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I; \ c"'F'« -us "1~':7 ~ " ~". 9 ..' ~ ..... ~;t,er( ~ c>.-ffi tv\ i;"~tional Criminal ~bunalfor Rwanda ' 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.
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