to prosecute Habre, Belgium filed an application before the International Court of Justice on 19 February 2009 alleging that Senegal is under an obligation to extradite him to Belgium, which has made several requests for his extradition. The decision in these proceedings is still pending. See Questions Relating to the Obligation to Extradite or Prosecute (Belgium v. Senegal), found online at: http://www.icj-cij.org/docketlindex. php?p1=3&p2=1&code =bs&ca se=144&k=5e (last accessed 28 February 2012). 27 Article 43(1) of the European Convention on Human Rights provides that "[wjithin a period of three months of the judgement of the Chamber, any party to the case may, in exceptional cases, request that the case be referred to the Grand Chamber" (found at: http://www.echr.coe.intl NRirdonlyresID5CC24A7-DC13-4318-B457-5C9014916D7A10/CONVENTION_ENG_WEB.pdf (last accessed 28 February 2012). As the Ahorugeze Judgement was rendered on 27 October 2011, Ahorugeze had until 27 January 2012 to request such a referral. No information is currently available on the website of the ECHR indicating whether or not Ahorugeze has requested the referral of his case to the Grand Chamber. If he were to file such a request, the Grand Chamber would then need to determine whether it would accept the referral, pursuant to Article 43(2). 28 Bandora Appeal Decision (a copy of the official English translation is attached as Annex A); Bandora Supreme Court Decision (no English translation available). The Norwegian version is attached as Annex B). 29 Response, para. 17. 30 Annex 7 to Response, Article "Mme Habiyarimana ne sera pas extradee au Rwanda", Agence Hirondelle, 30 September 2011; Annex 8 to Response, Article "La demande d'extradition d'Agathe Habiyariamana rejetee" 8 J

light of the recent decisions of many other countries, including Norway, Sweden and Canada, to extradite accused persons to Rwanda to face trial.s!

18. In the paragraph in which the Defence "notes that other countries have refused to extradite persons to Rwanda", it lists only the Habyarimana decision and the Mugesera decision.P However, as the Defence itself observes, Canada did not refuse to extradite Mugesera. On 11 January 2012, the Federal Court of Canada rejected Mugesera's appeal from an application to stay his deportation to Rwanda to face trial,33 a decision which was implemented on 23 January 2012 when Mugesera was deported to Rwanda. The court upheld a decision which found that Mugesera had not demonstrated that his fair trial rights would be violated if he were tried in Rwanda, nor that he would be subjected to torture or ill-treatment in detention.s-

19. Mugesera had also submitted a request to the UN Committee against Torture to decide whether he would actually be subjected to torture if he was returned to Rwanda. The Committee requested that Canada stay his deportation until they had considered his case. Counsel submitted a stay of the Federal Court's decision to the provincial Superior Court, which issued a provisional stay until 20 January 2012. When the request for the original stay was heard by the provincial Superior Court on 23 January 2012, however, the judge agreed with the Prosecution that the provincial court did not have superseding jurisdiction over the federal court on this matter, as immigration law in Canada is exclusively in the jurisdiction of the federal courts.s" The judge also held that since a decision from the Committee against Torture is not binding on states, it

31 Ahorugeze Judgement; Bandora Judgement, affirmed on appeal in Bandora Appeal Decision and Bandora Supreme Court Decision; Mugesera Decision (attached as Annex C). 32 Response, para. 17. 33 Mugesera Decision. 34 Ibid., paras. 22-23. This decision held that the Rwandan government had made significant progress in ensuring that those accused of genocide would receive a fair and impartial trial, that the trial would take place before professional and impartial High Court judges, that the Rwandan government had taken measures to ensure the protection of Defence witnesses, that the death penalty had been abolished, and that Rwanda's prisons complied with international standards. 35 Mugesera c. Kenney, Cour Superieur du Quebec, 2012 QCCS 116, Decision, 23 January 2012, paras. 24-34, found at http://www.jugements.qc.ca/php/decision.php?liste=58473777&doc= DBA3C87F7A6B46A3163EC48E94C11AFCFOE48DC93796766E236D2C4155EB68B2&page=1 (last accessed 28 February 2012). 9 b'IO would be up to Canada's political and executive body, not its judicial body, to decide whether to comply with the Committee's request.sf Mugesera was deported to Rwanda that night. He has now made his first court appearance in Rwanda, where he was granted two months within which to obtain lawyers of his choice.s?

20. Therefore, contrary to the Defence submissions, the Mugesera decision is in fact an example of a case in which a country decided to extradite an accused person to Rwanda. It remains to be seen what the UN Committee against Torture will hold, but Canada was sufficiently confident that Mugesera would not be returned to torture in Rwanda that it deported him notwithstanding the pending request to the Committee.

21. Consequently, contrary to the Defence's submissions, the extradition cases the Prosecutor relied upon from other jurisdictions are applicable to Munyagishari's case. As submitted in the Prosecutor's Rule 11 bis Request.P the Chamber may therefore rely on these cases as indications of the confidence that national and regional bodies have expressed in Rwanda's capacity to respect the fair trial rights of accused persons transferred to Rwanda to stand trial. Indeed, the Trial Chamber in Kayishema recently relied upon this jurisprudence, including the Ahorugeze and Bandora Judgements, in finding that it could not "conclude that it is the general practice of States to deny Rwandan extradition requests for fear that the individual will suffer grave human rights violations",39 Moreover, the Defence has not shown why the Mugesera Decision, in which Canada determined that the accused could be deported to Rwanda, supports its position, or why the Habyarimana decision should be of any persuasive value to the Trial Chamber, given that it was not based on fair trial concerns.

36 Ibid., paras. 35-40. 37 New Times, 3 February 2012, "Mugesera given Two Months to Find Lawyers", found at http://www.newtimes.co.rw/news/index.php?i=&a=49669 (last accessed 28 February 2012). 38 Rule 11 bis Request, para. 8. 39 Kayishema (TC 2012), para. 31. 10 B. NO PRINCIPLES OF INTERNATIONAL LAW PRECLUDE THE TRANSFER OF THE ACCUSED TO RWANDA

(a) There is no requirement at the ICTR that the Accused be low or mid-ranking, and even ifthere was such a requirement, it has been met

22. Contrary to the Defence's submissions, there is no requirement at the ICTR that accused persons can only be transferred to national jurisdictions if they are low or intermediate in rank. Moreover, even if there were such a requirement, this requirement has been met in the instant case, as the Indictment does not establish that the Accused was one of the "most senior leaders" responsible for crimes committed in Rwanda.

23. The Defence submits that, while this is not explicitly required by Rule 11 bis of the Statute, Security Council Resolutions 1503 (2003) and 1534 (2004) mandate that a Trial Chamber must satisfy itself that the Accused is an intermediate or lower ranked accused before it can transfer him to Rwanda.40 The Defence argues that, given the Accused's position of authority, this requirement has not been met, and the Accused does not fall within the category of persons who can be transferred to Rwanda.41

24. As recognized by the Defence.s- Rule 11 bis of the ICTR Statute, unlike Rule Ilbis of the Statute of the ICTY, does not explicitly require that a Trial Chamber consider the gravity of the crimes charged or the level of responsibility of the Accused in assessing whether the accused's case can be transferred to a national jurisdiction.v'

25. In the many Rule 11 bis referral cases decided by the Tribunal, only two Trial Chambers have considered the status of the Accused in determining

40 Response, paras. 25-26. 41 Response, para. 27. 42 Response, para. 23. 43 Rule 11 bis(C) of the ICTY Statute provides that "in determining whether to refer the case in accordance with paragraph (A), the Trial Chamber shall, in accordance with Security Council Resolution 1534(2004), consider the gravity of the crimes charged and the level of responsibility of the accused". Rule 11 bis of the ICTR Statute has no similar provision. 11 whether he should be transferred.s- No other Trial Chamber has found that this is a requirement that must be met before an Accused can be transferred, and this has not been raised on appeal in any case. The Uwinkindi Trial Chamber has in fact explicitly held that "[iln contrast to its lCTY counterpart, the lCTR Rule 11 bis does not require the Referral Chamber to consider the 'gravity of the crimes charged and the level ofresponsibility ofthe accused.'" 45

26. Although the Security Council resolutions were adopted pursuant to Chapter VII, and they are therefore binding on the Tribunals.s" the language of these resolutions is not mandatory. Security Council Resolution 1503 (2003) only "urges" the lCTR to formalize a detailed strategy to transfer cases involving intermediate and lower-ranked accused to competent national jurisdictions as appropriate.s? Similarly, Security Council Resolution 1534 (2004) only "calls on" each Tribunal, in reviewing and confirming any new indictments, to ensure that any such indictments concentrate on the most senior leaders suspected of being most responsible for crimes within the jurisdiction ofthe relevant Tribunal.w and "requests" each tribunal to provide progress reports on measures taken to implement the resolutions, including the transfer of cases involving intermediate and lower rank accused to competent national jurisdictions.w

27. The Security Council opted not to amend the Statutes ofthe lCTY and the lCTR, and the Tribunals therefore had discretion as to how best to implement these resolutions. This is underscored by the Appeals Chamber decision in Stanhooic, which held that the Resolutions "confirmed the legal authority behind the Tribunal's referral process, but it left it up to the Tribunal to work out the

44 Munyakazi (TC), paras. 7-11; Kayishema (TC), paras. 11-15. 45 Uwinkindi (TC), footnote 20. 46 Stankouic CAC), para. 15, where the Appeals Chamber held that "the Tribunal is bound by the resolutions concerning the Tribunal that the Council passes under its Chapter VII authority". 47 UN Doc. SlRes/1503 (2003). 48 UN Doc. SlRes/1534, para. 5. 49 UN Doc. SlRes/1534, para. 6. Yarwood and Dold argue that "Resolution 1534 is not an imperative and merely calls upon the parties to act accordingly". Lisa Yarwood and Beat Dold, "Towards the End and Beyond: The "Almost" Referral of Bagaragaza in Light of the Completion Strategy of the International Criminal Tribunal for Rwanda, (2007) Chinese Journal of International Law Vol. 6, No.1, para. 27. 12 logistics for doing so, such as through amendments of it Rules".50 Therefore, while the Security Council Resolutions authorize the Tribunals to transfer accused persons to national jurisdictions, a certain level of discretion rests with the Tribunals as to how such referrals would be reflected in their rules.51 After a statement by the President of the Security Council in 2002, and after the Security Council adopted these resolutions, the ICTY amended Rule 11 bis (C) and Rule 28 (A) ofits Rules.52 The ICTR was aware ofthe rule changes made by the ICTY, and chose not make analogous changes to its own Rules of Procedure and Evidence ("Rules"), suggesting that this was a deliberate choice.P"

28. In letters to the Security Council with respect to the completion strategies of 2004 and 2007, the President of the ICTR indicated that "in determining which

50 Stankooic (AC), para. 16. 51 See Laura Bingham, "Strategy or Process? Closing the International Tribunals for Rwanda and Yugoslavia", (2006) 24 Berkeley International Law Journal 687 who states at p. 704 that "the [ICTR] judges collectively declined to amend the Rules to allow the ICTY RPE vetting procedure for authorizing indictments. The decision highlights the fact that amendments to the Rules of Procedure and Evidence of both Tribunals are promulgated by the Judges themselves, although ostensibly the Security Council could amend both the Rules of Procedure and Evidence and the Statutes of the Tribunals. Therefore a considerable margin of discretion exists in how the Completion Strategies will go forward at the Tribunal level, and how the Rules should or should not bend to increase the pace at which the Tribunals eliminate their dockets". See also Larry D. Johnson, "Closing an International Criminal Tribunal while Maintaining International Human Rights Standards and Ending Impunity" (2005) 99 American Journal of International Law 158, who states at p. 165 that "the Council is clearly free to decide to give broad policy guidelines to the Tribunal and its organs without formally amending the Statute [. . .] Ultimately, it is the Council's prerogative to decide whether it needs to amend the Statute so as to give effect to its decision. In this case, the Tribunals were called upon to ensure a certain result: that any new indictments meet the seniority criterion. It was an invitation to take steps; such an invitation does not, on its face, require a statutory amendment. It was for each Tribunal to decide how to respond." 52 The previous version of Rule 11 bis(C) of the ICTY Rules already included the reference to "gravity of crimes and the level of responsibility of the accused". It stated that "in determining whether to refer the case in accordance with para (A), the Trial Chamber shall, in accordance with Security Council Presidential Statement S/PRST/2002/21, consider the gravity of the crimes charged and the level of responsibility of the accused". Rule 11 bis(C) of the ICTY Rules was amended on 28 June 2004 to include the reference to SC Resolution (1534). Rule 28(A) of the ICTY Rules was amended on 6 April 2004. For the amendment history of the ICTY rules, see http://www.icty.org/sections/Legalf.ibrarylRulesofProcedureandEvidence (last accessed 28 February 2012). 53 The amendment to Rule 11 bis(C) of the Rules of the ICTR to provide for referrals to another jurisdiction was discussed at the plenary session on 23-24 April 2004, and adopted on 14 May 2004. For the amendment history of the ICTR Rules, see http://www.unictr.orglLegallRulesof Procedure andEvidence/tabid/95/Default.aspx (last accessed 28 February 2012). The plenary was therefore aware at the time of the requirements in Rule 11 bis(C) of the ICTY Rules that the Referral Bench consider "the gravity of the crimes charged and the level of responsibility of the accused" and of the amendment to Rule 28(A) of the ICTY Rules, and chose not to make analogous changes 13 individuals should be tried before the ICTR, the Prosecutor will be guided by the need to focus on those who are alleged to have been in positions of leadership and those who allegedly bear the greatest responsibility for the genocide."54 However, the President does not state that this is a binding requirement, nor that the Trial Chamber is bound to consider these factors in determining whether to confirm indictments or to refer cases for transfer.55

29. Consequently, while the Security Council Resolutions may guide the Prosecutor in determining which cases it will request to transfer to Rwanda, there is no requirement at the ICTR that Trial Chambers are mandated to transfer only low or intermediate ranked accused to national jurisdictions.

30. Further, the Defence's interpretation of Security Council Resolution 1534 (2004), namely, that it implies that indictments confirmed after 26 March 2004 cannot be directed against intermediate or lower-ranked commanders.w cannot be correct. Rule 28(A) of the ICTY Statute gives a bureau of judges discretion to determine whether indictees meet the standard of "most senior leader," and to return the Indictment to the Prosecutor if they do not meet this standard.57

54UN Doc. S/2004/341, Letter dated 30 April 2004 from the President of the International Criminal Tribunal for the Prosecution of Persons Responsible for Genocide and Other Serious Violations of International Humanitarian Law Committed in the Territory of Rwanda and Rwandan Citizens Responsible for Genocide and Other Such Violations Committed in the Territory of Neighbouring States between 1 January and 31 December 2004 addressed to the President of the Security Council, 3 May 2004, para. 14, found at: http://www.unictr.org/Portals/C/English%5CFactSheets%5CCompletion_St%5Cs-2004-341.pdf (last accessed 28 February 2012); UN Doc. 2007/323, Letter dated 23 May 2007 from the President of the International Criminal Tribunal for the Prosecution of Persons Responsible for Genocide and Other Serious Violations of International Humanitarian Law Committed in the Territory of Rwanda and Rwandan Citizens Responsible for Genocide and Other Such Violations Committed in the Territory of Neighbouring States between 1 January and 31 December 1994 addressed to the President of the Security Council, 31 May 2007 ("Completion Strategy Report 2007"), found at http://www.unictr.orglPortals/OlEnglish%5CFactSheets% 5CCompletion_St%5Cs­ 2007-323e.pdf (last accessed 28 February 2012). 55 Indeed, the President states that "it will be for the Trial Chambers to decide on the requests for transfer" without any reference to the list of criteria that should be considered by the Prosecution, Completion Strategy Report, 2007, para. 16. 56 Response, para. 28. 57 The full text of amended Rule 28(A) provides "On receipt of an indictment for review from the Prosecutor, the Registrar shall consult with the President. The President shall refer the matter to the Bureau which shall determine whether the indictment, prima facie, concentrates on one or more of the most senior leaders suspected of being most responsible for crimes within the jurisdiction of the Tribunal. If the Bureau determines that the indictment does not meet this 14 However, there is no equivalent rule at the ICTR,58 and for the reasons above, the Security Council resolutions do not mandate that the ICTR proceeds in accordance with such a procedure ifit is not expressly required by the Statute or Rules. Consequently, the Prosecutor at the ICTR is not required only to submit indictments of the "most senior leaders" for confirmation, although, as indicated by the President's letter, he should be "guided" by considerations relating to level of responsibility of the accused. Nor is the Trial Chamber required to confirm only indictments directed against the "most senior leaders".

31. In any event, even ifthe Security Council Resolutions did take precedence over the explicit provisions of the Statute, contrary to the Defence submissions, the Indictment does not establish that the Accused was one of the "most senior leaders" such that these resolutions would bar his referral to Rwanda.w

32. In considering the status of the Accused in the Munyakazi case, the Trial Chamber held that:

[T]he Accused has neither a rank of any military significance, nor had any official political role. He was an leader, whose role was largely limited to Cyangugu prefecture. The Accused's level of

standard, the President shall return the indictment to the Registrar to communicate this finding to the Prosecutor". 58 Mundis states that the "ICTR Judges refused to adopt a similar rule because in their opinion, the amendments are a violation of the Statute since they limit the independence of the Prosecutor". Darryl Mundis, "The Judicial Effects of the 'Completion Strategies' on the Ad Hoc International Criminal Tribunals, American Journal of International Law, Vol. 99, No. 1 (January 2005), p. 148, citing Good Enough for the Hague, Not Good Enough for Arusha, Sense News Agency, April 27, 2004 available at http://www.sense-agency.com/icty/good-enough-for-the­ hague-not-good-enough-for-arusha.29.html?cat-id=l&news_id=8565. The Prosecutor of the ICTY at the time, Carla Del Ponte, opposed this amendment, and also noted that the ICTR had not adopted a similar amendment. She stated that "[r]ecently the Judges of this Tribunal took action, which in my view was contrary to the Statute and unnecessary in light of the independence given to me under the Statute of the Tribunal, to amend Rule 28 of the Tribunal's Rules of Procedure and Evidence. By doing so, the Judges added an additional administrative requirement that the Bureau must determine whether any new indictment concentrates on the most senior leaders suspected of being most responsible for crimes within the Tribunal's jurisdiction. I note in this context that a similar amendment was not adopted by the International Criminal Tribunal for Rwanda". UN Doc. S/2004l420, Assessment of Carla Del Ponte, Prosecutor of the International Criminal Tribunal for the Former Yugoslavia, provided to the Security Council pursuant to paragraph 6 of Security Council Resolution 1534 (2004), para. 13, found at http://www.icty.org/x/file/AboutlReports%20and%20Publications/CompletionStrategy/completion _strategy_24may2004_en.pdfOast accessed 22 February 2012). 59 Resolution 1534 (2004) states that the Tribunal should "concentrate on the most senior leaders suspected of being most responsible for crimes within the jurisdiction of the [...J Tribunal". 15 responsibility is comparable to many of those referred to national jurisdictions and is lower than Laurent Bucyibaruta, a former prefet of Gikongoro prefecture in Rwanda, whose case was referred to the Republic of France. 60

33. Similarly, in this case, the Indictment does not allege that the Accused had a rank of any military significance - he is alleged to have been an Interhamwe leader whose role was largely limited to Gisenyi prefecture. While the Accused held a political role, this was limited to the city of Gisenyi. Moreover, while the Appeals Chamber has held that the local character of the Accused's crimes cannot be the only factor considered, "this is of course a relevant factor and in some situations, can be a significant one".61 Similar to Munyakazi, Munyagishari's responsibility was limited to one prefecture, and the crimes he is alleged to have committed, with the exception of rape and murder, are also alleged to have taken place only within this area. The Accused's level of responsibility is therefore also comparable to many others who have been referred to national jurisdictions, and lower than that of Bucyibaruta, who was transferred to France.s-

34. Moreover, contrary to the Defence submissions, the fact that the Accused is alleged to have had effective control over local militias, or was part of a joint criminal enterprise which included political and military leaders, is not sufficient to demonstrate that the Accused was one of the "most senior" leaders such that he could not be transferred pursuant to the Security Council Resolutions.

35. The Defence submits that the Accused was alleged to have exercised effective control and authority of the members of the Interahamwe and

60 Munyakazi (TC), para. 13. 61 Lukic (AC), para. 22. See also Stankovic (TC), para. 19, where the Referral Bench based its assessment of the Accused's level of responsibility in part, on the fact that the Indictment alleged a factual basis for the crimes which was limited in scope both geographically and temporally; Jankovic (AC), para. 22, where the Appeals Chamber found that "having taken into consideration both the geographical and temporal scope of the alleged crimes, as well as the number of victims affected, [... ] the Referral Bench did not err in concluding that the gravity of the crimes charged is not "ipso facto" incompatible with referral of the case", and Todooic (AC), where the Appeals Chamber did not find that "the Referral Bench erred in relying on the limited geographic scope of the crimes charged" (para. 16) 62 See Bucyibaruta (TC). 16 Impuzamugabi militias of Gisenyi and its environs, which places him in the category of those who should be tried by the ICTR pursuant to the Security Council Resolutions.s- However, the Appeals Chamber in Jankovic held that the Referral Bench did not err in finding that his alleged "'command of others on a local level' did not suffice to qualify him as a 'leader' for the purposes of Rule 11 bis [...]".64 Moreover, the Appeals Chamber has also stated that Rule 11 bis does not "bar referral of all cases involving civilian, military and paramilitary leaders. Were that to be the case, then the Security Council would not have referenced "most senior leaders" in Resolutions 1503 (2003) and 1534 (2004), but would instead have spoken of all leaders'v'"

36. Therefore, the mere fact that the Accused is charged with responsibility under Article 6(3) for exercising command over militias including the Interahamwe and Impuzamugabi at the local level is not sufficient to qualify him as one of the "most senior leaders" for purposes of Rule 11 bis or the Security Council Resolutions.

37. Munyagishari also emphasizes the importance ofhis role on the basis that he is alleged to have participated in a joint criminal enterprise involving members of the Rwanda government, leaders of the MRND, the Rwandan armed forces and Interahamwe militias.w However, the Referral Bench in Mejakit: rejected a similar Defence submission that:

[T]he gravity of the offences charged against these particular accused is properly assessed by virtue of the gravity of the whole of the joint criminal enterprise involving the political leadership. The emphasis is on the particular acts and conduct of these Accused at the camps. The level of responsibility of the accused is also to be evaluated by reference to their particular positions and functions, not by reference to the responsibility of the political leadership.s?

63 Response, para. 28. See also para. 6. 64 Jankovic (AC), para. 19, Jankovic (TC), para. 19. 65 Lukic (AC), para. 20. 66 Response, para. 9. 67 Mejakic (TC), para. 24. See also para. 22. 17 6

Similarly, therefore, the Accused's level of responsibility need only be considered in relation to his particular position and functions (which has been done above), not by reference to the levels of responsibility of others in the joint criminal enterprise.

38. For the foregoing reasons, contrary to the Defence submissions, it is not a requirement at the ICTR that accused may only be transferred to national jurisdictions ifthey are low or intermediate in rank. Moreover, even ifthis was a requirement, it would be met in this case, as the Accused is not one of the most senior leaders who is most responsible for the crimes committed.

(b) There has been no undue delay

39. Contrary to the Defence's submissions.f" there has been no undue delay in the Accused's trial as a result of the Rule 11 bis transfer proceedings, and there has therefore been no violation of Articles 19(1) and 20(4)(a) of the Statute.

40. The Prosecutor has acted expeditiously, and in accordance with the Accused's right to be tried without undue delay, in filing its request for referral pursuant to Rule 11 bis shortly after the arrest and the initial appearance of the Accused in 2011.

41. Having remained a fugitive from the Tribunal for over five years, the Accused was finally arrested on 25 May 2011, and made his initial appearance on 20 June 2011. The Prosecutor filed his Rule 11 bis Request on 3 October 2011 before the President of the Tribunal and sought, inter alia, the designation of a Trial Chamber to determine the Request. Pursuant to a scheduling order of the designated Referral Chamber, the Prosecutor filed a formal Rule 11 bis Request on 9 November 2011, which is now pending determination. The Trial Chamber has the ultimate responsibility of determining whether the case should be transferred to Rwanda. No blame can therefore be laid at the door of the Prosecutor for any delays in the proceedings up to this point.

68 Response, paras. 31-36. 18 (

42. The Defence argues that the Prosecution should have made its Rule 11 bis request after the confirmation of the Indictment, rather than only after his arrest in 2011.69 However, the Prosecutor could not have submitted the case for referral after the confirmation of the Accused's initial indictment in 2005, as Rwanda would not have met the requirements for transfer at that time. It was only in late 2007 that important obstacles for referral were removed through the abolition of the death penalty coupled with the adoption of new laws aimed at guaranteeing fair trial.?? Moreover, after the initial Rule 11 bis requests were denied by the Trial and Appeals Chambers in 2008,71 it was within the Prosecutor's discretion not to request a referral until it was satisfied that Rwanda had made sufficient progress in instituting reforms to guarantee fair trial rights, particularly in the area of witness protection.

43. The Accused, in all events, cannot claim any prejudice from the fact that the Prosecutor elected to wait until after his arrest to initiate Rule 11 bis procedures. As already noted, the Accused voluntarily elected to remain a fugitive from the Tribunal for more than 5 years. He alone is accountable for this substantial delay in the initiation of proceedings before the Tribunal. Furthermore, when the Accused was finally apprehended and the Prosecutor's request for referral was filed, the Accused still had it within his power to consent to the Prosecutor's request for referral, thereby expediting the Tribunal's determination about where this case will be tried. Instead, the Accused has elected to contest his referral to Rwanda and by so doing has contributed to the very delay he now complains of.

44. This Trial Chamber has already found, in the context of its dismissal of a Defence motion to commence proceedings in this case as premature, that "postponements of trials resulting from the referral litigation pursuant to Rule 11

69 Response, para, 32. 70 Organic Law No. 31/2007 of 25/07/2007 relating to the Abolition of the Death Penalty, 25 July 2007, Official Gazette of the Republic of Rwanda, 25 July 2007 ("Abolition of the Death Penalty Law"). For English, French and Kinyarwandan versions of this law, see http://www.amategeko.netl(last accessed 29 February 2012). 71 Munyakazi (TC); Munyakazi (AC); Kanyarukiga (TC), Kanyarukiga (AC); Hategekimana (TC); Hategekimana (AC). 19 bis of the Rules do not necessarily result in undue delay."72 With the filing of this Reply, the briefing process associated with the Prosecutor's referral request request has now concluded. It remains only for the Trial Chamber to hear oral submissions, and to make its determination as to whether the conditions for transfer have been met. Given the tight deadlines that the Chamber has imposed on the parties in this case and its commitment to protecting the Accused's fair trial rights, it is highly unlikely that the Chamber's decision will result in any undue delay.

45. Moreover, once the referral decision has been made, measures are already in place to ensure that whether the case is tried before this Tribunal or in Rwanda, it will proceed expeditiously. As the Trial Chamber has noted previously, disclosure to the Defence pursuant to Rule 66(A)(i) has been made, and the Prosecutor has indicated that "it continues with pre-trial preparations in light of the uncertainty of referral and will comply with any directions from this Chamber to ensure trial readiness'i.?"

46. Further, Rwanda has statutory safeguards in place to protect the Accused's right to trial without undue delay if he were transferred to Rwanda, including Article 13(5) of the Transfer Law which provides that "the Accused shall be entitled to a speedy trial without undue delay.?" Rwanda has also indicated that all practical arrangements are in place to ensure that the trial can proceed expeditiously ifit is transferred to Rwanda.t"

47. In the context of its dismissal of a Defence motion to commence proceedings in this case as premature on 13 December 2011, the Trial Chamber

72 The Prosecutor u. Bernard Munyagishari, Case No. ICTR-2005-89-I, Decision on Defence Request to Commence Proceedings, 13 December 2011, para. 7 ("Munyagishari Decision to Commence Proceedings"). 73 Ibid., para. 8. 74 Article 13(5), Transfer Law. See also Stankouic (TC), where the Referral Bench held that there was no undue delay as a consequence of referral in part on the basis that there were statutory safeguards in place under the law of Bosnia and Herzegovina to protect an accused's right to trial without undue delay. Stankooie (TC), para. 73. 75 Prosecutor u. Bernard Munyagishari, Case No. ICTR-2005-89-I, Brief for the Republic of Rwanda as Amicus Curiae, 19 January 2012, para. 20 ("Rwanda Amicus Curiae Brief'). 20 found that "the Defence makes no specific submissions that the pace of proceedings up until this point has violated the Accused's right to a trial without undue delay".76 In its Response, the Defence makes no additional submissions to those made previously in that motion, except to argue that there would be delay resulting from the inability of the Accused's counsel to represent him in Rwanda, and because he is not entitled to consider documents from the Karemera case until the Rule 11 bis determination has been made.??

48. The argument that counsel will be unable to defend him in Rwanda has been addressed below, where the Prosecutor submits that, contrary to the Defence's submissions, there are in fact no obstacles to counsel's continued representation of his client in Rwanda.tf In any event, in response to similar submissions from the Defence in the Ljubicu: case, the Appeals Chamber held that the Referral Bench did not err ''when it did not consider the possible change ofDefence Counsel as a reason for possible delays".79

49. Moreover, while Trial Chambers held that it was premature to disclose confidential materials from the Karemera and Ngirabatware cases at this stage,80 particularly as the Indictment might change as a result of the Rule 11 bis proceedings.s! this does not necessarily result in any undue delay as the Trial Chamber will reconsider these requests once the Rule 11 bis determination has been made, and if granted, the Defence would have the opportunity to consider such materials before the trial begins.

76 Munyagishari Decision to Commence Proceedings, para. 8. 77 Response, para. 35. 78 See infra, para. 160. 79 Ljubicu: (AC), para. 28. 80 The Prosecutor v. Edouard Karemera et al., Case No. ICTR-98-44-T, Decision sur la Requete de Bernard Munyagishari visant a la Communication des Informations Confidentielles dans l'affaire Karemera et Consort, 21 December 2011; The Prosecutor v. Augustin Ngirabatware, Case No. ICTR-99-54-T, Decision on the Motion of Bernard Munyagishari for Disclosure of Confidential Documents in the Ngirabatware Case, 1 February 2012 ("Ngirabatware Decision"). 81 Ngirabatware Decision, para. 16. 21 50. Consequently, contrary to the Defence submissions, there has been no undue delay as a consequence of the referral proceedings, nor has the Defence suffered prejudice as the result ofsuch delay.

(c) There has been no violation of general principles ofinternational law even ifMunyagishari were a citizen ofthe DRC (which he is not)

51. The Defence submits that the DRC arrested and transferred Munyagishari to the ICTR pursuant to its obligations under Article 28 of the Statute in the belief that he was a Rwandan national. The Defence submits that as Munyagishari is in fact a national of the DRC, if he were to be transferred to the Rwanda pursuant to Rule 11 bis, this would amount to the extradition of a national ofthe DRC from the DRC to Rwanda.s-

52. The Defence argues, that while a transfer pursuant to Rule 11 bis is not covered by principles of national or treaty law relating to extraditions, the principle of aut dedere aut judicare, which forms part of the principles of general international law, is applicable, as is the "long-standing international practice which recognizes that there is no obligation to extradite one's own nationals".83 It therefore argues that, according to these principles, the DRC was under no obligation to extradite a Congolese national to Rwanda.s-

53. Most fundamentally, the Defence has not established, based on the documents submitted as annexes to its Response, that the Accused is a national of the DRC, in light of the overwhelming evidence that he was born in Rwanda. In support of its allegation that Munyagishari is a national of the DRC, the Defence submits: i) a voter card in the name of "Bernard Nyamudede Mushari", which indicates that this person was born in Musongati, North-Kivu, DRC on 1 June 195885 and ii) a birth certificate issued by the Chief of the Groupement ­ Bashali Kaembe, Masisi, North-Kivu Province, DRC, 17 December 2011, which attests that Bernard Nyamudede Mushali was born at Musongati, North-Kivu in

82 Response, para. 46. 83 Response, para. 42. 84 Response, para. 46. 85 Annex 1 to the Response. 22 1958. 86 The Defence does not make any submissions on the provenance of these documents, which are moreover in the name of "Bernard MushalilMushari". Further, the "birth certificate" was only issued on 17 December 2011.

54. On the other hand, Munyagishari's employment records from SONARWA include: i) his curriculum vitae, ii) his diploma certificate, iii) his identity card, iv) his certificate of good character and morals, and v) his marriage certificate.s? which unequivocally confirm that he was , born on 26 April 1959 on Kanzenze Hill, Mutura Commune, Gisenyi (now Rubavu District), as alleged in the Indictment. Munyagishari's social security records also indicate that he was born in Gisenyi on 26 April 1959 as alleged in the Indictment.f" In light of this consistent evidence regarding his date and location of birth in Gisenyi, Rwanda, and the unreliable and uncertain nature of the evidence submitted by the Defence in relation to his birth in the DRC, the Prosecutor submits that it has not been established that Munyagishari is a national of the DRC.

55. In any event, even if Munyagishari were a national of the DRC, the Defence's arguments are misconceived. As has been established by the Appeals Chamber, the transfer of an Accused to a country pursuant to Rule 11 bis does not constitute a "re-extradition" and therefore principles of extradition, including the principle of "non-transfer of nationals" do not apply.s? regardless of whether they are based in national law, treaty law or principles of general international law.

86 Annex 2 to the Response. The Defence alleges that according to Article 11 of the Constitution of the DRC (Annex 12 to the Response), only Congolese can hold political office, and that according to Article 8 of the Law on Identification and Enrollment of Voters in the DRC (attached to the Response as Annex 13), one of the conditions for eligibility voter is to have Congolese nationality, and in accordance with Article 25 of this law, voter cards are only issued by the Independent Electoral Commission to persons who satisfy these eligibility conditions. It therefore submits that the voter's card is evidence of Munyagishari's Congolese nationality. See Response, footnote 78. 87 Certified copies of these documents are attached hereto as Annex D. These documents were obtained by the Prosecutor on 13 February 2012. 88 Certified copies of these documents are attached hereto as Annex E. These documents were obtained by the Prosecutor on 13 February 2012. 89 Mejakic (AC), para. 31. 23 56. The Defence arguments in this respect are similar to arguments that were made before the ICTY in Mejakic, which were rejected by both the Referral Bench and the Appeals Chamber. In that case, the Accused and Serbia and Montenegro argued that since the Accused were nationals of Serbia and Montenegro, their transfer to Bosnia and Herzegovina amounted to a "re-extradition" which was prohibited under international law, as Serbia and Montenegro did not consent to the extradition ofits citizens to Bosnia and Herzegovina.

57. The Appeals Chamber held in Mejakic that referral pursuant to Rule 11 bis does not amount to extradition stricto sensu.90 It explained:

['I'[he Referral Bench properly concluded that the treaty or national law governing extradition does not apply to prevent the referral of the Appellant's case pursuant to Rule llbis of the Rules because, as with the initial transfer of the Appellants to the International Tribunal, their transfer to the state authorities under Rule llbis is not the result of an agreement between a State and the International Tribunal. The Appeals Chamber recalls that the obligation upon States to cooperate with the international tribunal and comply with its orders arises from Chapter VII of the United Nations Charter. Accordingly, a State cannot impose conditions on the transfer of an Accused or invoke the rule of speciality or non-transfer concerning its nationals.P!

58. While the Appeals Chamber states only that treaty law and national law governing extradition does not apply, its reasoning is equally applicable to principles of customary international law which might relieve states of an obligation to extradite their own nationals. As the obligation upon States to cooperate with the international tribunals arises from Chapter VII of the United Nations Charter, a state cannot impose conditions on the transfer of an accused or invoke the rule of non-transfer of its nationals, whether this is based on national or treaty law or on general principles ofinternational law.P

90 Ibid. 91 Ibid. 92 "There is no dispute that national and international rules governing extradition proceedings are overruled by measures taken by the UN Security Council under Chapter VII of the UN Charter and by orders issued by subsidiary organs of the Security Council such as the ICTY and ICTR". Jens Dieckmann and Christina Kerll, "UN Ad Hoc Tribunals under Time Pressure - 24 59. In any event, contrary to the Defence's submissions, it is not clear that the principle of the non-extradition of nationals is a principle of customary international law. The principle of aut dedicare aut judicare relied upon by the Defence involves an obligation upon states to prosecute offenders found on their territory who they do not extradite, rather than a principle which precludes the non-extradition of nationals. While this obligation can be found in many treaties, it is far from clear that it is a principle of customary international law.v" Finally, while the Defence argues, on the basis of Judge Oda's dissent in the Lockerbie decision, that there is a long-standing practice that there is no obligation to extradite one's own nationals, it does not demonstrate that this rises to the level of a principle of customary international Iaw.P'

60. Thus, even if the Accused were a national of the DRC, the DRC would still have been under the obligation to transfer him to the ICTR, in order to comply with Article 28 of the Statute, and could not impose any conditions on this transfer or invoke rules relating to the non-transfer of nationals.

61. The Defence also argues there is an obligation, under the general international law principles of "cooperation" and "good faith", that the arresting state be made aware, before transferring the accused, of the possibility that he might be transferred to a national jurisdiction other than the arresting state, and

Completion Strategy and Referral Practice of the !CTY and ICTR from the Perspective of the Defence, (2008) 8 International Criminal Law Review 87. See also Michael Bohlander, "Referring an Indictment from the ICTY and ICTR to Another Court - Rule 11bis and the Consequences for the Law of Extradition" (2006) 55 International and Comparative Law Quarterly 219 at 222. 93 See i.e. UN Doc. Al66/10, International Law Commission, Report on the Work of its 63rd Session (2011), General Assembly, paras. 320, 322. See also Claire Mitchell, "Sources of the "aut dedere aut judicare" obligation", 2009 Graduate Institute Publications Online, para. 74. 94 See i.e. Zsuzsanna Deen-Racsmany, "A New Passport to Impunity? Non-extradition of naturalized citizens versus criminal justice, (2004) 2(3) Journal of International Criminal Justice 761, p. 764, 769. Moreover, even Judge ada stated that "no rule of international law prohibits extradition of nationals of the Requested State". See Questions of Interpretation and Application of the 1971 Montreal Convention arising from the Aerial Incident at Lockerbie (Libyan Arab Jamahiriya v. United Kingdom), Judgment of 27 February 1998, Dissenting Opinion of Judge ada, para 20 (found online at http://www.icj-cij.org/docketlindex.php?p1=3&p2=3&k=82&case= 88&code=luk&p3=4, last accessed 21 February 2012). 25 that the Indictment correctly indicates the nationality of the Accused. It alleges that these principles were not complied with in this case.95

62. A state transferring an accused to the ICTR does so with the awareness that it is possible, under the Statute, that the Prosecutor might apply, pursuant to Rule 11 bis for the transfer of the accused to another state, including Rwanda, or that the Trial Chamber might order such a referral proprio motu. As the Referral Bench held in Mejaki6:

It is part of the jurisdiction and power of this Tribunal to determine whether or not an accused should be referred to a competent national jurisdiction for trial, and if so which jurisdiction. It cannot be said therefore, that an accused has a "right" to be tried by this Tribunal and other court, or that his surrender or arrest was only for the purpose of trial by this Tribunal.96

63. Further, in Lukic, the Referral Bench dealt with a request by Argentina that an accused who was transferred to the ICTY should not be transferred to another state without Argentina's consent. It held that "when the Referral Bench considers a request for the referral of an accused surrendered to the Tribunal by a state, it need not seek authorization of that state before it orders referral".97 Contrary to the Defence's submission, there is therefore no obligation, either under the Statute or in any recognized principle of international law, that the arresting state be explicitly informed ofthe possibility that an accused would be transferred to another state or that it consent to such a transfer.

64. Moreover, while the Prosecutor clearly cannot mislead the arresting state as to the nationality of the accused, the arresting state's obligations pursuant to Article 28 would remain the same regardless of the Accused's nationality. As indicated earlier, given the overwhelming weight of the evidence demonstrating that Munyagishari was born in Rwanda, the Defence has not established that Munyagishari is a national of the DRC and, therefore, has not established that

95 Response, para. 45. 96 Mejaki« (TC), para. 127. 97 Lukic (TC), para. 114. 26 the Indictment incorrectly states his nationality. Moreover, even if the Indictment did allege that the Accused was a national of the DRC, the DRC's obligation pursuant to Article 28 to arrest and transfer the accused to the Tribunal would have remained the same. The Defence's appeal to amorphous general principles of international law such as those of "cooperation" and "good faith" does not alter this legal framework.

65. Consequently, the Defence has not shown that there has been a violation of general principles of international law because of his transfer from the DRC to the Tribunal and the Prosecutor's subsequent Rule 11 bis Request.

(d) There is no obligation for the Trial Chamber to consider transferring the Accused to the DRC proprio motu, and even ifthere were such a requirement, there would be no error in determining that Rwanda was the more appropriate forum

66. Contrary to the Defence submissions, there is no obligation for the Chamber to consider transferring the Accused to the DRC proprio motu, particularly in these circumstances, where the DRC has not asserted any claim to try the Accused in its territory.

67. The Defence submits that the Trial Chamber is not bound by the Prosecutor's request to transfer the case to Rwanda, and can consider other possibilities proprio motuS" The Defence submits that as the Accused was arrested in the DRC (thus fulfilling the requirement of Rule 11 bis(A)(ii) of the Rules), is a citizen of the DRC, and has no links to Rwanda, there is a stronger nexus with the DRC than with Rwanda. The Defence therefore submits that the Trial Chamber should consider transferring the Accused's case to the DRC, rather than Rwanda.99

68. There are several problems with the Defence argument. First, as shown above, the Defence has not established, on the basis of the documents it has

98 Response, paras. 48, 54. 99 Response, paras. 51-54. 27 annexed to its Response, that Munyagishari is a national of the DRC.l00 Second, the Defence has not succeeded in showing that, even if he were a citizen of the DRC, the DRC has a greater nexus with the case than Rwanda, particularly given that the DRC has not even asserted a claim to try the Accused on its territory.

69. Rule 11 bis(A) provides for three bases of jurisdiction. Cases may be referred to the authorities of a state (i) in whose territory the crimes were committed or (ii) in which the accused was arrested; or (iii) having jurisdiction and being willing and adequately prepared to accept such a case. In this case, as the crimes were committed in Rwanda and the accused was arrested in the DRC, both countries would have a jurisdictional claim. The Appeals Chamber has held, in relation to an identical provision in Rule 11 bis of the ICTY Statute that there is no hierarchy amongst these three bases of jurisdiction, and that the Referral Bench is not bound by any party's submissions that one of these alternative jurisdictions is allegedly the most appropriate.P-

70. As noted by the Defence, the Appeals Chamber has held that the test to be applied in determining which is the most appropriate state to transfer the case is which state has the greatest nexus with the case.102 In this case, even if the Accused is a national of the DRC, Rwanda clearly has a significantly greater nexus with the case than the DRC. The only linking factors to the DRC are that the Accused was arrested there and that he is, according to the Defence, a national of the DRC. The Referral Bench in Mejahic has held, however, that citizenship has no "significant relevance to the determination of the State to which referral should be ordered".103 The crimes are alleged to have been committed in Rwanda, against persons living in Rwanda, by an Accused who was living in Rwanda at the time of their commission, and to have been physically perpetrated by Rwandan subordinates of the Accused including the Interahamwe and Impuzamugabi militias.

100 See supra, paras. 53-54. 101 Mejakic (AC), para. 43. See also Lukic (TC), para. 37. 102 Ljubicit: (AC), para. 18; Todooic (AC), para. 44. 103 Mejakic (TC), para. 38. 28 71. The situation in this case is very similar to that in Mejakic, where the only linking factors with Serbia were that the accused voluntarily surrendered in Serbia and were citizens of Serbia (although this was not established conclusively for all of the accused), whereas the crimes are alleged to have been committed in Bosnia-Herzegovina, against persons living in Bosnia-Herzegovina, and by persons living in Bosnia-Herzegovina. In that case, the Referral Bench, which was upheld on appeal, held that "the nexus with Serbia and Montenegro is much weaker with respect to the case of each individual accused than the nexus with Bosnia-Herzegovina't.ws Analogously, in this case, the nexus between the DRC is much weaker with respect to the case of the Accused than the nexus with Rwanda, particularly as the DRC, unlike Serbia in the Mejahic case, has not asserted any claim to try the accused.

72. Further, the Appeals Chamber has indicated that where the state proposed by the Prosecutor has the greatest nexus, it will deviate from that selection only if there are compelling reasons to do so. In Todouic, the Appeals Chamber held that:

The Appeals Chamber considers that the Referral Bench in the instant case did not err when it relied upon the fact that BiH has a "significantly greater nexus" with the Appellant's case than Serbia, and concluded that '[olnly if there are significant problems with this will the bench come to consider whether it should act proprio motu to refer the case to Serbia and Montenegro',105

73. Therefore, there is no obligation upon the Referral Bench to consider transferring the case, proprio motu, to the DRC, as the state proposed by the Prosecutor, Rwanda, clearly has a significantly greater nexus with the case than the DRC, and there are no compelling reasons to depart from this. This is particularly the case, in these circumstances, where the state concerned has not even asserted a jurisdictional claim.

104 Mejakic (TC), para. 41. See also Ljubicic (AC), paras. 16-18. 105 Todouie (AC), para. 44. See also Jankovic (TC), para. 26, where the Referral Bench held that it would first consider whether referral to trial in Bosnia and Herzegovina would be appropriate and that "[olnly if there are significant problems with this will the Referral Bench come to consider whether it should act proprio motu to refer the case to Serbia and Montenegro". The Appeals Chamber found no problem with this approach. See Jankovic (AC),para. 39. 29 b

C. JOINT CRIMINAL ENTERPRISE

(a) Joint criminal enterprise is applicable before Rwandan courts, and in any event, there is no requirement that the legal framework of the referral state recognizes all modes ofliability charged in the Indictment

74. Contrary to the Defence's submissions.t?" joint criminal enterprise can be applied before Rwandan criminal courts. In any event, there is no requirement that the legal framework of the referral state recognizes all modes of liability charged in the Indictment. Consequently, the inclusion of joint criminal enterprise in the Indictment does not constitute an obstacle to the referral of the Accused's case to Rwanda.

75. The Indictment alleges that the Accused is responsible pursuant to Article 6(1) for his participation in a joint criminal enterprise, which the Defence alleges is not a form of responsibility recognized under Rwandan criminal law. It therefore submits that the Accused cannot be tried in Rwanda on the basis of this

Indictment.107

76. As acknowledged by the Defence.t'f the mode of liability of joint criminal enterprise was "firmly established" under customary international law in 1994. 109 However, contrary to the Defence's submission, this finding is not limited to the recognition of the applicability of the principle of joint criminal enterprise before the Tribunal, but also extends to the recognition of this mode of liability in Rwandan law, as the Rwandan constitution explicitly allows Rwandan courts to apply such law.

77. Article 201 of the Rwandan Constitution provides that "unwritten customary law remains applicable as long as it has not been replaced by written laws, is not inconsistent with the Constitution, laws, orders and regulations, and

106 Response, paras. 56-61. 107 Response, paras. 56-61. 108 Response, para. 61. 109 Prosecutor v. Andre Rwamakuba, Case No. ICTR-98-44-AR72.A, Decision on Interlocutory Appeal Regarding Application on Joint Criminal Enterprise to the Crime of Genocide, citing Tadic CAC), paras. 188, 190-191, 193, and 220. 30 does not violate human rights, prejudice public security or good morals".110 Further, Article 20 of the Constitution, as amended, provides that "[n]o person shall be subjected to prosecution, arrest, detention or punishment on account of any act or omission which did not constitute an offence under national or international law at the time of it was committed".111 These provisions make clear that Rwandan criminal courts can apply customary international law ­ such as joint criminal enterprise - in national criminal proceedings.U''

78. Moreover, contrary to the Defence submissions, it is not necessary that the legal framework of the referral state contains exactly the same modes of liability as an indictment before this Tribunal. Whereas the referral state's law must characterize the crimes charged as international crimes (as opposed to ordinary crimes),113 there is no requirement that all charged modes must exist, in exactly the same form, in the referral state's law.114 In fact, such an unrealistic requirement would make the transfer of cases all but impossible. In the case of Rwanda, all possible issues regarding modes of liability can be addressed under Article 4 of the Rwandan Transfer Law, which provides for adapting ICTR indictments to Rwandan law. 115

110 Article 201 of the Constitution of the Republic of Rwanda of 4 June 2003 (as amended in 2003, 2005, 2008 and 2010) ("Constitution"). For English, French and Kinyarwandan versions of the Constitution, see http://www.amategeko.netl(last accessed 28 February 2012). 111 Article 20 of the Constitution, as amended in 2010. 112 This approach is consistent with other forms of criminal liability expressly recognized in Rwandan law, such as principal and accomplice liability under Articles 89 and 91 of Rwanda's Penal Code. See Decret-loi No. 21/77 Code Penal of 18 August 1977, Official Gazette 1978, nr. 13 bis (as amended in 1981, 1982 and 1983). For the French version of this law (no English version available), see http://www.amategeko.netl(last accessed 28 February 2012). 113 Bagaragaza (AC), paras. 9, 17-18. 114 The Prosecutor made similar submissions before the Appeals Chamber in the Hategekimana case in relation to command responsibility. See The Prosecutor v. Ildephonse Hategekimana, Case No. ICTR-00-55B-Rllbis, Prosecutor's Appellant's Brief, 14 July 2008, paras. 19-26. Although the Appeals Chamber ultimately found that command responsibility was criminalized under Rwandan law, and therefore did not need to address these arguments, it did not reject them. See Hategekimana (AC), paras. 9, 12. 115 Article 4 of the Transfer Law provides that "[tjhe Prosecutor General's Office of the Republic shall adapt the ICTR indictment in order to make them compliant with the provisions of the Code of Criminal Procedure of Rwanda, and it shall be forwarded to the President of the High Court of the Republic". The Defence incorrectly submits that Article 4 only addresses conforming an indictment to the Rwandan Code of Criminal Procedure, but not to the Rwandan Penal Code which governs the modes of liability (Response, para. 59). This interpretation is not in line with the spirit of Article 4 of the Transfer Law. The purpose ofthe adaptation process is to ensure that 31 79. In any event, previous case law makes clear that charging an accused with joint criminal enterprise liability does not bar a transfer of his case to Rwanda. Rather, joint criminal enterprise has been charged, for example, in Uwinkindi, a case where the Prosecutor successfully requested transfer to Rwanda. The Indictment which was operative at the time when the Trial Chamber granted the Prosecutor's request to transfer Uwinkindi to Rwanda included JCE.116 Moreover, when the Appeals Chamber confirmed that Uwinkindi's case could be transferred, it was aware that the Uwinkindi indictment included JCE.117 It had just ordered that the JCE charge in that indictment needed to be amended in order to conform with the Tribunal's pleading requirements.Uf Similarly, in the Kanyarukiga and Hategekimana cases, the Accused was also alleged in the Indictment to be responsible for his participation in a joint criminal enterprise.Uv Neither the Trial Chambers nor the Appeals Chamber found this to be a jurisdictional bar to transfer.P?

80. Lastly, even if the Defence were correct that JCE was not recognized under Rwandan law, Rwanda could omit that form of liability in the adaptation process. Omitting this alternative mode of liability would not prejudice the Defence in any way.

the indictment accords with all principles of Rwandan law, including those relating to modes of liability which are regulated in the Rwandan Penal Code. See, in this regard, Prosecutor v. Ildephonse Hategekimana, Case No. ICTR-00-55B-R11bis, Amicus Curiae Brief of the Republic of Rwanda in the Matter of the Application for the Referral of the Above Case to Rwanda pursuant to Rule 11 bis, 10 January 2008, paras. 48-50 which explains the adaptation process. 116 Uwinkindi CTC). The indictment operable at the time this decision was rendered was The Prosecutor v. Jean-Bosco Uwinkindi, Case No. ICTR-01-75-I, Amended Indictment, 23 November 2010, which includes joint criminal enterprise in relation to both counts. 117 Uwinkindi CAC), para. 88. The Defence's reliance on this paragraph of the Appeals Chamber decision to support its position that joint criminal enterprise is a bar to transfer is therefore unwarranted. See Response, para. 59. 118 Jean Uwinkindi v. The Prosecutor, Case No. ICTR-01-75-AR72CC), Decision on Defence Appeal against the Decision Denying Motion Alleging Defects in the Indictment, 16 November 2011, e.g. paras. 11 et seq. ("Uwinkindi - Indictment Decision CAC)"). 119 The Prosecutor v. Gaspard Kanyarukiga, Case No. ICTR-2002-78-I, Amended Indictment, 14 November 2007, parasA-6, 19; The Prosecutor v. Ildephonse Hategekimana, Case No. ICTR-00-55­ I, Amended Indictment, 1 October 2007, 6, 34, 42. This issue was not raised by the parties in either case. 120 Kanyarukiga (TC); Kanyarukiga CAC); Hategekimana CTC); Kanyarukiga CAC). 32 81. In summary, the inclusion of joint criminal enterprise in the Indictment does not constitute an obstacle to the referral of the Accused's case to Rwanda.

(b) The Referral proceedings are an inappropriate forum in which to challenge defects in the form ofthe indictment

82. The Defence also submits that the Indictment does not distinguish clearly between the first and third categories of joint criminal enterprise, claiming that

this alleged defect renders it inoperable before a national jurisdiction.121

83. The Defence seeks to introduce, through the back door of the Rule 11 bis proceedings, a challenge to the form of the Indictment. The Referral Chamber, however, is an inappropriate forum for challenges to the indictment. It has been constituted solely for the purpose of the referral proceedings under Rule 11 bis, not to consider challenges to the form of the indictment. The Defence should have brought such challenges to defects in the Indictment before a properly constituted Trial Chamber by means of a preliminary motion pursuant to Rule 72(A)(ii), no later than 30 days after disclosure under Rule 66(A)(i). It chose not to do so, and may have waived its right to do so. Whereas the jurisprudence has entertained challenges to the form of the indictment outside the 30-day period, it has required that good cause is shown for the delay. 122 No such showing has been attempted by the Defence. For that reason, the Defence has not shown that the Referral Chamber should entertain its challenges to the form of the Indictment.

121 Response, paras. 62, 64-65. 122 The Trial Chamber has the discretion pursuant to Rule 72(F) to consider late-filed preliminary motions upon a showing of good cause. In several cases, Trial Chambers have considered such motions alleging defects in the form of the Indictment filed out of time on the basis of such a showing. See i.e. The Prosecutor v. Dominique Ntawukulilyayo, Case No. ICTR-05-82-PT, Decision on Defence Preliminary Motion Alleging Defects in the Indictment, 28 April 2009, para. 7; The Prosecutor v. Simeon Nchamihigo, Case No. ICTR-2001-63-R50, Decision on Defence Motion on Defects in the Form of the Indictment, 27 September 2006, para. 5; The Prosecutor v. Jean-Baptiste Gatete, Case No. ICTR-2000-61-I, Decision on Defence's Extremely Urgent Motion Seeking Leave to File Preliminary Motions out of Time, 30 January 2004, para. 12; The Prosecutor v. Edouard Karemera et al., ICTR-98-44-T, Decision on the Defence Motion, pursuant to Rule 72 of the Rules of Procedure and Evidence, pertaining to, inter alia, Lack of Jurisdiction and Defects in the Form ofthe Indictment, 25 April 2001, para. 9. 33 b

84. Furthermore, any alleged defects in the form of the Indictment (in casu, the pleading of JCE) as confirmed by this Tribunal would not bar the referral of the case, because such defect does not render the entire Indictment a nullity. The Accused would still be prosecuted on the basis of the other modes of liability properly pled in the Indictment. In any case, as argued above, once the Accused's case is referred to Rwanda, the alleged defect could be remedied through the Rule 11 bis adaptation process in Rwanda. As noted above, Rwanda could omit JCE as an alternative mode of liability altogether, and this omission would not prejudice the Defence in any way.

(c) No undue delay would result from any amendment of the Indictment

85. Alternatively, assuming the Referral Chamber would entertain the Defence objection to the form of the Indictment at this late stage, there is no barrier to a formal amendment of the Indictment prior to referral of the Accused's case. Contrary to the Defence submissions, a modification of the Indictment at this stage would not necessarily result in any undue delay in the proceedings.P"

86. The Trial Chamber has indicated that it intends to schedule an oral hearing in the referral proceedings for 12 April 2012.124 The referral decision therefore cannot be made until after this date, at which point any decision about a possible request to amend the indictment would likely have been rendered. The Prosecutor notes that no delay in the referral proceedings was occasioned by Uwinkindi's motion alleging defects in the amended Indictment.125

123 Response, para. 67. 124 Facsimile transmission from Trial Chamber to parties, 27 February 2012, indicating that the Bench had decided, proprio motu, to hear oral submissions in the proceedings and that it intended to set the date for the hearing on 12 April 2012. 125 The Defence submitted a motion alleging defects in an amended indictment on 28 December 2010 at the same time as the referral proceedings were ongoing. (The Prosecutor v. Jean Uwinkindi, Case No. ICTR-01-75-I, Defence Preliminary Motion Alleging Defects in the Form of the Amended Indictment, 23 December 2010.) The Prosecutor's request to transfer Uwinkindi's case was submitted on 4 November 2010. (The Prosecutor v. Jean-Bosco Uwinkindi, Case No. ICTR-01-75-I, Prosecutor's Request for the Referral of the Case of Jean-Bosco Uwinkindi to Rwanda Pursuant to Rule 11 bis of the Tribunal's Rules of Procedure and Evidence, 4 November 2010.) The Trial Chamber and Appeals Chamber decisions on alleged defects in the amended indictment were rendered prior to the Appeals Chamber decision which approved Uwinkindi's 34 87. Moreover, any delay would also be attributable to the Defence, who failed to raise such alleged defects in a timely manner as required under Rule 72(A)(ii). Once again, the Defence has not explained why it did not raise this issue earlier, as it could have brought a motion alleging defects in the indictment at any time after the Indictment was confirmed in 2005.

88. Consequently, contrary to the Defence allegations, an amendment to the Indictment at this stage would not necessarily result in any undue delay in the proceedings.

D. Ifreferral is allowed, the trial ofthis case in Rwanda will respect all ofthe Accused's fair trial rights

89. The Defence recognizes that Rwanda has made material changes in its laws to improve the quality of its judicial system and that Rwandan laws are consistent with internationally recognized fair trial standards.P? It also acknowledges that Rwanda's legal framework provides for an adequate penalty structure.P? However, it alleges - as have all other accused in connection with previous Rule 11 bis referrals - that in practice, Rwanda will not be able to guarantee fundamental fair trial rights. In particular, it challenges Rwanda's ability to ensure that (a) conditions of detention are in compliance with international standards; (b) the presumption of innocence is guaranteed; (c) the Defence can present evidence under the same conditions as the Prosecution; (d) the right to counsel of his own choosing and to an effective defence is protected;

transfer to Rwanda. (The Prosecutor v. Jean Uwinkindi, Case No. ICTR-01-75-I, Decision on Defence Preliminary Motion Alleging Defects in the Form of the Indictment, 9 March 2011, Uwinkindi - Indictment Decision (AC) (rendered on 16 November 2011); Uwinkindi (AC), 16 December 2011.) The Prosecutor submitted an indictment amended in conformity with the Appeals Chamber decision on the same day as the Appeals Chamber rendered its decision on the transfer of the Accused to Rwanda. (The Prosecutor v. Jean Uwinkindi, Case No. ICTR-2001-75­ PT, Amended Indictment, 16 December 2011; Uwinkindi (AC) (rendered on 16 December 2011).) The indictment was confirmed shortly thereafter, and did not result in any delay in the Accused's transfer to Rwanda. (The Prosecutor v. Jean Uwinkindi, Case No. ICTR-2001-75-PT, Decision on the Confirmation of the Re-Filed Indictment, 23 January 2012.) 126 Response, para. 71. 127 Response, para. 70. 35 and (e) the Accused will receive a fair trial by an independent and impartial court.128

90. Similarly, the IADL rejects the view, without any substantiation, that Rwanda has removed the obstacles to fair trial through its legislation.P? It also makes a sweeping unsupported assertion that the political climate and 'hostile environment' in Rwanda renders it unlikely that the Accused will receive a fair trial in Rwanda.P''

91. Upon assessment of similar submissions, and strong opposition mounted by the Defence and amici, including the IADL, the Uwinkindi Trial Chamber determined that these concerns had been addressed by Rwanda, and that if referred, Uwinkindi's case "will be prosecuted consistent with internationally recognized fair trial standards enshrined in the Statute of this Tribunal and other human rights instruments."131 This finding was confirmed by the Appeals Chamber and more recently by the Kayishema Trial Chamber in relation to Kayishema.ls- Based on the submissions made in the Prosecutor's original Rule 11 bis Request and below, the same conclusion should apply to the Accused's case.133

128 Response, para. 71. 129 IADL, Registry Pagination ("RP") 491. In support, the IADL states, without any further evidence, that Rwanda is responsible for the attacks on members of the opposition press and political parties. However, the Chamber's authority under Rule 11 bis does not extend to making political determinations about Rwanda's internal governance. IADL amply demonstrates its disdain for the Rwandan government, but one is left to guess how its unsubstantiated allegation of domestic and international political intrigue has any bearing on the Accused's right to a fair trial should his case be referred to Rwanda for trial. Likewise, IADL's assertion that the ICTR has failed to fulfill its mandate to prosecute both sides of the conflict has no bearing on the trial of this case should referral be allowed. See IADL, RP 490. 130 IADL, RP 491. 131 Uwinkindi (TC), paras. 222-225. 132 Uwinkindi (AC), para. 87; Kayishema (TC 2012), para. 163. 133 Rule 11 bis Request, paras. 29-85. 36 (a) Rwanda's Correctional Services ensure that conditions of detention are consonant with international standards in the Accused's case

92. The Defence acknowledges that Rwanda's legal framework guarantees that conditions of detention conform to international standards, but questions whether these standards will be applied in practice.Pt

93. The Defence misunderstands the Chamber's duty in this respect.P'' It is entirely appropriate for a Chamber to focus on the protection afforded by Rwanda's existing legal framework in assessing the conditions of detention. In Uwinkindi, the Appeals Chamber recalled that:

[I]n assessing the conditions of detention, a designated trial chamber should ascertain whether the laws governing detention incorporate relevant international standards regarding the treatment of prisoners.136

94. The Appeals Chamber endorsed the approach adopted by the Uwinkindi Trial Chamber in considering the guarantee in the Transfer Law that any person transferred would be detained in accordance with the minimum standards of detention adopted by the United Nations General Assembly Resolution 43/173, and that detention would be subject to monitoring by a representative of the Tribunal or the International Committee of the Red Cross.P? That is all the Chamber is required to do in this case to assess the conditions ofdetention.

95. Moreover, in Uwinkindi, Rwanda previously submitted that the rights afforded to prisoners in Rwandan law are in all material respects identical to the rights recognized under prevailing international standards and that detention of a prisoner in any referred case will comply with international standards.P''

134 Response, paras. 69, 71, 77, 87. 135 Response, para. 85. 136 Uwinkindi (AC), para. 37, with reference to Jankovic (AC), paras. 74, 75. 137 Ibid. See also Uwinkindi (TC), paras. 58-60; Kayishema (TC 2012), para. 52. See also UN Doc. AlRes/43/173, Body of Principles for the Protection of All Persons under any Form of Detention or Imprisonment, adopted by General Assembly Resolution 43/173, 9 December 1998, found online at http://www2.ohchr.org/english/law/bodyprinciples.htm (last accessed 23 February 2012). 138 The Prosecutor v. Jean-Bosco Uwinkindi, Case No. ICTR-2001-75-I, Amicus Curiae Brief for the Republic of Rwanda in Support of the Prosecutor's Application for Referral Pursuant to Rule 37 96. In any event, Rwanda's correctional services guarantee the implementation of international standards regarding the treatment of prisoners in referred cases in Mpanga Prison and Kigali Central Prison. The Defence submissions in this respect to the contrary are speculative and unfounded. It should be recalled that already in 2008 the Tribunal found that the Mpanga facility and the custom built remand facility in Kigali in practice comply with international standards:

[Mpanga prison] has a special wing with 73 cells built to international standards. Budgetary appropriations have been earmarked and are available to complete the partitioning of cells to meet requirements set by the ICTR. The Mpanga prison is situated in Nyanza, about two hours drive from Kigali. During trial, the accused will be detained at a custom-built remand facility at the Kigali Central Prison in close proximity to the High Court and the Supreme Court. It contains twelve cells and six toilets. Each room is equipped with a bed, beddings, closet, reading table and a chair.139

97. This has been assured again by the Commissioner General of the Rwandan Correctional Services, who confirmed that Mpanga Prison and Kigali Central Prison comply with international standards respecting the rights of detainees.140 Contrary to the Defence argument that the requirement of segregating prisoners is not implemented in practice.ls! convicts are separated from those awaiting trial and men from women in both facilities.tw Moreover, other international standards are guaranteed in practice as well, such as visitations by members of the family, access by attorneys and privacy during interviews, free medical care and treatment, clothing, bedding, personal hygiene,

11 bis, dated 18 February 2011 and filed 25 February 2011, p. 38-42 ("Rwanda Amicus Curiae Brief - Uwinkindi") (attached to Rule 11 bis Request as Annex J). Rwandan law has been updated by Law No. 34/2010, which provides similar rights afforded to prisoners and identical to the rights recognized under prevailing international standards. See Law No. 34/2010 of 12 November 2010 on the Establishment, Functioning and Organisation of Rwanda Correctional Service, Official Gazette 24 January 2011, available in English, French and Kinyarwanda on http://www.amategeko.netl(last accessed 28 February 2012). 139 Kanyarukiga (TC), para. 91, and paras. 85-86; Gatete (TC), paras. 76-77; Hategekimana (TC), paras. 75-77. 140 Affidavit of Paul Rwarakabije, Commissioner General of Rwandan Correctional Services, para. 3 (a copy of which is attached as Annex F) ("Rwarakabije Affidavit"). 141 Response, paras. 79-80. 142 Rwarakabije Affidavit, para. 2. 38 outdoor exercises, freedom to practice religious belief and access to information.143

98. In addition, correctional services in Rwanda are freely accessible by any organization, including the International Committee of the Red Cross,144 The Transfer Law also provides for a special inspection by the International Red Cross or ICTR observer.Pf Any concerns regarding detention conditions and treatment of the Accused in detention could thus be adequately addressed by these additional safeguard mechanisms provided by both Rwandan law and practice. Moreover, the monitoring mechanism could be used as an additional safeguard by conducting regular prison visits to ensure that both the detention conditions and the treatment of the Accused in detention were satisfactory. Both Chambers in Uwinkindi and Kayishema considered the amended language of Rule 11 bis, which foresees the possibility of the Registrar sending observers to monitor the proceedings in the State concerned, to be broad enough to allow monitoring of conditions of detention.w' The Accused here would benefit from the same protection.

99. Rwanda has confirmed before that the same regulations presently in effect for the detention of prisoners convicted by the United Nations' Special Court for Sierra Leone ("SCSL") will apply to any accused or prisoners in cases referred by the 'I'ribunal.t-" The Defence questions this assertion based on an alleged insufficiency of funds to ensure such regulations will apply to transferred accused. All funds are available to meet the needs of detainees in referred cases in keeping with international standards in the above facilities.w'

143 Rwarakabije Affidavit, para. 3. See Response, para. 83. 144 Rwarakabije Affidavit, para. 4. 145 Article 23 of the Transfer Law. See also Uwinkindi (TC), para. 58; Uwinkindi (AC), para. 37. 146 Uwinkindi (TC), para. 60; Uwinkindi (AC), para.38, in which the Appeals Chamber found that it was within the inherent authority of the Referral Chamber to extend the monitoring to this aspect of conditions of detention; Kayishema (TC 2012), para. 52. 147 Rwanda Amicus Curiae Brief; para. 23 and Exhibit H to Rwanda's Brief - Affidavit of Paul Rwarakabije, Commissioner General of Rwandan Correctional Services, para. 4; see also Rwanda Amicus Curiae Brief- Uwinkindi, p. 38-42. 148 Rwarakabije Affidavit, para. 6. 39 100. Moreover, the Defence's argument that SCSL prisoners are subjected to improper treatment despite Rwanda's assurances reinforced by the agreement with the SCSL are unfounded.lw The allegations of human rights abuses made by the SCSL prisoners were thoroughly assessed by the SCSL Registrar and Deputy Registrar, who met with the eight prisoners serving their sentences at Mpanga Prison, as well as with Rwandan government officials and the Rwandan prison management authorities.P? The key issues related to the prisoners' dissatisfaction over new procedures for assessing supplies as well as enforcement of protocols for the use of the telephone. Based on their assessment, the Registrar and Deputy Registrar concluded that these procedures were in line with international standards and that no violations of human rights existed. They also observed that the SCSL "is satisfied with the implementation of the sentence enforcement agreement, and with the excellent cooperation of the Rwandan authorities."151

101. The Defence does not advance any argument to conclude that similar conditions of detention consonant with international standards would not apply to the Accused in this case while detained at Mpanga Prison or Kigali Central Prison.

102. Finally, as the Defence rightly notes, plans are underway to demolish the current Kigali Central Prison, and establish a new facility.152 Rwanda has already confirmed that this facility will comply with international standards for both domestic and international crimes.P'' Until this new facility is completed,

149 Response, para. 82. 150 Remarks to the Rwandan authorities by Special Court Registrar Binta Mansaray at the end of the annual visit by the Registrar and Deputy Registrar, 9 November 2011 (a copy of which is attached as Annex G) 151 Ibid. 152 Rwarakabije Affidavit, para. 5. See also Rwanda Amicus Curiae Brief; para. 21 and Exhibit H to Rwanda's Brief - Affidavit of Paul Rwarakabije, Commissioner General of Rwandan Correctional Services, para. 2 ("Second Rwarakabije Affidavit). 153 Rwanda Amicus Curiae Brief; para. 22; Second Rwarakabije Affidavit para. 3. 40 the current Kigali Central Prison will be retained, in which a separate unit is reserved for prisoners in referred cases,154

(b) Rwanda's judiciary ensures the presumption ofinnocence in the Accused's case

103. The Defence assertion that the accused will not be presumed innocent in practice is speculative and unsubstantiated,155 In support, it makes similar submissions to those made by accused in earlier Rule 11 bis proceedings, i.e. by relying on comments of public officials and the media about an accused's guilt or innocence prior to the conclusion of trial or upon acquittal.P" In particular, the Defence takes issue with a statement made by President Kagame with respect to Theoneste Bagosora, before he was convicted by the ICTR, and an article published in the New Times about the cases handled by the ICTR.157

104. As Trial Chambers previously recognized, none of these comments involved a member of the judiciary, and, as such, do not demonstrate that the accused in question would not be presumed innocent in practice.l'f Such comments do not prevent transfer of an accused's case to Rwandan courts,159 This approach has been endorsed recently by the Uwinkindi Trial Chamber which was of the view that "judges are trained and experienced professionals capable of separating comments made by public officials from evidence presented in the courtroom."160 Indeed, the comments of public officials and media, as cited by the Defence, do not in and of themselves show that the accused will not

154 Rwarakabije Affidavit, para. 5. 155 Response, paras. 88-93. 156 The Defence submissions regarding the alleged non-segregation of prisoners are dealt with above (see supra, para. 97; Response, para. 89). Moreover, the Defence submission that the 'willingness of Rwanda to treat the persons accused in the same manner as the persons convicted by the SCSL demonstrates a violation of the right to presumption of innocence', is absurd (see Response, para. 93). Rwanda has indeed stated, as argued above, that it will apply the same regulations of detention - and international standards - presently in effect for the detention of prisoners convicted by the SCSL to the detention of any accused or prisoner in cases referred by the Tribunal. Such a statement does not violate the presumption of innocence of any accused whose case might be transferred to Rwanda. 157 See Response, Annexes 28-29; and paras. 91-92. 158 Kanyarukiga (TC), paras. 44-45; Gatete (TC), paras. 41-42; Hategekimana (TC), paras. 48-52. 159 Ibid. 160 Uwinkindi (TC), para. 26. In doing so, the Chamber also took into consideration General Comment Nr. 32 issued by the United Nations Human Rights Committee on Article 14 of the ICCPR, on which the Defence relies (see Response, para. 91). See Uwinkindi (TC), para. 24 41 receive a trial by a fair and impartial judiciary in which his right to presumption of innocence will be ensured.

105. Under Rwandan law, judges are also prohibited from publicly commenting on the guilt or innocence of any accused prior to the completion of a trial.l61 They are held to a high ethical standard that obliges them to decide cases based on the law and facts, not external interference.162 The Defence does not substantiate its claim that the judges of the High Court and the Supreme Court - the courts which will deal with the Accused's case if transferred - fail to recognize the presumption of innocence.

106. Nor is the presumption of innocence diminished by criticisms that some Rwandan officials have occasionally leveled against the Tribunal's decisions. The IADL, once again without support, takes issue with the Rwandan Government welcoming life sentences by the ICTR Trial Chambers while denouncing acquittals.l'" In each such case, the trial against the accused had been completed and the judgement rendered. Even if Rwanda's officials made such comments, this could therefore not have impacted the presumption of innocence. And, even ifthe presumption of innocence extended beyond the completion of trial (which it does not), there is no prohibition against persons, including Rwanda's public officials, voicing their disagreement with the Tribunal's decisions. Ironically, the Defence and IADL themselves make plain their disagreement with some of the Tribunal's decisions.w- Rwanda should not be held to a different standard.

161 See Article16 of the Rwandan Code of Judicial Ethics (precluding "any behavior, language and statement which may put a judge's impartiality to question"); Article 7 of the Code of Judicial Ethics ("Every judge shall, in private and public life, avoid anything which may erode public confidence or which might compromise the reputation and honour of the judiciary."). See Law No. 09/2004 of 29 May 2004 relating to the Code of Ethics for the Judiciary, Official Gazette 1 June 2004, available in English, French and Kinyarwanda on http://www.amategeko.netl(last accessed 28 February 2012) 162 Rwanda Amicus Curiae Brief- Uuiinhindi, para. 130. 163 IADL, RP 491. The IADL also states, without support, that the Government has "denounced the few [ICTRl acquittals through mass demonstrations." There is no indication, however, that these alleged demonstrations were organised by the Government. 164 See, e.g., Response, para. 71 (expressing its disagreement with the Uwinkindi Appeals Chamber's finding about the independence and impartiality of the judiciary); IADL, RP 492 (criticizing the Uwinkindi Appeals and Trial Chambers' decisions). 42 107. Further, any transferred case will be closely observed by monitors appointed by the Prosecutor and/or the Chamber, who will report regularly and provide additional safeguards to address any suspected outside pressure.t'" If the monitor detects any violation of the accused's fair trial rights, including executive interference with his case, the referral could be revoked.l'"

(c) The Defence will be able to present evidence under the same conditions as the Prosecution

108. In Uwinkindi, the Trial Chamber found that "with the amendments made to [the Transfer law] regarding witness immunity, the creation of a new witness protection programme, and the safeguards imposed by the Chamber on Rwanda, the Appeals Chamber's [previous] finding that witnesses may be unwilling to testify is no longer a compelling reason for denying referral."167 This was upheld by the Appeals Chamber.J'"

109. Both the Defence and IADL in essence question whether fair trial concerns regarding the availability and protection of witnesses have been addressed and no longer constitute an obstacle to referral,169 The Defence submits a comparison with 'all cases tried in Rwanda' and asserts that, before the Accused's case can be referred, the amendments to Rwanda's legal framework should apply to all criminal cases.l?? In so doing, the Defence seems to misunderstand the standard for referral under Rule 11 bis, which is included in the Rule itself.l'" The Chamber must be satisfied that the Accused will receive a fair trial in the courts which will try his case. Nevertheless, significant amendments to the law, and especially the enhancement to Rwanda's witness protection services, are also applicable in non-transferred cases,172 Further, the fact that important

165 See also Uwinkindi (TC), para. 196 166 Rule 11 bis Request, paras. 86-95. 167 Uwinkindi (TC), para. 100. 168 Uwinkindi (AC), para. 62. 169 Response, para. 95-118; IADL, RP 491-490. 170 Response, paras. 95, 96. 171 Rule 11 bis Request, para. 15. 172 See, for example, the services provided by Rwanda's Victims and Witnesses Support Unit and the Witness Protection Unit under the judiciary, which are also available to victims and witnesses in non-transferred cases. 43 amendments, such as the immunity provisions for defence teams and witnesses, are included in the Transfer Law, and have not yet been tested, does not detract from Rwanda's capacity to ensure that the Accused will receive a fair trialP3

110. Moreover, contrary to the Defence submission, it is entirely appropriate for the Chamber to focus on the protections afforded by Rwanda's existing framework.F? This is particularly important where, as here, no cases have yet been referred for trial and, consequently, there is no past experience to draw upon. Under these circumstances, the Appeals Chamber has held that it is sufficient for a Chamber to rely in the existence of such a legal framework as a primary basis for determining whether adequate protections are provided to ensure a fair tria1.l75

(a) Alleged fears ofDefence witnesses

111. The Defence and IADL submit that witnesses be unwilling to testify for the Defence as a result of the fear that they may face serious consequences including threats, harassment, torture, arrest or even murder.l?" The Defence simply reiterates the Appeals Chamber's finding in Kanyarukiga, submitting that the changes in the legal framework failed to allay witnesses' fears and that fear of these consequences are obstacles to securing defence witnesses to testify.177 However, more recently in Uwinkindi, the Trial Chamber found, on the contrary, that recent amendments to relevant laws and enhancements to witness protection services constitute sufficient assurances to address witnesses' concerns and to help secure their appearance.Pf In making this finding, the Uwinkindi Trial Chamber specifically considered previous findings by the Appeals Chamber in Rule 11 bis decisions, such as Kanyarukiga, that witnesses may be unwilling to testify, but ultimately found that they are "no longer a

173 Articles 13 and 14 of the Transfer Law. 174 Uwinkindi (AC), paras. 37, 64. 175 Ibid. See also Mejakic (AC), paras. 69, 81; Todouic (AC), paras. 56, 83; Stankouic (AC), paras. 26,52. 176 Response, para. 97; IADL, RP 491-490. 177 Response, para. 97, with reference to Kanyarukiga (AC), para, 26. 178 Uwinkindi (TC), paras. 100-101. 44 compelling reason for denying referral."179 The Uwinkindi Appeals Chamber

considered this to be a correct approach. ISO

112. The Defence fails to show why the amendments to relevant laws and enhancements to witness protection services would not constitute sufficient

guarantees to secure witnesses on his behalf.lSI

113. One of the significant amendments made to its legal framework is Rwanda's inclusion of alternative means for securing testimony from witnesses. Both the Trial and Appeals Chambers in Uwinkindi found that these measures will facilitate the availability and protection of witnesses, in particular defence witnesses.ts- Article 14 bis of the Transfer Law now allows for alternative methods of obtaining testimony from witnesses by deposition, video-link, or a judge sitting in a foreign jurisdiction. In its amicus curiae brief, Rwanda has indicated that, with Germany's assistance, it has further enhanced its video-link capacity, and now has seven fully operational video-link units which are available for use in the trial of any referred case. Rwanda courts have routinely used these units to transmit testimony from witnesses located in Rwanda to foreign courtrooms. The technology is the same as that which would allow a witness to testify from a foreign jurisdiction to Rwanda. I S3

114. The Defence specifically questions whether there are sufficient funds available to deploy a video-link in a foreign jurisdiction.P< an issue which was addressed in Rwanda's amicus curiae brief, where it submitted that it has

179 Uwinkindi (TC), para. 100. See also Kayishema (TC 2012), paras. 72-73. 180 Uwinkindi (AC), para. 62. 181 It also has been recently shown, through Rwanda's practical experience in 36 genocide cases over which the High Court presided, that the "defence in most cases was able to secure the attendance of witnesses even without the safeguards available to cases transferred from the Tribunal." See Uwinkindi (TC), paras. 64, 100. As the Appeals Chamber noted, merely that "fewer witnesses testified for the defence than the prosecution 'alone does not indicate the lack of a fair trial for the Accused.''' Uwinkindi (AC), para. 63 (quoting Uwinkindi (TC), para. 97). 182 Uwinkindi (AC), paras. 64, 66; Uwinkindi (TC), paras. 112-113. See also Kayishema (TC 2012), paras. 79,83. 183 Rwanda Amicus Curiae Brief; paras. 17-19 and Exhibit G- Affidavit of Fred Gashemeza, Director General in Charge of rCT for the Supreme Court of Rwanda, paras. 3-5. 184 Response, para. 98. 45 sufficient capacity to deploy one or more of its existing video-link units In a foreign jurisdiction that lacks the necessary equipment.tw

115. In any event, sufficient funds to secure witness testimony in the Accused's case are in place. In preparation of cases that may be transferred by the ICTR and foreign jurisdictions, the Rwandan Government has increased in January 2012 the currently running budget by 100.000.000 Rwandan francs.P" The forthcoming budget 2012-2013, which starts from July 2012, will similarly make appropriate budgetary provisions.w?

116. In addition, the Defence points to the Uwinkindi Appeals Chamber's holding that "it would be a violation of the principle of equality of arms if the majority of defence witnesses appeared by means substantially different from those for the Prosecution."188 However, the Appeals Chamber also notes that

Mr. Uwinkindi has not identified how many of his potential witnesses might fall into this category or that it constitutes a sufficiently significant part of his possible evidence. It cannot be said that hearing a portion of evidence from either party by alternative means per se amounts to a violation of an accused's rights. The relevant inquiry is a fact-based assessment that is best left to a chamber with a fully developed record as to the nature of the evidence against the accused, and with specific knowledge of the nature of the proposed defence case and the relevant sources of evidence. 189

185 Rwanda Amicus Curiae Brief, para. 19. 186 Affidavit of Anne Gahongayire, Secretary General of the Supreme Court, para. 2 (attached hereto as Annex H) ("Gahongayire Affidavit"). 187 Ibid. The Defence also questions whether Rwanda has sufficient financial means to ensure the presence of interpreters. Rwanda already submitted that, besides its normal budget, it has an additional 30 million RWF designated for ICTR-related issues, including, but not limited to, the provision of legal assistance to indigent accused in transferred cases. (Affidavit of Tharcisse Karugama, Minister of Justice and Attorney General, 15 February 2011, ("Karugama Affidavit"), para. 3 (a copy is attached to the Rule 11 bis Request as Annex 0).) Rwanda has also increased its budget in January 2012. (Gahongayire Affidavit, para. 2.) Further, Rwanda stated that its courtrooms have separate booths for the simultaneous translation of proceedings into anyone of Rwanda's three official languages (French, English, and Kinyarwanda). (Rwanda Amicus Curiae Brief; para. 20; Gashemeza Affidavit, para. 6.) The Defence acknowledges that the Accused speaks French, and there is capacity for translation into French. Therefore, the Defence allegation that no interpreters and no financial means would be available to ensure interpretation is unfounded and speculative. Similarly speculative is his allegation that he will not receive documents of the proceedings in a language he understands. See Response, para. 148. 188 Response, para. 99; Uuiinkindi (AC), para. 67. 189 Uwinkindi (AC), para. 67. 46 Similarly, the Defence has not identified how many of his potential witnesses might fall into this category or that it constitutes a sufficiently significant part of his possible evidence. Moreover, Rwandan law offers several alternatives for obtaining witness testimony from abroad; it is not limited to the use of video-link technology.190

117. In support of its allegation that witness' fears constitute an obstacle to the Defence ability to secure their attendance, the Defence submits 16 affidavits of Defence witnesses who were interviewed.P! This is the same tactic used by the Defence in Uwinkindi. In response, the Uwinkindi Trial Chamber noted that its role was not to determine whether the witnesses' fears were well-founded, but instead to focus on the likelihood that Uwinkindi would be able to secure their appearance on his behalf under the same conditions as those testifying against him.192 The Appeals Chamber considered this to be the correct approach.t'f

118. Nevertheless, an analysis of the affidavits shows that the Defence witnesses all give suspiciously similar information:

• They are willing to give testimony in favour of the Accused only if the proceedings take place outside Rwanda or before the ICTR in Arusha.ie-

• They will not give testimony in any case referred to Rwanda for trial because they fear that they or their families will be arrested or prosecuted under Rwanda's Genocide Ideology Law.l95

• Their reluctance to provide testimony in any case referred to Rwanda for trial extends to any proceedings that may take place in a foreign country.l96

190 Article 14 bis Transfer Law (as amended in 2009). 191 Response paras. 117-118, confidential Annex 51. The affidavit ofTKM is attached twice. 192 Uwinkindi (TC), paras. 85, 90. The same approach was also taken by the Trial Chamber in Kayishema. See Kayishema (TC 2012), para. 59. 193 Uwinkindi (AC), paras. 61-62. 194 Defence witnesses TCBT, TCBB, TCBI, TCBN, TCBH, TTK, TTH, TKM, TUB, TUF, TKH, TSR, TST, TSH, TSJ, TSS. 195 Defence witnesses TCBT, TCBB, TCBI, TCBN, TCBH, TTK, TTH, TKM, TUB, TUF, TKH, TSR, TST, TSH, TSJ, TSS. 196 Defence witnesses TKM, TUB, TUF, TKH, TSR, TST, TSH, TSJ. 47 119. Without knowing the identities of these affiants, the Prosecutor cannot probe the veracity of these statements or the circumstances under which the statements were obtained. The Prosecutor also cannot assess whether any ofthe affiant's professed subjective fears could be ameliorated by carefully-crafted witness protection services or court orders (although that certainly seems likely).

120. While all witnesses declared that they were informed that 'Rwanda has put in place a mechanism to protect witnesses', there is no indication that they have been advised of the immunity provisions under Articles 13 and 14 of the Transfer Law,197 Such omission is important because Articles 13 and 14 of the Transfer Law confer broad immunity on witnesses.P" Article 13 states that "[wjithout prejudice to the relevant laws of contempt of court and perjury, no person shall be criminally liable for anything said or done in the course of a trial."199 Article 14 provides an additional guarantee of immunity for witnesses who travel from abroad. It provides that "[alll witnesses who travel from abroad to testify in the trial of cases transferred from the ICTR shall have immunity from search, seizure, arrest or detention during their testimony and during their travel to and from the trials."200 In Uwinkindi, the Referral and Appeals Chambers found that the immunities and protections provided to witnesses under the Transfer Law were adequate to ensure a fair trial before the High Court in Rwanda.w!

121. The Defence affiants are thus immune from arrest and prosecution. Additionally, their family members may be protected by court orders.202 The Uwinkindi Trial Chamber implicitly addressed the alleged witness fears about the safety of family members in Rwanda in two ways.203 First, the Chamber noted that, pursuant to Rule 11 bis(D)(ii), it could order that protective measures

197 Uwinkindi (TC), para. 89. 198 Uwinkindi (TC), paras. 91-93. 199 Transfer Law, Article 13. 200 Transfer Law, Article 14. 201 Uwinkindi (TC), para. 90; Uwinkindi (AC), para. 63. 202 These considerations also address IADL's unsupported concern about the alleged fear of Defence witnesses to testify and potential threats to their families. See IADL, RP 490. 203 Uwinkindi (TC), para. 89. 48 6S1

for witnesses and victims, which often include measures to protect family members, remain in place.204 Second, the Chamber considered the improvements to Rwanda's witness protection services, including the creation ofWPU under the auspices of the judiciary (which will be addressed more fully below).205 Given these considerations, there is nothing to preclude the Accused from applying to the Tribunal before referral for appropriate witness protection measures, including measures extending to family members. And, following referral, he may apply to the High Court for similar measures. Indeed, pursuant to Article 14 of the Transfer Law, the High Court "shall provide appropriate protection for witnesses and shall have the power to order appropriate protective measures similar to those set forth in Articles 53, 69 and 75 ofthe ICTR Rules ofProcedure and Evidence."

122. Moreover, as noted in Rwanda's amicus curiae brief, there has not been a single instance where a witness in a criminal case has been arrested or prosecuted for alleged violations of the Genocide Ideology Law.206 There is no history of defence witnesses in Rwanda being arrested or prosecuted for genocide ideology. Therefore, the prospects of unjustified arrest, prosecution, and conviction pursuant to this law are remote.w?

123. Even if these subjective fears of arrest and prosecution are honestly held, there still is no viable reason why the Defence's secret affiants - who reside in neighboring African countries, including Uganda, Kenya, Tanzania, Congo Brazzaville and South Africa - could not present their evidence in one or more of the alternative ways provided by Rwandan law (as discussed above). The alternatives provided by Rwandan law for video-link testimony, deposition, and live testimony in foreign countries address any alleged witness fears, as raised by the Defence and IADL, about having to travel to Rwanda to provide testimony.208

204 Uwinkindi (TC), para. 132. 205 Uwinkindi (TC), para. 13I. 206 Rwanda Amicus Curiae Brief- Uwinkindi, para. 55. 207 See also infra, paras. 128-133. 208 Article 14 bis of the Transfer Law (as amended in 2009). See Response, paras. 97, 118; IADL, RP 490, in which IADL alleges without any support that Defence witnesses outside Rwanda are not free to return to testify. 49 Each of these alternatives has been utilized by this Tribunal and national courts. Each of these alternatives, as the Uwinkindi Trial and Appeal Chambers, and more recently the Kayishema Trial Chamber have held, adequately addressed concerns about an Accused's ability to secure live witness testimony from any witnesses who may be unwilling or unable to travel to Rwanda.w?

124. Furthermore, although there is a preference for live witness testimony over recorded testimony, this preference is primarily a function of the Accused's right to face the witnesses against him and hear their testimony viva voce. Judges can, and routinely do, evaluate evidence without the necessity of live testimony, and this does not impact on the fair trial rights of the accused.

125. Each of the alternatives provided by Rwandan law could, with appropriate logistical support, allow the Accused to both face the witnesses and hear their testimony viva voce. The Accused, for instance, could be present at the same location where the witness testifies via video-link or deposition. And, if one or more of the judges hearing the case wished to be physically present when the witness testifies, there is no reason they could not likewise travel to the witness's location. In fact, this is precisely what is envisioned under Rwanda's third alternative, whereby all of the principals (the judge, prosecution, defence, and witness) would be present to hear the witness testify in a foreign courtroom. These alternatives, therefore, address any concerns about the Defence's ability to secure live witness testimony from witnesses who may be unwilling or unable to travel to Rwanda.

209 Uwinkindi (AC), paras. 64, 66; Uwinkindi (TC), paras. 112-113.; Kayishema (TC 2012), paras. 79, 83. Rwanda has also recently adopted legislation that would allow the panel for any case referred for trial in Rwanda to include judges from foreign or international courts, which is pending only formal publication in Rwanda's Official Gazette. RwandaAmicus Curiae Brief, para. 5 and Exhibit A to Rwanda's Brief - Relevant Excerpts from draft Organic Law No. _ of _ Establishing the Organization, Functioning and Jurisdiction of the Supreme Court. As the Uwinkindi Chamber held, this legislation "would further enhance the Accused's fair trial rights." See Uwinkindi (TC), para. 114; see also The Prosecutor v. Jean Uwinkindi, Case No. ICTR-2011­ 75-R11bis, Letter from Martin Ngoga, Prosecutor General, Republic of Rwanda, to Judge Khalida Rashid Khan, 19 August 2011, p. 9-10 ("Rwanda Report") (attached to the Rule 11 bis Request as Annex D). This legislation is discussed further below. See infra, para. 202. 50 126. Once again, as noted above, the Appeals Chamber in Uwinkindi held that hearing a portion of evidence from either party by alternative means does not per se amount to a violation of the accused's right.210 Like Uwinkindi, the Defence has also not identified how many of his potential witnesses might fall into this category. This fact-based inquiry as to whether to use alternative means should be left to the relevant chamber with a fully developed record and all the information before it regarding the nature of the proposed defence and the relevant sources of evidence.

127. Moreover, Rwanda has also adopted new legislation to allow foreign or international judges to sit on the panel of any case referred for trial, which only awaits formal publication in Rwanda's Official Gazette.s-! This prospect, the Uwinkindi Chamber held, would further "enhance the Accused's fair trial rights."212 This prospect thus adequately addresses any remaining subjective fear that Defence witnesses may have about appearing only before only a Rwandan judge.

(b) Genocide Ideology Law

128. As in Uwinkindi, the Defence argues, based on reports from Amnesty International and Human Rights Watch, that the fear of being prosecuted and arrested under the Genocide Ideology law means that defence witnesses are not willing to testify, despite the immunities and protections provided for by the Transfer Law.213 The IADL repeats the same concern in general terms.214

129. In specifically considering alleged witness fears relating to arrest and prosecution under Rwanda's Genocide Ideology Law,215 the Uwinkindi Trial Chamber noted that the Transfer Law, "as amended, provides immunity to

210 Uwinkindi (AC), para. 67. See supra, para. 116. 211 Rwanda Amicus Curiae Brief, para. 5 and Exhibit A to Rwanda's Brief - Relevant Excerpts from draft Organic Law No. _ of _ Establishing the Organization, Functioning and Jurisdiction ofthe Supreme Court. See also infra, para. 202. 212 Uwinkindi (TC), para. 114. See also Kayishema (TC 2012), para. 84. 213 Response, para. 101. See Article 13 of the Constitution. 214 IADL, RP 491-490. 215 Uwinkindi eTC), para. 95. 51 defence witnesses and defence counsel for anything said or done in the course of trial."216 This immunity extends to any statements made in the course of trial amounting to genocide denial under either the current or revised ideology law. The Appeals Chamber found that this was the correct approach.s!?

130. Such an approach of considering the adequate legal safeguards, instead of considering whether witnesses' fears are well-founded, should be applied in this case as well. Moreover, as noted above, there is no history of defence witnesses in Rwanda being arrested or prosecuted for genocide ideology.218 Because no cases have yet been referred to Rwanda, the immunity provisions have not been tested in practice. The Chamber, however, should reasonably accept, as the Uwinkindi Trial Chamber did, Rwanda's representations that, consistent with usual presumption of good faith on the part of government officials, the immunity provisions would be honored.P-?

131. The Uwinkindi Chamber further observed that Rwanda had undertaken a study aimed at clarifying the scope of its existing ideology law.22o It required Rwanda to report to the President on the status of that study.221 According to Rwanda's subsequent report, the Commission assigned to study the matter has recommended that the existing ideology law be repealed and replaced with a new law, which addresses many of the criticisms that have been leveled against the current law.222

132. In its most recent amicus curiae brief, Rwanda reports that, as part of a comprehensive overhaul of the Penal Code, the potential sentences applicable to persons convicted of the crime of genocide ideology have been drastically reduced.223 Contrary to Defence submissions, the fact that the Penal Code is not

216 Uwinkindi (TC), para. 95. 217 Uwinkindi (AC), paras. 61-62. 218 See supra, para. 122. 219 Uwinkindi (TC), paras. 88, 225; RwandaAmicus Curiae Brief - Uwinkindi, para. 54. 220 Uwinkindi (TC), para. 95. 221Uwinkindi (TC), para. 95 and p. 59. 222 Rwanda Report, p. 3-9. 223 Rwanda Amicus Curiae Brief, paras. 6-8 and Exhibit B to Rwanda's Brief - Relevant Excepts from draft Organic Law No. _ of _ Governing the Penal Code. The defence argument that the 52 yet published in the Official Gazette does not detract from Rwanda's commitment to meaningful reform ofthe Genocide Ideology Law.224

133. The Defence argument that Rwanda is not in a position to undertake a thorough reform, and, therefore, is not ready to ensure a fair trial is without merit.225 Debates relating to the additional proposed amendments are still ongoing. Rwanda has already submitted that it is a position to undertake a through reform.226 However, it also rightly pointed out that "as with any legislative process, reform cannot happen overnight. To ensure success for the proposed additional reforms, the 2008 Genocide Ideology Law, additional time is needed to build consensus and public support."227 Rwanda has already shown its commitment to such reform by reduction ofthe applicable sentences.228

(c) Protection ofwitnesses

134. Rwanda has a legal framework in place for the protection of witnesses, in terms similar to those in the Tribunal's Statute, and has enhanced its witness protection services. The Trial and Appeals Chamber in Uwinkindi and more recently the Trial Chamber in Kayishema found that these measures were adequate to address defence witnesses' concerns and to secure their appearance.P''

135. The Defence alleges that Rwanda's legal framework, including Article 14 of the Transfer Law, does not provide appropriate protection to Defence witnesses. He argues that it is 'possible', under Article 128 ofthe Law relating to

reduction in sentence does not remove the fear of Defence witnesses of prosecution and arrest under the Genocide Ideology Law is speculative and irrelevant. The Transfer Law's broad immunity provisions adequately addressed any witness fears related to arrest and prosecution under the ideology law. 224 Response, para. 113. On 19 January 2012, Rwanda submitted that the text of the new law is subject only to proofreading, translation into Rwanda's three official languages, and publication in the Official Gazette. See Rwanda Amicus Curiae Brief, footnote 3. 225 Response, para. 115. 226 A contrario, Response, para. 115. 227 Rwanda Amicus Curiae Brief, para. 8. 228 Ibid., paras. 6-7. 229 Uwinkindi (TC), paras. 128-131; Uwinkindi (AC), para. 65; Kayishema (TC 2012), paras. 91­ 95. 53 Evidence and its Production, that Prosecution witnesses will have stronger protection than Defence witnesses.P"

136. Article 128 of the Law, in English, provides that "[iln the follow-up and prosecution of crimes and felonies, the court will put place [sic] measures to protect: 1) people with information leading to the prosecution; 2) witnesses." These provisions are consonant with the letter and spirit of Article 14 of the Transfer Law.

137. Even if the French version of the 2004 Law, which is indeed more specific and refers to certain type of witnesses, would restrict the application of the protection,231 such a limited scope of protection would not be relevant to witnesses in transferred cases, because of the applicability of the Transfer Law, which is acknowledged by the Defence. 232 The Transfer Law is both the lex posterior and the lex specialis with respect to cases transferred to Rwanda by the Tribunal.233 Article 25 of the Transfer Law, adopted in 2007, specifically states that '[iln the event of any inconsistency between this Organic Law and any other law, the provisions of this Organic Law shall prevail."

138. Moreover, it is not correct, as the Defence asserts, that the Organic Law shows 'the deeply ingrained attitude in Rwandan justice' to provide for stronger protection of prosecution witnesses.234 Rwanda's protection services are not only effective but also cater the needs of both prosecution and defence witnesses. Perhaps the most concrete evidence showing the effectiveness of Rwanda's witness protection services is that the Tribunal itself relies on those services to lend assistance in ICTR cases. Over the years, the ICTR Registry has relied on Rwanda's Victims and Witnesses Support Unit ("WVSU") to help investigate 73

230 Law No. 15/2004 relating to Evidence and it's [sic] Production of 12 June 2004, Official Gazette 19 July 2004 ("2004 Law"), available in English, French and Kinyarwanda on http://www.amategeko.netl(last accessed 28 February 2012). See Response, para. 104. 231 The Kinyarwandan and French versions of the law seem to be similar. 232 Response, paras. 102-104. 233 See, e.g., Kayishema (TC 2012), para. 36 234 Response, para. 103. 54 separate incidents of threats against ICTR witnesses.235 Given that Rwanda has been instrumental in assisting the ICTR in responding to these incidents and providing protection to both Prosecution and Defence witnesses, it will be able to provide similar services for witnesses in referred cases. Also the creation of a witness protection unit under the Judiciary ("WPU"), which has been officially activated to provide services in connection with Uwinkindi's case, is a positive step towards allaying any lingering fears of Defence witnesses about having witness protection services administered by a unit within the Prosecutor's office.236

139. The Defence also raises issues with respect to the functioning of WVSU and WPU themselves. In relation to the WVSU, the Defence questions the truth of Rwanda's submission that the WVSU does not make any distinction between defence or prosecution witnesses. It submits that this statement would only apply to witnesses sought by the authorities of foreign states.237 According to the KBA, the experience of its members is that both prosecution and defence witnesses are equally entitled to and benefit from the WVSU's protection measures.v" Recently, Rwanda indicates that the WVSU has continued to provide services to victims and witnesses in both domestic and international cases. 239 It specified that "WVSU never inquired why or for whom the testimony was being sought; it merely helped ensure that the testimony could be obtained."240 During 2011, the WVSU responded to 73 incidents involving witness safety and provided assistance to the International Criminal Court and domestic courts in several countries which sought to obtain evidence from

235 Rwanda Amicus Curiae Brief - Uwinkindi, Affidavit of Theoneste Karenezi, Coordinator of Witness and Victim Protection and Support Unit, para. 19 ("Karenezi Affidavit") (attached to Brief as Exhibit F). 236 Uwinkindi (TC), paras. 128-131; Uuiinkindi (AC), para.65. See also Rwanda Amicus Curiae Brief, paras. 11-12. 237 Response, para. 107 238 Prosecutor v. Bernard Munyagishari, Case No. ICTR-2005-89-I, Amicus Curiae Brief of the Kigali Bar Association in the Matter of the Prosecutor's Request for the Referral of the Case of MUNYAGISHARI Bernard, 23 January 2012, para. 49 ("KBAAmicus Curiae Brief'). 239 Rwanda Amicus Curiae Brief, paras. 14-16; Karenezi Affidavit, paras. 2-7. In addition, Rwanda already submitted that from 2008 to 2010, the unit has assisted nearly 1000 witnesses: 287 witnesses in 2008; 431 witnesses in 2009; and 281 witnesses in 2010. See Karenezi Affidavit, para. 10. 240 Rwanda Amicus Curiae Brief, para. 16; Karenezi Affidavit, para. 8. 55 witnesses located in Rwanda. If necessary, the WVSU could provide the same services in this or any other case the Tribunal may refer.241 The Defence fails to demonstrate that this is not or would not be the case.

140. The Defence also alleges that the treatment provided by the WVSU to Defence witnesses is inappropriate, relying upon the Mugiraneza case.242 Contrary to the Defence allegation, the Mugiraneza case in fact demonstrates the effectiveness of Rwanda's witness protection services, and the WVSU. After testifying for the defence, some genocide survivors were summoned to attend a meeting with their local IBUKA representative for Remera Sector, Ngoma District.243 They were accused by other members of the survivors group of having accepted bribes to provide false testimony aimed at exculpating the accused.w' Acting on this accusation, the local IBUKA representative dismissed them from the survivors' group, resulting in the loss of survivor benefits.s-" The witnesses complained to the WVSU, which investigated the matter and asked the national IBUKA Chairman to intervene.v'" The national IBUKA Chairman thereafter rescinded the local representative's decision and reinstated all benefits retroactively.247

141. Certainly, it would have been best if the local IBUKA representative had acted with more care and deliberation. But, the incident nevertheless shows that that Rwanda's witness protection services were able to effectively address Defence witness concerns.

142. With respect to the WPU, the Defence asserts that these services do not appear to be operational and their role may be limited to purely administrative

241 Ibid., with reference to Karenezi Affidavit, para. 8. 242 Response, para. 108, Annex 19. 243 The Prosecutor v. Jean-Bosco Uwinkindi, Case No. ICTR-2001-75-Rule11bis, Prosecutor's Consolidated Response, 20 April 2011, Affidavit of Theoneste Karenezi, Coordinator of Witness and Victim Protection and Support Unit, para. 2 ("Second Karenezi Affidavit") (attached to Consolidated Response as Exhibit N). 244 Second Karenezi Affidavit, para. 2. 245 Second Karenezi Affidavit, para. 2. 246 Second Karenezi Affidavit, para. 3. 247 Second Karenezi Affidavit, para. 3. 56 ~43 tasks. Because no cases have yet been transferred, WPU's services have not yet been utilized.248 However, Rwanda has stated that, in response to the Tribunal's transfer of Uwinkindi's case to Rwanda, the Chief Justice has directed the immediate activation of the WPU, which is to be staffed by six registrars from the Supreme Court and five registrars from the High Court. Three additional registrars will be hired by February.249 Further, to assist the registrars in discharging their duty, the Supreme Court will recruit at least one highly­ experienced professional in victim/witness services to advise and consult the WPU.250 The concerns that WPU would not become operational and its tasks would be merely administrative are thus baseless.

143. The Defence next asserts that the involvement of the Prosecutor General's Fugitive Tracking Unit (FTU) in facilitating travel for witnesses from abroad has a chilling effect on the willingness of these witnesses to testify.251 A similar defence assertion was considered by the Uuiinhindi Trial Chamber, which acknowledged that some witnesses might be concerned about the FTU's involvement in facilitating witness travel, but found that those concerns were "premature" given the immunity afforded under the Transfer Law.252

144. Furthermore, contrary to the Defence suggestion, there is nothing nefarious in FTU's involvement in facilitating witness travel. FTU's involvement is a function of Article 14(2) of the Transfer Law, which directs the Prosecutor General to "facilitate the witnesses in giving testimony including those living abroad, by the provision of appropriate immigration documents, personal security as well as providing them medical and psychological assistance."

145. Because of its extensive contacts with foreign governments, FTU is the logical unit within the Prosecutor General's office to coordinate this effort. As the

248 Uwinkindi (TC), para. 131. 249 Rwanda Amicus Curiae Brief paras. 11-12 and Exhibit D to Rwanda's Brief - Affidavit of Anne Gahongayire, Secretary General of the Supreme Court of Rwanda, paras. 2-3 ("Second Gahongayire Affidavit"). 250 Rwanda Amicus Curiae Brief: para. 13; Second Gahongayire Affidavit para. 4. 251 Response, para. 105. 252 Uwinkindi (TC), para. 88. See also Kayishema (TC 2012), para. 71, where the Trial Chamber concurred with this assessment. 57 acting head of FTU explained in an affidavit submitted to the Uwinkindi Trial Chamber:

Over the years, Rwanda has accommodated numerous requests from other countries to facilitate the travel of witnesses [... ] to and from Rwanda. Many of these requests were based on informal agreements of mutual assistance and cooperation, including requests submitted by Belgium, Canada, Denmark, Finland, France, Germany, the Netherlands, New Zealand, Norway, Sweden, Switzerland, the United Kingdom, and the United States.253

146. In each case, FTU coordinated with other Rwandan officials, including immigration and foreign affairs, and foreign embassies to arrange the necessary entry or exit visas.254 Having assisted these other countries with their requests for mutual assistance, the Uwinkindi Trial Chamber concluded that Rwanda would receive similar assistance in facilitatingwitness travel in any case referred for tria1.255 And, in the unlikely event that the requested assistance was not forthcoming, Rwanda had the right under UN Security Council Resolution 1503 to insist that assistance be given.256 Indeed, there is no reason to believe, and no reason advanced by the Defence, that the involvement of the Prosecutor General's Fugitive Tracking Unit (FTU) in facilitating travel for witnesses from abroad would have a negative effect on the availability ofdefence witnesses.

(d) Ability to compel witness testimony

147. The Defence challenges the Prosecutor's reliance on Articles 54 and 55 of the Rwandan Code of Criminal Procedure to argue that the Rwandan legal framework provides for the compulsory process to compel witnesses to testify.257

253 Affidavit of Prosecutor John-Bosco Siboyintore (Siboyintore Affidavit), para. 2 (a copy of which is included as Exhibit D to Rwanda Amicus Curiae Brief - Uwinkindi), paras. 2-4 ("Siboyintore Affidavit"). 254 Siboyintore Affidavit, paras. 2-4. 255 Uuiinkindi (TC), para. 108. 256 Hategekimana (AC), para. 25. 257 Law No. 13/2004 of 17 May 2004 Relating to the Code of Criminal Procedure, Official Gazette of the Republic of Rwanda, 30 July 2007, Amended by Law 20/06 of 22 April 2006, Official Gazette of the Republic of Rwanda, 27 May 2006 ("Code of Criminal Procedure"). For English, French and Kinyarwandan versions of this law, see http://www.amategeko.netl(last accessed 28 February 2012). 58 It submits that these provisions are only applicable to Prosecution witnesses, and are not adapted to ensure the appearance of Defence witnesses.258

148. It is important to note that the above provisions of Rwandan Criminal Code, together with Article 57,259 were relied upon by the Uwinkindi Trial and Appeals Chamber, and more recently the Kayishema Trial Chamber, as the legal basis for the ability to compel witness testimony.w? These provisions were also cited by the KBA.261

149. The reference to the public prosecutor in Articles 54, 55 and 57 ofthe Code of Criminal Procedure does not mean that only prosecution witnesses can be summoned, but adverts to the role of the public prosecutor charged with the investigation of the case and collection, especially during the pre-trial phase, of evidence a charge and a decharge in Rwandan procedure.262 Ifthe Defence wants to summon a defence witness at trial, it is able to do so under Articles 66 and 74 of the 2004 Law relating to Evidence and its Production. Thus, as the KBA submits, Defence counsel are able to secure the testimony of defence witnesses

258 Response, para. 11l. 259 Additionally, pursuant to Article 57 of the Code of Criminal Procedure, a "witness who fails to appear and testify without advancing a justifiable excuse after being summoned" is subject to criminal prosecution. 260 Uwinkindi (AC), para. 63, footnote 158; Uwinkindi (TC), para. 104; Kayishema (TC 2012), para. 76. Although the Trial Chamber in Uwinkindi cited an incorrect legal provision in this respect, the Appeals Chamber notes that Articles 54, 55, and 57 of the RCCP provide a compulsory process and sanctions for the failure of witnesses to appear (see Uwinkindi (AC), footnote 158). Nevertheless, the Kayishema Trial Chamber cites the same incorrect legal provision. 261 The Prosecutor v. Uwinkindi Jean, Case No. ICTR-2001-75-Rule 11bis, Amicus Curiae Brief of the Kigali Bar Association in the Matter of the Prosecutor's Request for the Referral of the Case of UWINKINDI Jean, 26 April 2011, paras. 54-56 ("KBA Amicus Curiae Brief - Uwinkindi") (attached to Rule 11 bis Request as Annex M). A similar provision to compel witness testimony is included in Article 53 of the draft New Code of Criminal Procedure. The text of the new law is subject only to proofreading, translation into Rwanda's three official languages, and publication in the Official Gazette. See Rwanda Amicus Curiae Brief, footnote 3. See a contrario, Response, paras. 116-117. 262 See KBA Amicus Curiae Brief, paras. 39-43, in which the KBA explains the procedure of collecting evidence and shows that there is no material impediment in the conduct of defence investigations. 59 and produce at trial any supporting evidence they wish to produce through such witnesses.263

150. The Defence further alleges that, even if the provision relating to compulsory appearance was applicable to defence witnesses, it would only intimidate them.264 The Defence argument is difficult to understand. It seems to suggest that a witness who testifies in a transferred case would be immune for arrest and prosecution under the Genocide Ideology Law on the basis of the immunity provided under the Transfer Law; however that immunity would not be accorded to the same witness if he would subsequently be compelled to testify in a non-transferred case. A plain reading of Article 13 of the Transfer Law makes no distinction between the testimony given in a transferred case and a non-transferred case. Article 13 extends the immunity to 'anything said or done during a trial', which expands the immunity to the same testimony given in another trial. In any event, contrary to Defence submissions, Rwanda ensures efficient witness protection both in transferred and non-transferred cases.265

151. Moreover, as noted in Rwanda's amicus curiae brief, there has not been a single instance where a witness in a criminal case has been arrested or prosecuted for alleged violations of the Genocide Ideology Law. 266 This is confirmed by the Hategekimana Trial Chamber's observation that defence concerns about the possibility for abusive application of the Genocide Ideology Law were "speculative."267

(d) Rwanda will secure the Accused's right to an effective defence

152. The Defence acknowledges that Rwanda's legal framework guarantees the right to counsel of his own choosing, and that Rwandan counsel are competent and experienced.268 However, he questions whether he will have an effective

263 See KBAAmicus Curiae Brief, para. 43. 264 Response, para. 112. 265 Response, para. 112. See supra, paras. 109, 120-121, 138. 266 Rwanda Amicus Curiae Brief- Uwinkindi, para. 55. See supra, para. 122. 267 Hategekimana (TC), para. 59. 2~Response,paras. 119-120 60 defence, based on how legal representation, including legal aid,269 is organised in Rwanda.

153. In addition, he argues that he will not be able to present a full defence. In that context, he filed an Addendum to the Defence Response consisting of a letter from the President of KBA, which according to the Defence casts doubt on the sincerity and veracity of the submissions made by the KBA in its amicus curiae briefs.270

154. As argued more fully below, the Defence arguments are without merit, and do not cast doubt on the KBA submissions. They also do not cast doubt on the Uwinkindi Trial and Appeals Chambers' and, more recently, the Kayishema Trial Chamber's findings that accused will be guaranteed adequate representation in Rwanda.271

(a) Legal representation

155. As the Defence acknowledges,272 accused persons in Rwanda can be represented by foreign lawyers admitted to practice before Rwandan courts.s?" The Defence argues, however, that French lead counsel chosen by the Accused, who has represented him for six months, will not be able to defend him in Rwanda. He asserts that the requirement of reciprocal admission would not allow his lead counsel to become a member of the Rwandan bar, because France does not permit 'automatic reciprocity' and requires a knowledge-based exam.274

269 Response, paras. 121-122. 270 Addendum. See The Prosecutor v. Bernard Munyagishari, Case No. ICTR-2005-89-I, Decision on Prosecutor's Opposition to Additional Defence Submissions, 10 February 2012. 271 Uwinkindi (TC), paras. 135, 140, 141-146, 152-161, 162, 169; Uwinkindi (AC), para. 71; Kayishema (TC 2012), paras. 98, 102, 105-106, 109-110, 115-120. 272 Response, para. 121. 273 Article 6 of the Law No. 3/1997 of 19 March 1997 Establishing a Bar in Rwanda, Official Gazette of the Republic of Rwanda, 15 April 1997 ("Law Establishing a Bar in Rwanda"). For English, French and Kinyarwandan versions of this law, see http://www.amategeko.netl(last accessed 28 February 2011). See also KBAAmicus Curiae Brief, para. 17. 274 Response, para. 122. 61 156. Rwandan law and practice flexibly allows foreign attorneys to be admitted to practice before its courts.275 The KBA has explained before that, to be admitted to the Rwandan bar, foreign lawyers must hold law degrees and must be in good standing in the bars of their home country.e?" The home states must also agree to provide reciprocal admission to members of the Rwandan bar.277

157. The interpretation given by the Defence to the requirement of reciprocal admission is too restrictive. The fact that France would require a lawyer to pass a knowledge-based exam, does not automatically mean that French lawyers cannot be admitted to the Rwandan bar. In practice, foreign lawyers from many countries, including Canada, France, USA, Uganda and Cameroon have been admitted to the Rwandan Bar.278 In addition, some members of the Rwandan bar have also been admitted to foreign bars, including to the French bar.279 The requirement of reciprocity therefore does not appear to have been an obstacle for French and Rwandan lawyers in becoming members of each others' respective bars.

158. In addition, Rwandan law and practice flexibly allow temporary accreditation of foreign lawyers, including those from France, to practice or to represent specific clients. This has happened in many cases, including recent cases such as the case against Victoire Ingabire and the case against Peter Erlinder.28o To be accredited in this way, foreign lawyers must possess law degrees and be in good standing with their Bars, but there is no requirement of reciprocity.P'! Such accreditation can be done swiftly. The KBA pointed out in its brief that in the case of Peter Erlinder two Kenyan lawyers of his own choosing were accredited to the KBA in only one day. 282

275 Affidavit of Paul Maitre Athanase Rutabingwa, President and Council Member of the Kigali Bar Association, para. 7 (a copy of which is attached as Annex I) ("Rutabingwa Affidavit"). 276 Rutabingwa Affidavit, para. 7. 277 Rutabingwa Affidavit, para. 7. 278 Rutabingwa Affidavit, para. 7. See also KBAAmicus Curiae Brief, para. 17. 279 Rutabingwa Affidavit, para. 7. 280 Rutabingwa Affidavit, para. 8. 281 Rutabingwa Affidavit, para. 8. 282 KBA Amicus Curiae Brief, para. 17. 62 159. The example of the case of Peter Erlinder also shows that, contrary to the Defence submission.w" the KBA is also flexible in assigning lawyers of their own choosing to accused under the legal aid programmes. Although assignments under legal aid normally rotate alphabetically to next counsel on the roll,284 the KBA also takes into account the preference of the indigent accused. Indeed, as the KBA pointed out that Peter Erlinder has "benefited of the services of defence lawyers assigned by the Kigali Bar under legal aid [...] and two other Kenyan lawyers of his own choosing."285 The Defence does not provide any support to indicate that this would be different in the Accused's case.

160. In any event, the Appeals Chamber of this Tribunal has already held that the right of an indigent defendant to effective representation does not entitle him to choose his own counsel.286 The Defence's submission that, if the KBA would assign him different counsel than the counsel who is representing him now, his right of to counsel of his own choosing would be violated, is without merit.287 Neither does the Defence demonstrate that assigning different counsel to him would necessarily lead to a delay in the proceedings and to an 'inestimable prejudice to the rights of the Accused' in his particular case. The Defence arguments to that effect are unsubstantiated and speculative. 288

(b) Legal aid

161. With respect to legal aid, the Defence first questions the sufficiency of the funds available. In both Uwinkindi and Kayishema, the Chambers determined that Rwanda had sufficient funds allocated to its legal aid programmes.P'' They were satisfied, as required by law, that sufficient funds have been budgeted for

283 Response, para. 124. 284 KBAAmicus Curiae Brief, para. 21. 285 KBAAmicus Curiae Brief, para. 17. 286 Nahimana et al. CAC), para. 265. See also Pakelli v. Germany, E.C.H.R., 25 April 1983, Publ. E. C.H.R., A, vol. 64. 287 Response, para. 125. 288 Response, paras. 123, 124. See supra, para. 48, with reference to Ljubicic CAC), para. 28. 289 Uwinkindi CTC), paras. 140, 146. 63 legal aid to ensure equality of arms in the defence of any referred case.290 Indeed, Rwanda has submitted before that it made funds available in its budget for providing legal assistance, including for transferred cases. This has been explained at length in the Prosecutor's Rule 11 bis Request.291 The Defence assertion that some of the funds, namely 30 million Rwandan francs, cannot be considered as part of funds allocated for judicial aid is incorrect.w- The Rwandan Minister of Justice has explained that these funds could also be used for the provision oflegal assistance to indigent accused in transferred cases.293

162. The Defence also argues that there is no information available for 2012.294 However the KBA indicated that, pursuant to contracts between the bar association and government, the Ministry of Justice has already committed to paying 147 600 000 RWF to support the provision of domestic legal aid services in 2012. Contrary to the Defence allegation,295 although it would mainly fund legal assistance to minors charged with crimes, this does not prevent the KBA from providing legal aid to other vulnerable persons, including indigent adults.296

163. Moreover, the reason why no specific information is yet available for the forthcoming budget 2012-2013 is because this budget will only start from July 2012. 297 In that budget, appropriate budgetary provisions will be included for cases that may be transferred by the ICTR, including the case against the Accused.298 Because Rwanda's legal aid budget is reviewed every six months,299

290 Uwinkindi (TC), para. 139; see also Uwinkindi (AC), para. 71; Kayishema (TC 2012), paras. 102, 105-106. 291 Rule 11 bis Request, para. 69: The Minister's affidavit establishes that Rwanda's current budget includes 92 million RWF for legal aid. An additional 30 million RWF has been designated for ICTR-related issues, including, but not limited to, the provision of legal assistance to indigent accused in transferred cases. Between these two separate line items, a total of 122 million RWF (approximately $205,000 U.S. dollars) is currently available for providing legal aid in transferred cases, including this case. 292 Response, para. 128. 293 Karugama Affidavit, para. 3. 294 Response, paras. 128, 131. 295 Response, paras. 129-130. 296 KBA Amicus Curiae Brief, para. 26. 297 Gahongayire Affidavit, para. 2. 298 Ibid. 299 KBA Amicus Curiae Brief, para. 25; Gahongayire Affidavit, para. 2, which shows that the Rwandan budget was increased in preparation of cases that may be transferred by the ICTR and foreign jurisdictions, following the Uwinkindi decision. 64 additional funds could be made available if necessary to secure the Accused's right to effective legal representation.

164. It should be recalled that, pursuant to established Rule 11 bis jurisprudence, there is no obligation to establish in detail the sufficiency of the funds available as a precondition for referral.300 Instead, what matters is that the Chamber is satisfied that sufficient funds have been budgeted for legal aid to ensure equality of arms in the defence of any referred case.30l Based on similar submissions, the Uwinkindi Referral and Appeals Chambers and the Kayishema Trial Chamber were "satisfied that this requirement ha[d] been met."302 The same conclusion should apply to the Accused's case.

165. Second, the Defence submits that, in the context of legal aid, Rwandan lawyers seem to work pro bono, and doubts whether pro bono legal assistance could be effective in the Accused's case.303 The KBA explained that lawyers do not themselves charge any fee under the legal aid scheme (pro bono cases), and explains the sufficiency of the funds available for legal aid and pro bono services against the tariffs applicable in Rwanda.Ps This indicates, that although the legal aid lawyer will not charge a 'fee', he/she will receive compensation for the services provided based in accordance with these tariffs.

166. KBA further explains that it would be 'misleading and ridiculous' to compare the amount available for legal aid with the cost for the defence of an accused person at the ICTR:

In order to make any such comparison, one should bear in mind that at the ICTR or in other countries, the tariffs applied are determined, taking into consideration factors that do not apply in

300 Uwinkindi (TC), para. 144 (quoting Stankouic (AC), para. 21); Uwinkindi (AC), para. 71. Kayishema (TC 2012), paras. 102, 105. 301 Uwinkindi (TC), para. 139. 302 Uwinkindi (TC), para. 139; Kayishema (TC 2012), para. Uwinkindi (AC), para. 71: "The Referral Chamber explicitly noted that: the Transfer Law guarantees an indigent accused the right to legal aid; Rwanda has budgeted funds for this purpose; and this was all that the Referral Chamber was required to consider in finding that Mr. Uwinkindi would be guaranteed adequate representation". 303 Response, para. 127. 304 KBAAmicus Curiae Brief- Uwinkindi, para. 29. 65 Rwanda. For example, the cost for the defence of an accused person at the ICTR certainly includes payments that are not necessary in relation to a case handled in Rwanda (at least for a Rwandan attorney residing in Rwanda), including the several travels to and from Arusha and field missions of members of the defence team. For a case in Rwanda involving a crime committed in Rwandan territory, a large part of the investigations would be conducted locally. Importantly, such investigations would be primarily conducted by the judicial police, which also takes the written statements required for the dossier or by the parties. The judicial police uses its own funds allocated to them through the Ministry of Internal Affairs.s?"

167. Comparison with the prevailing rates and costs for cases tried before this Tribunal and other national jurisdictions is therefore not reflective of the situation in Rwanda, the jurisdiction where the case will be tried.306 As the KBA noted, the funds budgeted for legal aid are sufficient in light of the prevailing rates charged in Rwanda.307

168. Moreover, there are a sufficient number of competent lawyers available in Rwanda to represent the Accused, even under legal aid. The KBA has 890 members.308 Of that number, the President of the KBA attested that "approximately 30 current members of the KBA have been practicing for more than 15 years, 67 for 10 years or more and 76 for 7 years or more."309 Therefore, a significant number of Rwandan lawyers meet the pre-requisites for assignment of counsel before the ICTR, including the requirement of at least seven years relevant experience.vl? Indeed, five members of the KBA are currently enrolled in the ICTR list of potential defence counsel maintained by the ICTR Registrar.s-!

169. All of these lawyers must comply when the President of the KBA assigns them legal aid services.312 Therefore, the pool oflawyers who could provide legal

305 KBAAmicus Curiae Brief- Uwinkindi, para. 30. 306 See also Kayishema (TC 2012), para. 102. 307 KBA Amicus Curiae Brief- Uwinkindi, para. 29. 308 KBA Amicus Curiae Brief, para. 12. 309 KBAAmicus Curiae Brief- Uwinkindi, para. 14. See also KBAAmicus Curiae Brief, para. 13. 310 Article 13(1) of the ICTR Directive on the Assignment ofDefence Counsel, 14 March 2008. 311 Uwinkindi (TC), para. 140. See also KBAAmicus Curiae Brief, para. 14. 312 KBAAmicus Curiae Brief, para. 21. 66 aid in Rwanda is not small, as the Defence seems to suggest.313 The Defence suggestion that these lawyers could not offer effective assistance under legal aid to the Accused is as offensive as it is unsubstantiated.s-- During the past five years, the KBA provided legal assistance to approximately 4090 accused persons, which shows the competence and experience of members of the KBA in providing legal aid services.315

170. In sum, contrary to the Defence allegation, Rwanda has sufficient means to ensure an effective defence to the Accused, even if he is indigent.s!" As the Uwinkindi and Kayishema Trial Chambers have rightly pointed out, "[s]hould there be future financial constraints, the existence ofmonitors and the possibility of revocation should address any failure by the Rwandan authorities to make counsel available or disburse funds for legal aid and ensure the Accused's fair trial rights."317

(c) The ability to provide a full and vigorous defence

171. As the Defence in Uwinkindi, the Defence here brings up again alleged difficulties for the defence in handling sensitive cases in Rwanda and an alleged ability to present a line of defence amounting to genocide denia1.318 In support, it relies primarily on the Erlinder case.319 The IADL also retreads the same ground, but without any substantiation.P?

172. Based on similar submissions, the Trial and Appeals Chamber in Uwinkindi and the Trial Chamber in Kayishema determined that the accused

313 Response, para. 133. 314 Response, para. 132. 315 KBAAmicus Curiae Brief, para. 23. 316 Response, para. 134. 317 Uwinkindi (TC), para. 146; Kayishema (TC 2012), para. 106. 318 Response, paras. 135-136. 319 Response, para. 135. The Defence also refers to comments made by Rwanda's Prosecutor General about defence lawyer Christopher Black (see Annex 38). These comments do not provide proof that defence lawyers would been charged with a crime under Article 13 of the Constitution for acts or words relating to the investigation or trial of a criminal case and is unrelated to a trial conducted in accordance with the Transfer Law, whose provisions in any event provide immunity. 320 IADL, RP 490, in which it makes the following unsupported allegation: "any Defence counsel is taking the risk of being incarcerated if he or she presents another set of facts which are contrary to the Government's version of the 1994 events", and invokes the Erlinder case. 67 would be free to pursue his line of defence in Rwanda.321 These Chambers were satisfied that, under the legal framework applicable to referred cases, the accused's fears were misplaced. Pursuant to Article 13 of the Transfer Law, "no person shall be criminally liable for anything said or done in the course of a trial." This immunity extends to both witnesses and defence team members, and its application to the accused's case was further ensured by the Rule 11 bis monitoring provision.

173. In fact, the Erlinder case aptly illustrates that the immunity afforded to defence team members in connection with referred cases will have practical force and effect. As explained by Rwanda in its amicus curiae brief,

There is not a single case where a defence team member or witness has been charged with a crime under Article 13 for acts or words relating to the investigation or trial of a criminal case.322 The arrest of ICTR defence attorney Peter Erlinder on charges of genocide denial is no exception. As the Appeals Chamber has found, all of the documents (save one) that formed the basis of the Rwanda government's investigation against Erlinder were private commentary unrelated to his work as defence counsel.f" As to the one document that the Appeals Chamber believed to be related to Erlinder's work as defence counsel, and for which immunity thereby attached, Rwanda promptly ceased all legal action based on it. 324

174. The Erlinder case thus provides affirmative proof that Rwanda will honor the Transfer Law's immunity protections by not prosecuting defence team members for words or acts related to the defence ofa referred case.

321 Uwinkindi (AC), paras. 71, 75; Uwinkindi (TC), paras. 152-161; Kayishema (TC 2012), paras. 118-120. 322 See Hategekimana (TC), para. 59 (finding that, although the possibility existed for abusive application of Article 13, "no such cases involving members of the defence teams have been brought to [the Chamber's] attention. Therefore, such concerns are speculative at this point") 323 Theoneste Bagosora et al. v. The Prosecutor, Case No. ICTR-98-41-A, Decision on Aloys Ntabakuze's Motion for Injunction Against the Government of Rwanda Regarding the Arrest and Investigation of Lead Counsel Peter Erlinder, 6 October 2010, para. 28. 324 Ibid., para. 31; Theoneste Bagosora et al. v. The Prosecutor, Case No. ICTR-98-41-A, Decision on Aloys Ntabakuze's Motion for Stay of Proceedings, 27 January 2011, para. 10. See Rwanda Amicus Curiae Brief - Uuiinkindi, para. 55. IADL's assertion that Peter Erlinder was incarcerated and denied bail for his work in the defence of his ICTR client is thus incorrect (see IADL, RP 490). 68 175. The reasonableness of the Uwinkindi and Kayishema Trial Chambers' determination is supported not only by the Transfer Law's immunity provision and Rule 11 bis' monitoring provision, but also by the practical experience of members ofthe KBA, who attested that:

In genocide cases, members of the [bar] have been able to present the fullest defence possible, by adducing evidence refuting the allegations and charges against them, without adverse consequences or interferences from the executive against the lawyers or defence witnesses. In this regard, Article 44 of the Code of Criminal Procedure stipulates that "if evidence proving the offence has been adduced, the accused or his or her counsel should submit all the grounds of his or her defence, indicating why the claims should be dismissed, proving that the allegations against him or her do not constitute a criminal offence or that he or she is innocent and all other grounds to counter attack prosecution's case." Thus, nothing prevents a defendant to mount a defence that, i.e. the crime he was charged with was committed by others, including , RPF soldiers or else. 325

176. The Defence and the IADL's assertion that potential defence counsel might be reluctant to advance a line of defence that could be interpreted as genocide denial is thus unfounded.P"

(d) The Supreme Court's Internal Order serves a legitimate purpose and does not create an inequality ofarms

177. The Defence also relies on an Internal Order issued by the President ofthe Supreme Court which allegedly prejudices the defence rights and restricts the ability to present a full defence.P? It also attaches a letter issued by the KBA

325 KBA Amicus Curiae Brief -Uwinkindi, para. 41; KBA Amicus Curiae Brief, para. 36. A similar provision is included in Article 83 of the draft new Code of Criminal Procedure. 326 Response, paras. 135-136; IADL, RP 490. In that context, IADL also notes an alleged statement of Rwanda's representative at the 6 December 2010 Security Council meeting, which has no bearing on the case of the Accused. Once again, the Erlinder case provides affirmative proof that Rwanda will honour the Transfer Law's immunity protections by not prosecuting defence team members for words or acts related to the defence of a referred case. 327 Order of the President of the Supreme Court No. 019/2011 of 24 March 2011 Modifying the Internal Rules and Regulations of the Supreme Court (the Kinyarwandan and English versions are attached as Annex J) ("Order"). 69 President which, in the Defence view, raises questions about the sincerity and veracity ofKBA's submissions.328

178. The Internal Order issued by the President of the Supreme Court intends to streamline the functioning of the Supreme Court, ensure a timely disposal of cases, and promote the accountability of all parties involved in every case before the Supreme Court.329 To that end, the Order includes provisions regarding the organisation of the case file,330 the filing of written submissions in appeal proceedings and preparation of the case,331 and provisions regarding the organization of the oral hearing.332 The Internal Order, just as any other internal document regulating the functioning of the Court, including the Tribunal's Directives and Practice Directions.P'' serves a legitimate purpose, namely to regulate and streamline court proceedings.

179. The KBA, however, expressed reservations about some aspects of the Internal Order with a view to ensuring that the good intentions of the President of the Supreme Court were achieved in a manner that did not violate any law or rights.334 In that context, based on its duties which include responding to any issues regarding the practice of law and ensuring the rights of its members.P" the KBA responded to the internal Order and sent the letter at issue to the President of the Supreme Court.336

328 Addendum, with Annex: Letter from the President of the Kigali Bar Association, dated 18 April 2011, addressed to the President of the Supreme Court. 329 Rutabingwa Affidavit, para. 4. 330 Order, Articles 44-45. 331 Order, Articles 49-64. 332 Order, Articles 65-81. 333 See, e.g., the Directive for the Registry of the International Criminal Tribunal for Rwanda, 8 June 1998, Practice Direction on Formal Requirements for Appeals from Judgement, 4 July 2005; Practice Direction on Procedure for the Filing of Written Submissions in Appeal Proceedings before the Tribunal, 8 December 2006; Practice Direction on the Length of Briefs and Motions on Appeal, 8 December 2006. 334 Rutabingwa Affidavit, para. 4. 335 Articles 32, 36 of the Law Establishing a Bar in Rwanda. 336 Rutabingwa Affidavit, para. 3. 70 180. The Supreme Court reacted positively by providing the KBA with full audience in a meeting at which the KBA gave its views on the Order.337 The KBA's most critical area of concern related to the imposition of sanctions by the Supreme Court on lawyers failing to comply with the pre-trial agreement reached between the parties and the Court with respect to the filing of documents and court attendance.P" The Supreme Court gave its view on this aspect of the Order confirming that sanctions would be imposed only if no good cause was shown as to why a lawyer failed to comply with the pre-trial agreement. The Court further confirmed that such sanctions would be imposed only in the gravest of violations following intermediate discourses and warnings.ss?

181. Indeed, the Order shows that the President can impose sanctions on both Prosecution and Defence counsel for failing to comply with the filing deadlines and formal requirements for filing appeal submissions.w" and for failing to comply with the pre-trial agreement reached between the parties, especially with respect to the date of the hearing and documents still to disclose.s-! In addition, counsel can be sanctioned for misconduct during the hearing (such as appearing drunk in court) and contempt of court.342

182. These sanctions are a legitimate response to conduct that interferes with the administration of justice. The Rwandan Supreme Court is not the only court that has the authority to impose sanctions against those who disrupt the proper functioning of the court and interfere with its mission to do justice. Within this Tribunal, Chambers have similar authority to ensure that hearings proceed fairly and expeditiously, and to sanction counsel under Rules 46 and 73(F) ofthe Rules for obstructive or improper conduct.343

337 Rutabingwa Affidavit, para. 5. 338 Rutabingwa Affidavit, para. 5. 339 Rutabingwa Affidavit, para. 5. 340 Order, Articles 54,80. 341 Order, Articles 63, 80. 342 Order, Article 80. 343 Pursuant to Rule 46 of the Rules, "Ial Chamber may, after a warning, impose sanctions against a counsel if, in its opinion, his conduct remains offensive or abusive, obstructs the proceedings, or is otherwise contrary to the interests of justice. This provision is applicable mutatis mutandis to 71 6

183. To guarantee that hearings proceed fairly and expeditiously, the Appeals Chamber has stressed on numerous occasions that time limits for filing notices of appeal, briefs, and the like must be respected.Pw Thus, without a showing of good cause, violations of the time limits imposed by the Rules or Practice Directions have not been tolerated by Chambers at the Tribunal.345

184. Moreover, according to the Appeals Chamber, a Chamber's power to "sanction counsel is integral to a Trial Chamber's power to regulate the proceedings before it, including the conduct of the parties."346 While Trial Chambers should exercise this power "cautiously," disregard of a Chamber's warnings to comply with prior orders or desist from certain conduct may lead to sanctions, particularly with regard to frivolous filings.w? For instance, a Trial Chamber has held that the "filing of submissions merely repeating arguments advanced in prior filings may constitute an abuse of process justifying sanctions under Rule 73(F)".348 Counsel is also obliged to verify the assertions made in motions and other filings and, where necessary, correct them.349 Failure to do so constitutes a violation of Articles 5 and 13 of the Code of Professional Conduct for Defence Counsel and may warrant sanctions.s'"

Counsel for the prosecution." Rule 73(F) of the Rules prescribes that "[iln addition to the sanctions envisaged by Rule 46, a Chamber may impose sanctions against Counsel if Counsel brings a motion, including a preliminary motion, that, in the opinion of the Chamber, is frivolous or is an abuse of process. Such sanctions may include non-payment, in whole or in part, of fees associated with the motion and/or costs thereof." 344 See, e.g., Protais Zigiranyirazo v. The Prosecutor, Case No. ICTR-01-73-A, Decision on Protais Zigiranyirazo's Motion for an Extension of Time for the Filing of the Reply Brief, 3 July 2009, para. 6 ("The Tribunal's deadlines for the filing of briefs pursuant to the Rules are essential to ensure the expeditious preparation of the case."). 345 Kayishema & Ruzindana (AC), para. 46. 346 Edouard Karemera et al. v. Prosecutor, Case No. ICTR-98-440AR73.19, Decision on Matthieu Ngirumpatse's Appeal against a Sanction Imposed on Counsel, 21 March 2011, para. 17. 347 Ibid. 348 Theoneste Bagosora et al. v. Prosecutor, Case No. ICTR-98-41-A, Decision on Aloys Ntabakuze's Motion to Time-Bar Prosecution Response Brief, 27 August 2009, p. 2. 349 Ferdinand Nahimana et al. v. Prosecutor, Case No. ICTR-99-52-A, Confidential Decision on Appellant Hassan Ngeze's Motions for Admission of Additional Evidence on Appeal, 24 May 2005, para. 33. 350 Furthermore, "a counsel in a case before the Tribunal is under an obligation to give absolute priority to his commitments to the Tribunal and to observe the time limits in the Rules or in an order of a Chamber." Thus, "other professional commitments of counsel should not have any bearing on the responsibilities of counsel towards their clients and the L..[Tribunal." See 72 185. Pursuant to the Internal Order, the sanctions a Chamber may impose also include refusing counsel audience before the Tribunal.351 Similar sanctions have also been imposed before this Tribunal. Peter Erlinder, for example, was refused audience and replaced as Aloys Ntabakuze's Lead Counsel by the Appeals Chamber, pursuant to Rule 46(C) of the Rules. The Appeals Chamber considered that Erlinder's conduct, including his multiple efforts to avoid travelling to Arusha, "amountjed] to a failure to act diligently and in good faith and [did] not demonstrate the highest professional conduct".352

186. Similar to the practice before this Tribunal, the Rwandan Supreme Court has explained that sanctions will only be imposed if no good cause has been shown as to why a lawyer failed to comply with its obligations under the Order, and only following warnings about counsel's duty to adhere to his professional obligation as counsel appearing before the Court.353 This approach is confirmed by the KBA's assertion that the Supreme Court has not imposed any such sanctions so far.354 It is consistent with Rule 46(A) of the Tribunal's Rules, which provides that sanctions may be imposed only after a warning. Peter Erlinder, for example, had been warned twice by the Appeals Chamber about his duty to adhere to his professional obligations as Counsel assigned to this Tribunal before sanctions were imposed.355

187. Contrary to the Defence submissions, the sanctions foreseen by the Internal Order apply to both Prosecution and Defence counsel.356 The fact that for Prosecution Counsel, Article 54 of the Order provides that their superior shall

Renzaho v. Prosecutor, Case No. ICTR-97-31-A, Decision on Renzaho's Motion to Postpone Appeal Hearing, 7 June 2010, para. 9. 351 Cfr. Order, Article 80. 352 Aloys Ntabakuze v. the Prosecutor, Case No. ICTR-98-41A-A, Order Imposing Sanctions on Ntabakuze's Lead Counsel, 21 April 2011, p. 2 ("Ntabakuze Decision"). 353 Rutabingwa Affidavit, para. 5. Cfr. Ntabakuze Decision, p. 2. 354 Rutabingwa Affidavit, para. 6. 355 Ntabakuze Decision, p. 2 and footnote 13. 356 See Article 54 (which only applies to Prosecution counsel); Article 63 (which applies to both Prosecution and Defence counsel); Article 80 (which seems to apply to both Prosecution and Defence counsel). Addendum, para. 6, in which the Defence submits that there is an 'inequality of arms' between Prosecution and Defence counsel. 73 be asked to take disciplinary measures,357 does not detract from the ability of the Court to impose sanctions against both parties. It is interesting to note that Article 63, on the basis of which both Prosecution and Defence Counsel can be sanctioned for failing to comply with the pre-trial agreement reached, does not specifically provide that the superior of the Prosecution counsel involved should be asked to take disciplinary measures instead of the Court.358 In both situations, the Court has the inherent power to protect its own integrity.

188. In any event, the Order does not create an 'inequality of arms' and is not contrary to the principle of a fair trial, as the Defence argues.359 The equality of arms principle, as part of the concept of a fair trial, requires a judicial body to ensure that neither party is put at a disadvantage when presenting its case."360 The principle is intended to ensure that the accused is placed in a position of procedural equality with the prosecution in terms of obtaining the attendance and examination of witnesses.361 The Defence does not explain nor demonstrate how defence counsel would be placed in such a position of procedural inequality by the Internal Order.

189. In sum, the Internal Order does not violate fair trial principles, but is instead geared towards ensuring expeditious and fair proceedings before the Supreme Court. The Defence assertion that the KBA's submissions in its amicus curiae briefs are 'grossly inconsistent' with the letter, is not only unsubstantiated, but also speculative. As the KBA President stated, he is not

357 According to Article 54 of the Order, "[tjhe provisions of Articles 49 to 53 above shall also apply to the prosecutors in criminal proceedings. Should they fail to comply, their superior shall be asked to take disciplinary measures against them." 358 Under Article 63 of the Order, "[alny party failing to comply with the provisions of the signed undertaking form, without any valid reason, shall be liable to disciplinary measures, including, for the counsel, suspension from pleading before the Supreme Court." 359 Addendum, para. 6. 360 Nahimana (AC), para. 173. Kayishema & Ruzindana (AC), para. 69. 361 Nahimana (AC), para. 181: "[T[he concept of a fair trial includes equal opportunity to present one's case and the fundamental right that criminal proceedings should be adversarial in nature, with both prosecution and accused having the opportunity to have knowledge of and comment on the observations filed or evidence adduced by either party." 74 b aware that the Internal Order has in any way negatively affected the functioning oflawyers and the rights of their clients.362

(e) The Accused will receive a fair trial by independent, impartial and competent courts

190. Both the Uwinkindi and Kayishema Trial Chambers were satisfied that that the judges of the Supreme Court and the High Court of Rwanda are qualified and experienced and that they have the necessary skills to handle the case at issue if transferred.363 Additionally, the Uwinkindi Trial Chamber determined that allegations of widespread corruption within the judiciary were unsubstantiated and noted the significant steps Rwanda has taken to address corruption in all sectors of government.364 Moreover, as these Chambers noted, any transferred case will be closely monitored. If the monitor detects any violation of the accuseds' fair trial rights, including executive interference with his case, referral could be revoked.365 The Appeals Chamber could not identify any error in this approach.w"

(a) Rwanda's acceptance letter ofMunyagishari's case is appropriate

191. In challenging the independence and fairness of the Rwandan judicial system, the Defence first takes issue with the letter from the Government of Rwanda in which it expressed its willingness and readiness to accept and prosecute the Accused for the crimes for which he is indicted by the Tribunal.367

192. The Defence submission that Rwanda did not indicate whether it is ready to try the case of this Accused and was not aware of the content of the Indictment is baseless.P" The letter clearly indicates that it relates to the 'case ofBernard Munyagishari'. The reference to 'ready to organize the first trial' is correct,

362 Rutabingwa Affidavit, para. 6. 363 Uwinkindi (TC), paras. 178, Kayishema (TC 2012), para. 129. 364 Uwinkindi (TC), paras. 184-85. 365 Uwinkindi (TC), para. 196; Kayishema (TC 2012), para. 142. 366 Uwinkindi (AC), para. 75. 367 Letter from the Government of Rwanda, dated 28 September 2011, annexed to the Rule 11 bis Request as Annex F. 366 Response, para. 137. 75 because at that moment, and even now, Rwanda has not yet organized its first trial of a case from the ICTR.

193. The Defence reference to the statement in the letter that 'the Rwandan Government is ready to organize the trial' and assertion that this statement is further proof of the lack of independence of the Rwandan judiciary is misleading.369 The letter simply states that the "Government of Rwanda has taken various constructive steps to prepare for the transfer of cases and is ready to conduct its first trial of a case from the ICTR". This does not show any interference by the Rwandan government in judicial proceedings, but merely indicates that, in line with the wording of Rule 11 bis (A)(iii), that the "authorities of a State" are 'willing to accept such a case'.

194. Moreover, the fact that the letter has been signed by Rwanda's Prosecutor General of the National Public Prosecution Authority ("NPPA") is not troubling, contrary to the Defence's submission.F" According to the Constitution, the NPPA is the body responsible for the investigation and prosecution of crimes committed in Rwanda, and "is particularly responsible in working with other institutions to fight crime".371 It also falls under the authority of the Minister of Justice, and acted under that capacity.F'' In any event, similar letters have been considered to be appropriate in all previous Rule 11 bis proceedings.s?"

(b) Allegation ofpolitical interference is unsubstantiated

195. Next, the Defence's mere assertion that cases related to genocide are particularly likely to be subjected to external pressure is not sufficient to rebut the presumption of independence and impartiality applicable to Rwandan

369 Response, para. 138. 370 Response, para. 139. 371 See Article 161 of the Constitution. See also http://www.nppa.gov.rw/about-us.html (last accessed 28 February 2012). 372 Article 162 of the Constitution. 373 Kanyarukiga (TC), paras. 6-7, footnote, 15; Hategekimana (TC), para. 13, footnote 16; Gatete (TC), para. 7, footnote 15; Uwinkindi (TC), para. 18, footnote 25; Kayishema (TC 2012), para. 14, footnote 25. 76 judges.374 Because Judges are trained and experienced professionals,375 they are fully capable of separating comments made outside the courtroom from evidence presented inside the courtroom. In fact, the Tribunal regularly presumes that judges, despite their past involvement in overlapping proceeding, will nevertheless follow the law and apply it impartially to facts presented in each individual case.376 Only rarely will this presumption be overcome.s"? The Appeals Chamber has held that it is insufficient to allege that the independence of a judge has been undermined merely because external pressure was exerted; it must also be proven that the judge was in fact influenced by such pressure.F'' Similarly, with regard to the presumption of impartiality, "it is for the appellant doubting the impartiality of a Judge to adduce reliable and sufficient evidence to the Appeals Chamber to rebut this presumption of impartiality."379 Therefore, IADL's unsupported allegation that, according to Dr. Gerald Gahima, former Prosecutor-General and Vice-President of the Supreme Court, the Rwandan judiciary lacks independence from the RPF government, is insufficient to rebut the presumption ofindependence and impartiality.P?

196. Both the Defence and the IADL in essence challenge the finding made by the Trial Chamber in Uwinkindi in which it acknowledges that there were individual cases ofexternal influence and corruption, but holds that there was no evidence to suggest that these were cases similar to Uwinkindi's.381 The Appeals Chamber did not identify any error in this approach.w- Moreover, just as in Uwinkindi, the Defence fails to support his contention that his case is uniquely susceptible to interference.s'"

374 Response, para. 140. 375 Uwinkindi (TC), para. 26. 376 Nahimana (AC), paras. 78, 84; Rutaganda (AC), paras. 42-43. 377 Ibid. 378 Nahimana (AC), paras. 30-46. 379 Nahimana (AC), para. 48. 380 IADL, RP 491. 381 Uwinkindi (TC), paras. 185, 196. See Response, para. 140; IADL, RP 491. 382 Uwinkindi (AC), para. 75. 383 Ibid. 77 197. IADL also cites the ongoing prosecution of opposition leader Victoire Ingabire as alleged evidence of political interference with the judiciary.384 Besides being accused of propagating ethnic hatred and "genocide revisionsm", the new indictment in Ingabire's case also includes acts of terrorism.385 Press reports reveal that the charges are, based in part, on her wiring money to the Democratic Forces for Liberation Rwanda (FDLR), a predominantly Hutu rebel group operating out of the Democratic Republic of Congo, so it could wage war against Rwanda.386 Among the evidence the prosecution intends to offer at trial is testimony from Ingabire's alleged accomplices, as well as e-mail and phone messages.w?

198. Significantly, the International Criminal Court (ICC) has indicted several senior FDLR leaders for war crimes and crimes against humanity, including acts of murder, rape, torture, and persecution.s'" Thus, if the Rwandan government's allegations against Ingabire are proven at trial, she will have been shown to have provided material support to an organization that the ICC has charged with serious violations of international law.

199. IADL does not explain whether there was any judicial misconduct in Ingabire's case, or how the proceedings against Ingabire would have a bearing on the trial of the Accused's case should referral be allowed. As argued above, the Tribunal would not engage in speculation to support serious allegations of

384 Defence Response, paras. 234-41. 385 BBC News Africa, Rwanda terror trial of Victoire Ingabire to proceed, 5 September 2011, available at http://www.bbc.co.uk/news/world-africa-14789140 (last accessed 27 February 2012). The new Indictment is in Kinyarwandan and needs to be translated into language understood by her defence team. See http://www.fdu-rwanda.com/en/english-rwanda-ingabire-political-trial­ postponed-again-for-a-month (last accessed 27 February 2012). 386 Reuters, Rwandan Opposition Leader Ingabire Denied Bail, 17 December 2010, available at http://www.reuters.com/article/2010/12/17/us-rwanda-ingabire-idUSTRE6BG4LX20101217 (last accessed 27 February 2012); Radio Netherlands Worldwide, Victoire Ingabire Stirs Ethnic Debate in Rwanda, 21 January 2010, available at http://www.mw.nl/intemational-justice/article/victoire­ ingabire-stirs-ethnic-debate-rwanda(last accessed 27 February 2012). 387 Radio Netherlands Worldwide, Victoire Ingabire Was Planning Grenade Attacks, 27 October 2010, available at http://www.mw.nl/africa/article/victoire-ingabire-was-planning-grenade­ attacks/last accessed 27 February 2012). 388 See ICC, Situations and Cases, available at http://www.icc-cpi.intlMenuslICC/Situations+ and-Cases/ (last accessed 27 February 2012). 78 judicial misconduct against one of its own judges.3s9 The Chamber should apply no less rigorous standard to sweeping allegations of judicial misconduct against the entire judiciary of a sovereign state. Indeed, it should accord the Rwandan judiciary the same presumption of independence that attaches to the Tribunal's own judges.390

200. In any event, having reviewed examples of individual cases in support of submissions on the lack of independence and impartiality of the Rwandan judiciary in practice, including the Ingabire case, the Uwinkindi Trial Chamber, found that these cases do not necessarily reflect the conditions of the trial or charges that the accused faces.391 Moreover, it considered that the monitoring and revocation mechanisms provided sufficient safeguards, if there is a report that the fair trial rights of the accused have not been respected.392 The Appeals Chamber endorsed this approach.Pt

(c) Judges on Rwanda's High Court and Supreme Court enjoy tenure ofoffice

201. The Defence also argues that judges ofRwanda's High Court and Supreme Court Judges no longer enjoy tenure ofoffice.394 However, as explained at length in the Rule 11 bis Request, the Rwandan legal framework, especially the Constitution, the Law on the Statutes for Judges, the Law on the Supreme Court, and the Law on the High Council ofthe Judiciary, guarantees tenure ofoffice and independence of the judiciary.395 Article 142 of the Constitution, as amended in

389 See supra, para. 195. Rutaganda (AC), para. 43 ("sweeping or abstract allegations" of bias that are "neither substantiated nor detailed" are insufficient to rebut presumption of impartiality). 390 Nahimana (AC), para. 28. 391 Uwinkindi (TC), para. 196. 392 Uwinkindi (TC), para. 196. 393 Uwinkindi (AC), para. 75. 3WResponse, para. 144. 395 Rule 11 bis Request, paras. 74-80. See Articles 142, 146, 157 of the Constitution; Articles 1,4, 24, 30-46 and 70-78 of the No. 06 bis/2004 of 14 April 2004 on the Statutes for Judges and other Judicial Personnel, Official Gazette of the Republic of Rwanda, 15 May 2004 ("Law on Statutes for Judges"); Article 8 of the Organic Law No. 112004 of 29 January 2004 Establishing the Organisation, Functioning and Jurisdiction of the Supreme Court, Official Gazette of the Republic of Rwanda, 1 February 2004 (as modified in 2005 and 2006) ("Law on the Supreme Court"); Articles 12, 21-28 of the Law on High Council of the Judiciary Organic Law No. 02/2004 of 20 March 2004 Determining the Organisation, Powers and Functioning of the Superior Council of the Judiciary, Official Gazette of the Republic of Rwanda, 23 March 2004 (as modified in 2006) 79 2010, no longer includes the following provision, which was inserted by amendment in 2008:

Other Judges shall be appointed for a determinate term of office that may be renewable by the High Council of the Judiciary in accordance with the provisions of the law relating to their status, following their evaluation."396

Therefore, these judges enjoy tenure of office as far as their services as judicial officers are concerned.

(d) Legislation on foreign and international judges is not vague and provides additional safeguards to the Accused's fair trial rights

202. Lastly, the Defence criticizes Rwanda's recently adopted legislation allowing foreign and international judges to sit on the panel of any referred case as being too vague to be applicable.w" However, should any foreign judge be appointed to either the High Court or the Supreme Court to work with Rwandan judges in respect of transferred cases, there is sufficient precedent and experience on the part of the Rwandan judiciary concerning the modalities of appointment, the status of such judge and issues to do with remuneration to ensure the proper application of this law.398 Indeed, Rwanda has in the past engaged foreign judges in its commercial courts. As with these judges, Rwanda would carry out the necessary consultation to identify experienced and available foreign judges.399 The judges would be appointed by the President of the Supreme Court. They would enjoy the same status as Rwandan judges as far as their judicial powers are concerned. Funds would be available to meet their

(Law on High Council of the Judiciary). For English and French versions of this law, see http://www.amategeko.netl(last accessed 28 February 2012). 396 See a contrario, Uwinkindi (TC), para. 181; Kayishema (TC), 132 On the basis of this specific provision, which is no longer included in the Constitution as amended in 2010, the Uwinkindi and Kayishema Trial Chambers erroneously found that Rwanda "no longer ensures life tenure for judges." Uwinkindi (TC), para. 183; Kayishema (TC 2012), para. 134 397 Response, paras. 141-142, esp. 142. See Rwanda Amicus Curiae Brief, para. 5 and Exhibit A to Rwanda's Brief - Relevant Excerpts from draft Organic Law No. _ of _ Establishing the Organization, Functioning and Jurisdiction of the Supreme Court. This legislation is awaiting only formal publication in Rwanda's Official Gazette 398 Gahongayire Affidavit, para. 3. 399 Gahongayire Affidavit, para. 3. 80 salaries.w? Any concern about the inapplicability of the law IS therefore unfounded and speculative.

203. The arguments raised by the Defence and IADL are insufficient to cast doubt on the independence, competence and impartiality of the Rwandan judiciary, and especially the judges of the High Court and the Supreme Court.

E. THE MONITORING PROVISIONS OF RULE 11 BIB REMAIN ADEQUATE SAFEGUARDS TO THE ACCUSED'S FAIR TRIAL RIGHTS.

204. Rule 11 bis, as amended, specifically authorizes the Chamber to appoint its own monitor to ensure the fairness of proceedings in any referred case. The Trial Chambers in both Uwinkindi and Kayeshima elected to invoke this authority, and those orders are presently being implemented by the Registrar.

205. Although the Registrar's implementation of the monitoring provisions of the referral orders in those cases has not been without difficulty because of problems in identifying available funds to support an agreement with the African Commission on Human and People's Rights (ACHPR), it is entirely speculative for the Defence to contend that no suitable monitoring mechanism could be put in place for this or any other referred case.401 Nor is there any basis for the Defence contention that the ACHPR would not be a suitable monitor in this case. In all events, monitoring need not be conditioned on the ACHPR's participation; there are other qualified and experienced monitors that the Chamber could select to fill this role. Finally, contrary to the Defence submissions, monitors appointed by the Chamber, as well as monitors appointed by the Prosecutor, would also be afforded protection and facilitation in Rwanda. Each of these points is addressed below.

400 Gahongayire Affidavit, para. 3. 401 See Response, para. 155, referring to Prosecutor v. Jean Uwinkindi, Case No. ICTR-2001-75­ ARllbis, Registrar's Submissions regarding the Transfer of the Accused to the Republic of Rwanda, 16 January 2012. 81 (a) The Defence submission that no suitable monitoring mechanism can be put in place for the Uwinkindi or future referred cases is premature

206. The Appeals Chamber recently held that it is within the authority of the President to direct the Registrar to seek other sources of funding to meet the ACHPR's terms in relation to monitoring the Uwinkindi case, or to make arrangements for an alternative monitoring mechanism, and expected it to do SO.402 The President, for her part, has instructed the Registrar to "urgently undertake discussions and negotiations in order to effectuate the establishment of a monitoring mechanism according to the terms and conditions ordered by the Trial Chamber".403 She also directed the Registrar to provide a report, no later than 16 March 2012, "which detail the steps that have been undertaken to secure monitoring and provide details of the proposed options for monitoring."404 Moreover, the Trial Chamber in the instant case has directed the Registrar to provide it with submissions pursuant to Rule 33(B) on what arrangements have made for monitoring in the Uwinkindi case, and "the implications for future referral cases".405 Given these ongoing proceedings aimed at implementing the Uwinkindi monitoring mechanism, it is entirely premature for the Defence to contend that no agreement between the Registrar and the ACHPR regarding monitoring is foreseeable.

207. The Defence also misstates the ACHPR's position in alleging that the ACHPR has expressed its interest in monitoring the case "at the expenses of the Tribunal".406 Instead, in its initial communications with the Prosecutor, the

402 Uwinkindi v. The Prosecutor, Case No. ICTR-01-75-ARllbis, Decision on Uwinkindi's Motion for Review or Reconsideration of the Decision on Referral to Rwanda and the Related Prosecution Motions, 23 February 2012, para. 16 ("Uwinkindi Decision on Review or Reconsideration"). 403 The Prosecutor v. Jean Uwinkindi, Case No. ICTR-01-75Rllbis, Order to Stay the Transfer of Jean Uwinkindi Pending the Establishment of a Suitable Monitoring Mechanism, 24 February 2012, p. 5. 404 Ibid. 405 The Prosecutor v. Bernard Munyagishari, Case No. ICTR-2005-89-I, Order for Rule 33(B) Submissions from the Registrar, 24 February 2012. 406 Response, para. 155. 82 ACHPR indicated that it was prepared to conduct monitoring without payment of any fees, with the understanding that the ICTR would bear only expenses.s??

(b) The ACHPR is a suitable monitor for this case

208. Apart from the administrative difficulties the Registrar has experienced in implementing the Uwinkindi monitoring agreement with the ACHPR, the Defence challenges the ACHPR's competence to monitor his trial. More particularly, the Defence argues that, unlike the OSCE, which was appointed by the ICTY to monitor trials in Bosnia and Herzegovina, the ACHPR has no history of monitoring in Rwanda and no operation structure in place.408 But, there is no requirement that a monitoring body have a prior history of monitoring trials in the relevant country or an operational structure in place in order to ensure an "adequate system of monitoring."409 As recognized by both the Referral and Appeals Chamber in Uwinkindi, the ACHPR has unique skills and experience in monitoring trials, and in the protection of fair trial rights.410 This is sufficient to ensure that it will provide a "robust system of monitoring" in accordance with the Trial Chamber and Appeals Chamber's directions.

209. The Defence further alleges that the ACHPR is not the appropriate monitoring mechanism because the involvement of the ACHPR in the national trial would deprive the Accused of the possibility of reporting violations of his fair

407 In a response to the Prosecutor's Letter of 24 May 2011, the Chairperson of the African Commission, Commissioner Reine Alapini-Gansou, reiterated the Commission's willingness and availability to monitor any referred cases. In her 26 May 2011 response, she stated as follows: "I do hereby reaffirm our willingness to assign one of our members to follow-up on the trial in Rwanda, and to provide periodic reports to the Office of the Prosecutor in relation to the observance of fair trial standards, if and when the ICTR does decide to refer cases to Rwanda. It is also understood that, all expenses that might be incurred by the African Commission in carrying out its task would be covered by the ICTR". Letter of acceptance for ACHPR to Act as Monitor, from Hon. Commissioner Hon. Commissioner Reine Alapini-Gansou, Chairperson of ACHPR, to Hassan B. Jallow, Chief Prosecutor, 26 May 2011 (annexed to Rule 11 bis Request as AnnexR). 408 Response, paras. 152-154. 409 Uwinkindi (TC), para. 208, where the Referral Chamber held that it "considers that it would be in the interests of justice to ensure that there is an adequate system of monitoring in place if this case is to be transferred to Rwanda." 410 Uwinkindi (TC), paras. 211, 219; Uwinkindi (AC), paras. 77, 83. See also Munyakazi (AC), para. 30. 83 bIb trial rights to the ACHPR pursuant to Article 56 of the African Charter on Human and Peoples' Rights ("Mrican Charter").411

210. The ACHPR was created specifically with the mandate of monitoring the implementation of the African Charter in member states,412 and in accordance with this mandate, the ACHPR has monitored fair trial rights and conditions of detention in other countries which are parties to the African Charter.s-" The ACHPR therefore fulfils a dual function of monitoring human rights and detention conditions in states party to the African Charter, and also responding to individual complaints against member states. The procedure of individual communications set out in Article 56 of the African Charter cannot therefore be incompatible with the ACHPR's role to monitor trial conditions in the same member states.

211. Moreover, if the ACHRP is appointed as a monitor for the Chamber, the Commissioners who would be appointed to monitor the trial would perform their monitoring duties in an independent capacity. Therefore, nothing would preclude the Accused from raising any complaints in relation to his fair trial rights before the ACHPR pursuant to Article 56 of the African Charter, even if the monitor appointed by the ACHPR had not reported any violations to the President.

212. In any event, it is not clear that any communication submitted by the Accused to the ACHPR pursuant to Article 56 of the African Charter would be admissible. Article 56(5) of the African Charter provides that for a communication to be admissible, the complainant must first have exhausted local remedies. While the Accused's trial would take place in Rwanda if he were transferred, it would still be subject to oversight by the Tribunal in the form of monitoring and revocation. The Trial Chamber could revoke the referral order,

411 Response, paras. 158-159. 412 Article 30 of the African Charter provides that the ACHPR was established "to promote human and peoples' rights and ensure their protection in Africa". 413 See i.e. Special Rapporteur on Prisons and Conditions of Detention in Africa, established by the ACHPR, which has conducted missions to investigate conditions of detention in Cameroon, South African and Ethiopia. See http://www.achpr.org/englishUnfo/index_prison_en.html (last accessed 28 February 2012). 84 be5

either at the request of the Prosecutor, or proprio motu, based on the reports from the monitors and/or reports from human rights NGOs and/or complaints from the accused.sw Rwanda's Transfer Law also recognizes that the Tribunal's Rule 11 bis empowers the Tribunal to revoke a referral order for certain reasons, and recognizes Rwanda's obligation to comply with such revocation.415 Therefore, as the monitoring and revocation procedures are recognized under Rwandan law, the Accused would arguably first have to exhaust these remedies - i.e, reporting violations to the monitors, and/or requesting the Trial Chamber to revoke the referral, prior to having recourse to the communications procedure at the ACHPR.

213. Moreover, complaints have been held to be inadmissible before the ACHPR pursuant to Article 56(7) of the African Charter if they "halve] already been, or [are] being settled through another international body".416 The revocation mechanism means that any fair trial concerns raised by Munyagishari would first have to be settled by the Tribunal, an "international body", who would consider whether any alleged violations of fair trial rights should lead to the revocation of the transfer.

214. If the Accused did not avail himself of the monitoring and revocation mechanisms prior to bringing his communication before the ACHPR, he arguably would not have exhausted all local remedies. If any alleged fair trial concerns

414 Rule 11 bis(F). The report on Rule 11 bis' amendment states that "[tjhe basis for the Trial Chamber to consider revocation proprio motu may be the reports from the monitors and/or reports from human rights NGOs and/or complaints from the accused". See Report on Amendment to Rule 11 bis, 15 March 2011, para. 9. 415 See Article 20 of the Transfer Law, which provides that in the event that the ICTR revokes the referral, "the accused shall be promptly surrendered to the ICTR together with any files, documents, exhibits and all other additional materials as stipulated in the order." Pursuant to Article 28 of the ICTR Statute, enshrining the duty of a State to co-operate with the Tribunal, the State concerned shall accede to a request for deferral. 416 See The African Commission on Human and Peoples' Rights, Information Sheet No.3, Communication Procedure, p. 6 found at: http://www.achpr.org/english/information _sheets/ ACHPR% 20inf.% 20sheet%20no.3.doc (last accessed 22 February 2012). See i.e. Communication 15/88, Mpaka - Nsusu Andre Alphonse v. Zaire, 12 September 1988, where the communication was declared inadmissible pursuant to Article 56(7) as it had already been referred for consideration to the UN Human Rights Committee. Found at: http://www.achpr.org/englishlDecison_CommunicationlDRC/Comm.%2015-88.pdf (last accessed 22 February 2012). 85 were considered by the ICTR in the context of revocation, then arguably this would be a matter that had already been settled by an international body and therefore any communication he would bring before the ACHPR would be inadmissible. It is therefore unclear whether any communication by the Accused to the ACHPR would be held to be admissible.

215. In that context, it is important to note that the completion strategy will not occasion any break in either the monitoring of referred cases or the Chamber's ability to rescind referral if fair trial rights are prejudiced. The completion strategy envisions that, effective 1 July 2012, the Residual Mechanism will assume specified functions. Article 6 ofthe Residual Mechanism Statute directs that the Mechanism "shall" monitor all cases referred to national courts and that the Trial Chamber may revoke any referral order, either at the request of the Prosecutor or proprio motu.n" These powers extend to any cases that the ICTR referred to national jurisdictions before the Residual Mechanism takes effect. 418

(c) Alternative monitoring mechanisms could also provide a safeguard ofthe Accused's fair trial rights

216. In all events, even ifthe ACHPR were unable for whatever reason to act as monitor in this or any other referred case, there is nothing precluding this Chamber from selecting an alternative monitor of similar competence and expertise. Indeed, the Uwinkindi Appeals Chamber recently held that ''while the decision of 28 June 2011 specifically referred to the ACHPR as the monitor for Mr. Uwinkindi's case [...J, the Appeals Chamber is not persuaded that the appointment of alternative observers to monitor the proceedings in Rwanda violates that Decision as affirmed by the Decision of 16 December 2011".419

417 See Resolution 1966 (2010), adopted by the Security Council at its 6463 rd meeting, on 22 December 2010, Annex 1 - Statute of the International Residual Mechanism for Criminal Tribunals (IRMCT), SlRES/1966 (2010). 418 Ibid., Article 6, paras. 5-6. 419 Uwinkindi Decision on Review or Reconsideration, footnote 45. Moreover, in the recent decision in Kayishema, the Referral Chamber indicated that it left open the possibility that the 86 u:

217. The Trial Chambers in Uwinkindi and Kayishema premised their decisions to transfer these cases to Rwanda on the basis that there was an "adequate system of monitoring in place".42o Indeed, in its recent decision in Kayishema, the Trial Chamber indicated that it left open the possibility that the Registrar might identify other institutions equally capable of providing monitoring.421

218. Consequently, even ifthere were problems, financial or otherwise, with the ACHPR as the monitoring mechanism, an alternative monitor could provide an "adequate" system of monitoring, which would still be an additional safeguard for ensuring the Accused's right to a fair trial in Rwanda.

219. The Defence acknowledges this possibility by suggesting that a member of a professional organization, such as the Union Internationale des avocats or the International Bar Association, would be preferable to the ACHPR as a monitoring mechanism.ss- The Defence has not demonstrated, however, that these organizations would more effectively ensure his right to a fair trial than any other monitor the Chamber may select. Whatever alternative monitor the Chamber may select in place of the ACHPR should first be shown to have a similar breadth and depth of experience in monitoring court proceedings and in the protection of fair trial rights, judicial independence and human rights in general.423

Registrar might identify other institutions equally capable of providing monitoring. Kayishema (TC 2012), paras. 147, 150-151. 420 Uuiinkindi (TC), para. 208, where the Referral Chamber held that it "considers that it would be in the interests of justice to ensure that there is an adequate system of monitoring in place if this case is to be transferred to Rwanda."; Kayishema (TC 2012), para. 148. 421 Kayishema (TC 2012), paras. 147, 150-151. The Referral Chamber held that "due to the unique circumstances of the case, the selected external or internal monitors should have broad experience in identifying and combating abuses of human rights on the continent, and should be trustworthy and capable of making a credible application through the Registrar to the President for revocation of the case, ifwarranted" (para. 159). 422 Response, para. 160. 423 See Rule 11 bis Request, para. 90. 87 (d) Monitors appointed by the Chamber would be afforded protection and facilitation in Rwanda

220. Lastly, as rightly noted by the Defence, Article 19 of Rwanda's Transfer Law currently only applies to monitors appointed by the Prosecutor.424 However, in amicus curiae briefs submitted in previous referral cases, Rwanda has "reiterate[d] its commitment to facilitating the work of the monitors should the case ofthe Accused be transferred to Rwanda for Trial".425 While it was referring to monitors for the Prosecution, there is no reason to believe that Rwanda would not afford the same facilitation and protection to monitors appointed by the Chamber. Moreover, the Trial Chambers in Uwinkindi and Kayishema have held that, even in the absence of a specific Rwandan law applicable to monitors appointed by the Chamber, the Chamber's monitor "shall report to the President through the Registrar ifthere are impediments to fair trial or ifthere arises any difficulty accessing relevant persons, proceedings, or documents during the proceedings't.v" The same would apply if the Accused's case were transferred to Rwanda.

221. In sum, contrary to Defence submission, the Rule's monitoring and revocation provisions are fully capable of safeguarding the Accused's right to a fair trial in any referred case, and the selection of the ACHPR ensures a suitable monitoring mechanism.

III. CONCLUSION

222. Rwanda meets all of the requirements established by Rule 11 his for referral of a case for trial. The Defence Response and the IADL letter attempt to divert the Chamber from the limited question before it: whether the Accused's right to a fair trial will be secured ifreferral is allowed.

424 Response, paras. 156-157. 425 See The Prosecutor v. Ildephonse Hategekimana, Case No. ICTR-00-55B-R11bis, Amicus Curiae Brief of the Republic of Rwanda in the Matter of the Application for the Referral of the Above Case to Rwanda pursuant to Rule 11 bis, 10 January 2009, para. 44, The Prosecutor v. Fulgence Kayishema, Case No. ICTR-01-67-I, Amicus Curiae Brief of the Republic of Rwanda, 1 October 2007, para. 41, The Prosecutor v. Yussuf Munyakazi, Case No. ICTR-97-36A-I, Amicus Curiae Briefofthe Republic of Rwanda, 21 December 2007, para. 44. 426 Uwinkindi (TC), para. 214; Kayishema (TC 2012), para. 154 88 .~ fa 1/

223. For all of the reasons articulated in the Prosecutor's initial application and this response, as well as amicus curiae briefs submitted by Rwanda and the KBA, the Accused's right to a fair trial in Rwanda is secure. Rwanda's laws afford all of the requisite legal protections, and those legal protections are honoured in practice. The largely unsubstantiated submissions by the Defence and IADL have not diminished this showing.

224. If the Chamber has any lingering questions about Rwanda's commitment and ability to secure the Accused's right to a fair trial, it should take up Rwanda's invitation and the Defence's suggestion to evaluate first-hand whether the Defence's and IADL's vague assertions about Rwanda's inability to secure a fair trial are fact or fiction.s-? The Prosecutor is confident that a site visit will provide additional concrete proof of what Rwanda already has said: it is ready, willing, and able to fairly try this or any other case that the Chambers may refer for trial in Rwanda.

225. Indeed, as Rwanda's amicus curiae brief makes clear, its commitment to securing the Accused's right to a fair trial is not some abstract legal concept but, rather, a "crucial step on the path toward national reconciliation and healing."428 The recent decisions of the Uwinkindi and Kayishema Trial Chambers and the Uwinkindi Appeals Chamber confirm that Rwanda is prepared and able to take that step. This Chamber should accordingly allow the Prosecutor's application to refer this case to Rwanda for trial.

Dated and signed this 29th day of February 2012, Arusha, Tanzania. -~V/

"- Le~l Advisory Division

427 Response, para. 166. With respect to the Defence suggestion to hold an oral hearing, the parties have been informed recently that the Trial Chamber will receive oral submissions in this case. See Response, para. 167; Facsimile transmission from Trial Chamber to parties, 27 February 2012. 428 Rwanda Amicus Curiae Brief- Uwinkindi, para. 136. 89 A. Annexes

AnnexA Charles Bandora v. NCIS Norway, Case No., 11-116187SAK­ BORGI04, Bogarting Court ofAppeal, 19 September 2011

AnnexB Charles Bandora v. the Public Prosecutor, Case No. HR-2011­ 02147-U, Supreme Court of Norway, 18 November 2011 (no English translation available)

AnnexC Leon Mugesera v. La Ministre de La Citoyennete et de L'lmmigraton et Le Ministre de la Securite Publique et de la Protection Civile, IMM-9680-11, 2012 CD 12, Jugement et Motifs de Jugement, 11 January 2012

AnnexD Certified copies of documents from Munyagishari's employment records at SONARWA, obtained by the Prosecutor on 13 February 2012:

i) Curriculum Vitae and accompanying cover letter, both signed by the Accused, dated 15 October 1993

ii) Diploma from Section Normale Inferieure, dated 9 April 1991

iii) Attestation d'identite complete, dated 15 October 1993

iv) Attestation de bonne conduite, vie et mceurs, dated 15 October 1993

v) Attestation de marriage, dated 15 October 1993

AnnexE Certified copies of the following social security records obtained by the Prosecutor on 13 February 2012

i) "Gestion dossier assure", last modified 27 November 1999

ii) Etat des releves nominatifs des remunerations par assure, Rwanda Social Security Board, accessed 10 February 2012

AnnexF Affidavit of Paul Rwarakabije, Commissioner General of Rwandan Correctional Services, signed 13 February 2012

AnnexG Remarks to the Rwandan Authorities by Special Court Registrar Binta Mansaray at the end of the Annual Visit by the Registrar and Deputy Registrar, 9 November 2011

AnnexH Affidavit of Anne Gahongayire, Secretary General of the Supreme Court, signed 21 February 2012 90 Annex I Affidavit of Paul Maitre Athanase Rutabingwa, President and Council Member of the Kigali Bar Association, signed 21 February 2012

AnnexJ Order of the President of the Supreme Court No. 019/2011 of 24 March 201 Modifying the Internal Rules and Regulations of the Supreme Court (Kinyarwanda version and unofficial English translation)

91 B. Authorities

ICTR Cases

Bagaragaza

The Prosecutor u. Michel Bagaragaza, Case No. ICTR-05-86-AR11bis, Decision on Rule 11bis Appeal, 30 August 2006 ("Bagaragaza (AC)")

Bucyibaruta

Prosecutor u. Laurent Bucyibaruta, Case No. ICTR-2005-85-I, Decision on Prosecutor's Request for Referral of Laurent Bucyiburuta's Indictment to France, 20 November 2007 ("Bucyibaruta (TC)").

Gatete

The Prosecutor u. Jean-Baptiste Gatete, Case No. ICTR-2000-61-Rllbis, Decision on Prosecutor's Request for Referral to the Republic of Rwanda, 17 November 2008 ("Gatete (TC)")

Hategekimana

The Prosecutor u. Ildephonse Hategekimana, Case No. ICTR-00-55B-Rllbis, Decision on Prosecutor's Request for the Referral of the Case of Ildephonse Hategekimana to Rwanda, 19 June 2008 ("Hategekimana (TC)")

The Prosecutor u. Ildephonse Hategekimana, Case No. ICTR-00-55B-Rllbis, Decision on the Prosecution's Appeal against Decision on Referral under Rule llbis, 4 December 2008 ("Hategekimana (AC)")

Kanyarukiga

The Prosecutor u. Gaspard Kanyarukiga, Case No. ICTR-2002-78-Rllbis, Decision on Prosecutor's Request for Referral to the Republic of Rwanda, 6 June 2008 ("Kanyarukiga (TC)")

The Prosecutor u. Gaspard Kanyarukiga, Case No. ICTR-2002-78-Rllbis, Decision on the Prosecution's Appeal against Decision on Referral under Rule 11bis, 30 October 2008 ("Kanyarukiga (AC)")

92 Kayishema

The Prosecutor v. Fulgence Kayishema, Case No. ICTR-01-67-Rllbis, Decision on Prosecutor's Request for Referral to the Republic of Rwanda, 16 December 2008 ("Kayishema (TC)")

The Prosecutor v. Fulgence Kayishema, Case No. ICTR-01-67-Rllbis, Decision on Prosecutor's Request for Referral to the Republic of Rwanda, 22 February 2012 ("Kayishema (TC 2012)")

Kayishema & Ruzindana

The Prosecutor v. Clement Kayishema & Obed Ruzindana, Case No. ICTR-95-1-A, Judgement 1 June 2001 ("Kayishema & Ruzindana (AC)")

Munyakazi

The Prosecutor v. Yussuf Munyakazi, Case No. ICTR-97-36-R11bis, Decision on the Prosecutor's Request for Referral of Case to the Republic of Rwanda, 28 May 2008 ("Munyakazi (TC)")

The Prosecutor v. Yussuf Munyakazi, Case No. ICTR-97-36-R11bis, Decision on the Prosecution's Appeal against Decision on Referral under Rule 11bis, 8 October 2008 ("Munyakazi (AC)")

Nahimana

Nahimana et al. v. The Prosecutor, Case No. ICTR-99-52-A, Judgement, 28 November 2007 ("Nahimana (AC)")

Rutaganda

Georges Anderson Nderubumwe Rutaganda v. the Prosecutor, Case No. ICTR-96­ 3-A, Judgement, 26 May 2003 ("Rutaganda (AC)")

Uwinkindi

The Prosecutor v. Jean Uwinkindi, Case No. ICTR-2001-75-I, Decision on Prosecutor's Request for Referral to the Republic of Rwanda, 28 June 2011 ("Uwinkindi (TC)")

93 The Prosecutor v. Jean Uwinkindi, Case No. ICTR-2001-75-ARllbis, Decision on Uwinkindi's Appeal against the Referral of his Case to Rwanda and Related Motions, 16 December 2011 ("Uwinkindi (AC)")

ICTYCases Jankovic

Prosecutor v. Gojko Jankovic, Case No. IT-96-23/2-PT, Decision of Referral of Case Under Rule llbis, 22 July 2005 ("Jankovic (TC)")

Prosecutor v. Gojko Jankovic, Case No. IT-96-23/2-ARllbis.2, Decision on Rule llbis Referral, 15 November 2005 ("Jankovic (AC)")

Lukic

The Prosecutor v. Milan Lukic & Sredoje Lukic, Case No. IT-98-32/l-PT, Decision on Referral of Case Pursuant to Rule llbis, 5 April 2007 ("Lukic (TC)")

The Prosecutor v. Milan Lukic & Sredoje Lukic, Case No. IT-98-32/1-ARllbis.l, Decision on Milan Lukic's Appeal Regarding Referral, 11 July 2007 ("Lukic (AC)") lJubicic

The Prosecutor v. Pasko Ljubicic, Case No. IT-00-41-ARllbis.l, Decision on Appeal Against Decision on Referral under Rule llbis, 4 July 2006 ("Ljubicic (AC)")

Mejakic

The Prosecutor v Zeljko Mejahi« et al., Case No. IT-02-65-PT, Decision on Prosecutor's Motion for Referral of Case Pursuant to Rule llbis, 20 July 2005 ("Mejaki6 (TC)")

The Prosecutor v Zeljko Mejahit: et al., Case No. IT-02-65-ARllbis.l, Decision on Joint Defence Appeal against Decision on Referral Under Rule Ilbis, 7 April 2006 ("Mejakic (AC)")

Stankovic

The Prosecutor v. Radovan Stanhouic, Case No. IT-96-23/2-PT, Decision on Referral of Case Under Rule llbis, 17 May 2005 ("Stankovic (TC)")

94 b

The Prosecutor v. Radovan Stanhouic, Case No. IT-96-23/2-ARllbis.l, Decision on Rule 11bis Referral, 1 September 2005 ("Stankovic (AC)")

Tadic

Prosecutor v. Dusko tuas« Case No. IT-94-1-A, Judgment, 15 July 1999 ("Tadic (AC")

Todovic

The Prosecutor v. Mitar Raseuic & Savo Todouic, Case No. IT-97-25/1-ARllbis.l & IT-97-25/1-ARllbis.2, Decision on Savo Todovic's Appeals Against Decisions on Referral under Rule 11bis, 4 September 2006 ("Todovic (AC)")

European Court ofHuman Rights Cases

Ahorugeze v. Sweden, Application No. 37075/09, Judgement, 27 October 2011 ("Ahorugeze Judgment';

Pakelli v. Germany, E.C.H.R., 25 April 1983, Publ. E.C.H.R., A, vol. 64.

National Cases

NClS Norway v. Charles Bandora, File No. 11-050224ENE-OTIRlOl, Oslo District Court, 11 July 2011

Charles Bandora v. NClS Norway, Case No., 11-116187SAK-BORG/04, Bogarting Court of Appeal, 19 September 2011 ("Bandora Appeal Decision")

Charles Bandora v. the Public Prosecutor, Case No. HR-2011-02147-U, Supreme Court of Norway, 18 November 2011 ("Bandora Supreme Court Decision") (no English translation available)

Leon Mugesera v. La Ministre de La Citoyennete et de L'lmmigration et Le Ministre de la Securite Publique et de la Protection Civile, IMM-9680-11, 2012 CD 12, Jugement et Motifs du Jugement, 11 January 2012 ("Mugesera Decision';

95 Mugesera v. Kenney, Cour Superieur du Quebec, 2012 QCCS 116, Decision, 23 January 2012

International Court ofJustice

Questions of Interpretation and Application of the 1971 Montreal Convention arising from the Aerial Incident at Lockerbie (Libyan Arab Jamahiriya v. United Kingdom), Judgment of27 February 1998 (Dissenting Opinion of Judge ada)

96 AnnexA 08.21 {;' '"/'

BORGARTING COURT OF APPEAL

UIII1IOIIL.- _

Handed down: 19 September 2011 in

Case No.: 11-116187SAK- BORGI04

Judges: Court of Appeal Judge Elin Holmedal Court of Appeal Judge Hans-Petter Jahre Court of Appeal Judge Cecilie 0stensen

Person charged Charles Bandora Advocate Harald Stabell

Prosecution authority Kripos Police Prosecutor Marit Formo

No limitations in the post ledger

11-116187SAK-BORG/04

True translation from Norwegian is certified Stavanger, 18 January 2012 Grethe M Rand - Government Authorised Translator 08.21

Introduction

A request has been submitted for the extradition to Rwanda ofCharles Bandora, date ofbirth 24 August 1954, for further prosecution, cf. section 10 no. 2 of the Norwegian Extradition Act. The request for extradition was submitted by the national prosecution authority in the Republic of Rwanda and is dated 12 July 2010 (Doc. 09.01). The grounds given for the extradition request are that Bandora is indicted on charges ofcriminal offences in connection with the genocide committed in 1994, further determined as genocide, for having committed crimes against humanity and for having participated in a criminal group whose intention was to harm humans and their property.

On 17 March 2011, Kripos, the prosecution authority, requested a court decision stating that the conditions for extradition existed, cf. section 17 of the Extradition Act (Doc. 01.13). Kripos argued that the conditions existed for extraditing Bandora to Rwanda. Reference was made to Kripos having brought criminal charges against Bandora on 15 March 2011 for offences contrary to section 233(1) and (2) ofthe Norwegian General Civil Penal Code which were committed with intent and under particularly aggravating circumstances (Doc. 12). The grounds for the charges are as follows:

The grounds for the charges are the following offences: During the period from April to June 1994, in connection with the genocide in Rwanda, he killed or was complicit in the killing of a very large number ofpersons from the Tutsi ethnic group at various places in Ngenda Municipality, including:

1 on 7 April 1994, a police officer named Callixte Kayiranga. Callixte Kayiranga was killed with a machete by persons from the Interahamwe militia group and/or soldiers from the military outside the house ofthe charged person in Ruhuha; 2 on 7 April 1994, a soldier whose name is unknown. The soldier was killed by persons from the Interahamwe militia and/or soldiers from the military outside or nearby the house of the charged person in Ruhuha; 3 on or about 7 April 1994, Ezechiel Mugenzi. Ezechiel Mugenzi was killed outside his home by persons from the Interahamwe militia and/or soldiers from the military; 4 on or about 7 April 1994, Gracien Murangira and four other family members. Gracien Murangira and the four other family members were killed by persons from the Interahamwe militia and/or soldiers from the military; 5 on 13 April 1994, in the town ofRuhuha, approximately 400 persons who had sought shelter in Ruhuha Church. The refugees were forcefully removed from the church and killed with machetes and other types ofweapons on the area belonging to the church by a large number of perpetrators, including members ofthe Interahamwe militia and soldiers from the military.

The charged person was in various ways complicit in the killings as mentioned above, including by means of: ordering killings; planning, preparing and/or organising the killings; publicly encouraging the killing of persons belonging to the Tutsi ethnic group; drilling and training the perpetrators ofthe killings, including local sections ofthe Interahamwe militia; providing various forms of assistance to the perpetrators ofthe killings, including local sections ofthe Interahamwe militia, judgment by placing his vehicles at their disposal, and supplying them with weapons and fuel;

2 11-116187SAK-BORG/04 ------True translation from Norwegian is certified Stavanger, 18 January 2012 Grethe M Rand - Government Authorised Translator 08.21

participating in the erection ofroad blocks aimed at locating and identifying to be killed.

The charged person acted with intent, as his actions were part ofa carefully planned strategy and considered decision to exterminate the entire Tutsi ethnic group. Furthermore, particularly aggravating circumstances exist inter alia because the charged person through his actions participated in a regime and/or extreme groupings consisting ofpersons from the Hutu ethnic group, which in collaboration with the Interahamwe and Impuzamugambi militias carried out a genocide which resulted in the murder ofsome 800,000 persons. The murders were largely committed in a particularly gruesome and painful manner against defenceless persons who were escaping, including a very large number ofpregnant women, children and old people.

Concerning the background to the case, the Court ofAppeal refers to the judgment handed down by the District Court, pages 3-4:

The background to the case: Charles Bandora is a Rwandan national. He was apprehended at Gardermoen Airport in Norway on 8 June 2010 on the basis ofan international wanted notice issued by Interpol. Following the genocide in Rwanda (during the period April-July 1994), he escaped from Rwanda and had, according to the extradition request, been on the run from Rwandan authorities until he was apprehended in Norway. Since his arrest, Charles Bandora has been remanded in custody awaiting the processing ofhis extradition case. He has made statements to the Norwegian police and denies any involvement with the genocide in Rwanda and the offences outlined in the request for extradition. Bandora claims that the information in the extradition request has been made up by Rwandan authorities in order to get hold ofhis money and properties in Rwanda. He admits that he was in Ngenda in Rwanda during the genocide and that on 7 April 1994 he did, among other things, meet the Mayor, Samuel Hategekimana, who according to the Rwandan authorities and a number ofwitnesses in the case, had a key position in organising the genocide in Ngenda. According to Bandora, however, his meeting with the Mayor concerned the fact ofhis shop having been robbed on the same day. Reference is otherwise made to the summary ofthe main features ofBandora's statement, which appears in the extradition request and which in the opinion ofthe Court is an accurate description ofthe substance ofhis statement to the Norwegian police.

The : The Rwandan genocide took place during the period from 6 April to July 1994. According to the request for extradition, approximately 800,000 persons are said to have been killed during the genocide. According to the first judgment passed by the International Criminal Tribunal for Rwanda (ICTR) on 2 September 1998 in the Akayesu case, "the estimated total number of victims in the conflict varies from 500,000 to 1,000,000 or more," cf. the British High Court ofJustice's judgment of 8 April 2009 referring to the ICTR judgment on pages 10 and 11. The number ofpersons who took part in the killings has been estimated at approximately 500,000 according to the extradition request. The genocide was a result ofa long-standing conflict between the two largest ethnic groups ofpeople - the Hutus and the Tutsis - in Rwanda. Those killed were mainly Tutsis and Hutus who sympathised with the Tutsis.

3 11-116187SAK-BORG/04 ------True translation from Norwegian is certified Stavanger, 18 January 2012 Grethe M Rand - Government Authorised Translator According to the extradition request, it was extreme Hutus at a high political and military level who planned and organised the genocide, whereas the killings were largely carried out by the Interahamwe militia and the Rwandan military. Interahamwe was the youth organisation ofthe MRND party, cf. the Kripos report, Doc. 06.02. According to the report, MRND was established as a new party in 1975 by Juvenal Habyarimana, who seized power in a coup in 1973, and who developed it into a one- party system. The genocide consisted of everything from individual homicides to massacres ofthousands ofpersons who had sought refuge in communal halls, churches, hospitals and other public buildings. According to the extradition request, a large number ofpeople were also killed at road blocks that had been erected all over Rwanda.

The trials following the genocide: According to the extradition request, the trials and court proceedings following the genocide were mainly held internally in Rwanda, but also in other countries that have received refugees from Rwanda, refugees who may be suspected ofhaving participated in the Rwandan genocide, and also in the International Criminal Tribunal for Rwanda - ICTR - which has investigated and tried several ofthe most serious cases. Internally in Rwanda most ofthe cases have been heard both by the ordinary courts oflaw and by the Gacaca Courts, which, according to the extradition request, were established by the Rwandan authorities in 2002, and which according to our information were a reintroduction oftraditional Rwandan grass-roots courts that passed judgment in civil and criminal cases at a local leveL The work ofthe Gacaca Courts lasted from 2002 to 2010.

The criminal case against Bandora in Rwanda: According to the Rwandan authorities, the case against Bandora started in 2001 by him being placed on the authorities' list ofpresumed perpetrators that could be classified as "Category 1 Perpetrators" (persons suspected ofacts that were considered the most heinous during the genocide). The background for the list was that the prosecuting authority at the various regional levels had been asked to collect information about perpetrators in their respective areas. This information was collected during the period 1994 to 2001, and formed the basis for the list that was prepared in 2001. According to the extradition request, the list was subsequently revised as and when new "Category 1 Perpetrators" were identified or were no longer under suspicion.

According to the extradition request, the case against Bandora was heard by the Gacaca Court in Bandora's home district ofRuhuha, and was initially investigated/examined during the period 2002 to 2005. The court cases before the Gacaca Court started in 2005. Bandora was accused/indicted for several ofthe killings mentioned in the extradition request, and the case was heard by the court offirst instance in September 2008. According to the presented information, the case ended with Bandora being acquitted. The judgment was appealed and the appeal was heard by the appeal division ofthe Gacaca Court in October 2009. Bandora was then, according to the extradition request, convicted ofgenocide and sentenced to life imprisonment. Furthermore, according to the extradition request, a case was considered by the Gacaca Court in 2008 concerning compensation as a result oflooting and destruction of property, ofwhich Bandora was allegedly guilty. In that case he was ordered to pay

4 ll-116l87SAK-BORG/04 ------True translation from Norwegian is certified Stavanger, 18 January 2012 Grethe M Rand - Government Authorised Translator compensation to the next-of-kin/aggrieved parties in a total amount ofsome 23 million Rwandan Francs.

IfBandora is extradited to Rwanda, he is, according to the information provided, as a consequence ofthe request for extradition and the provisions ofthe Rwandan transfer law, entitled to a full new trial ofhis case before the ordinary courts oflaw, in the first instance before the "High Court". The Rwandan authorities have therefore set aside the Gacaca Court judgment against Bandora. The Rwandan criminal case against Bandora which will be adjudicated in the event ofextradition, will therefore according to the statement not come into conflict with the prohibition against double jeopardy, cf. the European Convention on Human Rights, Protocol 7, Article 4. This is not contested and is adopted.

The Court ofAppeal notes that the abbreviation MNDR represents the National Republican Movement for Democracy and Development. The MNDR was the leading political party in Rwanda from 1975 to 1994.

Following oral proceedings on 24 June 2011, Oslo District Court handed down a decision with the following conclusion:

The conditions for extraditing Charles Bandora, date ofbirth 24 August 1954, to Rwanda are present in respect ofthe offences mentioned in the charge of 15 March 2011.

The decision was immediately appealed. The defence counsel has subsequently submitted a letter of support dated 5 August 2011. The prosecuting authority has commented on the letter ofsupport in a referral letter dated 9 August 2011, forwarded via e-mail to the defence counsel on the same day. By decision of31 August 2011, the Court of Appeal disallowed the defence counsel's request for oral proceedings.

II The parties' arguments

Bandora has appealed the District Court's procedure and application ofthe law. He has in briefargued as follows:

The District Court's decision has procedural errors. The District Court has placed significant emphasis on the ICTR Referral Chamber's decision of28 June 2011 in the Uwinkindi case. The decision was pronounced after the oral proceedings in Oslo District Court, but before the judgment was written. This breaches the principle ofthe right to be heard (audiatur et altera pars). The defence counsel was unable to present his view ofthe decision. The decision was forwarded to the defence counsel "for his information". There was no invitation to present comments. The defence counsel therefore assumed that it would not be included in the District Court's basis for consideration.

The denial ofthe right to be heard has influenced the substance ofthe decision, cf. Section 343(1) ofthe Norwegian Criminal Procedure Act. The District Court was prevented from

5 11-116187SAK-BORG/04 ------True translation from Norwegian is certified Stavanger, 18 January 2012 Grethe M Rand - Government Authorised Translator 08.21 ..5 t:f:( taking into account key objections against the judgment's relevance and weight. There are basic differences between the interstate extradition institution and a transfer from the ICTR. The ICTR has the opportunity to recall a transferred case ifthe guarantee ofdue process of law is not complied with. Furthermore, the Uwinkindi case is to be monitored by observers from The African Commission on Human and Peoples' Rights (ACHPR). The Norwegian authorities do not have this opportunity. Diplomatic guarantees are not legally binding. The District Court has failed to address these fundamental differences.

The District Court's application oflaw is incorrect. A too narrow interpretation has been made ofthe protection against extradition laid down in the European Convention on Human Rights, Article 6. It is not possible to demand "substantial grounds" that a violation ofArticle 6 ofthe European Convention on Human Rights will occur. The norm established by the Norwegian Supreme Court in the Supreme Court's Reports Rt 2007, page 1453, is too strict. According to the European Court ofHuman Rights, a "real risk" is sufficient. The extraterritorial protection in Article 6 ofthe ECHR is wider than that assumed by Supreme Court.

The respondent, Kripos, has briefly contended as follows:

No procedural error exists. Requests for extradition are decided by court decisions and normally following written procedure, cf. section 17 ofthe Extradition Act. Both sides accounted in writing for their views on the matter prior to the oral proceedings. The defence counsel had the opportunity to contest the ICTR's decision after the oral proceedings.

The defence counsel had no basis for concluding that the ICTR's decision was not to be included in the District Court's basis for consideration. The prosecution authority stated during the court hearing that this decision was to be presented, which is also mentioned in the District Court's decision. Throughout the case, the prosecution authority has strongly emphasised the process in the ICTR in respect ofthe transfer ofsuspects ofgenocide to Rwanda.

Any potential procedural error would not have had any bearing on the substance ofthe decision. The arguments in the letter ofsupport against the relevance and weight ofthe Uwinkindi case are not new. The same elements have already been presented by the defence counsel before the District Court. Therefore, the District Court was aware ofthe defence counsel's view of the ICTR transfer institution compared with the extradition institution.

The District Court's application oflaw is correct. Consequently, the Norwegian Supreme Court has not misinterpreted the ECHR, Article 6 in Rt. 2007, page 1453.

6 11-116187SAK-BORG/04 ------True translation from Norwegian is certified Stavanger, 18 January 2012 Grethe M Rand - Government Authorised Translator 08.21 5<16

III The Court of Appeal notes the following

3.1 Procedural errors The defence counsel has argued that the District Court's use ofthe ICTR Referral Chamber's decision of28 June 2011 in the Uwinkindi case contravenes the principle of the right to be heard because the parties were not requested by the District Court to comment on the decision.

The question is whether a procedural error exists, and whether it must be assumed that the procedural error in that event may have affected the substance ofOslo District Court's decision, cf. section 343(1) ofthe Criminal Procedure Act, which under section 385(2) ofthe Act also applies to decisions.

The decision in the Uwinkindi case was made on 28 June 2011, four days after the completion ofthe oral proceedings. The prosecution authority forwarded the decision via e-mail to the District Court and the defence counsel on the same day. The District Court did not invite the parties to submit any comments. From the time the decision was forwarded, two weeks passed before the District Court's decision in the case was presented.

The Court ofAppeal points out that section 17 no. 1 ofthe Extradition Act appears to assume that a court hearing with proceedings shall take place prior to the court decision on extradition. However, the Court ofAppeal assumes that no best evidence rule applies in extradition cases, as section 305 ofthe Criminal Procedure Act determines for the main hearing. The court may base its decision both on written pleadings and documents presented by both sides, as well as on the parties' oral statements during the court hearing.

There can also be no impediment to the court basing its decision on information emerging after the court hearing was concluded, on the assumption that the right to be heard is complied with. The Court ofAppeal assumes that the right to be heard in cases concerning extradition could then be attended to through written pleadings. This also appears not to be contested.

The question is, first, in which instances the court has to make arrangements for the right to be heard by asking for subsequent pleadings:

It is a clear starting point that the court oflaw must make arrangements for the right to be heard ifnew factual information on the case emerges. However, this does not apply in the event ofnew information on the rules of law. The court may base its decision on rules oflaw that emerge during the writing of the judgment; compare Bjerke Keiserud, The Criminal Procedure Act, Commentary Issue, volume II, page 1043 (commentary on section 305 ofthe Criminal Procedure Act). The core ofthe principle of the right to be heard is linked to the facts, and not to rules oflaw. Placed in an intermediate position is the use ofparticular empirical maxims on which the parties have had no occasion to make a statement.

7 11-116187SAK-BORG/04 ------True translation from Norwegian is certified Stavanger, 18 January 2012 Grethe M Rand - Government Authorised Translator 08.215 95 The Uwinkindi case concerns the transfer ofa criminal case from the ICTR to national courts oflaw in Rwanda. In its decision of 11 July 2011, the District Court has used the Uwinkindi case in various ways. First, the District Court has used the decision as a source oflaw with respect to what is comprised by the concept ofa fair trial as well as the requirement of rendering plausible in the ICTR's internal rules.

(...) ICTR Referral Chamber found that extradition could take place as the court of law in accordance with "Rule 11 bis" had "satisfi(ed) itselfthat the accused will receive a fair trial in the courts ofthe State concerned".

At the same time, the District Court has used the decision to elucidate the facts around the prevailing state ofthe law in Rwanda, notably whether there is a risk ofbeing denied a fair trial. (...) ICTR Referral Chamber has in its decision assessed and decided on corresponding objections as those presented by Advocate Stabell in the Bandora case, concerning the court oflaw's lack ofimpartiality and the right to be heard, including objections related to the arrest ofProfessor Peter Erlinder in May 2010, and has nonetheless decided that a transfer may take place. Paragraph 88 of the decision (page 25) states that the ICTR considers that the fear ofwitnesses ofbeing "falsely" accused of genocide as witnesses for the defence "is premature", given the changes that have been made to Article 13 ofthe "transfer Law" and which grants witnesses immunity in terms oftheir witness statement. It appears from paragraph 90 ofthe decision that the ICTR Referral Chamber is of the opinion that the immunity and the protection that the witnesses have under the Transfer Act, is adequate in respect ofsecuring the accused a fair trial in the Rwandan High Court. According to paragraph 99, the ICTR Referral Chamber's concerns related to the safety ofwitnesses in Rwanda have been attended to by means ofthe amendments to the law over the past two years. Reference is made to paragraph 101 and the mention ofthe establishment ofinter alia the Witness Protection Unit ("WPU") under "the Judiciary". The same applies to witnesses outside Rwanda. Reference is made to paragraphs 128 to 132 ofthe decision, "Discussion", where it is concluded that "the potential reluctance ofwitnesses to avail the services ofWPUis speculative at this time. The Chamber is ofthe opinion that the issue of protective measures for Defence witnesses is prima facie guaranteed ensuring a likely fair trial ofthe Accused. " As regards the impartiality ofthe court of law, it appears from paragraph 186 that the Rwandan "legal framework" according to the understanding ofthe ICTR Referral Chamber, guarantees the court oflaw's impartiality in cases that are dealt with by inter alia the High Court, before which Bandora's case will be heard. (...)

In the view ofthe Court ofAppeal, the factual information in the Uwinkindi case is ofsuch a nature that the decision should be subject to the right to be heard. This is particularly because the decision - due to changed conditions in Rwanda - departs from the previous practice of the ICTR Referral Chamber. The question is then whether the District Court gave the parties sufficient opportunity for this. As pointed out above, the right to be heard shall be attended to by the presentation ofwritten pleadings by the parties.

8 11-116187SAK-BORG/04 ------True translation from Norwegian is certified Stavanger, 18 January 2012 Grethe M Rand - Government Authorised Translator 08.21 5C(Q

The Court ofAppeal points out that, normally, court hearings with oral proceedings form a closing point for pleadings from the parties. Even ifthere is nothing in terms ofprocedure against the parties - in cases ofthis nature - presenting supplementary pleadings, there is little tradition for so doing. It would therefore basically have been best, in accordance with the right to be heard, to have made the parties aware oftheir opportunity to present comments, and to set a time limit for this.

However, the Court ofAppeal has difficulty in seeing that the defence counsel had grounds for concluding that the District Court would not place importance on the Uwinkindi case. As stated in the District Court's decision, the case was mentioned in the oral proceedings, and the prosecution authority notified the court that the decision would be presented as soon as it had been pronounced. The same appears from the prosecution authority's e-mail of28 June 2011, where the decision is referred to the District Court and the defence counsel. A mention ofthe case and notification ofreferral have little significance unless at least the prosecution authority was ofthe opinion that the District Court could place importance on the decision. The decision is at the core ofthe issue that the case was all about, and would have been relevant regardless ofthe outcome. The parties were furthermore informed that the District Court would take 2-3 weeks to write its decision; see the District Court's court record, page 4. Consequently, the defence counsel was aware that there would be sufficient time to submit comments. Given these specific circumstances, the Court ofAppeal holds that the defence counsel had the opportunity to make a statement on the Uwinkindi case even ifthe District Court did not expressly ask for comments.

The Court ofAppeal notes that several decisions on the failure ofthe right to be heard concern cases where documents have not been provided to the opposing party. The Court of Appeal is not aware ofdecisions where a document has indisputably been sent, but where the question ofthe right to be heard arises because the document has been sent after a court hearing and without the parties being invited to present comments.

The Court ofAppeal will not take a position on whether the lack ofinvitation to present comments is a violation ofthe right to be heard in this case. Although no strict requirements are imposed on the likelihood ofa violation ofthe right to be heard possibly having affected the substance ofa decision, cf. Rt 2000, page 1297, the Court ofAppeal has found that, regardlessly, in this case it cannot be assumed that any potential procedural error may have affected the substance ofthe decision, compare Rt 1998 page 472.

The defence counsel has argued that the procedural error has affected the substance ofthe decision because the District Court has failed to comment on the fundamental differences in the jurisdiction between the ICTR and the Norwegian courts oflaw or the significance ofthe ICTR's monitoring mechanism.

The Court ofAppeal finds it proven that both the differences in jurisdiction and the monitoring mechanism were thoroughly accounted for when the case was before the District Court. It appears from the District Court's overview ofsources oflaw that relevant sources on the matter were reviewed during the oral proceedings; see also the prosecution's referral

9 11-116187SAK-BORG/04 ------True translation from Norwegian is certified Stavanger, 18 January 2012 Grethe M Rand - Government Authorised Translator 08.21 letter dated 9 August 2011, pages 2-3. It is also incorrect that the District Court has not commented on the differences in jurisdiction between the ICTR and the Norwegian courts of law; cf. pages 12-13 ofthe decision:

(...) The decision does indeed state that the transfer will take place on the assumption that or "after receiving assurances that a robust monitoring mechanism provided by the ACHPR (African Commission on Human and Peoples' Rights) will ensure that any material violation ofthe fair trial rights ... will be brought to the attention ofthe President ofthe Tribunal" and that the court oflaw under Rule 11 bis (E) can "revoke the order". "The revocation mechanism", however, is something that "the Referral Chamber" according to paragraph 217 of the decision will only consider as "a remedy oflast resort". Otherwise, the ICTR Referral Chamber has assumed in its conclusion, see page 56, paragraph 22 ff, that the decision that is now being made is in contravention of decisions made two years previously when cases were not being transferred, but that Rwanda in the meantime "has made material changes in is laws and has indicated its capacity and willingness to prosecute cases referred by this Tribunal", which gave the Referral Chamber a guarantee that the case would be tried in accordance with the requirement for a fair trial.

The right to be heard concerning the ICTR's revocation and monitoring mechanisms has in this case been adequately preserved. It cannot be assumed that further comments on this by the defence counsel could have had any effect on the substance ofthe decision. Otherwise, the Court ofAppeal points out that also the Norwegian Ministry ofJustice can impose conditions for monitoring pursuant to section 12 no. 2 ofthe Extradition Act, and that this would be complied with in Rwanda, cf. the prosecution authority's letter of referral of 17 March 2011, page 13. There is therefore in this respect not all that much difference between the ICTR's transfer institution and an extradition from Norway as argued by the defence counsel.

The Court ofAppeal has not been presented with other elements from the defence counsel concerning the decision in the Uwinkindi case that give grounds for assuming that a request from the District Court for comments could have had any effect on the substance ofthe judgment. In this context, the Court ofAppeal points out that the District Court - when evaluating the state ofthe law in Rwanda - has built on a number ofsources over and above the decision in the Uwinkindi case. The District Court refers inter alia to the description in the request for extradition ofthe law amendments in Rwanda (Doc. 09.01), Police Superintendent Kjetil Tunold's report of23 June 2009 on a total of 10 investigative journeys made by Kripos to Rwanda after 24 September 2009, the Swedish Supreme Court's decision of26 May 2009, and the fact that, in 2010, the ICTR decided to transfer 55 investigated cases to Rwanda, cf. press release of 8 June 2010.

Consequently, the Court ofAppeal fails to see that a possible breach ofan accused person's right to be heard can have had any effect on the substance of the judgment.

3.2 Conditions for extradition - ECHR Article 6

10 11-116187SAK-BORG/04 ------True translation from Norwegian is certified Stavanger, 18 January 2012 Grethe M Rand - Government Authorised Translator 08.21 '1J,

In concurrence with the District Court, the Court ofAppeal finds that the conditions for extradition ofCharles Bandora exist, cf. sections 1,3 no. 1,5 and 6. Reference is made to the District Court's grounds for judgment stated on pages 8-9, which essentially also represent the view ofthe Court ofAppeal. The Court ofAppeal also supports the District Court's evaluation stated on pages 8-9 that there are reasonable grounds for suspecting that Charles Bandora is guilty as charged, cf. section 10 no. 2 ofthe Extradition Act.

The Court ofAppeal further agrees with the District Court that extradition ofCharles Bandora to Rwanda would not contravene sections 7,8 and 9 ofthe Extradition Act. Reference is made to pages 13 and 14 ofthe District Court's judgment.

The Extradition Act must be construed and applied in accordance with Norway's international commitments, including the ECHR, Article 6. The question here is the level ofrisk of violation ofthe provision that is required before it provides protection against extradition. In this regard the District Court states the following on page 10 [ofits decision]:

The Court assumes as argued in the request for extradition with reference to Rt 2007, page 1453, that in order to refuse extradition due to the requirement for a fair trial, there must be substantial grounds for assuming that the country receiving the suspect will fail to comply with the international regulations established to provide the individual with the protection accorded by the law. It cannot be assumed, as argued by the defence counsel, that the Norwegian Supreme Court has misinterpreted or misunderstood the norm that follows from the European Court ofHuman Rights' legal practice and has established a too strict requirement in respect ofhow obvious the serious violation ofECHR Article 6 needs to be. The Court is irrespective obliged to comply with the norm assumed by the Supreme Court.

In Rt 2007, page 1453, the Supreme Court assessed individual aspects ofthe extraterritorial protection provided by the ECHR, Articles 3 and 6, with respect to extradition:

(30) The defence counsel has also contended that the Court ofAppeal has misunderstood the requirements the European Convention on Human Rights (ECHR) imposes on extradition. He has in part referred to Article 3 - the prohibition against torture - and in part to Article 6 - the right to a fair trial.

(31) In these questions, the Court ofAppeal has referred to the Court ofAppeal's judicial decision of 19 July 2007. This does not contain a direct reference to the Articles ofthe ECHR, but it is the same questions that are discussed. The key formulation ofthe Court ofAppeal is as follows: "In the opinion ofthe Court ofAppeal, substantial grounds are required to disqualify extradition in such situations in order to determine that a country - here Croatia - will not comply with the international regulations that have been established to provide the individual with the protection accorded by the law."

11 11-116187SAK-BORG/04 ------True translation from Norwegian is certified Stavanger, 18 January 2012 Grethe M Rand - Government Authorised Translator 08.21 I

(32) The European Court ofHuman Rights (ECHR) has considered the extraterritorial protection under Article 3 in its judgment of7 July 1989 Soering v UK (ECHR-1988­ 14038). In cases ofextradition there will be a question ofa violation where "substantial grounds have been shown for believing that the person concerned, if extradited, faces a real risk ofbeing subjected to torture or to inhuman or degrading treatment or punishment in the requesting country", cf. paragraph 91.

(33) It follows from what has been stated here that, when deciding whether to extradite, prison conditions must be very serious to make extradition contrary to the ECHR Article 3. I fail to see that the law has been misconstrued in this question.

(34) Correspondingly, objections have been raised at the trials in Croatia. The judgment in question from the ECHR states, at paragraph 113, that there may here be a conflict of treaties in relation to the ECHR, Article 6, if the person requested for extradition "risks suffering a flagrant denial of a fair trial in the requesting country". Also here, I fail to see that the law has been misconstrued.

As stated in the quotations included in the Supreme Court's decision, a court oflaw - in order to determine whether an extradition contravenes the right to a fair trial under ECHR's Article 6 - must take a position on three different topics ofevaluation. These topics have been developed through the ECHR's practice; see in particular the judgment of7 July 1989 in Soering v UK (ECHR-1988-14038) and the judgment of 16 October 2001 in Einhorn v France (ECHR 71555/01).

First ofall, the court oflaw needs to consider what a "flagrant denial ofa fair trial" consists of, cf. Soering v UK, paragraph 113 ofthe judgment. The term can be translated into Norwegian as a "klar rettsfornektelse", see Gjermund Mathisen, "Utlevering for straftbare forhold'", I" edition, page 324. The threshold "flagrant" means that the denial ofa fair trial must be of a qualified nature, cf. also Einhorn v France, paragraphs 33 and 34 ofthe judgment. However, the term "flagrant" says nothing about which risk or which standard of proof is required for a violation ofthe convention, see immediately below.

Second, the court oflaw needs to consider the risk ofthe extradited person being subjected to a flagrant denial ofjustice. In Soering v UK and Einhorn v France, the term "risks suffering" is applied, cfparagraphs 113 and 32, respectively. The Court ofAppeal notes that the ECHR has used the designation "faces a real risk" when assessing the extraterritorial protection in Article 3, cf. Soering v UK, paragraph 91. It is unlikely that the ECHR has intended to impose a lower risk requirement for violation ofArticle 6 than for Article 3.

1 «Extradition for criminal offences», unofficial translation

12 11-116187SAK-BORG/04 ------True translation from Norwegian is certified Stavanger, 18 January 2012 Grethe M Rand - Government Authorised Translator 08.21

Third, the decisions made by the ECHR say something about which standard ofproofis to be applied. More closely defined, which degree ofprobability is required for the risk ofa flagrant denial ofjustice to exist. In Soering v UK, the ECMR stated that proofmust be presented of"substantial grounds for believing" that a real risk exists ofa violation ofArticle 3, cf. paragraph 91. The same standard ofproofrequirement was applied in Einhorn v France when assessing Article 6, cf. paragraphs 33 and 34.

The Court ofAppeal notes that, in practice, there are no watertight compartments between the two last topics ofconsideration mentioned above. The use of terms such as probability, substantial grounds and risk vary and overlap one another to some extent. The term "substantial grounds" may refer both to the standard ofproof and the degree ofrisk ofa violation ofthe convention. The Court ofAppeal agrees with the defence counsel that this wording - viewed in isolation - is not readily consistent with the ECHR's practice. However, the wording needs to be placed in a context. The wording, which is quoted from Borgarting Court ofAppeal's judgment of 19 July 2007, is further detailed in the next sentence as follows: ... If such review is to take place, it must be dictated on the basis ofan existing probable risk that a violation ofthe rules governing a fair trial and other guarantees of due process oflaw will take place.( ...)

The Court ofAppeal fails to see that the term "substantial grounds", as modified in the next sentence to a "probable risk", contravenes the practice that the ECHR has indicated - and whose quotes the Norwegian Supreme Court has referred to - in terms ofthe required degree ofrisk. The Court of Appeal also points out that the District Court on page 11 also considers Bandora's case in relation to whether a "real risk" exists ofa violation ofthe convention:

On this basis, the Court must assume that Bandora will be given a fair trial when extradited to Rwanda, and that, in any case, there are no substantial grounds or any real risk for the contrary. The Court assumes in accordance with what has been stated and guaranteed by Rwanda, that the court oflaw which is to adjudge Bandora's case with three competent judges (or more), will be an impartial court oflaw granting an absolute right to be heard.

Consequently, the Court ofAppeal fails to see that the District Court's application oflaw is incorrect. The appeal is therefore dismissed. The Court ofAppeal would like to point out that the time limit for lodging an appeal reduced to three days under section 17 no. 3 ofthe Extradition Act, also applies to any further appeal, cf. section 388 ofthe Norwegian Criminal Procedure Act.

The judgment is unanimous.

13 11-116187SAK-BORG/04 ------True translation from Norwegian is certified Stavanger, 18 January 2012 Grethe M Rand - Government Authorised Translator 08.21

CONCLUSION

The appeal is dismissed.

Elin Holmedal (sign.) Hans-Petter Jahre (sign.) Cecilie 0stensen (sign.)

14 11-116187SAK-BORG/04 ------True translation from Norwegian is certified Stavanger, 18 January 2012 Grethe M Rand - Government Authorised Translator CONCLUSION

The appeal is dismissed.

Elin Holmedal Hans-Petter Jahre Cecilie 0stensen

Confirmed before the Senior Presiding Court ofAppeal Judge (initialled)

The year 2011 on 20 September at11.55 This decision was legally served on Charles BANDORA in person at his place of residence Ullersmo Prison in his briefabsence to------A certified copy with endorsement ofthe service was delivered to who was ordered to deliver it to ------This is certified under affirmation.

Per Asle Aalien (sign.) via an interpreter

Per Asle Aalien Police Superintendent Kripos

15 11-116187SAK-BORG/04 ------True translation from Norwegian is certified Stavanger, 18 January 2012 Grethe M Rand - Government Authorised Translator Annex B NORGESHOYESTERETT

Den 18. november 2011 ble det av Heyesteretts ankeutvalg bestaende av dommerne Tender, Endresen og Matheson i

HR-2011-02147-U, (sak or. 2011/1621), straffesak, aoke over kjeooelse:

Charles Bandora (advokat Harald Stabell)

mot

Den offentlige patalemyndighet

avsagt slik

KJENNELSE:

Charles Bandora, fadt 24. august 1954, har erkleert anke over Borgarting lagmannsretts kjennelse 19. september 2011 i sak nr. 11-116187SAK-BORG/04 om utlevering til Rwanda etter utleveringsloven 13. juni 1975 nr. 39 § 17 nr. 1, j f. § 10 nr. 2. Heyesteretts ankeutvalg bemerker at utvalget bare kan preve lagmannsrettens saksbehandling og lovtolking, j f. straffeprosessloven § 388 ferste ledd. For sa vidt gjelder forholdet til Den europeiske menneskerettskonvensjon (EMK), kan utvalget ogsa prove lagmannsrettens konkrete subsumsjon, j f. HR-2011-1118-A avsnitt 19 med videre henvisninger. Utvalget finner det enstemmig klart at anken ikke kan fore frem. For sa vidt gjelder det vern mot utlevering som felger av kravet til rettferdig rettergang etter EMK artikkel 6, viser ankeutvalget til Rt. 2007 side 1453 som lagmannsretten har bygget pa, og dessuten til Den europeiske menneskerettsdomstols dom 27. oktober 2011 i saken Ahorugeze mot Sverige. Den sistnevnte avgjerelsen gjaldt i likhet med neerveerende sak utlevering til Rwanda, og sakene har store likhetstrekk nar det gjelder vurderingen etter EMK artikkel6. Anken blir etter dette a forkaste i medhold av straffeprosessloven § 387 a ferste ledd.

SLUTNING:

Anken forkastes.

Clement Endresen Bard Tender Wilhelm Matheson (sign.) (sign.) (sign.)

Riktig utskrift: ~ iJV< r~ l",y /l-=r Annex C IJ '~J~ ("

Cour federate Federal Court

Date: 20120111

Dossier: IMM·9680·11

Reference:2012CF32

Montreal (Quebec), Ie 11janvier2012

En presence demonsieur Ie juge Shore

ENTRE:

LEON MUGESERA

demandeur

et

LE MINISTRE DE LA CITOYENNETE ET DEVIMMIGRATION

LE MINISTRE DELA SECURITE PUBLIQUE ET DE LA PROTECTION CIVILE

defendeurs

MOTIFS DU .IUGEMENT ET.JUGEMENT

I. Au prealable

[1] Dans le cas de Leon Mugesera, fa voix dela Coursupreme du Canadaa dejaete entendue en 2005 dansunjugementunanime. Cejugementreconnait que des milliers de centaines de

Rwandais etaient reduits au silencepar un genocide inciteal'encontre d'un groupe identifiable caracterise parson origine ethnique, les Tutsis. Page: 2

178 Face acertainestragedies indescriptibles, comme la perpetration de crimes contre l'humanite, l'ensemble des nationsdoit parler d'une seulevoix. L'interpretation et l'application des dispositions canadiennessur les crimescontre l'humanite doiventpar consequent s'harmoniseravec le droit internationaL L' attachernent profondde notre pays ala dignitehumaine individueUe, ala liberteet aux droitsfondamentaux n'exige rien de mains.

82 Le droitinternationalse trouveal'originedu crime de genocide. nest done appele ajouer un role decisif dans l'mterpretation du droit interne,plus particulierement dans la determination des elements constitutifsdu crime d'incitation au genocide.En effet, le par. 318(1)du Codecriminel reprendpresque textuellement la definitionde genocidefigurant al'art. nde la Convention sur le genocide, et l'allegation B du ministrerenvoieexpressement 11 I'adhesion du Rwanda acette convention. Le Canadaest egalement lie par la Convention sur le genocide. Outreles obligationsconventionnell.es, ron reconnait que les principes juridiquesqui sous-tendent la Convention sur legenocide font partie du droit international coutumier(voir Cour internationale dejustice, avis consultatifdu 28 mai 1951, Reserves ala Convention pourlaprevention et la repression du crime de genocide, C.U. Recuei11951,p. 15).Dans l'arretBakerc. Canada (Ministre de la Citoyennete et de l'lmmigration), [1999] 2 R.C.S. 817, par. 69-71, notre Cour a soulignel'importance d'interpreter Ie droitinterneconformementaux principes du droit coutumier internationalet aux obligations conventionnelles du Canada.Dans ce contexte,les sourcesinternationales commela jurisprudencerecentedes tribunaux penauxintemationauxreverent une grandeimportancepour les besoinsde l'analyse.

(Mugesera c Canada (Ministre de la Citoyennete etde I'Immigration), 2005 CSC 40, [2005] 2

RCS 100).

[2] La Cour se refereaux paragraphes88, 89, 105, 106,114 et 115de ce jugement de la Cour supreme du Canada(Mugesera, ci-dessus).

[3] Dans Ie cas de Leon Mugesera, la voixunanime de la Cour supremedu Canada,dans sa decision de 2005, sonneun refrain qui reverberemaintenantatravers les decisionsrecentes de la

Cour europeennedes droitsde l'hornme et de la chambred'appel du Tribunalpenal international du

Rwanda. Page: 3

II. Introduction

[4] Leon Mugesera vit au Canada depuis presque 20 ans. Le 6 decembre 2011, il a recu une decision de 80 pages par laquelle le gouvernement federal tranche que Leon Mugesera ne fera pas face ades risques significatifs s'il retourne au Rwanda.

[5) Le demandeur demande un sursis d'execution de la mesure de renvoi pendant l'etude de ses demandes d'autorisation et demandes de controle judiciaire a I' encontre des decisions presentement attaquees en controlejudiciaire.

[6) Le demandeur attaque la decision rendue par Ie delegue du ministre, selon le paragraphe

15(2) de IaLoi sur l'immigration et la protection des refugies, LC 2001, c 27 [LIPR], de meme que la decision d'executer son renvoi pour le 12 janvier 2012.

III. Resume du fond de la matiere

[7] Le 28 juin 2005, la Cour supreme du Canada a confirme la decision de la Section d' appel de l'irnrnigration [SAIJ, jugeant que le ministre de la Citoyennete et de l'Immigration Canada [CrC) s' etait decharge de son fardeau de prouver que le demandeur etait inadmissible au Canada pour incitation au meurtre, ala haine et au genocide et commission d'un crime contre l'humanite en vertu des alineas 27(I)a.1)(ii) et 27(1)a.3(ij) des 27(l)g), 19(1))) de l'ancienne Loi sur l'immigration.

[8] Le 19 decembre 2005, l'Agence des services frontaliers du Canada [ASFC] inforrnait le demandeur qu'elle avait l'intention de solliciter I'opinion du ministre de la CIC, conformement a l'alinea 115(2)b) de la LlPR, sur la question de savoir si en raison de la nature et de la gravite des I Page: 4 actes passescomrnis parLeonMugesera, i1ne devrait pasetre autorise aresterau Canada. Le demandeur a foumi desobservations et des documents additionnels durantles annees qui ont suivi en ce qui concemeeet avis. n a egalementdemande et obtenu desdelais supplementaires afinde faire des observations. Le demandeur a eu amplement l'opportunite de faire valoirsesmoyens.

[9] Le paragraphe 48(2) de la LIPR prevoit qu'une mesure de renvoidoit etreexecutee des que

les circonstances le permettent. Ces circonstances sontactuellement en place, et ce, depuis le 24 novembre 2011,dateoule delegue du ministre a decide quele demandeur ne devrait pas etre

present au Canada en raison de la natureet de la gravite de ses actespasses en application de l'alinea

115(2)b) de la LIPR.

[10] CetteCour a specifie aux deuxpartiesque leurs deuxpositions respectives etaientdistinctes

et nettement, entierement eloignees une de l'autre. Parla logique inherente, suiteasaprofonde

evaluation, cetteCourne peutpas faire autrement qued'etre d'accord avecla position de la partie

defenderesse. Changer au mitiger les proposde la partie defenderesse iraita l'encontre de l'espritdu

jugement de la Cour supreme du Canadacompte tenuquela partie defenderesse garde

continuellement aI'espritlejugementde la Coursupreme en Mugesera. En plus, la Couren vient a

ce constaten raison de sesrecherches et analyses des arguments des deuxparties. SelonDunsmuir c

Nouveau-Brunswick, 2008 CSC 9, [2008] 1RCS 190et Newfoundland and LabradorNurses'

Union c Terre-Neuve-et-Labrador (Conseildu Tresor), 2011 CSC 62, une logiqueinherente

decoule de la decision raisonnable du deleguedu ministre. Faire autrement que d'accepterla

position de la partie defenderesse aI'egard de la decision dudeleguedu ministre seraitenlever des

mots commeajouter des paroles seraitillogique aun travail qui demontre la validite al'egardde Page: 5

cette decisiondu deleguedu ministrequi a ete travaillee depuis le jugement de 2005 de la COUf

supreme, Ceciest suiteacette decision de la Cour supreme (dans le cas du demandeur) en vertude

laquelle Ies autorites du Canadaont travaille pour s'assurer que les assurances du gouvernement

rwandais seraientvalablesal'egard de la securite, Iebien-etredu demandeuret, egalement, pour

s'assurer qu'il y auraitun procesequitable ason egard,L'ASFC a demontrequ'elle a attendu jusqu'a ce que des garanties solides emanant du Rwandasoient recues avantque Ie demandeurne

soit refoule. Chaque proposde la decision du deleguedu ministre demontreun soin qui decoulede

l'analyse du droit d'immigration du Canada et de la comprehension des faits al'egard du

demandeur. La decision du delegue du rninistreest bienmotivee et raisonnable. Le demandeurn'a

pas demontre 1'existence d'une question serieuse, Le demandeur n'a pas demontre qu'il subiraitun

prejudice irreparable si son renvoi emit effectue avantque ses demandesd'autorisation et de

controle judiciairene soienttranchees;et, enfin, la balancedes inconvenients pencheen la faveurdu

ministre.

IV. Faits

Dossierd'immigration

[11] Le 22 novembre 1992,alors qu' il etait vice-president du Mouvementrepublicain national

pour le developpement et la democratic [MRND] dans la prefecturede Gisenyi, le demandeura

prononce un discoursappelantal'exterminationnotamment des membresde l'ethnie tutsie.

Quelques mois avant Iediscoursdu demandeur,des Tutsisavaient ere massacresaGisenyi

(Decision du deleguedu ministreaux pp 3, 17et 18). .J ./

Page: 6

[12] Le 12 aout 1993, le demandeur est arrivecomme refugieau Canadaapresavoirobtenu ce statut 11 l' Ambassade du Canada 11 Madrid.na obtenusa residence permanente Ie meme jour

(Decision du delegue du ministre 11 Ia p 3).

[13] Le 28juin 2005, IaCoursupreme du Canadadans la decision Mugesera, ci-dessus, a concIu que Ie demandeur etaitinadmissible en vertudes articles 19et 27 de I'ancienne Loi sur l'immigration parcequ'en prononcant son discours Ie22 novembre 1992, il avaitcommis les crimes suivants:

• II a inciteau meurtre : le demandeur a « non seulement prononce Iediscours de

maniere deIiMree, maisil a vouluquela perpetration de meurtres en resulte » (para

79 et 80 de la decision de la Cour supreme);

• IIa incite au genocide, alorsqu'il savait que desTutsisavaient ete massacres pardes

Hutus, il a rente d'inciter les partisans du MRND as'en prendre auxmembres des

partis d'oppositions (para97 et 98 de la decision de la Coursupreme);

• II a incite ala haine : « Ie discours de Mugesera visaitlesTutsiset incitait 11 la haine

et 11 la violence contreeux » (para 107, 110et 111 de ladecision de la Cour

supreme);

• n a commis un crimecontrel'humanite, alors qu'il erait au courantdes attaques

menees contreles membres de I'opposition et plusparticulierement les Tutsis, il a

prononce un discours incitantaleurextermination et qui s'inscrivaitdans «le cadre

de l'attaquesystematique menee au Rwanda contreune population civile» (para

169,179et 177 de la decision de la Coursupreme). Page: 7

[14] Le 24 novembre 2011, le deleguedu ministrea conclu :

Apres avoirattentivement examinetous lesfaitsde I'espece, y compris les circonstances d'ordre humanitaire, et evalueles risques possibles auxquels pourrait etre exposeM. Mugesera s'iletait renvoyeau Rwandaet la natureet de la gravite de ses actes,je conclus que M. Mugeserapeut etre expulse du Canadamalgrele paragraphe 115(1) de laUPR, puisque sonrenvoi au Rwandane violerait pas ses droitsprevus al'article 7 de la Chane canadienne des droitset libertes.

(Decision du deIegue du ministre ala p 79).

[15] Le 7 decembre 2011, le demandeur a ete rencontre, en presence de son avocat, Me Guy

Bertrand, par deux agents d'execution de la loi de l'ASFCqui lui ont remisla decision du delegue du ministre et l'ont informe que son renvoi auraitlieu au debutdu moisde janvier 2012.

[16] Le 22 decembre 2011, Iedemandeura deposeunedemande d'autorisation al'encontre dela decision renduepar Iedelegue du ministre.

[17] Le 29 decembre 2011, le demandeur a ete avisequeson renvoi auraitlieu le 6janvier 2012.

Suite aune demandefaite par le nouveauprocureur du demandeur, I'ASFCa consenti areporter son renvoi au 12janvier 2012(Dossier du demandeur[DD] auxpp A-81 aA-84).

[18] Le 30 decembre 2011, le procureurdu dernandeur a demande al'ASFCde reporter sinedie son renvoi (DD a la p A-84).

[19] Le 4 janvier 2012,le demandeur a deposeune requete ala Courfederaledemandant de suspendreson renvoi. IIcontestela decisionrenduepar le delegue du ministre. ,-.... "/.. ,',../. '" ;....,;)';. '/ Page: 8

[20] Le 5 janvier2012, l'ASFC a refusede reporter Ierenvoi du demandeur. Le renvoi est par consequentprevupourle 12janvier2012 (pieceB de l'affidavitde PierreAlainMoreau).

V. Decisiondu deIegue du ministre

[21] Apres avoirfait une analyse complete et detaillee de la preuve au dossier, IedeIegue du ministre a tout d'abord conclu quele discours appelant aumeurtre et au genocide prononce parle demandeur constituait un acteinacceptable pour la societe canadienne justifiantson renvoi du

Canada (Decision dudelegue du ministre auxpp 38 et 39).

[22] Le demandeur n'a pas demontre qu'il ne pourrait pasbeneficier d'un proces juste et equitables'il retoumait au Rwanda:

• Depuis la fin du genocide de 1994et plusparticulierement au coursdes demieres

annees, le gouvemement rwandais a faitdesprogres significatifs afin de pennettre

aux gensaccuses d'avoir participe au genocide d'etre juges impartialement et dans

un delairaisonnable (Decision du delegue du ministre auxpp 44, 45,48,56 et 57);

• Le gouvernement rwandais s'est engagea considerer et atraiterle demandeur

cornrne une personne transferee d'un pays ou d'une couretrangere (Decision du

delegue du ministre et garanties dugouvemement rwandais ala p 53,piece « A» de

l'affidavit d'Aleksandra Wojciechowski). Le demandeur auraun proces devant la

HauteCour (Rwanda) et non devantles gacacas : les crimes dont i1 est accuse visant

les personnes soupconnees d'etre les planificateurs, les organisateurs, les incitateurs

et lesencadreurs du genocide sont d'apres la loi rwandaise juges parcetteinstance. 5 Page: 9

De plus,le gouvemement rwandais s'est engage ace que le demandeur ne soit pas

juge par un gacaca (Decision du delegue duministre a1a p 53);

• Lesjuges qui siegent a1a HauteCour (Rwanda) sontdes professionnels,

experimentes qui sontsoumis aun code d'ethiqueet qui doivent rendre des

jugementsecrits et motives (Decision du deIegue du ministre a1a p 53);

• Le demandeur aurala possibilite de presenter des temoins: le gouvemement

rwandais a prisdes mesures afind'assurer1a protection destemoins (Decision du

de1egue du ministre auxpp 60 et 61);

• Le demandeur pourra avoirun avocatindependant et libre(Decision du delegue du

rninistre aux pp 60 et 61).

[23] Le demandeur n'a egalement pas demontre qu'il serait, s'il retoumait au Rwanda, torture et/ou victimede mauvais traitements en detention:

• Les autorites rwandaises se preoccupent et poursuivent activement lesindividus qui

menacent des personnes soupconnees d'avoirparticipe au genocide (Decision du

delegue du ministre a1a p 64);

• Le demandeur ne pourra pas ~tre condamne aune peineplus severe que

l'emprisonnement aperpetuite : la peinede morta ete abolie en 2007 et le gouvemement rwandais s'est engage anepas condarnner le demandeur ala

reclusion aperpetuite (Decision du delegue du ministre aux pp 62 et 63);

• Le gouvemement rwandais s'est engageadetenir Iedemandeur dansuneprisonqui

respecte 1es normes intemationales. De plus, la documentation recente demontre que Page: 10

Ia Croix-Rougefait la surveillance de 74 000 detenus afin de s'assurer des bonnes

conditionsde detention (Decision du de16gue du ministre aux pp 66 a70);

• Le gouvernement rwandaiss'est de plus engageenversIe gouvernement canadien a

respecter les droitsdu demandeuret a fourni des garanties diplomatiques quant au

traitementqu'il recevra. II faut presumerde la bonne foi du gouvemementrwandais

et il n'existe pas de preuvequ'il n'a pas respecte dans le passe ses engagements

(Decisiondu deleguedu ministreaux pp 71 a 73).

[24] De plus, Ie demandeurpossedeun profit importantfaisantl'objet d'une intense mediatisation. II est raisonnable de conclureque les autorites rwandaises porterontune attention particuliereau respect de ses droitset s'assureront qu'il obtienneun procesjuste et equitable

(Decisiondu delegue du ministre ala p 70).

[25] Le demandeur n' a pas demontre que Ie gouvemement rwandaisne respecteraitpas les engagementsqu'il a pris enversIe gouvemementcanadien(Decision du deleguedu ministreala p73).

[26] En terminant,Ie deleguedu ministrea conc1u qu'il n'y avaitpas de considerations humanitairespouvant l'amener a conclureque Ie renvoi du demandeurvers le Rwanda lui causerait des difficultesinhabituelles et injustifiees, I1 a notammentconclu que Leon Mugeseran' a jamais eprouve de remords sur les parolesqu'il a prononceeset continuetoujours de nier des propos a l'egard du genocide (Decision du deleguedu ministre auxpp 77 et 78). Page: 11

VI. Analyse

[27] Afin d' evaluer le bien-fondede la requeteen sursis, la presente Cour doit determiner si le demandeursatisfait aux criteresjurisprudentiels emis par la Cour d'appelfederaledans I'affaire

Toth c Canada (Ministre de l'Emploi et de l'Immigration) (1988),86 NR 302 (CAP).

[28) Dans cette affaire, la Cour d'appel federalea retenutrois criteresqu'elle a importesde la jurisprudenceen matiere d'injonction,plus particulierement de la decision de la Cour supremedu

Canadadans l'affaire Manitoba (Procureur general) c Metropolitan Stores Ltd., [1987] 1 RCS 110.

Ces trois criteres sont :

(1) l'existence d'une question serieuse;

(2) I'existence d'un prejudiceirreparable; et

(3) l'evaluation de la balancedes inconvenients,

[29] Les trois criteres doiventetre satisfaits pour que cetteCour accordeIe sursisdemande. Si un seul d'entre eux n'est pas rencontre, cette Cour ne peut pasaccorderle sursisdemande.

[30] En l'espece, le dernandeur n'a pas demontrel'existence d'une question serieuseaetre tranchee dans le cadre de sa demande d'autorisation al'encontre de la decision du deleguedu ministre,ni l'existence d'un prejudice irreparable et, finalement, les inconvenients du demandeur ne sont pas superieursaceux de l'interet public,qui veut que le renvoi soit executedes que les circonstances le perrnettenten vertudu paragraphe48(2) de la L/PR. S:73 Page: 12

A. Question serieuse

[31] Le demandeur n'a pas demontre l'existenced'une question serieuse aetretranchee par cette

Cour pourles motifssuivants :

i) Il n'est pas necessaire que le demandeur aitfait l'objet d'une declaration de

culpabilite pourjustifierl'exception au principede non-refoulement.

[32] Le demandeur plaideque le paragraphe 115(2) de la LIPRdevrait etre interprete comme exigeant unedeclaration de culpabilite conformement au paragraphe 33(2)de 1a Convention

(Memoire du demandeur auxpara 1a 13). Le demandeur pretend egalement quel'absence de condamnation definitive du demandeur et le fait que la Coursupreme n'a pas concluhorsde tout douteraisonnable ala commission de crimes ne peuventjustifieren droitunedecision de refouler le demandeur selonle paragraphe 115(2) dela LIPR.

Norme de preuve applicable

[33] nimportede garderal'espritque lesprocedures ence qui concerne l'interdiction de territoire au l'inadmissibilite relevent du droitcivil,et nondu droitcriminel, et de comprendre que le but du legislateur n'est pas d'amenerIedecideurase prononcer sur la culpabilite d'un individu, maisbien sur son admissibilite suivant Iecrirere legal qu'it est tenud'appliquer.

[34] Exiger unecondamnation definitive revientaappliquer unenormede preuveplusexigeante que cellerequise, alorsque la normede preuve applicable dansle cas du paragraphe 115(2) de la

LlPR est celledes motifsraisonnables de croire. Le principe selonlequelle recours au droitcriminel doitetrefait avec circonspection en matiere d'immigration : Page: 13

[67] Avant de concIure sur cettequestion, je tiens aformuler deux autres observations. Premierement, bien qu'on comprenne que les dispositions du Code crimineljouent un role important pour determiners'il y a cornplicite dans le contexte precite (surtoutlorsqu'on tientcomptedu paragraphe 34(2) de la Loi d'interpretation, L.R.C. 1985, ch. 1-21), iln'est pas exc1u que d'autres lois federales puissents'appliquer aune situation particuliere Iorsqu'on coneIut ala complicite (paragraphe 4(4) du C.Cr.). En secondlieu,ce n'est gu'avec circonspection et avec les adaptations de circonstance que1'0nrecourt au droit crirninel dans Ie contexte des affairesen matiered'immigration, d'autant plusque la normede preuve applicable dans Ie cas du paragraphe 115(2) de la Lei est celIedes motifs raisonnables et non cene de la preuve hors de tout doute raisonnable. [La Cour souligne].

(Nagalingam c Canada(Ministre de La Citoyennete et de i'Immigration), 2008 CAF 153, [2009] 2

RCF52).

Une disposition legislative prime sur nne regie internationale

[35] En reponse aux arguments du demandeur concernant le paragraphe 33(2) de la Convention, la Courest d'accord que le rappeldu defendeur dans I'arretde Guzman c Canada (Ministre de La

Ciioyennete et de l'lmmigration),2005CAF436, [2006] 3 RCF655, la Cour d'appel federale a rejeteI'argumentseion lequelles instruments intemationaux portantsur les droitsde l'homme ont preseance sur les dispositions de laUPR. La Cour a plutotconcIu qu'en cas de conflitentre les deux regles,la disposition legislative doit primersur nne regle internationale.

Contexte legislatif

[36] De plus, dans de Guzman, ci-dessus, au paragraphe 91, la Cour d'appel federale enonceque la conformite d'une disposition legislative avec les obligations intemationales du Canadadoit etre examineedans le contexte de l'ensembledu regimeIegislatif. Page: 14

[37] Or,en ce qui concemece contexte legislatif, le maintien de la securite des Canadiens et

I'interdiction de territoire auxpersonnes criminelles ou constituant un dangerpour la societesont

des objectifs importants de Ia LlPR :

3. (2) S'agissantdes 3. (2) The objectives of this refugies, la presente loi a pour Act with respectto refugees are objet:

[",] (g) to protectthe healthand g) de protegerla santedes safetyof Canadians andto Canadienset de garantir leur maintain the security of securite; Canadian society; and

h) de promouvoir, a (h) to promoteinternational l'echelle intemationale, la justice and security by securite et la justicepar denying accessto Canadian l'interdiction du territoire territory to persons, aux personnes et including refugee claimants, demandeurs d'asile qui sont whoare security risksor de grandscriminels au serious criminals. constituentun dangerpour Ia securite.

[38] Le renvoi d'une personneaqui Jestatutde refugiea ete octroye est generalement proscrit

par le principe de non-refoulement prevuau paragraphe 115(1) de la LlPR.

[39] Cependant, afin d' assurerl'atteinte de ces objectifs precites, la LIPR prevoital'alinea

115(2)b) uneexception au principe du non-refoulement et permetau ministre de passeroutre cette

restriction et de deporterune personne dansun paysau ellerisquela persecution au la torturesi

cettepersonne est interditede territoire pourraisonde securite au pouratteinte auxdroitshumains

ou internationaux ou pour criminalite organisee en raisonsoitde la natureau de la gravitede ses

actespassessoit du dangerqu'elle constitue pour la securite du Canada. Page: 15

[40] Le demandeur a commis descrimes graves et est pour cetteraison inadmissible en vertu des alineas 27(l)a.1)(ii) et 27(1)a.3(ii) des 27(I)g), 19(1)j) de l'ancienne Loisur l'immigration. Ces alineas fontreference ala commission, aI'etranger, de faits constituant certains crimesou infractions. Ces dispositions n'exigent pas qu'une declaration de culpabilite relativement aun crime aitereprononcee.

[41] D'ailleurs,acet egard, Iedelegue du ministre s'exprime comme suit auxpages38 et 39 de sa decision:

J'estime que l'actepose par M. Mugesera, un discours violent incitant au meurtre, a la lumiere des circonstances entourant sondiscours, soit Ieclimatde tension ethnique existant au Rwanda, sa propre connaissance des enjeuxethniques et politiques, est un acte inacceptable pourtoutesociete. Lesobjectifs enonces dansla UPR et les objectifs visantla repression descrimesgraves qui constituent des atteintes aux droitshumains, refletee tantdansles instruments internationaux et les decisions des tribunaux internationaux, que dansnotrepropre droitcriminel canadien, condamnent ces comportements. Je suissatisfaitde l'extreme gravite de ce genrede comportement, qui constitue uneforcedontle potentiel devastateur et destructif est hautement demontre. Je suissatisfait qu'ilexistedes motifs raisonnables que la natureet la gravite des acres passesjustifient qu'ilne puisse demeurer au Canada. Je suissatisfait que l'acte tresgraveposepar M. Mugesera soit important et significatif, en ce qu'ilest associe aunegrandeviolence ou adu mal enversd'autres personnes. Je suisconscientde l'exception prevue al'alinea 115(2)6) en ce qui conceme atteinte auxdroits humains ou intemationaux s'applique au refugie au sensde la Convention ou ala personne protegee et je suissatisfait que M. Mugesera ne devraitpas etrepresentauCanadaen raisonde la nature et de la gravite des actesqu'il a comrnis personnellement au sensde nos lois internes, en appliquant la normedes motifsraisonnables.

[42] De plus,les autorites rwandaises ont emisun mandat d'arret al'encontredu demandeur.

Bienque le demandeur ne fait pas pourle moment l'objet d'une condarnnation definitive et horsde tout doute raisonnable, le fait que les autorites rwandaises aientemisun mandat d'arret demontre que Iedemandeur doitfaire I'objetd'une enquete et possiblement subirun proces concernant les Page: 16 faits qui lui sontreproches. Dans sa decision en vertu du paragraphe 115(2) de la LlPR, Ie delegue

tientcompte du systeme judiciairerwandais et des assurances diplomatiques donnees au Canadaet

estimeque le demandeur aura droitaun proces equitable etjuste. La Convention n'a certainement

pas pourbut de permettre aun individu de se soustraire IaIoi.

[43] Compte tenu de ce qui precede, les arguments de la demanderesse ne soulevent pas une

question serieuse.

L'article 7 de la Chane et les obligations internationales du Canada

[44] Le demandeur pretendque l'article7 de la Charte sera violeadvenant un renvoi du Canada

et que IeCanadaviolerait Ie « Pactecivil» tPacte international reLatif aux droitscivilset

politiques) et la Declarationcanadienne desdroits.

[45J En l'espece, il appertde la decision quele deIegue du ministre a tenu comptede toutesles

circonstances de l'affaire pour conc1ure que Iedemandeur ne risque pas la persecution, la tortureou

des traitements ou peinescruelset inusites s'ilest renvoye au Rwandaet, en consequence, il pouvait

autoriser son renvoi dans le pays en question (Decision du deleguedu ministre aux pp 39 a74

relativement al'evaluation du risque).

[46] Aeet egard,la Cour supreme du Canada a maintenu aplusieurs reprises qu'une Cour doit

faire preuvede retenue lorsqu'elle revoitune decision du ministre d'executerune mesurede renvoi.

Dansl'arret Sureshc Canada (Ministre de La Citoyennete et de l'Immigration], 2002CSC 1, [2002]

1 RCS 3, la Cour a mentionne ceci : Page: 17

[...] la decisionde la ministre relativement ala question de savoirsi Ie refugiecourt un risque serieuxde torture en cas d'expulsion ne doit etre annuleeque si elle n'est pas etayeepar la preuve ou si elle n'a pas ete priseen tenant comptedes facteurs pertinents. Le tribunal ne doit pas soupeser anouveau ces facteurs, ni intervenir simplement parcequ'il serait arriveaune conclusion differente. [LaCour souligne].

(Egalement, Chieu c Canada(Ministre de La Citoyennete et de l'Immigration}, 2002 CSC 3, [2002]

1 RCS 84;Al Sagbanc Canada (Ministre de la Citoyennete et de l'Immigration), 2002 SCC 4,

[2002] 1 RCS 133).

[47] Le dernandeur doit demontrerqu'il sera persecuteetlou soumisala tortureet ade mauvais traitements s'il est renvoyedans son pays,ce qu'il n'a pas fait.

[48] Le demandeura beneficie de toutesles mesuresde garantie procedurale. Le representant du ministre a foumi des garantiesprocedurales appropriees en ce que le demandeur a ete suffisamment informede la procedureengagee contre lui,qu'il a eu l'occasionpleineet entiered'y repondreet qu'il a obtenu les motifsecritsde la decision. De plus, il appert de la decision du deleguedu ministre que le demandeur a beneficie de plusieursdelaisadditionnels appreciables afin de faire valoir ses moyens, et ce, depuis2005 (Decisiondu deleguedu rninistre aux pp 5 a7).

Les arguments du demandeur ne soulevent pas de question serieuse

[49] Le demandeurplaide aux paragraphes 31 et suivants de ses pretentious que le deIegue du ministres'est fie ades assurances donnees par Ie Rwandasans consideration de la preuve deposee par Ie demandeur qui demontraitselon lui la non-fiabilite de ces assurances. Page: 18

[50] Toutd'abord, il appe11 des motifs du delegue du ministre que sesconclusions en ce qui conceme lesrisques de retourne s'appuientpasuniguement sur les assurances diplomatigues obtenues du gouvernement tWandais, mais surl'appreciation de l'ensemble de la preuve au dossier sur de nombreux facteurs de risque y incluant toutes lesrepresentations soumises.

[51] Deuxiemement, la lecturedes motifs de la decision n'appuie pas les pretentious du demandeur concernant l'ignorance de la preuve. Apres avoirresume la teneurdes garanties soumises parle gouvernement rwandais, le delegue du ministre a, au contraire, dumentprisen consideration deselements de preuvesoumis a l'effet queces assurances peuventetre considerees commefiables etantdonneIebilan des droits humains au Rwanda depuis le genocide, I'implication du Frontpatriotique rwandais [FPR] dansdes violations desdroitshumains, et specifiquement la responsabilite du FPRet de dansle genocide. Le delegue du ministre a egalement pris en consideration le faitqu'Amnesty International, Human RightsWatchet d'autres ONGsont fermement opposes al'utilisation de garanties diplomatiques.

[52] Apres avoirconsidere l'ensemblede la preuve, le deIegue du ministre a concIu ce qui suiten ce quiconcerne les assurances diplomatiques foumies ala page 70 de la decision:

nne s'agit pasde notes redigees en termes generaux, maisqui fontreference clairement, sansequivoque, ades droits specifigues, ce qui yajoutede la valeur selon moi, J'aifait Ieconstat que Iebilandes droits humains depuis la survenance du genocide est problernatique, maisje reconnais aussi que sur de nombreux aspects, Ie gouvemement du Rwanda a faitdesefforts gigantesques afinde surmonter l'etatde chaos qui a prevalu apresla tragedie qu'elle a connue. Les rapports en ont faitetat, non seulement dans les dix annees quiont suiviIegenocide, mais aussi dansles rapports plus recents. Bien que des violations desdroitshumains soientencore rapportees, j'ai estimeque la probabilite que M. Mugesera subisse la torture et des peines ou traitements cruelles et inusitees n'estpas demontrees. Page: 19

Je n'aipas en preuve devantmoi que des assurances offertespar le gouvernement du Rwanda par le passen'ontpas ererespectees. Bienque ron doivetenircomptedu bilan passeen matierede droitshumains lorsque vientle tempsd'evaluer le poidsa accorder ades assurances, la suggestion qu'ilfaille presumer que Ie gouvernement est de mauvaise foi ne saurait etre acceptee, en l'absence de demonstration de violations d'assurances dans Iepasse. [La Coursouligne].

[53] Finalement, toujours en ce qui concerne l'appreciation de la valeurprobante des garanties foumies, le delegue du ministrea pris en consideration le faitque Ie demandeur possede un profil importantfaisant l'objet d'une intense mediatisation. En consequence, le deteguedu ministre a estime que les autorites rwandaises porteront une attention particuliere au respectde sesdroitset s' assureront qu'il obtienne un proces juste et equitable:

Il faut egalernent prendreen consideration l'intense mediatisation dont a faitl'objet M. Mugesera jusqu'amaintenantet les possibles consequences pourun Etatcomme le Rwanda de ne pas respecterIes assurances compte tenu du faitque des transferts en provenance du TPIR sont demandes par le Rwanda et d'autres juridictions en vertude demandes d'extradition. Bienqu'onne puissedeterminer al'avance quel poidsseraitaccorde par le gouvernement du Rwanda ade telles consequences, il est raisonnable de conclureque les dommages en termes de credibilite internationale et de relations diplomatiques sontimportants, dans Iecontextede l'objectif declare de Ia poursuite despersonnessouP90nnees de crimes de genocideet de l'appuidont jouitIeRwanda de la communaute intemationale, incluantIe Canada, pourrebfttir un 'pays d6vasre par Ie genocide. [LaCour souligne].

(Decision du delegue du ministreala p 70).

[54] Dans unedecision recente concernant I'appreciation par Iedetegue du ministre des assurances foumies par le gouvernement chinois, la Coura refuse de soumettre sa propre appreciation de lavaleurdes assurances fournies et a conclu que cette appreciation ne soulevait pas de question serieuse (Lai Cheong Sing c Canada (Ministre de La Citoyennete et de l'Immigration),

2011 CF 915). Page: 20

[55] Le demandeurn' a pas demontre que le deleguedu ministre a ignore des elementsde preuve.

Bien que le demandeur ne soitpas d'accord avec l'appreciation faite par le deleguedu ministre,il appartient au delegue du ministre et non au demandeur d'apprecier la preuveet les conclusions du delegue acet egard sont soumisesala norme de Iadecision raisonnable.Dans Nagalingam, ci- dessus, aux paragraphes 32-33, la Cour d'appel federale a conelu, ala lumiere de Suresh, ci-dessus, et de Dunsmuir, ci-dessus, gu'un degre eleve de deference doit etreaccorde aux representants du ministre de sorteque la norme de controle appropriee est celIe de la decision raisonnable.

[56] Ainsi, par ses pretentious, le demandeurn'a pas demontre que la decision du deleguedu ministreetait deraisonnable et, par consequent, iln'existeaucune questionserieuseatranchera l'egard de la demandede controlejudiciaire deposee al'encontrede cette decision.

[57] Par consequent, la requete en sursis pourraitetre rejetee pour ce seul motif.

B. Prejudice irreparable

[58] Recemment, dans l'affaire Jeyamohan c Canada (Ministre de la Citoyennete et de l'Immigration), 2010 CF 1081, la juge DanieleTremblay-Lamer, a affirme :

[37] Dans l'arret Ragupathyc Canada (Ministre de la Citoyennete et de l'Immigration), 2006 CAF 151, au paragraphe 18,une fois qu'il est determine qu'une personneprotegeeest interditede territoire pour grandecriminalite et qu'elle est un danger pour le public, la Cour d'appel federale a proposeun cadre d'analyse pour le delegueafin qu'il rende son avis de dangeren vertude l'alinea 115(2)a) de laUPR:

(... ) Par contre, si Ie deIegueestimeque Ia personneconstitueun dangerpour Ie public, il doit alorsevaluersi, et dans quelle mesure, Ia personnerisquerait d'etre persecutee, tortureeou de subir d'autres peinesou traitementsinhumains si elle etaitrenvoyee. Acette etape­ ci, le deleguedoit se prononcersur la gravitedu dangerqu'entraine Page: 21

la presence de la pcrsonne en question, dans le but de mettre en balance le risque et, apparemment, les autres circonstances d'ordre humanitaire, avecla gravitedu danger quecette personne constituerait pourle public dansle casou celle-cidemeurerait au Canada.

[38] Dansl'arrStAlmrei c. Canada (Ministrede la Citoyennete et de l'lmmigration), 2005 CF 355, le juge Blanchard conclutque le criterede base pour determiner si le refoulement est possible est de se demander s'il exposeIe demandeur aunrisque serieux de torture. Ce risque doit Stre individualise et present et doitetre evalue en fonction de criteres qui depassent de « simples hypotheses»ou « soupcons »:

Si Ierisquen'estpas demontre, il n'est pasnecessaire de poursuivre l'analyse etantdonneque Iedemandeur n'apas droitala protection fournie par le paragraphe 115(1) de la LIPR.

[59] 11 est bienetabli quele faitqu'un demandeur ait e16 reconnu « refugie au sensdela

Convention» par le passen'est pas suffisant pouretablir unrisque actuel au sensdes articles 96et

97 de Ia LlPR (Nagalingam, ci-dessus, au para25; Camarac Canada (Ministrede la Citoyenneteet de l'Immigration), 2006 CF 168au para 58).

[60] De plus,l'evaluaticndu risqueallegue doitStre personnelle ou partagee pard'autres se trouvantdansune situation similaire. C'est ce quiressort des articles 96 et 97 de la LlPR.

[61] En I'espece, IedeIegue du ministre a effectue uneanalyse detaillee du risqueauquel pourrait etre exposele demandeur dans l'eventualited'un renvoi.

[62] Le delegue du ministre a precede aune analyse exhaustive et nuancee de Iapreuve documentaire concernant toutes les allegations de risque invoquees. Le delegue du ministre a tenu Page: 22 compte des allegations specifiques du demandeur et les a appreciees ala lumiere de la preuve documentaire au dossier.

[63] En ce qui concerne l'article 97 de la LIPR,Iedelegue du rninistre a conclucomme suit ala

page 74 :

Pou[r] les raisons mentionnees ci-dessus, selon labalancedes probabilites, je suis d'avis ;que, M. Mugesera ne risquepasde subirla torture, compte tenu des constats quej'ai releves sur la situation recentedes droits humains au Rwanda et des ameliorations apportees au cours des annees par le gouvemement, et etant donne la forte mediatisation et Hi surveillance dontil seral'objetadvenant sa remiseaux autorites rwandaises. Je suissatisfaitque le gouvernement rwandais respectera les assurances donnees etantdonnela pression intemationale et les consequences diplomatiques quipourraient s'ensuivre. Je suissatisfait surla memebase qu'ilne risquepas de subirdes peinesou traitements, cruels et inusites, bien qu'ilest clair qu'il risquede subirune longueperiodede detention s'il est reconnu coupable, dans des conditions vraisemblablement difficiles.

[64] Le delegue du ministre a conclude maniere raisonnable, apres examen approfondi de

documents sur la situation regnant dans Ie paysainsi que deselements de preuvese rapportant

directementau demandeur (assurances ecritesdonnees parle gouvernement du Rwanda au

gouvernement du Canada), qu'il n'y serapas exposeaun risquede torture ou de traitements ou

peines cruelset inusites.

[65] Le demandeur n'a pas demontre que la decision violait l'article 7 de la Charte. Aucontraire,

le deIegue du ministre a evalueles risques auxquels serait exposele demandeur precisement pour

s'assurer que sonrefoulement ne seraitpas contraire al'artic1e 7 de 1ft Charte.

[66] Par ailleurs au coursdes demiersmois, la chambre d'appel du Tribunal penalinternational

du Rwandaet 1ft Coureuropeenne des droitsde l'hornrne ont acceptede transferer aux autorites Page: 23 rwandaises des Rwandais accuses d'avoir notamment participe au genocide et ontnotamment

• Us ont accepte lesengagements pris parle gouvemement rwandais;

• Le systeme judiciaire rwandais ne peutetreconsidere comme systeme manquant

d'impartialite et d'independence, Les accuses pourront parconsequent beneficier

d'un proces justeet equitable;

• Lesconditions de detention des accuses respectent les normes intemationales et

ceux-ei ne seront pas exposesade mauvais traitements.

[67] Ces jugements de deuxtribunaux intemationaux reconnus confirmen! les conclusions rendues par Ie deh~gue du ministre asavoirqu'il estraisonnable decroireala bonne[oi du gouvemement rwandais et de conclure que les droits desindividus accuses d' avoirparticipe au genocideserontrespectes et gu'ils ne serontpas persecutes.

[68] Recemment, cetteCoura indiqueque l'on doitpresumer qu'un gouvemement respectera les assurances donnees augouvernement canadien :

[6] C'est pourcesmotifs que IeCanada a exige du gouvernement chinois des assurances strictes, claires et sansequivoque al'egarddu demandeur Cheong Sing Lai, qui a fui Iesysteme de justice chinois, qui reside au Canada depuis 1999 et qui fait actuellement I'objet d'une mesured'expulsion. De telles assurances ant maintenant ete recues. On presume que Ie gouvemement chinois respectera les assurances donnees, parecrit, pour preserver sonhonneur et sa reputation, du faitde la surveillance du demandeur sa vie durant, ainsi quedu motifde son deces eventuel, de maniere naturelle ou autre, en tenantdl1ment compte de son ageet de sonetatde sante actuel(enrecourant ades mesures de surveillance medicale, telque le prevoient aussi les assurances). [La Cour souligne].

(Lai Cheong Sing, ci-dessus), I Page: 24

[69] Dans les circonstances, les allegations du demandeur sontnettement insuffisantes afinde demontrer que son retour auRwanda lui causeraitun tortirreparable.

[70] Par consequent, et en l'absence d'une question serieuse aetre tranchee parcetteCour, le prejudice allegue parle dernandeur n'a pas ete demontre.

C. Balance des inconvenients

[71] La balancedesinconvenients militeen faveur du ministre. Le paragraphe 48(2) dela UPR prevoitqu'une mesure de renvoi doitetre executeedesqueles circonstances le permettent.Depuis que le deleguedu ministre a rendusa decision en vertu du paragraphe 115(2) de laUPR, les circonstances pennettent l'execution de la mesurede renvoi. Tel quereconnu par la Courd'appel federale, Ie renvoid'un demandeur n'est pas simplement une question de commodite administrative.

11 s'agitplutotde l'integrite et de l'equite du systeme canadien de controle de l'immigration, ainsi que de la confiance du public dansce systeme (Selliah c Canada (Ministre de la Citoyennete et de l'Immigration}, 2004CAF261 au para 22).

[72] En l'absence dequestions serieuses et de prejudice irreparable, la balancedesinconvenients favorise Ie ministre, qui a interet ace que l'ordonnancede renvoi soitexecutee ala datefixee

(Mobley c MCI, (18janvier 1995) IMM-106-95).

[73] L'un des objets de laUPR est de promouvoir, al'echelleinternationale, lajusticeet la securitepar le respect desdroits de la personne. Page: 25

[74] Tel que reconnu par la Cour supr8rne du Canadadans Mugesera, ci-dessus, peu de temps apresla commission de massacres de TutsisaGisenyi, Iedemandeur a, en tantque vice-president du MRND,demandeala population et plus particulierement aux Hutusd'exterminer lesTutsis.

Moinsd'un an et demiapres sondiscours, plus d'un million de Tutsiset d'Hutus moderes furent massacres notamment pardes milices du MRND. Le demandeur a inciteala haine, au genocide et au meurtre et a commis un crimecontrel'humanite. ns'agit de crimesgraves qui vontal'encontre des valeurs canadiennes.

[75] Le demandeur n'ajamais emis «de remords relativement ason comportement au Rwanda »,

De plus,i1n'a jamais reconnu l'existence du genocide des Tutsiset desHutusplanifieet organise par le gouvernement rwandais (Decision du delegue du rninistre ala p 77).

[76] Le demandeur vitau Canada depuisapeu pres 20anset a pu beneficier de toutes les opportunites de se faire entendre tant en ce qui concerne son inadmissibilite que surI'avisdu

Ministre rendu en vertu de l'alinea 1I5(2)b)de laLIPR.

[77] IIest de l'interet duCanadad'eviter que desindividus qui,commele demandeur, ont commisdes crimesgraves, restent au pays.En l'espece, ilest sanscontredit que l'interet publicdoit predominer.

[78] Par consequent, labalancedesinconvenients penche en faveur du ministre. Page: 26

VII.Conclusion

[79] Le fondement factuel ne saurait etre apprecie anouveau. Le jugement de la Cour supreme du Canadane peut etreinfirme direcrement ou indirecrement par la reconsideration de la validite de l'article 115de la LIPR comme Iesouhaiterait la partiedemanderesse. Ace stadefinal, i1importe egalement de noterque le controle judiciaire de la decision du delegue du ministre que demande la partiedemanderesse ne poUlTa pas nonplusadresseranouveau IaIegitimite de la mesure de renvoi sans alleral'encontredu dispositif de la Cour supreme duCanada formule dansMugesera, en ces termes :

179 Vu les conclusions de fait de M. Duquette, chacun des elements de I'infractionprevueau par.7(3.76) du Code criminel a ete etabli. Noussommes done d'avis gu'il existedes motifs raisonnables de penser que M. Mugesera a cornmis un crimecontreI'humanite et qu'il est de ce fait non admissible au Canada suivant les al' 27(l)g) et 19(1)j) de IaLoi sur l'immigration. [La Cour souligne].

[80] Seionce raisonnement de IaCom supremedu Canada, si LeonMugesera resteau Canada suite aUK assurances re£ues du Rwanda, cetteCour iraitentierement al'encontre de Iadecision deIa

Com supreme.

[81] Pour toutesles raisons ci-dessus, la Cour rejettela demande de sursis deposeepar le dernandeur. Page: 27

JUGEMENT

LA COURORDONNE le rejet de la demande de sursis deposee par Ie demandeur. Aucune question d'importance generale acertifier.

« Michel M.J.Shore» Juge COUR FEDERALE

AVOCATS INSCRITS AU DOSSIER

DOSSIER: IMM-9680-11

INTITULE: LEONMUGESERA c LE MINISTREDE LA CITOYENNETE ET DE L'IMMIGRATION LE MINISTREDE LA SECURlTE PUBLIQUE ET DE LA PROTECTION CIVILE

LIEU DE L'AUDIENCE: Montreal (Quebec)

DATE DE L'AUDIENCE : Ie9 janvier 2012

MOTIFS DU JUGEMENT ET JUGEMENT: LE JUGE SHORE

DATE DES MOTIFS: Ie 11 janvier 2012

COMPARUTIONS :

JohanneDoyon POURLE DEMANDEUR MaiNguyen

Lisa Maziade POURLESDEFENDEURS Anne-Renee Touchette

AVOCATS INSCRITS AU DOSSIER:

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Assure: 00309277 Nom: MUNYAGISHALI Pere: NDINKABANDI Date naissance : 26/04(1959

Prenom : BERNARD Mere: NYIRAKIBIBI Date Affiliation: 26/09/1978

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1979 1100492900000C MINEDUC PERSONNEL 01/01/1979 9672 B 736 9672 28080 ENSEIGNANT 1 120 31/03/1979 31 28 31

1979 1100492900000C MINEDUC 01/04/1979 9257 9566 9257 ENSEIGNANT 2 415 30/0611979 30 31 30

1979 1100492900000C MINEDUC PERSONNEL 01/07/1979 13381 13381 12949 ENSEIGNANT 3 12B 30/09/1979 31 31 30

1979 1100492900000C MINEDUC PERSONNEL 01/10/1979 9462 9157 4 109 ENSEIGNANT 31/12/1979 31 30

19BO 1100492900000C MINEDUC 01/01/19BO 9853 9217 94 ENSEIGNANT 31/03/1980 31 29

1980 1100492900000C MINEDUC 9B ENSEIGNANT 30/06/1980 30 31

9462 9156 107 ENSEIGNANT 30/09/1960 31 31 30

1980 12 111 11 12111 4 376 ENSEIGNANT 31/12/1980 31 30 31

1981 01/01/1981 12380 11182 12381 ENSEIGNANT 1 195 31103/1981 31 28 31

1983 3100273900000N DES TUBES 01/04/1983 7 7714 465 2 0 30/06/1983 30 31 30

1983 3100273900000N SOCIETE NATIONALE DES TUBES 0110711983 14159 14159 13703 3 0 30/0911983 31 31 30

1983 3100273900000N SOCIETE NATIONALE DES 01110/1983 20310 19655 20311 4 0 31/12/1983 31 30 31

1984 3100273900OQON SOCIETE NATIONALE DES TUBES 01/0111984 20125 18826 20125 1 0 31/03/1984 31 29 31

1984 3100273900000N 01104119B4 25443 26291 25443 0 30106/1984 30 31 30

3100273900000N SOCIETE NATIONALE DES TUBES 01/07/1984 23932 23932 23159 0 3010911984 31 31 30

3100273900000N SOCIETE NATIONALE DES TUBES 01/10/1984 28515 27595 28515 0 31/12/1984 31 30 31

3100273900000N SOCIETE NATIONALE DES TUBES 0110111985 25758 23266 25758 0 31103/1985 31 2B 31

3100273900000N SOCIETE NATIONALE DES TUBES 01/0411985 22033 22767 22033 0 30/06/1985 30 31 30

3100273900000N TUBES 01/0711985 19740 19740 19103 0 30109/19B5 31 31 30

3100273900000N SOCIETE NATIONALE DES TUBES 01/10/1985 20576 19912 20575 0 31112/19B5 31 30 31

3100273900000N 20901 18878 20901 31 28 31

19346 19991 19347

0 30 31 30 RWANDA. SOCIAL SECURITY BOARD BP·250 KIGALI ETAT DES RELEVES NOMINATIFS DES REMUNERATIONS PAR ASSURE Le 10/0212012 12H:18 Code: SSS_IM_03030 Page 2 Bur2

Assure: 00309277 Nom: MUNYAGISHALI Pere: NDINKABANDI Date naissance: 26104/1959

Prenom : BERNARD Mere: NYIRAKIBIBI Date Affiliation: 26/09/1978

Ann6e Trim N'

1966 3 0 30/09/1966 31

1966 3100273900000N SOCIETE NATIONALE DES TUBES 01/10/1966 4 0 31/12/1966 31

1987 3100273900000N SOCIETE NATIONALE DES TUBES 0 31/03/1967 31 28

DES TUBES 361 0 30106/1987 31

3100273900000N 21 21 942 0 30/0911987 31 31

SOCIETE NATIONAlE 33128 32059 0 31/12/1987 31 30

NATIONALE DES TUBES 38047 35592 0 31/03/1988 31 29

3100273900000N SOCIETE TUBES 01/04/1988 20423 21 0 30/06/1988 30 31

3100273900000N NATIONALE DES TUBES 01/07/1988 20397 20397 0 30/09/1986 31 31

3100273900000N SOCIETE NATIONALE DES TUBES 01/10/1968 34552 33438 0 31/12/1988 31 30

1989 3100273900000N SOCIETE NATIONALE DES TUBES 35726 1 0 31/03/1989 31

1969 3100273900000N NATIONALE DES 01/04/1969 30410 2 0 30106/1969 30

3100273900000N SOCIETE NATIONALE DES TUBES 01/07/1969 26995 26995 0 30/09/1969 31 31

3100273900000N SOCIETE NATIONALE DES TUBES 01/10/1989 23863 23093 0 31/12/1969 31 30

3100273900000N SOCIETE TUBES 01/01/1990 21312 19249 0 31/03/1990 31 26

3100698800000C MOUVEMENT REPUBL.NATIONALPOUR 01/07/1991 19211 19211 DEMOCRATIE & DEVELOP 2 30/0911991 31 31

3100696600000C MOUVEMENT 01/10/1991 25073 24264 DEMOCRATIE & DEVELOP 0 31/12/1991 31 30

3100696600000C MOUVEMENT 01/10/1992 25273 24456 DEMOCRATIE & DEVELOP 0 31/12/1992 31 30

DU RWANDA 0 31/12/1993 30

SOCIETE 27508 DURWANDA 0 31/03/1994 30 28 30 Annex F RWANDA CORRECTIONAL SERVICE

OFFICE OF THE COMMISSIONER GENERAL

International Criminal Tribunal for Rwanda

Trial Chamber III

Before: Judge Lee Gacuiga Muthoga,presiding Judge Sean Ki Park Judge Gustave Gberdao Kam

Registrar: Adama Dieng

THE PROSECUTOR

v.

Bernard MUNYAGISHARI

Case No. ICTR-2005-89-1

AFFIDAVIT OF PAUL RWARAKABIJE

I, Paul Rwarakabije, hereby depose and state as follows: 1. I am the Commissioner General of Rwandan Correctional Services. Unless otherwise indicated, the statements contained in this affidavit are based on my own personal knowledge or belief. I submit it in support of the ICTR Prosecutor's request to refer cases to Rwanda for trial, including the captioned case. 2. Rwanda's Correctional Services in Mpanga and the Kigali Central Prison implement the requirement. of segregating prisoners, in

P.O Box 6516 Kigali-Rwanda Website: www.rcs.gov.rw consonance with international standards. This segregation separates convicts from those awaiting trial and men from women. 3. The above facilities also comply with either international standards respecting the rights of detainees, among others, visitations by members of the family, access by attorneys, and privacy during interviews, free medical care and treatment, clothing, bedding, personal hygiene, outdoor exercises, freedom to practice religious belief and access to information.

4. Correctional services III Rwanda are freely accessibly by any organisation, including the International Committee of the Red Cross, andNGOs. 5. Plans are underway to demolish the current Kigali Central Prison, and establish a larger facility, which will also comply with all international standards on detention. Until this new facility is completed, the current one will be detained. 6. All funds are available to meet the needs of detainees in referred cases in keeping with international standards in the above facilities.

Signed under the pains February 2012

P.D Box 6516 Kigali-Rwanda Website: www.rcs.gov.rw AnnexG o SPECIAL COURT FOR SIERRA LEONE ioxco KENYATTA ROAD· FREETOWN· SIERRA LEONE PHONE, +390831 257000 or +232 22 297000 or +39 083125 (+Ext) UN Intermission 178 7000 or 178 (+Ext) FAX, +232 22 297001 or UN Intermission. 178 7001

Remarks to the Rwandan authorities by Special Court Registrar Binta Mansaray at the end of the annual visit by the Registrar and Deputy Registrar. The visit was made pursuant to the bi-Iateral agreement on enforcement of sentences between the Government of Rwanda and the Special Court for Sierra Leone (SCSL)

During our visit to Rwanda from 1-8 November I, along with Deputy Registrar Fidelma Donlon, met with officials ofgovernment and institutions, including Rwandan government officials and the Rwandan prison management authorities. We also held several meetings with the eight Sierra Leonean prisoners serving their sentences at Mpanga Prison following their convictions by the Special Court for war crimes and crimes against humanity.

The Deputy Registrar and I looked into allegations ofhuman rights abuses raised by the prisoners in a 7 September 2011 letter addressed to the Sierra Leonean media.

In our meeting with the prisoners, the key issues raised related to their dissatisfaction over new procedures put in place for accessing supplies (e.g. milk, Ovaltine, sardines, sugar, juice, toiletries, etc.), as well as the enforcement ofprotocols for their use ofthe telephone. The prisoners interpreted these procedures, which are in line with international standards, as violations oftheir human rights, and asked to be transferred to Pademba Road Prison in Freetown.

The prisoners appeared to believe that they would be transferred to Freetown through an appeal to Sierra Leonean political authorities, or to other bodies. I reminded them that their imprisonment in Rwanda was the result ofa judicial order by the Special Court, and that any determination ofwhere they must serve their sentences, or ofany possible remission oftheir sentences in the future, lies solely within the judicial competence and authority ofthe Special Court.

Based on our assessment, the Special Court is satisfied with the implementation ofthe sentence enforcement agreement, and with the excellent cooperation ofthe Rwandan authorities. We concluded that there are no human rights abuses, and that the prisoners' complaints stem from their resistance to the introduction ofnew procedures, and their unwillingness to adapt to prison life.

We would like to express our thanks and gratitude to the Rwandan Government and to the Rwanda Correctional Service for their assistance during our visit, and for their work which has ensured the success ofthe bi-lateral enforcement agreement with the Special Court. AnnexH REPUBLIC OF RWANDA

THE SUPREME COURT B.P. 2197, KIGALI

International Criminal Tribunal for Rwanda Trial Chamber III

Before: Judge Lee Gacuiga Muthoga, presiding Judge Seon Ki Park Judge Gustave Gberdao Ram

Registrar: Adama Dieng

THE PROSECUTOR

v.

Bernard MUNYAGISHARI

Case No. ICTR-2005-89-1

AFFIDAVIT OF ANNE GAHONGAYIRE

I, Anne Gahongayire, hereby depose and state as follows: 1. I am the Secretary General ofthe Supreme Court for the Republic of Rwanda. Unless otherwise indicated, the statements contained in this affidavit are based on my own personal knowledge or belief. I submit it in support of the ICTR Prosecutor's request to refer cases to Rwanda for trial, including the captioned case .

.. 1 -- 2. In preparation of cases that may be transferred by the ICTR and foreign jurisdictions, the Government has increased in January 2012 the currently running budget by 100.000.000 Rwandan francs. The forthcoming budget 2012-2013, which starts from July 2012, will sirnilarly make appropriate budgetary provisions. 3. Should any foreign judge be appointed to either the High Court or the Supreme Court to work with Rwandan judges in respect of transferred cases, there is sufficient precedent and experience on the part of the judiciary concerning the modalities of appointment, the status of such judge and issues to do with remuneration. Rwanda has in the past engaged foreign judges to commercial courts. Like these judges, Rwanda would carry out the necessary consultation to identify experienced and available judges to implement such arrangement, Once identified, the judges would be appointed by the President of the Supreme Court. They would enjoy the same status as Rwandan judges as far as their judicial powers are concerned. Funds would be available to meet their salaries.

tl- Signed under the pains and penalties of perjury this £) day of February 2012 {' (

-- 2 -- Annex I International Criminal Tribunal for Rwanda

Trial Chamber III

Before: Judge Lee Gacuiga Muthoga, presiding Judge Seon Ki Park Judge Gustave Gberdao Kam

Registrar: Adama Dieng

THE PROSECUTOR

v.

Bernard MUNYAGISHARI

Case No. ICTR-2005-89-1

AFFIDAVIT OF MAITRE ATHANASE RUTABINGWA

I, Maitre Athanasa Rutabingwa, hereby depose and state as follows: 1. I am the President and Council Member of the Kigali Bar Association (RBA). Unless otherwise indicated, the statements contained in this affidavit are based on my own personal knowledge or belief. I submit it in support of the ICTR Prosecutor's request to refer cases to Rwanda for trial, including the captioned case. 2. Based on my own experience as an attorney practicing in. law in Rwanda for about 12. years, I attest that the conditions under which lawyers that are members of or accredited to the KBA perform their responsibilities are conducive. I am not aware of any impediments and interferences from any organ of government that materially affects lawyers, whether appearing for the defence or prosecution, from independently discharging their duties.

.- 1 -- 3. Recalling the duties of the KBA which include among others responding to any issues regarding the practice of law and ensuring the protection of the rights of the members, the KBA as an independent body responded to the Internal Order nr, 19/2011 issued by the President of the Supreme Court on 24 March 20 II. 4. This Internal Order was well-intended, notably to further streamline the functioning of the Supreme Court, ensure a timely disposal of cases and promote the accountability of all parties involved in every case before the Supreme Court. The KBA, however, expressed reservations to some aspects of the Internal Order with a view to ensuring that the good intentions were achieved in a manner that did not violate any law or rights. 5. The Supreme Court reacted positively by providing the KBA with full audience in a meeting at which the KBA gave its views on the Order. The KENs most critical area of concern related to the imposition of sanctions by the Supreme Court on lawyers failing to comply with the. pre-trial agreement reached between the parties and the Court with respect to the filing of documents and court attendance, The Supreme Court gave its view on this aspect of the Order confirming that sanctions would be imposed only if no good cause was shown as to why a lawyer failed to comply with the pre-trial agreement. The Court further confirmed that such sanctions would he imposed only in the gravest of violations following intermediate discourses and warnings. 6. I am not aware that the Supreme Court has imposed any such sanctions so far. Moreover, I am not aware that the Internal Order has in any way negatively affected the functioning of lawyers and the rights of their clients. 7. Rwandan law and practice flexibly allows foreign attorneys to be admitted to practice before its courts. To be admitted, foreign lawyers must be holders of law degrees and must be in good standing in the Bars

-- 2 -- of their home country. The home states must also agree to provide reciprocal admission to members of the Rwandan. Bar. In practice, foreign lawyers from many countries, including Canada, France, USA, Uganda and Cameroon have been admitted to the Rwandan Bar. Some members of the Rwandan Bar have also been admitted to foreign Bars, including France. 8. In addition, Rwandan law and practice flexibly allows temporally accreditation of foreign lawyers,including those from France, to practice or specifically represent clients. This has happened in many cases, including recent cases such as the case against Victoire Ingabire and the case against Peter Erlinder. To be admitted, foreign lawyers must possess law degrees, be in good standing with their Bars, but th~re is no need for reciprocity.

Signed under the pains and penalties of perjury this 21st day of February 2012

Maitre Athanase Rutabingw President and Council M Kigali Bar Association

.. 3 .. AnnexJ ITEKA RYA PEREZIDA W'URUKIKO RW'IKIRENGA N°019/2011 RYO KUWA 24/03/2011 RIHINDURA ITEGEKO NGENGAMIKORERE RY'URUKIKO RW'IKIRENGA.

Perezida w'Urukiko rw'Ikirenga;

Ashingiye ku Itegeko Nshinga rya Repubulika y'u Rwanda ryo kuwa 4 Kamena 2003 nk'uko ryavuguruwe kugeza ubu;

Ashingiye ku itegeko Ngenga no 0112004 ryo ku wa 29/0112004 rishyiraho imitunganyirize, imikorere n'ububasha bw'Urukiko rw'Ikirenga nk'uko ryavuguruwe kugeza ubu, cyane cyane ingingo ya 27;

Asubiye ku Iteka n0015/2006 ryo kuwa 04/0512006 rishyiraho Itegeko Ngengamikorere ry'Urukiko rw'Ikirenga;

Ashingiye ku byemezo by'inama rusange y'abacamanza b'Urukiko rw'Ikirenga yateranye kuwa 24 Mutarama 2011;

ASHYIZEHO IRI TEGEKO NGENGAMIKORERE :

UMUTWE WA I - IBYEREKEYE PEREZIDA W'URUKIKO

Ingingo ya 1 :

Perezida ashinzwe ibijyanye n'ubuyobozi n'imyitwarire y'abakozi b'Urukiko; iyo adahari cyangwa atabonetse asimburwa na Visi-Perezida, na we yaba adahari agasimburwa n' umwe mu bacamanza hakurikijwe uko bakurikirana mu burambe.

Ingingo ya 2 :

Mu gihembwe cya mbere cya buri mwaka w'ubucamanza, Perezida atangaza raporo y' umwaka ku bikorwa by'inkiko zisanzwe n'iz'ubucuruzi. Bimwe mu byo igaragaza ni ibi:

Imiterere rusange y'inkiko n'inshingano; Imibare y'imanza zaciwe muri buri cyiciro cy'imanza; Inama zatanzwe n'Urukiko rw'Ikirenga; Imishinga y' amavugururwa akenewe; Ibyaranze umwaka w'ubucamanza; Iby'ingenzi mu rwego rw'imikoranire n'ubutwererane n'izindi nzego zo hanze y'igihugu (kwitabira inama, abashyitsi basuye urukiko,...); Amagambo yavuzwe ku minsi mikuru; Ibyagezweho, ingorane zabonetse n'ingamba zo kuzikemura. UMUTWE WAIl - INAMA MU RUKIKO RW'IKIRENGA 2 J

Ingingo ya 3 :

Abakozi b'Urukiko rw'Ikirenga bakora inama hakurikijwe ubwoko bw'ibibazo bikenewe kwigwa. Izo nama ziri ukubiri:

Inama rusange y'abacamanza; Inama y'abakozi bose b'urukiko.

I. INAMA RUSANGE Y'ABACAMANZA

Ingingo ya 4 :

Inama rusange y'abacamanza igizwe na Perezida, Visi-perezida n'abacamanza bose b'Urukiko rw'Ikirenga,

Ingingo ya 5 :

Umunyamabanga Mukuru cyangwa undi uwo ari we wese bashobora gutumirwa mu nama rusange y' abacamanza kugira ngo batange ibitekerezo, ariko ntibatora.

Ingingo ya 6 :

Inama rusange y'abacamanza yiga ibibazo byose bireba imitunganyirize n'imikorere y'ubutabera muri rusange, n'ibireba inkiko ku buryo bw'umwihariko.

Ingingo ya 7 :

Inama rusange y'abacamanza itora abacamanza b'Urukiko rw'Ikirenga bajya mu Nama Nkuru y'Ubucamanza.

Ingingo ya 8 :

Inama rusange y'abacamanza itumizwa na Perezida w'Urukiko rw'Ikirenga cyangwa umusimbura, abyibwirije cyangwa abisabwe na 1/3 cy'abagize Inama Rusange y' Abacamanza.

Ingingo ya 9 :

Uretse iyo byihutirwa, inyandiko ihamagara inama n'umurongo w'ibyigwa bishyikirizwa abatumirwa hasigaye nibura iminsi 3 y' akazi ngo inama iterane.

Ingingo ya 10 :

Uretse iyo byihutirwa, inama rusange y'abacamanza iterana igihe nta buranisha rihari kandi ku masaha y'akazi. Ingingo ya 11 : 3

Umurongo w'ibyigwa ugenwa na Perezida cyangwa umusimbura. Ingingo ya 12 :

Iyo bisabwe na 1/3 cy'abagize inama rusange y'abacamanza, ku murongo w'ibyigwa hashyirwaho ibibazo biri mu nshingano z'inama rusange y'abacamanza

Ingingo ya 13 :

Inama rusange y'abacamanza ifata ibyemezo iyo hari nibura 2/3 by'abayigize. Iyo umubare wa ngombwa utuzuye, hatumizwa indi nama mu gihe kitarenze iminsi umunani (8). Umubare w'abaje mu nama wandikwa mu nyandikomvugo y'inama.

Ingingo ya 14 :

Perezida w'Urukiko rw'Ikirenga cyangwa umusimbura ayobora Inama Rusange y' Abacamanza.

Ingingo ya 15 :

Inama rusange y'abacamanza ifata ibyemezo ku bwumvikane. Iyo ubwumvikane budashobotse, hakorwa itora, ku bwiganze burunduye bw'abagize inama. Iyo habayeho kungana kw'amajwi, igitekerezo perezida w'inama ashyigikiye ni cyo cyemezwa.

Ingingo ya 16 :

Amatora akorwa hazamurwa ikiganza.Icyakora amatora y'abajya mu Nama Nkuru y'Ubucamanza yo akorwa mu nyandiko kandi mu ibanga.

Ingingo ya 17 :

Ibyemezo by'Inama rusange y'abacamanza bigomba kubahirizwa n'abayigize bose kimwe n'abashinzwe kubishyira mu bikorwa.

Ingingo ya 18 :

Ubwanditsi bw'inama rusange y'abacamanza bukorwa n'umwandisi mukuru w'Urukiko. Iyo atabonetse, asimburwa n'umwe mu banditsi ugenwa na Perezida w'Urukiko rw'Ikirenga. Akora inyandiko-mvugo y'inama abiyobowemo n'uwayoboye inama.

Ingingo ya 19 :

Inyandikomvugo y'inama rusange y'abacamanza ishyirwaho umukono n'umwanditsi mukuru w'urukiko cyangwa umwanditsi wamuhagarariye, hamwe n'uwayoboye inama.Ubwanditsi buyigeza ku bagize inama rusange mu gihe kitarenze iminsi itanu (5) inama ibaye. Abagize Inama rusange y' abacamanza bashobora kuyitangaho ibitekerezo bitarenze iminsi ibiri (2) y'akazi inyandikomvugo itangajwe. Ingingo ya 20 : 4

Umwanditsi mukuru abika inyandikomvugo z'inama. Ingingo ya 21 :

Umwanditsi mukuru abika igitabo cy'ibyemezo by'inama rusange y'abacamanza.

Ingingo ya 22 :

Inyandikomvugo n'igitabo cy'ibyemezo by'inama rusange y'abacamanza bishobora gusomerwa mu bubiko bwabyo na buri wese mu bagize inama rusange.

II. INAMA Y' ABAKOZI BOSE

Ingingo ya 23:

Inama y'abakozi bose igizwe na Perezida w'Urukiko, Visi-Perezida, abacamanza, abanditsi n'abakozi bunganira Urukiko.

Ingingo ya 24 :

Inama y'abakozi bose yiga ibibazo byose byerekeye ubuyobozi n'imikorere y'inzego z'imirimo z'Urukiko.

Ingingo ya 25 :

Uretse igihe byihutirwa, inama y'abakozi bose b'Urukiko ihamagazwa na Perezida w'Urukiko cyangwa umusimbura hasigaye nibura iminsi itanu y'akazi ngo inama iterane.

Ingingo ya 26 :

Umwanditsi mukuru w'urukiko agena abasigara mu kazi k'ubwanditsi naho umunyamabanga mukuru akagena abasigara ku kazi k'imirimo yunganira urukiko mu gihe cy'inama.

Ingingo ya 27 :

Ibijya ku murongo w'ibyigwa bigenwa na Perezida w'Urukiko rw'Ikirenga cyangwa umusimbura.

Ingingo ya 28 :

Bisabwe na 1/3 cy'abagize inama, ku murongo w'ibyigwa hashyirwaho ibibazo biri mu nshingano z'inama.

Ingingo ya 29 :

Inama y'abakozi bose b'Urukiko ifata ibyemezo hari nibura 11 cy'abayigize. Ingingo ya 30 : 5

Perezida w'Urukiko rw'Ikirenga cyangwa umusimbura ayobora inama.

Ingingo ya 31 :

Umunyamabanga mukuru ni umwanditsi w'inama y'abakozi bose.Iyo adahari cyangwa atabonetse asimburwa n'umwe mu bakozi bakuru b'Urukiko ushyirwaho na Perezida cg umusimbura. Umwanditsi akora inyandikomvugo y'ibyavugiwe mu nama abiyobowemo n'uwayoboye inama.

Ingingo ya 32 :

Inyandikomvugo ishyirwaho umukono n'umwanditsi wayo n'uwayoboye inama.Umwanditsi ayigeza ku bagize inama bitarenze iminsi itanu y' akazi ibaye.Abagize inama bashobora kugira icyo bayivugaho bitarenze iminsi ibiri y' akazi bayibonye.

Ingingo ya 33 :

Umunyamabanga mukuru abika inyandikomvugo z'inama.

Ingingo ya 34 : Umunyamabanga mukuru abika igitabo cy'imirimo y'inama. Buri wese mu bagize inama y' abakozi bose ashobora kugisomera mu bubiko.

UMUTWE WA III - IBYEREKEYE UBWANDITSI BW'URUKIKO

Ingingo ya 35 : Ubwanditsi bw'urukiko bwakira abantu ku minsi yose y'akazi kandi mu masaha y'akazi.

Ingingo ya 36 :

Serivisi yakira abantu ishinzwe kwakira, gutanga amakuru no kuyobora abayigana. Iyo serivisi ni na yo yakira inyandiko zigenewe ubwanditsi bw'urukiko, ikandika inyandiko zose zakiriwe.

Ingingo ya 37 :

Mu bwanditsi bw'Urukiko habaho "logicie1" ishyirwamo imanza zose; igaragaza nomero y'urubanza, itariki urubanza rwinjiriyeho, umwirondoro w'ababuranyi, ikiregerwa, amatariki anyuranye urubanza rwaburanishirijweho, impamvu y'iyimurwa ry'imanza, itariki urubanza rwaciriweho n'icyemezo cyafashwe. Iyo "logiciel" igaragaza kandi imanza zizasomwa n'igihe zizasomerwaho. Umwandistsi Mukuru akurikirana buri gihe uko iyo "logiciel" yuzuzwa, yaba adahari bigakorwa n'umusimbura.

Ingingo ya 38 : 6

Abiyobowemo na Perezida w'Urukiko rw'Ikirenga, umwanditsi mukuru ashinzwe gushyira mu bikorwa ibyemezo by' Inama Rusange y'Abacamanza biri mu nshingano ze, no gufata ingamba zikenewe kugira ngo ubwanditsi bw'urukiko bukore neza.

Ingingo ya 39 : Imitunganyirizwe y'ubwanditsi yemezwa na Perezida w'Urukiko rw'Ikirenga, bisabwe n'umwanditsi mukuru, inama rusange y'abacamanza imaze kubitangaho ibitekerezo.

Ingingo ya 40 : Umwanditsi mukuru agabanya imirimo abanditsi b'Urukiko ashingiye ku bushobozi bwa buri wese, no ku miterere y'akazi, hakurikijwe ibyagenwe na Perezida w'Urukiko.

Ingingo ya 41 : Umwanditsi mukuru amenyesha ababuranyi n'ababunganira aho imanza zabo zigeze.

Ingingo ya 42 : Umwanditsi mukuru w'urukiko afasha mu gutunganya no gutangaza ibyemezo by'urukiko.

Ingingo ya 43 : Amadosiye y'imanza abikwa mu bwanditsi bw'urukiko n'umwanditsi wabishinzwe, bikagenzurwa n'Umwanditsi mukuru.

Ingingo ya 44 : Abanditsi bita ku mibikire y'inyandiko zose zirebana n'amadosiye y'imanza. By'umwihariko, imyuzurize n'imibikirwe y'ibitabo y'imanza, inyandikomvugo n'izindi nyandiko.

Ingingo ya 45 : Inyandiko zose zigize dosiye zihabwa nimero hakurikijwe uko zinjiye.Hagomba gukorwa inyandiko izibarura. Ibiteganyijwe kwandikwa ku gifuniko kirimo dosiye bigomba kuzuzwa neza n'umwanditsi.

Ingingo ya 46 : Uretse abagize urukiko, abandi bifuza gusoma dosiye babikorera mu bwanditsi kandi bigakurikiranwa n'umwanditsi.

Ingingo ya 47 : Igihe bibaye ngombwa, abanditsi baha abacamanza amadosiye agomba kwigwa, bamara kuyiga bakayasubiza abanditsi, kandi ntibemerewe kuyahererekanya hagati yabo.

Ingingo ya 48 : Mu bwanditsi haba igitabo cyandikwamo amadosiye ashyikirizwa abacamanza igihe bibaye ngombwa. UMUTWE WA IV - IBYEREKEYE ITANGWA RY'IKIREGO N'ITEGURWA 7

RY'URUBANZA

Ingingo ya 49 :

Inyandiko zose umuburanyi aburanisha, zigomba kuba zifatanye hamwe (relie), ndetse zifite nimero zigaragaza uko zikurikiranye (cotej.Zigomba kandi kuba zingana n'umubare w'ababuranyi wongereyeho kopi imwe iguma mu Rukiko. Urupapuro rwa 1 rw'iyo nyandiko, rugomba kugaragaza ibikubiyemo n'uko bikurikirana (table des matieres) mu buryo bukurikira:

1. Ibaruwa itanga ikirego cy'ubujurire; 2. «Quittance» y'ingwate y'amagarama; 3. Imyanzuro y'ubujurire; 4. Inyandiko irimo ingingo z'amategeko yakoreshejwe; 5. Kopi y'ibyemezo by'inkiko byifashishijwe; 6. Inyandiko z'abahanga zifashishijwe; 7. Ibimenyetso bizakoreshwa mu rubanza, ...

Ubwanditsi bw'urukiko bumenyesha urega ibituzuye agomba kubanza kuzuza kugira ngo ikirego eye cyandikwe.

Ingingo ya 50 :

Inyandiko zose umuburanyi aburanisha, zigomba kuba zanditse nibura muri 12 (character) kandi hagati y'imirongo (paced) harimo umwanya wa 1.5. Izo nyandiko zigomba kandi kuba zigaragara neza (full ink printed).

Ingingo ya 51 :

Iyo ibivuzwe mu ngingo za 49 na 50 bitubahirijwe, umwanditsi ntiyakira inyandiko zizanywe n'umuburanyi.

Ingingo ya 52 :

Utanga ikirego agomba kugaragaza ibi bikurikira mu nyandiko ye:

a. Umwirondoro we wuzuye n'aho abarizwa, uw'urega n'aho abarizwa (amazina, umwirondoro, aho atuye kugera ku rwego rw'umudugudu, te1efoni ndetse na «e­ mail» niba zihari). Iyo urega afunze, hiyongeraho aho afungiye n'icyumba abamo (block). Ku manza nshinjabyaha, uregwa utanze ikirego agaragaza niba yemera icyaha cyangwa atacyemera ndetse n'igihano yahawe mu rubanza ajuririra; b. Ikiburanwa mu buryo bwumvikana; c. Ububasha bw'Urukiko bwo kuburanisha ikirego eye; d. Ko yubahirije ibihe by'ubujurire; e. Inshamake y'inkomoko n'imiterere y'ikibazo, uko byagenze mu nkiko zo hasi; f. Urutonde rw'ibyo anenga mu rubanza rwajuririwe asaba urukiko rwajurirwe gukosora (impamvu z'ubujurire). 8

Mu manza mbonezamubano, urega ufite umwunganira agomba guhitamo aho impapuro zimugenewe zoherezwa (election de domicile) ku biro by'umwunganira.Agomba kandi kugeza k'uwo arega inyandiko y'imyanzuro, akanagaragaza, igihe aje gutanga ikirego, ko uwo arega yasinyiye ko abonye imyanzuro.

Ingingo ya 53 :

Uregwa agomba gutanga imyanzuro isubiza iyo urega yamushyikirije, nibura ibyumweru bibiri nyuma y'uko ashyikirijwe umwanzuro w'urega. Imyanzuro isubiza igomba kugaragaza ibi bikurikira:

a. Umwirondoro we wuzuye n'aho abarizwa, uw'umurega n'aho abarizwa; b. Ikiburanwa mu buryo bwumvikana; c. Inzitizi niba zihari, n'amategeko ashingiyeho inzitizi atanze; d. Ibisubizo ku ngingo z'ubujurire z'uwo baburana akurikije uko urega yazitanze.

Mu manza mbonezamubano, uregwa ufite umwunganira, agomba guhitamo aho impapuro zimugenewe zoherezwa (election de domicile) ku biro by'umwunganira. Agomba kandi kugeza k'uwamureze imyanzuro isubiza iyo yahawe, akanagagaragaza ko uwamureze yasinyiye ko abonye iyo myanzuro isubiza.

Ingingo ya 54 :

Ibivuzwe haruguru kuva ku ngingo ya 49 kugeza ku ya 53 bireba n'abashinjacyaha mu manza z'inshinjabyaha. Mu gihe batabyubahirije, basabirwa ibihano ku rwego rubakuriye.

Ingingo ya 55 : Mu nyandiko itanga ikirego no mu mwanzuro usubiza hagomba kugaragaramo amazina y'uwunganira umuburanyi, cyangwa akavuga niba aziburanira.

Ingingo ya 56 : Iyo utanga ikirego cyangwa uregwa abarirwa mu batishoboye, kugira ngo ashakirwe uwunganizi, agomba kwitwaza icyemezo cy'ubukene, yateguye n'inyandiko isaba urukiko kumusabira umwunganira.

Ingingo ya 57 : Mbere y' amezi abiri nibura kugira ngo iburanisha ribe, umwanditsi mukuru atumaho ababuranyi, bakumvikana ku itariki y'iburanisha ibanogeye ndetse n'ibimenyetso bitandukanye buri wese akeneye mu rubanza (inyandiko y' amavuko, ibimenyetso biburanishwa, ...).

Muri iyo nama, ababuranyi bahanahana ibimenyetso batatanze mbere, bagasuzuma ko ibya ngombwa byose kugira ngo dosiye iburanishwe byuzuye.

Ku baburanyi bakoresha "internet" ndetse batanze aderesi zabo, bashobora gukora iyo nama bakoresheje "internet", ibyo bemeje, bigafatwaho ukuri, bigakurwa mu mashini bigashyirwa muri dosiye. 9

Ingingo ya 58 :

Umuburanyi utitabiriye inama itegura iburanisha nta mpamvu igaragara, yemera atagiye impaka ku byafashweho icyemezo adahari. lyo afite impamvu ikomeye, ahabwa amatariki nibura atatu iburanisha ryashyirwaho yumvikanyweho mu nama, iyo ahisemo akaba ari yo yemezwa.

Ingingo ya 59 :

Mu nama itegura iburanisha, ababuranyi bemeranya iminota batarenza mu iburanisha bavuga impamvu z'ubujurire cyangwa bazisubiza. lyo minota ntigomba kurenga mirongo itatu (30) kuri buri muburanyi.

Ingingo ya 60 : lhamagara rigomba kubahiriza itariki yumvikanyweho mu nama itegura iburanisha. lyo hari ibiburanishwa byaje muri dosiye nyuma, bikaba bitarashyikirizwa umuburanyi, bigomba gutangirwa hamwe n'inyandiko y'ihamagara kuko ari rwo rwego rwa nyuma bigomba gutangirwamo. Nyuma y'ihamagara, nta bindi bimenyetso bifatwaho ukuri, keretse bigaragaye ko bitashoboraga kuboneka mbere y'uko ritangwa.

Ingingo ya 61:

Mu nama itegura iburanisha, ababuranyi bayijemo bahita bashyira umukono ku mpapuro zibahamagara kuburana ku itariki n'isaha yumvikanyweho.

Ingingo ya 62 :

Nyuma y'inama itegura iburanisha, umuburanyi agomba gusinya "formulaire d'engagement" yabugenewe, igaragaza ko azubahiriza ibyo yiyemeje. Umuburanyi w'umwuga (Avoka) utasinye iyo "formulaire", ntiyemererwa kuburana mu Rukiko rw'Ikirenga.

Ingingo ya 63 :

Umuburanyi utazubahiriza ibyo yasinyiye muri "formulaire d'engagement", nta mpamvu ikomeye yagaragaje, bizamuviramo gufatirwa ibihano, birimo ku muburanyi w'umwuga (Avoka) guhagarikwa kuburana mu Rukiko rw'lkirenga.

Ingingo ya 64 :

Ku baburanyi bafunze, ubwanditsi bw'urukiko bubasanga aho bafungiye, akaba ari ho buzurizwa "formulaire d'engagement", bugasuzuma niba ibya ngombwa byose byuzuye kugira ngo dosiye iburanishwe, umuburanyi ufunze agasinyira itariki yumvikanyweho. 10

UMUTWE WAV - IBYEREKEYE IBURANISHA

Ingingo ya 65 :

Kuri buri rubanza, Perezida w'Urukiko ashyiraho umucamanza utegura urubanza, agategura ibikenewe byafasha mu iburanisha no mu ica ry'urubanza.

Ingingo ya 66 : lyo umucamanza utegura urubanza amaze kubona dosiye, akora inyandiko ivuga muri make intandaro y'ikirego, uko urubanza rwagenze, icyajuririwe n'impamvu z'ubujurire.

Asuzuma ibibazo bikurikira:

Ububasha; Ibihe byarenze; Kureka urubanza; Ibindi bituma urubanza rutakwakirwa; lmizi y'urubanza.

Umucamanza utegura urubanza ahitamo uko akurikiranya isuzuma ry'ingingo z'umuburanyi, hakurikijwe imiterere ya buri rubanza. lyi nyandiko ihabwa buri mucamanza ugize inteko iburanisha.

Ingingo ya 67 : lyo iburanisha rirangiye, Umucamanza utegura urubanza ategura umushinga w'icyemezo kizafatwa n'urukiko.

Ingingo ya 68 :

Mu mirimo yo gutegura raporo no kwandika imanza, buri mucamanza abifashwamo n'umwanditsi w'Urukiko cyangwa umufasha w'abacamanza mu mategeko (assistant juridique), naho mu mirimo y'ubwanditsi (secretariat), akabifashwamo n'umunyamabanga.

Ingingo ya 69 :

Usibye ku bijyanye n'ibirego byihutirwa, gahunda y'imanza zigomba kuburanishwa igomba kumenyeshwa abagomba kuziburanisha hasigaye nibura amezi atatu ngo iburanisha ribe.

Ingingo ya 70 : lmanza zihamagarwa kandi zikaburanishwa ku itariki yagenwe n'itegeko, keretse urubanza rwimuwe ku mpamvu isobanutse. 11

Ingingo ya 71 :

Umuburanyi wese ukeneye gusoma dosiye agomba kubikora mbere y'itariki yahawe yo kuburana. Nta subikwa ry'urubanza rizemererwa umuburanyi wese uzitwaza ko atasomye dosiye.

Ingingo ya 72 :

Iburanisha ritangira saa mbiri n'iminota mirongo itatu (08h30) za mu gitondo. Imanza zigenda zikurikirana hakurikijwe gahunda n'amasaha byemejwe mu nama itegura iburanisha.

Ingingo ya 73 :

Iyo umuburanyi yinjiye mu rubanza rwe rwatangiye kuburanishwa ariko rutarapfundikirwa, arufatira aho rwari rugeze kandi ntiyemerewe gusubiza inyuma urubanza.

Ingingo ya 74 :

Mu iburanisha hagomba kubahirizwa iminota yavuzwe mu ngingo ya 59, kuko nyuma yayo umuburanyi yakwa ijambo kandi ntaze kubona umwanya wo kugaruka ku byo yavugaga.

Ingingo ya 75 :

Nta buranisha ryimurwa hatari impamvu ikomeye yumvikana. Icyemezo cyemera iyimurwa ry'urubanza kigomba gusobanurwa.

Ingingo ya 76 :

Nta subikwa ry'urubanza rizemererwa umuburanyi w'umwuga uzitwaza ko atarabonana n'uwo yunganira, cyangwa ko ariho akibona dosiye, mu gihe uwo yunganira yahawe igihe gihagije cyo kwitegura, hakurikijwe ibyavuzwe mu ngingo ya 9.

Ingingo ya 77 :

Iyo bigaragaye ko uwunganirwa yari yarashatse umuburanyi w'umwuga (Avoka), akamutenguha ku buryo biba ngombwa gushaka undi, agomba guhita abimenyesha ubwanditsi bw'Urukiko kugira ngo hakorwe indi nama itegura iburanisha.

Ingingo ya 78 :

Iyo impamvu igaragajwe ku munsi w'iburanisha, kandi umuburanyi adashoboye kwiburanira, abimenyesha inteko iburanisha kugira ngo ibifateho umwanzuro.

Ingingo ya 79 :

Isubikwa ry'urubanza ntiryemererwa umuburanyi usaba kubanza gushaka umwunganira, mu gihe yari yaragaragaje mbere hose mu nama itegura iburanisha ko aziburanira. 12 I

Ingingo ya 80 :

Bitabangamiye ibindi bihano biteganywa n'andi mategeko, Perezida w'Urukiko rw'Ikirenga, abisabwe n'umwanditsi mukuru eyangwa n'Inteko iburanisha, azafatira igihano eyo guhagarikwa kuburana mu Rukiko rw'Ikirenga mu gihe kigenwe eyangwa eyo guhagarikwa burundu umuburanyi wese w'umwuga (Avoka).

a. Uzitwara nabi igihe ey'iburanisha (nko kuba yaje kuburana yasinze, uwiha ijambo mu Rukiko eyangwa utukana mu Rukiko ...); b. Uzagaragaza ieyubahiro gike ku mueamanza eyangwa umwanditsi uri mu kazi k'urukiko; e. Utitabiriye kuburanira umuburanyi kandi yaremeye urubanza; d. Wanze gusinya "formulaire d'engagement" eyangwa utubahirije ibiyikubiyemo ; e. Udatanga imyanzuro mu gihe kigenwe n'iri tegeko; f. Utitabira inama itegura iburanisha; g. Wabeshye urukiko eyangwa wagize uburiganya ubwo ari bwo bwose mu rubanza.

Ingingo ya 81 :

Abafasha b'abaeamanza mu mategeko n'abitoza umurimo w'ubueamanza bashobora gukurikirana impaka zibera mu mwiherero w'inteko, ariko bagasohoka igihe eyo gufata ieyemezo.

UMUTWE WA VI- UBUNYAMABANGABUKURU

Ingingo ya 82 :

Umunyamabanga mukuru, abiyobowemo na Perezida w'urukiko, ashinzwe gushyira mu bikorwa ibyemezo by'inama y'abakozi bose b'Urukiko biri mu bubasha bwe, no gufata ibyemezo byose bya ngombwa birebana n'imitunganyirize y'akazi.

Ingingo ya 83 :

Umunyamabanga mukuru ashobora guhabwa ububasha na Perezida bwo gusinya bimwe mu byemezo by'akazi bireba imieungire ya za serivisi z'ubuyobozi bw'urukiko.

Ingingo ya 84 :

Umunyamabanga mukuru akora raporo y'ibaruramari y'umwaka agaha raporo Perezida w'Urukiko ku mikoreshereze y'ingengo y'imari mu gihe kigenwe. 13

UMUTWE WA VII- UBUNYAMABANGARUSANGE

Ingingo ya 85 :

Ubunyamabanga rusange buhuriweho na serivisi zose z'urukiko; hakirirwa inyandiko zose zigenewe Perezida, Visi-Perezida, abacamanza, n'abakozi bo mu yindi mirimo y'urukiko, uretse inyandiko zigenewe ubwanditsi bw'urukiko. Ingingo ya 86 :

Inyandiko zose, uretse amabaruwa y'ibanga n'inyandiko zigenewe abantu ku giti cyabo, zifungurwa na serivisi izakira zigashyirwaho kashe yanditsemo itariki n'amagambo "COUR SUPREME-COURRIER".

Ingingo ya 87 :

Inyandiko zakiriwe ziravangurwa, izirebana n'imanza zigahita zihabwa Umwanditsi Mukuru w'Urukiko. Izindi nyandiko zishyikirizwa serivisi n'abantu zigenewe. Inyandiko zandikwa mu gitabo zigahabwa nimero ya serivisi zohererejwe.

UMUTWE IX - INGINGO ZINYURANYE N'IZISOZA

Ingingo ya 88 :

Ibitavuzwe muri iri tegeko bizagenwa na Perezida w'Urukiko, abigishijemo inama abagize inama rusange.

Ingingo ya 89 :

Iri tegeko ngengamikorere ritangira gukurikizwa rimaze gushyirwaho umukono. Rishobora kandi kuvugururwa n'inama rusange biturutse kuri Perezida cyangwa 1/3 cy'abagize inama rusange.

Ingingo ya 90 :

Iteka n0015/2006 ryo kuwa 04/0512006 rishyiraho Itegeko Ngengamikorere ry'Urukiko rw'Ikirenga rivuyeho.

Bikorewe i Kigali, kuwa , .

CYANZAYIRE Aloysie Perezida w'Urukiko rw'Ikirenga akaba na Perezida w'Inama Nkuru y'Ubucamanza ORDER OF THE PRESIDENT OF THE SUPREME COURT N° 019/2011 OF 24 MARCH 2011 MODIFYING THE INTERNAL RULES AND REGULATIONS OF THE SUPREME COURT

The President of the Supreme Court;

Given the Constitution ofthe Republic ofRwanda of4 June 2003 as amended to date;

Given Organic Law n" 0112004 of 29 January 2004 establishing the organisation, functioning and jurisdiction ofthe Supreme Court as modified to date, especially in its Article 27;

Having revisited Order n? 015/2006 of 4 May 2006 establishing the Internal Rules and Regulations ofthe Supreme Court;

Given the decisions ofthe General Assembly ofJudges of24 January 2011;

ADOPTS THE PRESENT INTERNAL RULES AND REGULATIONS:

CHAPTER ONE: THE PRESIDENT OF THE SUPREME COURT

Article 1:

The President shall be responsible for the administration of the Supreme Court and the discipline ofthe Supreme Court personnel. In case ofabsence or impediment, the President of the Supreme Court shall be replaced in his or her duties by the Vice-President. Where the Vice-President ofthe Supreme Court is also absent or is unavailable on account ofany reason, he or she shall be replaced by the Judge who is the most senior on the Court.

Article 2:

During the first term of the judicial year, the President shall publish an annual report on the general functioning of ordinary and commercial courts. This report shall include, among others:

the general organisational structure ofthe courts and their responsibilities; the number ofjudgements rendered at each level ofjurisdiction; the advisory opinions provided by the Supreme Court; the draft laws on reforms needed; the activities carried out during the judicial year; the main activities related to cooperation with foreign institutions (meetings, visits to the Court, etc.); the speeches made on the occasion ofofficial ceremonies; the achievements, challenges and strategies to address them. 2

CHAPTER II: MEETINGS OF THE SUPREME COURT

Article 3:

The Supreme Court personnel shall hold meetings depending on the nature of issues to be examined. These meetings are twofold:

the General assembly ofJudges; the General meeting ofthe Supreme Court personnel.

I. THE GENERAL ASSEMBLY OF JUDGES

Article 4:

The General assembly of Judges shall comprise of the President, the Vice-President and all the judges ofthe Supreme Court.

Article 5:

The Secretary General or any other person may be invited to attend the General assembly of Judges and give their views, but they do not have voting powers.

Article 6:

The General assembly of Judges shall examine all issues relating to the organisation and the functioning ofjustice in general and to the courts in particular.

Article 7:

The General assembly of Judges shall elect the Supreme Court judges who shall sit on the Superior Council ofthe Judiciary.

Article 8:

The President of the Supreme Court or his or her substitute shall convene the General assembly of Judges on his or her own initiative or upon the request of one-third (113) of its members.

Article 9:

Except for urgent matters, the invitation and the agenda for the meeting shall be sent to the participants at least three (3) working days before the meeting.

Article 10:

Except for urgent matters, the General assembly of Judges shall be convened during working hours and when no hearing is scheduled. OTP- UNCERTIFIED TRANSLATION 3

Article 11:

The agenda ofthe meeting shall be determined by the President or his or her substitute.

Article 12:

Upon the request of one-third (1/3) of its members, the General assembly of Judges shall include on the agenda issues related to the mandate ofthe General assembly ofJudges.

Article 13:

The General assembly of Judges shall validly take decisions only if two-thirds (2/3) of its members are present. If the required quorum is not reached, another meeting shall be convened within eight (8) days. The number of participants shall be recorded in the minutes ofthe meeting.

Article 14:

The President of the Supreme Court or his or her substitute shall preside over the General assembly ofJudges.

Article 15:

The General assembly of Judges shall take decisions by consensus. If the consensus is not reached, participants shall vote and decision shall be taken on the basis of absolute majority. In case ofequal number ofvotes, the position supported by the Chairperson shall prevail.

Article 16:

The participants shall vote by a show of hands. However, the election of members of the Superior Council ofthe Judiciary shall be conducted in writing and by secret ballot.

Article 17:

The decisions of the General assembly of Judges shall be complied with by all its members and those in charge oftheir implementation.

Article 18:

The ChiefRegistrar shall be the Rapporteur ofthe General assembly of Judges. In case ofhis or her absence, he or she shall be replaced by one ofthe registrars designated by the President of the Supreme Court. He or she shall take the minutes of the meeting under the supervision ofthe Chairperson.

Articles 19:

The minutes of the General assembly of Judges shall be signed by the Chief Registrar or the registrar acting on his or her behalf and the Chairperson. The Rapporteur shall circulate them OTP- UNCERTIFIED TRANSLATION 4 to the members of the General assembly within (5) days from the day of the meeting. The members of the General assembly of Judges may make observations on the minutes within two (2) working days.

Article 20:

The ChiefRegistrar shall be the custodian ofthe minutes ofthe General assembly ofJudges.

Article 21:

The ChiefRegistrar shall be the custodian ofthe register ofdecisions ofthe General assembly ofJudges.

Article 22:

The minutes and the register of the decisions of the General assembly of Judges may be consulted from where they are kept by any member ofthe General assembly ofJudges.

II. GENERAL MEETING OF THE SUPREME COURT PERSONNEL

Article 23:

The General meeting of the Supreme Court personnel shall comprise of the President, the Vice-President, the judges, the registrars and the support staff.

Article 24:

The General meeting of the Supreme Court personnel shall examine all issues related to the management and the functioning ofthe administrative organs ofthe Supreme Court.

Article 25:

Except for urgent matters, the President of the Supreme Court or his or her substitute shall convene the General meeting of the Supreme Court personnel at least five working days before the date ofthe meeting.

Article 26:

The Chief Registrar and the Secretary General of the Supreme Court shall respectively designate staff to be on duty in the Registry and in the support services at the time of the General meeting ofSupreme Court personnel.

Article 27:

The President ofthe Supreme Court or his or her substitute shall determine the agenda of the meeting.

OTP- UNCERTIFIED TRANSLATION } f 5

Article 28:

Upon the request of one-third (1/3) of the General meeting, items falling under the competence ofthe meeting shall be included on the agenda.

Article 29:

The General meeting of the Supreme Court personnel shall validly decide if at least half (~) ofits members are present.

Article 30:

The President of the Supreme Court or his or her substitute shall preside over the General meeting ofthe Supreme Court personnel.

Article 31:

The Secretary General shall be the Rapporteur of the General meeting of the Supreme Court personnel. In case ofabsence or unavailability, he or she shall be replaced by one ofthe most senior court staff designated by the President of the Supreme Court or his or her substitute. Under the supervision of the Chairperson, the Rapporteur shall take the minutes of the meeting.

Article 32:

The minutes of the meeting shall be signed by the Rapporteur and the Chairperson. The Rapporteur shall circulate the minutes to members of the General meeting of the Supreme Court personnel within five working days after the meeting. The members of the General meeting ofthe Supreme Court personnel may give their observations within two working days after receiving the said minutes.

Article 33:

The Secretary General shall be the custodian ofthe minutes.

Article 34: The Secretary General shall be the custodian ofthe register of the minutes. Every member of the General meeting of the Supreme Court personnel shall have access to the said register from where it is kept.

CHAPTER III: THE REGISTRY

Article 35:

The Registry of the Supreme Court shall be open to the public on working days and during working hours.

OTP- UNCERTIFIED TRANSLATION I 6 (

Article 36:

The reception service shall be responsible for receiving, giving information and guiding visitors. It shall also be in charge ofreceiving and recording in-coming mail addressed to the Registry ofthe Supreme Court.

Article 37:

The Registry shall keep a database in which all the cases are recorded by indicating the case file number, the filing date, the identity ofthe parties, the matter at issue, the different hearing dates, the reasons for adjournments, the date ofthe judgement and the sentence. This database shall also indicate the cases awaiting judgement and their respective dates of delivery. The Chief Registrar shall make a regular follow up on how this database is updated and in his or her absence; this shall be done by his or her substitute.

Article 38:

Under the guidance of the President of the Supreme Court, the Chief Registrar shall be responsible for the implementation of the decisions of the General assembly of the Judges falling under his or her responsibility and shall take necessary measures for the functioning of the Registry.

Article 39:

Upon the request of the Chief Registrar and after consultation with the General assembly of Judges, the President ofthe Supreme Court shall approve the organisation ofthe Registry.

Article 40:

The Chief Registrar shall assign tasks to the registrars based on their competence, the nature ofthe functions and in accordance with the directives ofthe President ofthe Supreme Court.

Article 41:

The ChiefRegistrar shall inform the parties and their counsels about the status oftheir cases.

Article 42:

The Chief Registrar shall ensure that the decisions of the Supreme Court are published in good order.

Article 43:

The case files shall be kept in the Registry by the relevant registrar under the supervision of the ChiefRegistrar.

OTP- UNCERTIFIED TRANSLATION 7

Article 44:

The registrars shall be responsible for the safekeeping of all the documents related to case files, particularly, the recording and safekeeping of the registers of cases, the transcripts and other documents.

Article 45:

Each document of the case file shall be chronologically numbered. There shall be an inventory of such documents. A registrar shall neatly write the relevant information on the cover ofthe file.

Article 46:

With the exception ofthe Supreme Court personnel, whoever wishes to consult the files shall do so in the Registry and under the guidance of a registrar.

Article 47:

If deemed necessary, the registrars shall hand over case files to the judges for examination after which they shall have to return them to the registrars. There shall be no exchange of files between judges.

Article 48:

The Registry shall keep a register in which case files transmitted to judges are recorded.

CHAPTER IV: THE FILING OF THE APPEAL AND PREPARATION OF CASE

Article 49:

All the documents filed by a party shall be attached together and chronologically numbered (reference n"). Copies of the case file equal to the number of parties shall be made plus one copy kept by the Court. Page one ofthis case file shall present the inventory ofthe documents contained therein in the following manner:

1. notice ofappeal; 2. receipt ofthe court fees; 3. appeals brief; 4. applicable laws; 5. jurisprudence referred to; 6. scholars' publications referred to; 7. exhibits to be used in the proceedings...

The Registry shall inform the Appellant ofany other documents required for his or her case to be registered. OTP- UNCERTIFIED TRANSLATION 8

Article 50:

All the documents filed by the Appellant shall be typed at least in font 12 with a line spacing of 1.5. They shall be printed in full ink.

Article 51:

In the event the party fails to comply with Articles 49 and 50, the registrar shall reject the documents.

Article 52:

The Appellant shall specify the following in his or her notice ofappeal:

a. his or her complete identity and address, the identity of the respondent and his or her address (name, identity, residential address down to the village level, telephone number and e-mail address, where applicable). Where the Appellant is in detention, he or she shall add the name of the detention centre and the block. In criminal matters, the accused lodging an appeal shall indicate whether he or she pleads guilty or not guilty and the sentence imposed on him or her in the contested Judgement. b. clearly state the matter at issue c. court's jurisdiction to hear his or her case. d. compliance with the time-limit for the appeal. e. procedural background and decision rendered by the lower courts; f. grounds ofappeal.

In civil proceedings, the Appellant assisted by a counsel must elect domicile at his or her counsel's office. He or she must disclose materials to the Respondent and, at the time offiling the appeal, provide a signed proof, that the Respondent acknowledged receipt of the said submissions.

Article 53:

The Respondent shall file his or her submissions within two (2) weeks after receipt of the Appellant's submissions. The Respondent's submissions must specify the following:

a. his or her complete identity and address, the Appellant's identity and his or her address; b. clearly state the matter at issue c. objections, ifany, and the legal provisions sustaining the said objections. d. responses to the grounds ofappeal as filed by the Appellant.

In civil proceedings, the Respondent assisted by a counsel must elect domicile at his or her counsel's office. He or she must disclose materials to the Appellant and, at the time of filing the response, provide a signed proof that the Appellant acknowledged receipt of the said submissions.

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Article 54:

The provisions of Articles 49 to 53 above shall also apply to the prosecutors in criminal proceedings. Should they fail to comply, their superior shall be asked to take disciplinary measures against them.

Article 55:

The notice of appeal and the Respondent's brief shall mention the name of the respective counsels or whether the Appellant and the Respondent intend to plead personally their case.

Article 56:

Where the Appellant or the Respondent is indigent, in order to have a counsel assigned to him or her, he or she must present an indigent certificate and submit a letter requesting the court to apply for legal assistance on his or her behalf.

Article 57:

At least two (2) months before the appellate proceedings, the Chief Registrar shall summon the two parties to agree on a hearing date of their convenience and different evidence materials that each party needs to produce during the appeals hearing (birth certificate, exhibits, etc.).

In this meeting, the two parties shall exchange materials not previously disclosed and ensure that all the requirements are met for the hearing to commence.

Where the two parties use the Internet and have provided their private email addresses, they may hold this meeting online and the decisions taken shall be binding and shall be printed to be put on the case file.

Article 58:

Should either party fail to attend the status conference for no valid reason, he or she shall unconditionally abide by the decisions taken in his or her absence. Should he or she demonstrate a valid reason, he or she shall be proposed at least three dates agreed upon in the status conference from which he or she must choose one. The date he or she chooses shall prevail.

Article 59:

During the status conference, the two parties shall agree on the time to be allocated to each party while presenting their submissions. This time shall not exceed thirty (30) minutes.

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Article 60:

The summonses must comply with the date agreed upon during the status conference. In the event the case file contains materials undisclosed to the adverse party, they shall be communicated concurrently with the summonses as this is the last opportunity to disclose them. After the summonses have been served, no other materials shall be admitted into evidence, unless it is demonstrated that they could not have been discovered before the parties were summoned.

Article 61:

The parties present at the status conference shall sign the summonses notifying them to appear in court at the date and time agreed upon.

Article 62:

After the status conference, each party shall sign the relevant undertaking form stating that he or she shall fulfil his or her commitment. Any counsel failing to sign this form shall not be allowed to plead before the Supreme Court.

Article 63:

Any party failing to comply with the provisions of the signed undertaking form, without any valid reason, shall be liable to disciplinary measures, including, for the counsel, suspension from pleading before the Supreme Court.

Article 64:

Where the parties are in detention, the Court registry shall meet them at the detention centre, where their undertaking forms are completed. The registry shall ensure that all the requirements are met for the hearing to commence and the party in detention shall sign as an indication that he or she accepts the date agreed upon.

CHAPTER V: THE HEARING

Article 65:

The President of the Supreme Court shall assign a Pre-appeal judge for every case to ensure that everything is in place for the hearing and the judgement.

OTP- UNCERTIFIED TRANSLATION 11

Article 66:

Upon receiving the case file, the Pre-appeal judge shall prepare a document outlining the procedural background ofthe case, the matter at issue and the grounds ofappeal.

He or she shall examine the following:

jurisdiction; non-compliance with the time-limit for the appeal; declining jurisdiction; other objections to admissibility; merits ofthe case.

The Pre-appeal judge shall decide in which order he or she should assess the submissions ofa party according to the case particularities.

Each member ofthe bench shall be provided with a copy ofthe said document.

Article 67:

At the end ofthe hearing, the Pre-appeal judge shall draft the ruling to be made by the Court.

Article 68:

While preparing reports and drafting judgements, each judge shall receive assistance from a registrar or a legal assistant. When performing secretarial duties, he or she shall be assisted by a secretary.

Article 69:

Except for urgent applications, the cause list for cases to be heard should be communicated to judges assigned to them at least three months before the hearing.

Article 70:

Cases shall be called and heard on the date set by the scheduling order for a hearing, unless a case is adjourned for a justified reason.

Article 71:

Any party wishing to consult the case file shall do so prior to the scheduled date for the hearing. No adjournment ofthe case hearing shall be granted to any party claiming not to have read the file.

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Article 72:

The hearing shall commence at eight thirty minutes (8.30am.). Cases shall be called according to the order and time agreed upon during the status conference.

Article 73:

When a party enters a courtroom after the commencement of the hearing but before the completion of the case, he or she shall intervene in the proceedings at that very stage and no interruption ofthe proceedings shall be allowed.

Article 74:

During the hearing, the time allocated to a party under Article 59 shall be complied with because, after the expiration of that time, permission to speak shall be withdrawn and he or she shall not be allowed to go back to the same submissions at any other stage of the proceedings.

Article 75:

No adjournment shall be granted without a valid reason. Reasons for such an adjournment shall be provided.

Article 76:

No adjournment ofthe hearing shall be allowed to a counsel on the account that he or she has not yet met his or her client, or that he or she has just received the case file, while the client was granted enough time to prepare the case in accordance with the provisions ofArticle 9.

Article 77:

When it is established that the party has sought legal assistance from a counsel who failed to properly discharge his or her duties to the extent that it became necessary to appoint a new one, the party must immediately inform the Court registry so as to organize another status conference.

Article 78:

When the counsel's failure to properly discharge his or her duties is noted on the day of the hearing while his or her client is unable to personally plead his or her case, the latter shall inform the bench to decide.

Article 79:

No adjournment of the hearing shall be allowed to a party requesting time to get legal assistance, if, during the status conference, he or she had stated that he would personally plead his or her case.

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Article 80:

Notwithstanding penalties provided for by other legal prOVISIOns, the President of the Supreme Court, upon the request of the Chief Registrar or the bench, shall ban any counsel from pleading before the Supreme Court for a specified period oftime or for life in case of:

a. misconduct during the hearing (such as coming to court while drunk, speaking without the bench's permission or uttering insults...); b. lack ofdue respect for a judge or a registrar discharging his or her duties; c. failing to represent a client while he or she had committed himself or herself to doing so; d. refusing to sign the undertaking form or failing to abide by it ; e. failing to file submissions within the time prescribed by the present order; f. failing to attend the status conference; g. lying to the court or demonstrating any other fraudulent conduct.

Article 81:

Legal Assistants and legal interns may be present during the court deliberations, but shall leave at the time oftaking decisions.

CHAPTER VI: THE OFFICE OF THE SECRETARY GENERAL

Article 82:

The Secretary General, under the supervision of the President of the Court, shall be responsible for the implementation of the decisions of the General meeting of the Supreme Court personnel falling under his or her competence, and shall take all the necessary measures for the smooth running ofthe work.

Article 83:

The Secretary General may sign some ofthe official instruments related to the management of the administrative organs on the President's authority.

Article 84:

The Secretary General shall prepare an annual financial report and submit to the President of the Court, within the prescribed time limit, a report on the budget implementation.

CHAPTER VII: THE GENERAL SECRETARIAT

Article 85:

The General secretariat shall provide services to all administrative organs of the Court. The General secretariat shall receive all in-coming mail addressed to the President, the Vice- OTP- UNCERTIFIED TRANSLATION 14

President, the judges, and the court support staff, except for correspondence addressed to the Registry ofthe Court.

Article 86:

All mail, except for confidential and private correspondence, shall be opened by the relevant department which shall affix a stamp bearing the date and the following words: "COUR SUPREME-COURRIER".

Article 87:

The in-coming mail is sorted out and the mail related to cases is sent to the Chief Registrar. The other mail is handed over to relevant department and individuals. It is recorded in a register and numbered according to the department it is sent to.

CHAPTER IX: TRANSITIONAL AND FINAL PROVISIONS

Article 88:

All matters that are not provided for by this order shall be dealt with by the President of the Court, after consultation with the General assembly ofJudges.

Article 89:

These Internal Rules and Regulations shall come into force after they are signed. However, they can be modified by the General assembly ofjudges upon the request of the President or on the proposition ofone-third (113) ofthe General assembly ofJudges.

Article 90:

The Order n0015/2006 of 04/05/2006 establishing the Internal Rules and Regulations of the Supreme Court is hereby repealed.

Kigali, on .

CYANZAYIRE Aloysie President of the Supreme Court and President of the Superior Council of the Judiciary

OTP- UNCERTIFIED TRANSLATION ...... ~ ... ~~.~ .. ~ ...... -=1-

I- GENERAL INFORMATION (To be completed by the Chambers / Filing Party) o Team I o Team II C8J Team III To: N. M. Diallo C. K. Hometowu C. K. Hometowu N. M. Diallo o OIC,JLSD o OIC,JPU o AppealsChamber / The Hague P. Besnier C. K. Hometowu R. Muzigo-Morrison

From: o Chamber o Defence ~Offi" IJ Other: Jame A guin (names) (names) ~ meic; (names) Case Name: The Prosecutor vs. Bernard Munyagishafi I ~se Nurii6er: ICTR-200S-89-1 Dates: Transmitted: 29 February 2012 V I Document's date: 29 February 2012 No. of Pages: 194 I Original Language: C8J English o French o Kinyarwanda Title of PROSECUTOR'S CONSOLIDATED BRIEF IN REPLY Document:

Classification Level: TRIM Document Type: o Ex Parte o Indictment o Warrant o Correspondence o Submission from non-parties o Strictly Confidential/ Under Seal o Decision o Affidavit o Noticeof Appeal ~ Submission from parties o Confidential o Disclosure o Order o Appeal Book o Accused particulars C8J Public o Judgement o Motion o Book of Authorities II- TRANSLATION STATUS ON THE FILING DATE (To be completed by the Cbambers / Filing Party)

~...".. CMS SHALL take necessary action regarding translation. --...... '-) ...... ,= C8J Filing Party hereby submits only the original, and will not submit any translated versioQ.~ I o Reference material is provided in annex to facilitate translation. ';:~:') (""I c:: C">:::i:: 1',,) Target Language(s): " ..0 o English o French o Kinyar.v~~~ "'7 CMS SHALL NOT take any action regarding translation. ,: "" o Filing Party hereby submits BOTH the original and the translated version for filing, asf9110wS~~ Original I in o English o French ,: 0 Ki~rwanda Translation I in o English o French o Kinyarwanda CMS SHALL NOT take any action regarding translation. o Filing Party will be submitting the translated version(s) in due course in the following language(s): '0 English o French o Kinyarwanda KINDLY FILL IN THE BOXES BELOW o The OTP is overseeing translation. o DEFENCE is overseeing translation. The document is submitted for translation to: The document is submitted to an accredited service for o The Language Services Section of the ICTR / Arusha. translation (fees will be submitted to DCDMS): o The Language Services Section of the ICTR / The Hague. Name of contact person: o An accredited service for translation; see details below: Name of service: Name of contact person: Address: Name of service: E-mail/ Tel. / Fax: Address: E-mail I Tel. I Fax: III - TRANSLATION PRIORITISATION (For Official use ONLY) OTop priority COMMENTS o Required date: OUrgent o Hearing date: o Normal o Other deadlines:

NB: This form is available on: http://www.ictr.org/ENGLlSH/cms/cms1.doc CMS1 (Updated on 25 January 2012)