,c>. ?a,* Tribunal PBnal International pour le Rwanda ~wshalnternat~a~i Conference centre P 0 Box6016 Awrha Tanran~a B P 6016 Arurha Tanzan~e UNlTED NATIONS Te 255 27 25M207 11 2504357-72 or 1 212 963 2650 Fax 255 27 250400012504373 N.VI0NSUNIk.C or 1 212 953 2848149 Before : The Trial Chamber Designated Under Rule 11bis (A) Registrar : Mr Adarna Dieng Date filed: 2 October 2007 YUSSUF MUNYAKAZI Case No ICTR-97-36A-I DEFENCE RESPONSE TO THE PROSECUTOR'S REQUEST FOR THE REFERRAL OF THE CASE OF YUSSUF MUNYAKAZZ TO RWANDA PURSUANT TO RULE 11 BZS OF THE TRIBUNAL'S RULES OF PROCEDURE AND EVIDENCE Office of the Prosecutor Counsel for the Accused Hassan Bubacar Jallow Jwani Timothy Mwaikusa Bongani Majola Eliane Nyampinga Silvana Arbia Alex-Obote-Odora Richard Karegyesa George Mugwanya Inneke Onsea Francois Nsanzuwera Florida Kabasinga 1. Introduction The Defence Team of the accused, Yussuf Munyakazi, in response to the Prosecutor's Request for the Referral of the Case of Yussuf Munyakazi to Rwanda Pursuant to Rule llbis of the Tribunal's Rules of Procedure and Evidence (hereinafter referred to as "the Motion"), respectfully requests that: (a) The Prosecutor's request aforesaid, dated and filed on 7 September 2007, should not be granted or approved; and (b) The provisions of articles 1, 5, 7 and 8(2) of the Statute of the International Criminal Tribunal for Rwanda be strictly adhered to in relation to the case of Yussuf Munyakazi so that the case is tried and determined by this Tribunal according to its applicable Rules of Procedure and Evidence, on the grounds and reasons that are shown herebelow. 2. Factual Background 2.1: The accused, known as WSSUF MUNYAKAZI, was first arrested in the Democratic Republic of Congo on 2 May 2004. He had fled Rwanda in 1994 and was living there, in the DRC, as a refugee. His arrest was made pursuant to the orders of this Tribunal. Subsequent to his arrest, he has been in detention at the UNDF in Arusha from May sth2004. 2.2: On arrival at the UNDF, the accused was, for several months held in isolation, separated from the other detainees at the UNDF and, on that account did experience a difficult condition of life. The decision to keep him separated from the other inmates reversed by the President of the Tribunal on 15 February 2005, following a formal request to that effect by the Defence. 2.3: On the 16 June 2005, the Tribunal's Registry appointed counsel for the accused and he formed his team and it started working for the advancement of the case. This defence team, however, came to an abrupt end in September 2006 with the arrest and detention in Arusha of the Lead Counsel, Mr Callixte Gakwaya, on the request of the Rwandan Government. Although he was released, he had to withdraw from the case. A 96 new counsel for the accused was appointed in January 2007, and constituted a new defence team in late March 2007. 2.4: Currently, investigations by both the Prosecution and the Defence are in good progress. A Status Conference was held on 31 August 2007 and a general consensus was reached that the Prosecution will file an Amended Indictment by the end of October 2007, at the latest, and that all parties should plan for February 2008 as the probable date for the trial to commence. According to the Prosecutor at the Conference, the intended amendments to the indictment will not bring any new charges but will only provide better particulars of the charges contained in the indictment now before the Tribunal. The Prosecutor also added that he will need only 16 days for the presentation of prosecutor's witnesses. 3. No Reason to Take the Accused Away from the ICTR 3.1: In the Motion the Prosecutor has endeavored to paint a rosy picture of the laws and the legal system of the Republic of Rwanda: that they guarantee the accused a fair trial. That picture has no factual substance to support it. Even assuming that all what is stated in the Motion about the system in Rwanda was true (only assuming, because the Defence submits that it is not), that in itself cannot be the reason for transferring the accused from the jurisdiction of the ICTR to the jurisdiction of the courts in Rwanda. There has to be a reason, a good reason, for such transfer, not just the acclaimed excellence of the Rwandan system. 3.2: In the Motion, the Prosecutor does not state why he is asking the Tribunal not to continue with the case of Yussuf Munyakazi itself but to refer it to some other jurisdiction. He does not explain why the Tribunal cannot itself try the accused, whose indictment has been confirmed since 1997 and amended in November 2002. The Tribunal has not been deprived of its jurisdiction to try the case of Yussuf Munyakazi; it is still seized of jurisdiction. The reason for seeking this transfer to Rwanda or to any other jurisdiction has not been given by the Prosecutor; it has not been given because there is no good reason; there is in fact no reason at all. 3.3: It is common knowledge now that the Tribunal's mandate lasts up to December 2008 for all cases of first instance. One could assume that the move by the Prosecutor is part of the Tribunal's "completion strategy" to finish the trial of all pending cases within that deadline. If that was the reason, the Prosecutor should have said so, and there would be no need for assumptions; but he does not mention it in the Motion. The Prosecutor does not mention that to be the reason very deliberately because the argument of the lack of time for the Tribunal to try this case cannot hold. The Prosecutor presented the Motion while the Tribunal still had more than one year and three months to go before the end of its mandate. 3.4: By experience, some single trials do not take much time. For example, in Renzaho trial presentations of both the prosecutor and the defense witnesses took only 8 months, from 7 January to 8 September, 2007. For Ndindabahizi case, the evidence of both the prosecution and defense witnesses was heard from 1 September to 28 November, 2003, while for Muhimana's trial the prosecutor took one month to present 19 witnesses and the defense called 33 witnesses in a span of two weeks. There every logic, therefore, to say that this case too can take just as short a time. 3.5: The Tribunal has not indicated that it cannot try this case because of constraints of time in the remaining period of its mandate. Within that remaining period the trial of the case of Yussuf Munyakazi can commence and proceed to completion. This much was confirmed even by the Prosecutor at the Status Conference held on 31 August 2007; the Prosecutor expressed the view that even if the trial commences on 1 April 2008, the date he was proposing for the trial to commence, the hial can be completed before December 2008, even if the judgment may yet to be given. But the Tribunal has insisted on the trial commencing earlier than April, hence the proposed date of February 2008. So, why should the case be taken away from the Tribunal? No reason is given. No reason is there. 3.6: There is also the question why the Prosecution should pick on this particular accused person, Yussuf Munyakazi, for transfer to Rwanda out of the many other persons the Prosecution is intent to present to justice. We are informed about two other motions, similar to this one, simultaneously filed with this Motion also seeking the transfer of the accused persons indicted before the ICTR. This is not a justification for transferring the accused, Yussuf Munyakazi, from the ICTR to Rwanda, given that there are other suspects arrested subsequent to his arrest, and they remain under the ICTR for trial. 3.7: On the other hand, the Prosecutor does not explain why he has envisaged transferring only this case to Rwanda only while Article 1 lbis on which his request is based provides for the possibility of transferring such a case to other countries as well. The reason for Rwanda as the Prosecutor's choice seems to be in paragraph 5 of the Motion which discloses some agreement between the Prosecutor and the Kigali Government. This appears clearly in the correspondence between the ICTR Prosecutor, Mr. Justice Hassan Bubacar Jallow and Mr. Martin Ngoga, the Prosecutor General for Republic of Rwanda (Annex A to the Motion), and in the statutory amendments hurriedly made by the legislature in Rwanda (Annex C, D, F and G to the Motion). Even special laws have been enacted, namely, the Organic Law Relating to the Abolition of the Death Penalty (Annex E to the Motion) and the Organic Law on the Transfer of Cases from the ICTR to Rwanda (Annex B to the Motion). But this hyper-activism by the Rwandan Government and its connivance with the ICTR Prosecutor will not serve the interests of justice. As shown hereinafter, if this case is transferred to Rwanda, a lot of injustice is bound to occur, all of which will be avoided if the case remains for trial at this Tribunal. 4. Abolition of the Death Penalty in Rwanda 4.1: The Prosecutor states in the Motion that the Government of Rwanda has abolished the death penalty in all Rwandan laws. However, apart from the Organic Luw Relating to the Abolition of the Death Penalty and the Organic Law on the Transfer of Cases, all the other laws annexed to the Motion do contain provisions for the death penalty.