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Appeal Judgement, Para 574/H ~ . Tribunal penaJiinternationa'1 pour Ie Rwanda ICTR-2001-70-A InternatiQnalCriminlll Tribunal for Rwanda 20th October 2010 UNlTlllD NATIONS· {5741H - 469/H} NATIONS UNIES IN THE APPEALS CHAMBER ,- ;:: ~ ~ Before: J\ld,ge FIlUlltD PoCilr,Presiding '" ~ '"=: ,.:: Judge Mehmet Giiney >:;r; ~ ;:i '"<, judge Liu _lIun '"~ '"c ~ Judge Thoodor Meron ?:''" :.;... " -~ Judge CllrmllI Agius ..: '"~ -- ~ :; ~ ,... Registrar: Mr. Adama IJieng ~ »: - " ,. .- • Judgement of: 20 October 2010 / ir:" ~ .... -. ~ . -- ;;.:, ....~ ,. EMMANUEL RUKUNDO ~ ~ . :- ~ :,....' - v. ~ ;;.. -r: ~ -) THE PROSECUTOR ?;. :;. ~ ::: ,... "J; Case No. ICTR-2001-70·A ~ T'" JUDGEMENT leTR Appeals Chamber • Counsel for Emmanuel Rukundo: ,~; Ms. Archa Conde Mr. Benoit Henry The Office of the Prosecutor: Mr. Hassan Bubacar Jallow Ms. Christine Graham Mr. Abubacarr Tambadou Mr. Gusman Jammeh Mr. Shamus Mangan 573/H I. IN"TRODUCTION· 1 A. BACKGJ59U!'1J) 1 B.11IE AppeALS 1 II. STANI)ADJjl$'QF AFPELLA'.I'E:REV'lEW 3 m. APPEAVOJrEMMANUEL RUKlJNDO 5 A. ALLEGEDEAAOR. RELATING TO THE PLEADING OF COMMISSION (GROUND 1) 5 1. PrelirtJinllJ'YMatter 6 2. AHe~ed~KfectsintheForrnof theIndictment 6 3. COJl<i1J.I~i8n '" T ., 12 B. ALLEGEPER.RClRSRELJ\>TlNGTO THE EVENTS AT SAINT JOSEPB'S COLLEGE (GROUND 2) 14 1. ~egaIElement~of theCrimes 14 2. Ass<:Ssm(ll;lt ,of·the Evidence , 22 3. Conclusi()n,'" 37 C. ALLEGIllJE~ORRJ:lLATING TO THE EXCLUSION OF WITNESs,BW's EVIDENCE (GROUND 3) 38 D. ALL~GElJE~ORSRELATING TO THE REcANTATION OF WlTNESsBLP AND TIlE HAGUMA REPORT (GR911NlJ, 4) 41 1.,Cr9ss-Ei'i1l!Jinati?n ofWitness BLP 42 2.Exi1l!JintW91.)9flltr':Ha.gtl~a ;....................•............................................................ 45 • 3.Ptetlfa1?5~lii~9WgsQnWi:tness BLP's Alleged Recantation 47 4. EXi1l!Jil'lfltion.?fM{.. .Nshcgoza , 47 5. Relillllc~QIlthl:HagumaReport 49 6. ConclusiBll 50 E. ALLE(}ED)3RR,ORRELATING TO TIlE PLEADING OF PARAGRAPH 12 OF THE INDICTMENT (GROBND?) ,' 51 1. Identity ofthe,Viclims 52 2. DatesoftheAlleged Abductions and Killings 52 3. Listof.Names 53 4. Soldiers and Interahamwe Accompanying Rukundo 54 5:~?~rlIl~iBl1 ..: :: :, 54 P.ALl..EGl':DIlJiRoRSRELATlNG TO TIlE EVENTS AT THE SAlNTD~bN MINOKSEMlNARY (GROUND 6) 55 1. LegalElements of the Crimes 55 2. Assessment of Evidence 62 3. Conclusion 69 p. ALLEGED ERROR IN REFUSING TO HEAR WITNESS SLB BY VIDEO-LINK (GROUND 7) 70 • H. ALLEGED ERRORS RELATING TO THE SEXUAL ASSAULT OF WITNESS CCH AT THE SAINT LEON MINOR SEMINARY (GROUND 8) 73 IV. SENTENCING APPEALS 77 A. RUKUNDO'S SENTENCING ApPEAL (GROUND 9) 77 1. Gravity of the Crimes 77 2. Aggravating Factors 78 3. Mitigating Factors 80 4. Conclusion 81 B. PROSECUTION'S SENTENCING ApPEAL 82 1. Alleged Error in Relation to the Tribunal's Sentencing Practice 82 2. Alleged Failure to Give Sufficient Weight to Relevant Considerations 84 3. Conclusion 85 C. IMPACT OF THE APPEALS CHAMBER'S FINDINGS ON RUKUNDO'S SENTENCE 86 V. DISPOSITION 87 Case No. ICTR-2001·70·A 20 October 2010 572/H VI.PARTIALLY DISSENTING OPINION OF Jtj])(jEPOQAP. l VB. ANNEX A -PR()CEDtmALHISTORY 1 A. NOTICES OFApPEALAND BRIEFS 1 }.Rtl1q.ln40',s~ppea,l .. ~ 1 2. prosecution's Appeal 2 B.ASSIGNMENT OFJUDGES 2 C. MOTION RELATEl> TO WE ADMISSION OFADDITIONAL EVIDENCE 2 D. HEARINGOFTIiEAPPEALS 3 VIII. ANNEXB-CITED MATER..lA,.LS ANI;) PEFINED TERMS ..4 A. JURISPRUDENCE 4 1. ICTR 4 2. ICTY 6 B. DEFINED TERMS AND ABBREViATIONS ·..·· 8 • • ii Case No.ICTR.-2001-70-A 20 October 2010 571/H 1. The Appeals Chamber 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 Netghbotl!'ingStatesbetWeen 1 January 1994 and 31 December 1994 ("Appeals Chamber" and "Tribunal", respectively) is seised of appeals by Emmanuel Rukundo and the Prosecution against the Judgement pronounced on 27 February 2009 and filed in writing on 13 March 2009 by Trial Chamber II of the Tribunal ("Trial Chamber") in the case of The Prosecutor v. Emmanuel Rukundo ("Trial Judgement"). 1 I. INTRODUCTION A. Background 2. Emmanuel Rukundo was born on 1 December 1959 in Mukingi Commune, Gitarama Prefecture, Rwanda' He was ordained as a priest on 28 July 1991. 3 In February 1993, Rukundo was • appointed as a military chaplain for the Rwandan army, a position he maintained throughout the relevant events.' 3. The Trial Chamber convicted Rukundo for committing genocide through his participation in the killing of Madame Rudahunga and the causing of serious bodily harm to four other Tutsis who were abducted from Saint Joseph's College, the abduction and killing of Tutsis from the Saint Leon Minor Seminary, and the sexual assault of a Tutsi woman at the seminary." In addition, it convicted Rukundo for committing murder as a crime against humanity for the killing of Madame Rudahunga" and for extermination as a crime against humanity for his participation in the abduction and killing of Tutsis from the Saint Leon Minor Seminary.' The Trial Chamber sentenced Rukundo 8 to a single term of 25 years of imprisonment. • B. The Appeals 4. Rukundo challenges his convictions and sentence." He requests the Appeals Chamber to overturn his convictions or, in the alternative, to reduce his sentence." The Prosecution responds I For ease of reference, two annexes are appended: Annex A - Procedural Background; Annex B - Cited Materials and Defined Terms, 2 Trial Judgement, para. 4, , Trial Judgement, para. 4. 4 Trial Judgement, para, 4. 5 Trial Judgement, paras, 568, 569, 573, 576. 6 Trial Judgement, para, 585. 7 Trial Judgement, para, 590, 8 Trial Judgement, para. 608. 9 Rukundo Notice of Appeal, paras. 8-110; Rukundo Appeal Brief, paras. 6-340. Case No. 1CTR-2001-70-A 20 October 2010 5701H that all grounds of his appeal shouldbe dismissed,'! Rukundo has divided his arguments into five categories; violations of fair trial rights, errorsof.law, errors relating to the alleged recantation by Prosecution Witness ~LP, errors of lawand fact in the evaluation of the evidence, and appeal against the sentence. Withinthesecategoriesthe Appeals Chamber-has identified nine grounds of appeal, which it has considered illrelation to each main event. 5. The Prosecution presents one ground of appeal challenging Rukundo's sentence.V The Prosecution requests the APPealsChamber to increase Rukundo's sentence to imprisonment for the remainder of his life or, alternatively, to remit the issue of sentencing to the Trial Chamber to reconsider the appropriate sentence within the proper legal framework.':' Rukundo responds that the Prosecution's ground of appeal should be dismissed.14 • 6. The Appeals Chamber heard oral submissions regarding these appeals on 15 June 2010. • 10 Rukundo Notice of Appeal. p. 20; Rukundo Appeal Brief, p. 68. " Prosecution Response Brief. para. 251. 12 Prosecution Notice of Appeal, paras. 1-4; Prosecution Appeal Brief, paras. 1-91. n Prosecution Notice of Appeal, para. 4; Prosecution Appeal Brief, paras. 4, 11,91. 14 Rukundo Response Brief, p. 25. 2 Case No. ICTR-2001-70-A 20 October 2010 569/H II. STANDARDS OF APPELLATE lEVIEW 7. The Appeals Chamber recalls tile applicable standards of appellate review pursuant to Article 24 of the Statute, The A-ppeal,SChalliherrt),vieWs onlyerrors of law which invalidate the decision of the TrialChamber and errors of fact which have occasioned a miscarriage of justice. 15 8. Regarding errors oflaw, the APPeals Chamber has stated: Where a party alleges that there is an error of law. that patty must advance arguments in support of the submission and explain how the error invalidates the decision. However, if the appellant's arguments do not support the contention, that patty does not automatically lose its point since the Appeals Chamber may step in and, for other reasons, find in favour of the contention that there is an error of law. 16 9. Where the Appeals Chamber finds an error of law in the trial judgement arising from the application of an incorrect legal standard, the Appeals Chamber will articulate the correct legal standard and review the relevant factual findings of the Trial Chamber accordingly.i" In so doing, • the Appeals.Chamber,notonlycorrectsthe Iegal.error.ibut, whennecessary alsoapplies the correct legal standard to. the evidence contained in the trial record and determines whether it is itself convinced beyondreasonable doubt as to the factual finding Challenged by.the appellant before that finding may be confirmed On appeal. 18 10. Regarding errors of fact, it is well established that the Appeals Chamber will not lightly overturn findings of fact made by the Trial Chamber: \VlIsr~ t1l9J?,~rS.~S9ll-\!.9~S~.l\llSJ:J'<:l~~\I~ri!'gi,f\g;pf f'!Ct, the !\1'~al.~Sll!"')1I9r~\I~tgiv9def9re.~ce to the Trial Ch!"')ber that received the evidence at trial.iand it w1l10rliy interfere in those findings where no reasonable trier of fact could have reached the same finding or where the finding is wholly erroneous. Furthermore, the erroneous finding will be revoked or revised only if the error occasioned a miscarriage of justice." • 11. A party cannot merely repeat on appeal arguments that did not succeed at trial, unless it can demonstrate that the Trial Chamber's rejection of those arguments constituted an error warranting the intervention of the Appeals Chamber.20 Arguments which do not have the potential to cause the 15 Nchamihigo Appeal Judgement, para. 7; Bikindi Appeal Judgement, para. 9; Zigtranyirazo Appeal Judgement, f.ara. 8. See also MrkSic and Sljivaneanin Appeal Judgement, para. 10. 6 Ntakirutimana Appeal Judgement, para. II (internal citation omitted). See also Nchamihigo Appeal Judgement, para. 8; Bikindi Appeal Judgement, para. 10: Zigiranyirazo Appeal Judgement, para, 9; Mrksic and Sljivancanin Appeal Judgement, para. 11. 17 Nchamihigo Appeal Judgement, para. 9; Bikindi Appeal Judgement, para. II; Zigiranyirazo Appeal Judgement, p,ara.
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