THE INTERNATIONAL CRIMINAL TRIBUNAL FOR RWANDA CASE NO.: ICTR-00-56-T THE PROSECUTOR CHAMBER II OF THE TRIBUNAL v. AUGUSTIN NDINDILIYIMANA FRANÇOIS-XAVIER NZUWONEMEYE INNOCENT SAGAHUTU AUGUSTIN BIZIMUNGU TUESDAY, 11 OCTOBER 2005 0910H CONTINUED TRIAL Before the Judges: Joseph Asoka de Silva, Presiding Taghrid Hikmet Seon Ki Park For the Registry: Mr. Roger Kouambo Mr. Abraham Koshopa For the Prosecution: Mr. Ciré Aly Bâ Mr. Alphonse Van Ms. Ifeoma Ojemeni Okali Mr. Segun Jegede Mr. Moussa Sefon Mr. Abubacarr Tambadou For the Accused Augustin Ndindiliyimana: Mr. Christopher Black For the Accused François-Xavier Nzuwonemeye: Mr. Charles Taku For the Accused Innocent Sagahutu: Mr. Fabien Segatwa Mr. Seydou Doumbia For the Accused Augustin Bizimungu: Mr. Gilles St-Laurent Mr. Ronnie MacDonald Court Reporters: Ms. Sithembiso Moyo Ms. Regina Limula Ms. Verna Butler Ms. Karen Holm NDINDILIYIMANA ET AL TUESDAY, 11 OCTOBER 2005 I N D E X WITNESS For the Prosecution: FRANK CLAEYS Examination-in-chief by Mr. Bâ …. ................................................................................................................ 8 Cross-examination by Mr. Black ................................................................................................................ 66 EXHIBITS Exhibit No. P. 66 …. ...................................................................................................................................... 9 Exhibit No. P. 67 ........................................................................................................................................ 66 Exhibit No. D. 67A [Ndindiliyimana] and D. 67B [Ndindiliyimana] .............................................................. 67 For identification: Exhibit No. ID. 10 [Ndindiliyimana] ............................................................................................................. 86 SITHEMBISO MOYO - TRIAL CHAMBER II - page i NDINDILIYIMANA ET AL TUESDAY, 11 OCTOBER 2005 1 P R O C E E D I N G S 2 MR. PRESIDENT: 3 Good morning, ladies and gentlemen. The session is now on. The appearances are as before. 4 5 Yes, Mr. Prosecutor, you can lead your next witness. 6 7 Yes, Counsel. 8 MR. ST-LAURENT: 9 I am sorry, Mr. President. Just before the witness comes on, I have a small -- a rather minor application 10 to make with regard to yesterday's witness, LBC. Would you allow me to make the short application? 11 MR. PRESIDENT: 12 Yes. 13 MR. ST-LAURENT: 14 Mr. President, Your Honours, my application will definitely take into consideration Witness LBC, who 15 was heard yesterday, and my application is that you dismiss her testimony. Very briefly, I will give you 16 the reasons for my application. You are well aware, as I am, that all the investigators of the Tribunal, in 17 executing their duties, seek evidence as contained in the statements given by witnesses which may be 18 used in the Prosecution case. In the case of Witness LBC, we had none other than Mr. Segun Jegede 19 as an investigator. These testimonies are put on in writing, Mr. President, and I reread to the witness 20 so that the witness would confirm that they contain the truth. 21 22 The written statements by the witnesses also bear the signature not only of the witness, but also of the 23 investigators who took the statement. In addition, the translator, this is Ms. Gaudence Mukatigeli, 24 certifies – orally translated the statement from the English language into a Kinyarwanda language in the 25 presence of the witness will show me that she had heard and understood my translation of her 26 statement. The translator's certification also indicates that the witness -- the facts and matters set out 27 in her statement as translated by me, reflects the most faithfully possible what she had seen and what 28 she had heard concerning the matter at hand, and has accordingly appended her signature where 29 indicated. 30 31 Based on this pre-trial statement collected by investigators of the Tribunal as certified by them, and also 32 the translator and the witness herself, given that they are a reflection of what she said and heard, that 33 the Prosecutor then draws up his indictment and briefs. This statement is also provided to the Accused 34 as the Prosecutor is compelled to divulge his evidence – to disclose it, and this would allow the 35 Accused to take note of what accusations are levelled by the witness, so that he can prepare his 36 cross-examination of the witness. The witness's out-of-court statement is therefore a very important 37 document. And, unfortunately, this seems to run counter to the impression we get in this Court. SITHEMBISO MOYO - ICTR - TRIAL CHAMBER II - page 1 NDINDILIYIMANA ET AL TUESDAY, 11 OCTOBER 2005 1 Although we are aware that the witness does not testify based on his statement but rather on his 2 testimony before you, Your Honours, we submit that such testimony cannot be examined without taking 3 into account what the witness has already declared and attested to before the investigators and the 4 Court assigned interpreter. This is a very important part of the Prosecutor's duty. 5 6 We would like the Judges of this Court to be aware of the contradictions, omissions, the implausibility, 7 the discrepancies between the witness's testimony and the statement given to this Court, and this 8 should be taken in light of your need to examine the credibility of her testimony, but we submit that 9 there is much more than this at stake. What is at stake is the probative value of a pre-trial statement 10 made by the witness through representatives of the Prosecutor's office. If the statements were merely 11 intended to enable us to assess the credibility of the testimony, we must ensure that such a statement 12 must be a faithful reflection of the witness's remarks, vis-à-vis all the personnel involved in taking that 13 statement. There is no assurance that the witness will testify based on what his previous statement 14 contained. Then why use the statements in preparing the cross-examination? 15 16 As a matter of fact, we wonder whether it would not be best for the Defence counsel to be made aware, 17 first of all, of the content of the examination-in-chief so that he will therefore be in a better position to 18 prepare himself between the end of the cross-examination-in-chief (sic) and the beginning of the 19 cross-examination. 20 21 Mr. President, it is important for the Defence of the Accused to take note of what the witness has said, 22 the events and fact she has related in her statement, and given that these are incompatible with the 23 testimony she provides in Court, we feel that this places -- or, rather, places some doubt on the content 24 of the witness's remarks in Court. We, the Defence of the Accused, have a right to be made aware, 25 provided with all elements to be used in examination-in-chief of the witness for use in 26 cross-examination. 27 28 Now LBC told you -- first of all, at some point that the investigators had made additions, then she made 29 statements in contradiction to elements of her written statement, or she puts in new facts which are not 30 to be found in her statement, or she reveals that some statements she had made in her written 31 statement actually amounted to deductions on her part. 32 33 My learned friend the Prosecutor had reread her statement to the witness during their preparatory 34 meeting, but this, she said, did not correspond to the text I was reading from when quoting her 35 statement. As a matter of fact, Mr. President, Witness LBC merely came to tell you that you should not 36 really consider what she had declared to the investigators of the Tribunal. However, if we were to 37 sanction such a situation or appear to be sanctioning such a situation, would that not send a message SITHEMBISO MOYO - ICTR - TRIAL CHAMBER II - page 2 NDINDILIYIMANA ET AL TUESDAY, 11 OCTOBER 2005 1 to the international community; that it would not send a negative image of the administration and the 2 process of the justice being dispensed here? 3 4 Mr. President, we trust in you – we trust that you will ensure that justice prevails, that there is also the 5 appearance of justice prevailing for justice to be rendered. We are therefore convinced that your ruling 6 in this matter will be favourable to us. It appears though, Mr. President, that we should not just ensure 7 that a witness comes to testify and throwing a black beret and attests that a reprehensible act was -- 8 could be attributed to the superior responsibility of our Accused. But we should also ensure that when 9 a witness comes to confirm that he gave a truthful account to representatives of the Prosecutor's office, 10 we should also ensure that when a witness confirms his statement to investigators of the Tribunal, that 11 he should not thereafter be allowed to deny such statement without the Tribunal intervening. This is not 12 just about the credibility of the witness, Mr. President; it was also about the credibility of the Tribunal. 13 14 Now these remarks necessarily entail that we should dismiss the testimony of LBC, and that is the 15 ruling I am asking you to make now. Thank you. 16 MR. PRESIDENT: 17 I think, Counsel, you made this application yesterday and we gave a ruling on this. So why are you 18 relaying that again, Counsel? 19 20 Counsel, Mr. St-Laurent, you made this application at the beginning even before the witness was heard. 21 MR. ST-LAURENT: 22 Mr. President, you are now in possession of the witness's testimony, and, therefore, you are in a better 23 position to consider the elements I have presented to you. 24 MR. PRESIDENT: 25 And then if we adopt that procedure, every witness, when they come, we have to take a decision and 26 then finally there would be nothing for us to consider at the end.