Monitoring Report for the Munyagishari Case (January and February 2014)

Transcription

1 UNITED NATIONS MICT ( ) 165 ZS Case No: MICT Mechanism for International Criminal Tribunals Date: 7 March 2014 Original: English To: The President Mechanism for International Criminal Tribunals ("Mechanism") Through: The Registrar of the Mechanism From: Samuel Algozin Monitor for the Munyagishari Case Monitoring Report for the Munyagishari Case (January and February 2014) Received by the Registry Mechanism for International Criminal Tribunals 11/03/ :10

2 164 Contents I. INTRODUCTION 3 II. DETAILED REPORT 3 A. 16 January 2014 Hearing before the High Court of Rwanda 3 B. 17 January 2014 Meeting with Mr. Munyagishari 4 C. 20 January 2014 Meeting with Witness Support Expert 6 D. 22 January 2014 Meeting with Permanent Secretary of the Ministry of Justice 6 E. 27 January 2014 Meeting with Prosecution 7 F. 27 January 2014 Meeting with Head of Prosecution Witness and Victim Support Unit 7 G. 28 January 2014 Meeting wit33h Prison Director 8 H. 29 January 2014 Meeting with President of the Rwanda Bar Association 9 I. 29 and 30 January 2014 Meetings with Mr. Munyagishari 10 J. 30 January 2014 Hearing before the High Court of Rwanda 10 K. 31 January 2014 Meeting with Defence Counsel 11 L. 19 February 2014 Hearing before the High Court of Rwanda 11 M. 20 February 2014 Meeting with Mr. Munyagishari 11 N. 25 February 2014 Meeting with Prison Director February 2014 Hearing before the High Court of Rwanda 12 P. 26 February 2014 Meeting with Defence Counsel 15 Q. 27 February 2014 Meeting with the Prosecution 15 III. CONCLUSION 16 Monitoring Report for the Munyagishari Case (January and February 2014) 2

3 163 I. INTRODUCTION 1. This Monitoring Report ("Report") pertains to the activities in the Munyagishari case before the Rwandan judiciary and the interactions of the Mechanism monitors with various stakeholders during January and February 2014 (the "Reporting Period").1 During the Reporting Period, the reporting monitor (Samuel Algozin) made three visits to Rwanda.' II. DETAILED REPORT A. 16 January 2014 Hearing before the High Court of Rwanda 2. On 16 January 2014, the High Court of Rwanda ("Court") held a hearing in the Munyagishari case. Jean Bosco Mutangana appeared for the Prosecution. Mr. Munyagishari was present in court and represented by his Lead Counsel Jean-Baptiste Niyibizi and Co-Counsel John Haki zimana. 3. Prior to the hearing, on 7 January 2014, Mr. Munyagishari filed a written request before the Court to have his proceedings adjourned, and requested the Court: (a) to institute a commission rogatoire to determine his nationality; and (b) to order the Prosecution to transmit to him a French translation of the Indictment and its Annexes. On 14 January 2014, Mr. Munyagishari's Counsel filed Conclusions before the High Court. In the Conclusions, the Defence argued that: (a) the proceedings should be held in French because Mr. Munyagishari does not understand Kinyarwanda; (b) Mr. Munyagishari is a national of the Democratic Republic of the Congo; and (c) the Defence should be allowed three years to prepare for trial, due to the size of the Indictment and Annexes, and because a complete defence team was not yet in place to protect Mr. Munyagishari's interests. The Prosecution filed a written response with the Court on 16 January At the commencement of proceedings on 16 January 2014, the Presiding Judge, speaking in Kinyarwanda, read aloud identifying information of Mr. Munyagishari and requested Mr. Munyagishari to verify the accuracy of the information, Mr. Munyagishari responded in French that he did not understand what was said by the Presiding Judge. Mr. Niyibizi informed the Court that Mr. Munyagishari does not understand Kinyarwanda, and requested to plead in French. The Court then requested submissions from the Prosecution as to Mr. Munyagishari's ability to understand Kinyarwanda. 5. The Prosecution argued that Mr. Munyagishari is a Rwandan national and that he understands and speaks Kinyarwanda. As evidence, the Prosecution asserted that: (a) Mr. Munyagishari was born in Gisenyi, Rwanda in 1959 and that his mother-tongue is Kinyarwanda; (b) he was educated in Rwanda; (c) he worked in Rwanda and provided services to Rwandan citizens in Kinyarwanda; (d) he had been appointed as Secretary of the MRND in Gisenyi; and (e) he had pled guilty to raping a child before a Rwandan court in 1981, in proceedings held in Kinyarwanda. The Prosecution argued that Mr. Munyagishari understands Kinyarwanda and that Kinyarwanda is the national language of Rwanda and the language of Rwandan courts. As such, the Prosecution asserted that Mr. Munyagishari should plead in Kinyarwanda. The Prosecution On 17 February 2014, the President of the Mechanism granted leave to file a combined January and February 2014 monitoring report. 2 These visits also included activities pertaining to monitoring the case of Mr. Jean Uwinkindi. Monitoring Report for the Munyagishari Case (January and February 2014) 3

4 162 challenged the Defence to rebut the evidence it presented regarding Mr. Munyagishari's linguistic ability. 6. In Kinyarwanda, the Court asked the Defence if it was prepared to reply to the Prosecution submissions. Mr. Niyibizi responded that Mr. Munyagishari does not understand Kinyarwanda and therefore the Defence could not respond to the Court's question. 7. The Prosecution asserted that it provided evidence that Mr. Munyagishari speaks Kinyarwanda and that the Defence failed to rebut the evidence. The Prosecution further claimed that as Mr. Munyagishari's representatives in court, Mr. Munyagishari's lawyers should make submissions on the matter. 8. The Court noted that Mr. Munyagishari's lawyers speak both French and Kinyarwanda. The Court then asked Mr. Munyagishari's lawyers why they could not respond to the Prosecution submissions. Mr. Niyibizi responded that while he and Co-Counsel indeed could speak Kinyarwanda and French, they could not act both as Mr. Munyagishari's lawyers and as his interpreters. 9. The Court asked the Prosecution if supplying Mr. Munyagishari with an interpreter would be problematic. The Prosecution asserted that the Court should not provide an interpreter for Mr. Munyagishari before resolving the issue of language and before the Defence rebutted the Prosecution evidence regarding Mr. Munyagishari's ability to understand Kinyarwanda. 10. The Court adjourned, informing the parties that it would render a decision on the pleadings on 30 January B. 17 January 2014 Meeting with Mr. Munyagishari 11. On 17 January 2014, I met with Mr. Munyagishari at Kigali Central Prison ("Prison"), where Mr. Munyagishari and the other detainee transferred by the International Criminal Tribunal for Rwanda ("ICTR") pursuant to Rule 1 lbis, Mr. Jean Uwinkindi, are housed. Mr. Munyagishari and Mr. Uwinkindi reside in the Special Enclosure of the Prison, along with two other detainees whose cases were transferred to Rwanda by national jurisdictions? 12. Regarding the previous day's court proceedings, Mr. Munyagishari voiced that it was impossible for him to prove that he does not understand Kinyarwanda, as argued by the Prosecution. Mr. Munyagishari asserted that the law clearly stated that he should be able to choose to plead in a language he understands. He stressed that he will not plead in Kinyarwanda and that his fundamental rights would be violated if he were made to plead in a language he does not understand. Mr. Munyagishari asserted that he can only defend himself in French. Mr. Munyagishari noted that the Indictment at the ICTR was translated into French. Mr. Munyagishari also reiterated that a commission rogatoire should be conducted to confirm his Congolese nationality. 13. Regarding remuneration for his defence, Mr. Munyagishari stated that a 15 million Rwandan Franc (FRW) lump sum amount to pay his defence team would not be sufficient.` Mr. 3 See also Monitoring Report for the Munyagishari Case (December), 20 January 2014 ("December 2013 Monitoring Report"), para. 13; Monitoring Report for the Munyagishari Case (July and August 2013), 19 September 2013 ("July and August 2013 Monitoring Report"), para The Permanent Secretary of the Ministry of Justice has indicated that a lump sum amount of 15 million FRW will be offered to provide for the Defence of transferred cases such as that of Mr. Munyagishari's. See para. 26 infra. Monitoring Report for the Munyagishari Case (January and February 2014) 4

5 Munyagishari asserted that this proposed amount reflected that the Rwandan Government was not living up to the promises made before the ICTR, where it was stated that sufficient resources to the defence would be provided.5 Mr. Munyagishari asserted that as Rwanda did not respect the commitments it made before the ICTR regarding defence funding, the case should be sent back to the ICTR for trial. 14. Further on the issue of his defence, Mr. Munyagishari took issue with the representation made by the President of the Rwanda Bar Association (RBA) that the RBA provided him with a complete list of RBA lawyers.6 Mr. Munyagishari noted that whereas he had been provided with a list of 57 lawyers to choose from, the RBA had informed the ICTR in 2012 that it had approximately 890 members.7 Mr. Munyagishari also stated that his Counsel of choice, Ms. Natacha Faveau-Ivanovic, who was part of his legal team in proceedings before the ICTR, had given her accreditation to the RBA on 11 December 2013, in order to be eligible to represent him in Rwanda. 15. Regarding medical care in the Prison, Mr. Munyagishari stated that he was suffering from haemorrhoids and that he has not been treated. When transferred from Arusha to Kigali he had medicine to treat this condition but the Prison officials would not give him the medicine after his arrival in Kigali, claiming that the medicine was expired. Mr. Munyagishari also stated that his diet needed to be changed to include fruit, in order to treat this condition. Mr. Munyagishari reiterated the need for an on-site doctor at the Prisons and averred that the treatment provided by the on-site nurses was insufficient Mr. Munyagishari complained that the detainees received insufficient drinking water and that at times he went two to three days without water. Munyagishari also stated that the Prison administration had instituted no changes to the menu served to the detainees. Mr. Munyagishari noted that the Prison administration had failed to supply any of the personal hygiene items previously requested by the detainees Mr. Munyagishari stated that since his daughter was arrested after visiting him in Prison,'' the members of his family, who live in the Democratic Republic of the Congo, have been afraid to visit him. Mr. Munyagishari also indicated that he still had not received a response from the Prison Director regarding the list of family members who he sought authorization to call.'2 Mr. Munyagishari noted that in this same request, he also sought authorization to call the monitors. 18. Mr. Munyagishari stressed that he needed the French translations of the Monitoring Reports to be provided in a timelier manner, in order for the Reports to be useful and to be able to respond to the Reports' contents See Prosecutor v. Munyagishari, Case No. ICTR I, Amicus Curiae Brief of the Kigali Bar Association ("KBA Amicus Brief"), 23 January 2012, paras See Monitoring Report for the Munyagishari Case (October and November 2013), 20 December 2013 ("October and November 2013 Monitoring Report"), para. 44. See K13A Amicus Brief, para. 12. B See December 2013 Monitoring Report, para Throughout this Report, reference to "detainees" refers to detainees housed in the Special Enclosure, 1 See December 2013 Monitoring Report, para See Monitoring Report for the Munyagishari Case (September 2013), 31 October 2013 ("September 2013 Monitoring Report"), para. 41. The Prosecution acknowledged that it interviewed Mr. Munyagishari's daughter, but denied that she had been detained at any time. See September 2013 Monitoring Report, para See December 2013 Monitoring Report, para. 16. Monitoring Report for the Munyagishari Case (January and February 2014) 5

6 160 C. 20 January 2014 Meeting with Witness Support Expert 19. On 22 January 2014, I met with Mr. Janvier Bayingana, Witness Protection Expert in the Supreme Court of Rwanda's Witness Protection Unit ("WPU"), I3 Mr. Bayingana stated that the High Court ("Court") had not yet requested the WPU to contact any protected witnesses in the Munyagishari case. Mr. Bayingana indicated that when the trial commenced, the Court would provide a schedule of proposed witness testimony to the WPU. He would then advise the Court of the feasibility of the schedule, taking into account the individual needs of the witnesses. 20. Mr. Bayingana indicated that during the trials of transferred cases such as that of Mr. Munyagishari, the Court would utilize voice distortion microphones and speakers, in order to protect witness identity. This technology was already being successfully used in Rwandan trials. 21. Mr. Bayingana stated that in general, the parties litigating international crimes cases before the Court were not yet acclimated to the idea that the witnesses are under the care of the Court and protected as such. Mr. Bayingana emphasized that this arrangement is necessary to ensure neutrality and impartiality in the protection of witnesses. Furthermore, this regime enhances trust in the witnesses. 22. Mr. Bayingana stated that prior to a protected witness's testimony, the WPU briefs the witness on their rights. They inform the witness about the court proceedings and how they are conducted, and request the witnesses to respect the court and the parties, particularly during potentially hostile cross-examination. Should a witness's testimony last several days, the WPU ensures that the witness is housed in a secured location. The WPU provides transport to Kigali and provides food for the witnesses. 23. Following testimony, the WPU informs the witnesses to contact the WPU in case of security concerns. When a security complaint is received, the WPU meets the witness to hear his or her concerns and compiles a written report. The WPU then follows up to assess if the security concern is related to the witness's testimony. Mr. Bayingana himself is the contact person for all witnesses. Additionally, the WPU employs three witness protection agents to serve protected witnesses at the High Court level. D. 22 January 2014 Meeting with Permanent Secretary of the Ministry of Justice 24. On 22 January 2014, I met with Mr. Pascal Bizimana, Permanent Secretary in the Rwandan Ministry of Justice and Deputy Attorney General of Rwanda. 25. Mr. Bizimana noted the contract provided to Counsel representing Jean Uwinkindi, which provides funding in the amount of one million FRW per counsel, per month, throughout the duration of the Uwinkindi proceedings. Mr. Bizimana stated categorically that these contract terms would apply only to the defence of Mr. Uwinkindi. For other cases transferred pursuant to Rule 11 bis, such as that of Mr. Munyagishari, remuneration for defence counsel would be provided in a single lump sum payment for the entire duration of the case, rather than a monthly payment. For these transferred cases, counsel will be offered 15 million FRW per case. 26. Mr. Bizimana stated that as of the date of our meeting, the Ministry of Justice has not been informed who is the counsel for Mr. Munyagishari, therefore no contract negotiations have begun with regard to the payment of the Defence in that case. 13 As noted in previous Reports, the WI'LJ is entrusted with providing witness protection services for the transferred cases. See July and August 2013 Monitoring Report, paras Monitoring Report for the Munyagishari Case (January and February 2014) 6

7 159 E. 27 January 2014 Meeting with Prosecution 27. On 27 January 2014, I met with Ms. Florida Kabasinga, Legal Adviser to the Prosecutor- General, and Mr. Jean-Bosco Mutangana, Lead Counsel for the Prosecution in the Munyagishari case. 28. Mr. Mutangana summarized the Prosecution position, set out in court on 16 January 2014, that Mr. Munyagishari is able to understand Kinyarwanda, and thus may be tried in Kinyarwanda. Mr. Mutangana stated that Mr. Munyagishari was born in Rwanda and studied in Rwanda. Further, Mr. Munyagishari was employed in Rwanda and provided services to the Rwandan public in Kinyarwanda, and also taught primary school in Kinyarwanda. Mr. Mutangana asserted that Mr. Munyagishari was prosecuted before in a Rwandan court in Kinyarwanda and both the trial and appeal judgements were issued in Kinyarwanda. Mr. Mutangana stated that the Prosecution has provided documentary evidence that Mr. Munyagishari understands Kinyarwanda, and that the Defence has provided no response to this documentation. 29. Mr. Mutangana said that it is up to the High Court to resolve the language issue. He emphasized that the Prosecution was against having the proceedings conducted in French. Mr. Mutangana stressed that Kinyarwanda takes precedence in Rwandan courts. It is the national language and the language of the Court. 30. Mr. Mutangana stated that he has prosecuted other cases where an interpreter was allowed to the Defendant. However, these cases involved non-rwandans. Mr. Mutangana stressed that the provision of an interpreter would not pose logistical problems and would not be a burden for the Prosecution. The Court would pay for the interpreter. 3 I. Mr. Mutangana stated that the Prosecution was ready to work with the Defence to ensure the attorney of Mr. Munyagishari's choice is available to represent him. F. 27 January 2014 Meeting with Head of Prosecution Witness and Victim Support Unit 32. On 27 January 2014, I met Theoneste Karenzi, Head of the Rwandan Prosecution's Witness and Victim Support Unit (WVSU). 33. Mr. Karenzi stated that the WVSU assists and services Prosecution witnesses, providing for their medical and psychological care, travel expenses and physical protection, including the provision of safe houses and safe locations. Mr. Karenzi stated that his office protects Prosecution witnesses in the investigation and pre-trial phase of proceedings. At the trial phase, the witnesses' files are handed over to the Supreme Court's Witness Protection Unit (WPU). However, the WVSU still plays a role in protecting Prosecution witnesses during trial if they are under threat. After trial both the WPU and WVSU service the witnesses. Mr. Karenzi indicated that his office works closely with the WPU. Mr. Karenzi noted that the WVSU and WPU were drafting protocols to improve cooperation between the offices. Monitoring Report for the Munyagishari Case (January and February 2014) 7

8 158 G. 28 January 2014 Meeting with Prison Director 34. On 28 January 2014, I met with Mr. Alex Murenzi, Director of Kigali Central Prison ("Prison"). 35. Mr. Murenzi stated that he was in the process of requesting the Office of the Commissioner General of the Rwanda Correctional Service to provide a Legal Adviser to assist in drafting new rules and regulations for the detainees housed in the Special Enclosure at the Prison, specifically related to regulating the detainees' behavior. Mr. Murenzi stated that the new rules and regulations would soon be in place. Mr. Murenzi indicated that he wanted the new rules and regulations to comport with international standards. The rules and regulations would govern the inmates' exercise, meals and visitors. They would also contain punishment for indiscipline, such as an adjustment of visitor schedules or reduced exercise time. The rules and regulations will to be put in writing and delivered to each detainee. The detainees will play no part in the drafting of the rules and regulations. 36. Mr. Murenzi stated that because their families live far away, the detainees in the Special Enclosure are allowed visitors at any time, Monday through Friday. Other inmates may only receive visitors on Friday. The detainees are allowed thirty minute in-person visits. Lawyers who visit their clients are allowed to spend the whole day at the Prison. 37. Mr. Murenzi stated that the Special Enclosure detainees have complained of the food at the Prison. Mr. Murenzi said that he is implementing changes in consultation with the Commissioner General. A new menu for the detainees would soon come into effect. In addition, Mr. Murenzi stated that a new contractor would be taking over the Prison canteen in February The new menu would be instituted following consultations among the head of the canteen, the inmates and the Prison administration. Mr. Murenzi stated that under the new rules and regulations, detainees would not be punished through an alteration in their menus. 38. Mr. Murenzi stated that the Prison maintains a book indicating the meal served to each detainee. The detainees are supposed to sign the book to confirm that they ate each meal. The Special Enclosure detainees stopped signing the book at the beginning of Regarding medical care, Mr. Murenzi stated that the Prison has a contract with King Faisal Hospital. Basic first aid is available at the Prison, and nurses administer medicine given out at the Hospital. Detainees are taken to the Hospital for special care upon request. Mr. Murenzi stated that the Prison has never refused a request to go to the Hospital, and that the detainees can see a specialist if needed. Mr. Murenzi stated that a doctor comes to the dispensary at the Prison two times per week. This doctor tends to the entire Prison population, not just the Special Enclosure detainees. 40. Regarding phone calls, Mr. Murenzi stated that the detainees most frequently call their lawyers. Mr. Murenzi showed the phone log, which included the date, the inmate, the time of the call, who was called and a signature. The detainees are allowed ten minutes per call, but are allowed more time if needed. The Prison pays for the telephone calls. Mr. Murenzi stated that the Prison administration asked the detainees to provide phone numbers of people who they wanted to be able to call. 41. Mr. Murenzi stated that one of the Special Enclosure detainees made a request to the Office of the Commissioner General for conjugal visits. A response to this request was pending. Monitoring Report for the Mienyagishari Case (January and February 2014) 8

9 With regard to hygiene, Mr. Murenzi stated that a Social Officer makes sure there is a proper stock of soap, toilet tissue, lotion and shaving materials. Two Officers are in charge of the Special Enclosure. Detainees sometimes provide written complaints and sometimes make complaints orally to the Prison administration. Mr. Murenzi stated that he has never had a case where the detainees asked for something and it was denied. Sometimes a delay in processing detainee requests has occurred, due to the law governing tenders, however this problem has been resolved, as the Prison purchases needed items which last for three months at a time. 43. Mr. Murenzi stated that the detainees are allowed to attend religious services. A priest comes at 9:00 a.m. and prayers end at 12:30 p.m. According to Mr. Murenzi, detainees from the Special Enclosure go to services at the same time as other prisoners and mix with the general population. 44. Mr. Murenzi stated that the Prison still intends to rebuild the Special Enclosure. Mr. Murenzi also confirmed that the Prison purchased a new television decoder allowing the detainees to access additional channels. 45. Mr. Murenzi stated that in general Mr. Munyagishari has not made complaints, and is well behaved. Furthermore, he stated that Mr. Munyagishari respects the proper channels in raising issues with the Prison administration. 46. Mr. Murenzi stated that he would like to visit the United Nations Detention Facility ("UNDF") in Arusha to familiarize himself with the facility. The transferred detainees often say things were better in Arusha. Mr. Murenzi raised a request to go to Arusha with his superiors. He would like to visit UNDF in order to improve the conditions in the Special Enclosure and to see what conditions the detainees were entitled to in Arusha. H. 29 January 2014 Meeting with President of the Rwanda Bar Association 47. On 29 January 2014, I met with Mr. Athanase Rutabingwa, President of the Rwanda Bar Association. 48. Mr. Rutabingwa stated that under the terms of the contract to provide remuneration for the defence in the Uwinkindi case, the RBA would ensure that the lawyers assigned to represent Mr. Uwinkindi were fulfilling their professional obligations. In addition, the RBA would address any complaints received from the accused regarding the quality of his representation. The RBA also would follow up to ensure that the defence lawyers are paid by the Ministry of Justice, and would mediate between the lawyers and the Ministry of Justice if counsel complained he had not received payment. However, the RBA would only become involved to make sure counsel's fees were paid, and would not be involved if counsel had a dispute with the Ministry of Justice as to payment for travel to conduct investigations. Mr. Rutabingwa stated that at the end of the proceedings, under the terms of the contract, assigned counsel would be obligated to provide a written report to the RBA regarding the case. 49. Mr. Rutabingwa stated that the RBA would be willing to assume a similar role in the other cases transferred by the ICTR, such as that of Mr. Munyagishari. 50. Mr. Rutabingwa stated that the RBA had not received any materials from Natacha Fauveau-Ivanovic, requesting to be admitted to the RBA in order to represent Mr. Munyagishari. I4 In order to request admission to represent Mr. Munyagishari, Ms. Faveau- 14 See para. 14 supra. Monitoring Report for the Munyagishari Case (January and February 2014) 9

10 156 Ivanovic would need to address a letter to the President of the RBA, indicating the appropriate number for the case in which she sought to appear. In addition, she would need to provide proof of good standing in her domestic bar, and provide a copy of her CV and diploma. Mr. Rutabingwa stated that the RBA had facilitated such requests in the past and that it was not a problem for a foreign lawyer to be admitted for purposes of working on a single case. 51. Mr. Rutabingwa stated that the RBA could provide a full list of members of the RBA to Mr. Munyagishari. Mr. Munyagishari's present lawyers could obtain the list from the RBA and transmit it to Mr. Munyagishari. 52. Mr. Rutabingwa stated the Mr. Munyagishari's present lawyers had expressed concern to him about receiving payment. Mr. Rutabingwa stated that the attorneys were appointed to represent Mr. Munyagishari pro bono and that any payment would need to be negotiated between assigned counsel and the Ministry of Justice. The RBA would provide advice to assigned counsel and the Ministry of Justice regarding the reasonableness of the fees to be paid. Mr: Rutabingwa stated that the reasonableness of fees would be evaluated on a case-by-case basis. I. 29 and 30 January 2014 Meetings with Mr. Munyagishari 53. On 29 and 30 January 2014, I met with Mr. Munyagishari at the Prison. Mr. Munyagishari reiterated that he has untreated medical problems.' Mr. Munyagishari stated that the day prior to our meeting, the medical clinic at the Prison gave him the medicine he brought from Arusha.16 The Prison authorities had previously told him that he could not have the medication because it had expired. Mr. Munyagishari noted that the medication expires in Mr. Munyagishari stated that the Prison authorities did not want to him to receive treatment. 54. Mr. Munyagishari reiterated that he wanted a complete list of lawyers from the RBA. He stressed the need to finalize his defence team. 55. On 29 January 2014, I toured the Special Enclosure. During my visit, Mr. Munyagishari noted that one of three faucets in the Special Enclosure function. Mr. Munyagishari also noted that there was no light in the shower and that water leaked from the roof. Mr. Munyagishari noted that the facility had one bathroom and shower for four detainees. Mr. Munyagishari also stated that the lighting in the cells was insufficient and that nothing had been done regarding the installation of a fire alarm or fire extinguishers.' On 30 January 2014, Mr. Munyagishari related that the President of the RBA wrote to his attorneys, informing them that they must approach the Ministry of Justice in order to arrange payment for their representation. I8 J. 30 January 2014 Hearing before the High Court of Rwanda 57. On 30 January 2014, the High Court of Rwanda ("Court") issued a written Decision in the Munyagishari case. Jean Baptiste Kayitare represented the Prosecution. Mr. Munyagishari was present in court and represented by his Lead Counsel Jean-Baptiste Niyibizi and Co-Counsel John Hakizimana. '5 See para. 15 supra. 16 See para. 15 supra. 17 See October and November 2013 Monitoring Report, para Mr. Munyagishari provided a copy of the letter from the RBA to his Counsel, dated 23 January Monitoring Report for the Munyagishari Case (January and February 2014) 10

11 Following the hearing held on 16 January 2014, the Court decided to provisionally appoint a French-Kinyarwanda interpreter for Mr. Munyagishari. Reading its Decision in open court, the Court ruled that the appointment was warranted in order to provide Mr. Munyagishari the opportunity to answer the Prosecution assertions that he was Rwandan and understood Kinyarwanda. The Court ordered the hearing on these issues to resume on 19 February K. 31 January 2014 Meeting with Defence Counsel 59. On 31 January 2014 I met with John Hakizimana, Co-Counsel for Bernard Munyagishari. Mr. Hakizimana stated that he and Lead Counsel for Mr. Munyagishari, Jean-Baptiste Niyibizi, received a letter from the President of the Rwanda Bar Association ("RBA"), telling them to go to the Ministry of Justice to negotiate a contract setting out the terms for their representation of Mr. Munyagishari. Mr. Hakizimana indicated that he and Mr. Niyibizi would seek a meeting with the President of the RBA the following week. Mr. Hakizimana stated that the defence team of Mr. Munyagishari had not yet received any payment Regarding the appointment of a provisional interpreter for Mr. Munyagishari, pursuant to the High Court's decision of 30 January 2014, Mr. Hakizimana stated that the Court would appoint the interpreter. Mr. Hakizimana stated that the Defence would insist that the interpreter be a lawyer who is able to translate legal terms. L. 19 February 2014 Hearing before the High Court of Rwanda 61. On 19 February 2014, the High Court of Rwanda ("Court") convened for a hearing in the Munyagishari case, following the Court's assignment of a provisional interpreter to Mr. Munyagishari on 30 January Jean Bosco Mutangana appeared for the Prosecution. Mr. Munyagishari was present in court and was represented by his Lead Counsel Jean-Baptiste Niyibizi and Co-Counsel John Hakizimana. 62. The Court announced that one of the Judges was ill and unable to attend the, hearing. The Court adjourned the hearing until 26 February M. 20 February 2014 Meeting with Mr. Munyagishari 63. On 20 February 2014, I met with Mr. Munyagishari at the Prison. Mr. Munyagishari stated that he wanted the Rwandan Government to respect the assurances it gave to the ICTR when his case was transferred to Rwanda. In particular, he cited the promises made by the Commissioner General of the Rwanda Correctional Service2 and the Prosecutor Genera1.21 Mr. Munyagishari also claimed that the Rwandan Government had made improper modifications to the Transfer Law after his case was transferred to Rwanda The letter from the RBA came in response to an invoice sent by Counsel to the RBA on 6 January See Prosecutor v. Munyagishari, Case No. ICTR , Brief for the Republic of Rwanda as Amicus Curiae ("Rwanda Brier), 19 January 2012, Exhibit I-I (Affidavit of Commissioner General of Rwandan Correctional Service). 21 See generally Rwanda Brief. 22 See Law No. 47/2013 of 16 June 2013 concerning the Transfer of Cases to the Republic of Rwanda ("Transfer Law"). Monitoring Report for the Munyagishari Case (January and February 2014) 11

12 Mr. Munyagishari stated that on the Friday before our meeting, family members came to visit the other three detainees housed in the Special Enclosure. Although such visits are supposed to be allowed for 30 minutes, Mr. Munyagishari stated that the visits were truncated by Prison authorities. Mr. Munyagishari also voiced that 30 minutes was not sufficient time for such visits, and that the visiting time should be extended. The detainees of the Special Enclosure, including Mr. Munyagishari, wrote a letter to the Director complaining of visitation problems Mr. Munyagishari complained that the Special Enclosure detainees are isolated. A locked door separates them from the general Prison grounds. Mr. Munyagishari stated that at times, the detainees must communicate with a guard, however no guard is present outside the door, and therefore at times they wait one to two hours for a response. Mr. Munyagishari stated that this lack of responsiveness could be a problem if someone in the Special Enclosure had a health emergency. 66. Mr. Munyagishari reiterated that the cells have insufficient light to work at night. Despite requests to the Prison administration, nothing has been changed. Mr. Munyagishari also reiterated that a sufficient space is needed for the Special Enclosure detainees to meet with their attorneys. 67. Mr. Munyagishari reiterated the need for an on-site doctor at the Prison. While a doctor comes to the Prison to treat the Prison population at large, Mr. Munyagishari stated that the detainees in the Special Enclosure have not been able to see this doctor. Despite requests to see the physician, no meetings have been arranged for the Special Enclosure detainees. 68. Regarding his personal health, Mr. Munyagishari said that he was suffering from sinusitis. He stated that he asked to see a specialist but he still has yet to see one. Mr. Munyagishari considered it was important that he be treated, so that he could be in good condition when he appears in court. 69. Mr. Munyagishari reported that he received the French translation of the December 2013 Monitoring Report, however he still had not received the French translation of the October and November 2013 Monitoring Report as of the date of our meeting. N. 25 February 2014 Meeting with Prison Director 70. I met with Mr. Murenzi on 25 February Mr. Murenzi indicated that the new contractor had taken over the canteen and that the detainees had not registered an7 complaints about the food. Mr. Murenzi indicated that the new draft rules and regulations2 were being reviewed by his superiors February 2014 Hearing before the High Court of Rwanda 71. On 26 February 2014, the High Court of Rwanda ("Court") held a hearing in the Munyagishari case. Jean Bosco Mutangana and Bonaventure Ruberwa represented the Prosecution. Mr. Munyagishari was present in court and represented by his Lead Counsel Jean- Baptiste Niyibizi and Co-Counsel John Hakizimana. A provisional interpreter for Mr. Munyagishari was present and sworn in by the Court. 2' Mr. Munyagishari provided a copy of the letter. 24 See para. 36 supra. Monitoring Report for the Munyagishari Case (January and February 2014) 12

13 The Court read aloud identifying information for Mr. Munyagishari, including that he was a Rwandan national, born in 1959 in Gisenyi, Rwanda. The Court read out his identity card number and pension number as well as the name of his wife and the date of his marriage. The Court then asked Mr. Munyagishari to confirm the accuracy of the information. 73. Speaking through the interpreter, Mr. Munyagishari contested the information, stating that he is not Rwandan and that he was born in the Congo in Mr. Munyagishari confirmed the name of his wife as read by the Court and the date of his marriage. Mr. Munyagishari contested the identification number and confirmed the pension number provided by the Court. 74. The Prosecution maintained that Mr. Munyagishari is a Rwandan national and contested Mr. Munyagishari's claim that he is a Congolese national. The Prosecution further argued that regardless of where Mr. Munyagishari was born, he was being prosecuted in Rwanda for crimes committed in Rwanda. The Prosecution asserted that Rwanda is able judge him for these crimes, regardless of his nationality. 75. In response, the Defence claimed that the identity of the Defendant is an essential trial component. The Defence asserted that if the Prosecution conceded that Mr. Munyagishari was Congolese, then the hearing could proceed. However, relying upon the Organic Law relating to Rwandan Nationality, the Defence asserted that if Mr. Munyagishari's nationality was contested, then Mr. Munyagishari's trial should be postponed until the issue of nationality is decided upon In reply, the Prosecution challenged the authenticity of the documentation provided by the Defence to support the claim that he is Congolese. The Prosecution noted that Mr. Munyagishari presented a baptismal card, a voting card, a certification of primary school education and a birth certificate in support of his argument. The Prosecution argued that none of the documents stated or established that Mr. Munyagishari is not Rwandan. Furthermore, the Prosecution challenged the authenticity of the birth certificate, noting that it was produced in 2011, when Mr. Munyagishari was already in custody in Arusha. The Prosecution further argued that Mr. Munyagishari failed to produce any document affirmatively stating that he is a Congolese national. Alternatively, the Prosecution asserted that Rwanda recognizes dual nationality and that the Court could confirm his Rwandan nationality even if Mr. Munyagishari was also Congolese. 77. The Court asked the Prosecution if it should add to Mr. Munyagishari's identification that he is also a Congolese national. The Prosecution reiterated that Mr. Munyagishari is a Rwandan by birth and that he never established that he is Congolese. Additionally, the Prosecution stated that Congo does not recognize dual nationality, and that Mr. Munyagishari failed to present evidence that he renounced his Rwandan nationality. The Prosecution reiterated that the Court could try Mr. Munyagishari even if he is a Congolese national. 78. Following a brief recess, the Court asked the Parties to make submissions as to what impact Mr. Munyagishari's nationality would have upon the trial, and requested the parties to make additional oral submissions regarding the identity of the Accused. 79. In response, Mr. Munyagishari directly addressed the Court. Mr. Munyagishari asserted that dual nationality is not recognized under the Congolese Constitution. Mr. Munyagishari 25 Article 29 of Organic Law No. 30/2008 of 25 July 2008 relating to Rwandan Nationality provides: Contentious matters on nationality, either in isolation or arising from appeals against administrative decisions, shall be submitted to competent courts. Arguments against a party based on nationality or foreign nationality are public matters which the court shall examine even if the parties do not invoke them. Such arguments based on nationality shall be examined before the case, which may lead to the adjournment of the case related to the subject matter. Monitoring Report for the Munyagishari Case (January and February 2014) 13

14 152 asserted that the Prosecution was attempting to deny him of his fundamental rights in asserting that he is not Congolese. 80. The Prosecution reiterated that pursuant to the Rwandan Code of Criminal Procedure, every crime committed on Rwandan territory, regardless of the nationality of the perpetrator, may be prosecuted under Rwandan law. Based upon this, the Prosecution asserted that Mr. Munyagishari's nationality would not impact the proceedings. 81. The Prosecution also asserted that Mr. Munyagishari's previous rape conviction in a Rwandan court should be considered as a part of his identification. The Defence asserted that this was not part of Mr. Munyagishari's identification. Upon questioning by the Court, Mr. Munyagishari acknowledged that he had previously been convicted of rape by a Rwandan court in The Court noted that the name "Bernard Nyarudede Mushari" appeared on the birth certificate and electoral card submitted by Mr. Munyagishari to establish his Congolese nationality. The Court asked Mr. Munyagishari if he also went by this name. Mr. Munyagishari responded that in 1971 in Congo (then Zaire), due to the government program of "authentification", he was obliged to change his name. The Court noted that on his school certificate, dated 1974, his name appeared as "Bernard Munyagishari". Mr. Munyagishari responded that the process of authentification lasted from 1971 to 1980, and that government documents would contain either name. 83. Switching to the question of language, the Court asked Mr. Munyagishari if he was able to defend himself in Kinyarwanda. 84. Mr. Munyagishari addressed the Court insisted that he would not be able to defend himself in Kinyarwanda. Mr. Munyagishari stressed that in order to defend himself in Kinyarwanda, he would have to be able to fully comprehend and appreciate the different meanings of words in Kinyarwanda. Although he may have learned some Kinyarwanda while in detention, his understanding was not sufficient to defend himself. Furthermore, Mr. Munyagishari stated that he was born in Congo and educated in French. Mr. Munyagishari asserted that contrary to the arguments of the Prosecution, his educational and work history failed to establish his ability to understand Kinyarwanda. In addition, Mr. Munyagishari noted that many Rwandans would not be able to defend themselves in Kinyarwanda. Mr. Munyagishari stated that in his previous Rwandan court case in 1981, the proceedings were conducted in French with a Kinyarwanda interpreter. 85. Mr. Munyagishari's Counsel asserted that Mr. Munyagishari has a legal and constitutional right to be tried in a language he understands.26 Counsel noted that Mr. Munyagishari was accused of having committed international crimes. International tribunals such as the ICTR allowed defendants to be tried in the language they understand. Counsel argued that this was an essential element in guaranteeing a fair trial in such proceedings. 86. The Prosecution responded that solid evidence established Mr. Munyagishari's ability to understand Kinyarwanda. The Prosecution noted that when Mr. Munyagishari was convicted for rape in 1981, the transcripts of the hearing did not indicate the presence of an interpreter. Furthermore, Mr. Munyagishari signed the minutes of the proceeding, which were in 26 In support of its arguments, the Defence cited Articles 5, 28 and 29 of the Rwandan Constitution, Article 14 of the International Covenant on Civil and Political Rights, Article 14 of the Transfer Law and Article 25 of the Law No. 30/2013 of 24 May 2013 relating to the Code of Criminal Procedure. Monitoring Report for the Munyagishari Case (January and February 2014) 14

15 Kinyarwanda. The Prosecution also asserted that Mr. Munyagishari's daughter acknowledged being raised in Kinyarwanda, and that he taught in Kinyarwanda in the 1980s. 87. The Prosecution also argued that the Mugesera case provided precedent which the Court should follow. Mr. Mugesera, who was extradited from Canada to Rwanda to stand trial for Genocide, had argued that his trial should be held in French because he understood French better than Kinyarwanda. The Court in the Mugesera case rejected Mr. Mugesera's argument and ruled that he should be tried in Kinyarwanda. The Prosecution asserted that this holding applies in the present case, as Mr. Munyagishari is able to understand Kinyarwanda. The Prosecution also noted that supplying an interpreter for Mr. Munyagishari would require the expenditure of resources by the Court. Lastly, the Prosecution cited a ruling by the United Nations Human Rights Commission, holding that the fair trial rights of an accused were not violated where a court did not provide interpretation services to an accused who understood the language of the court. The Defence objected to the Prosecution's introduction of this case, arguing that the Prosecution had not previously supplied a copy of the case to the Defence. 88. The Defence argued that in the decision transferring Mr. Munyagishari's case to Rwanda, the ICTR noted that funds would be available for interpretation. The Defence also disagreed with the Prosecution invocation of the monetary implications of providing an interpreter, stressing that Mr. Munyagishari has a fundamental right to understand the proceedings. The Defence also asserted that the Mugesera case is distinguishable, as Mr. Munyagishari has always maintained that he does not understand Kinyarwanda, unlike Mr. Mugesera. 89. Following the above submissions, the Court adjourned, informing the parties that it would issue a Decision on 19 March P. 26 February 2014 Meeting with Defence Counsel 90. On 26 February 2014 I met with John Hakizimana, Co-Counsel for Bernard Munyagishari. As of the date of our meeting, Mr. Hakizimana stated that the Defence had yet to meet with the Permanent Secretary of the Ministry of Justice regarding a potential contract providing for remuneration of the Munyagishari defence team. The Defence attempted to call the Permanent Secretary the previous week and were informed he was on mission. Mr. Hakizimana indicated that the Defence would continue to seek an audience with the Permanent Secretary. O. 27 February 2014 Meeting with the Prosecution 91. On 27 February 2014, I met with Ms. Florida Kabasinga, Legal Adviser to the Prosecutor-General, and Mr. Jean-Bosco Mutangana, Lead Counsel for the Prosecution in the Munyagishari case. 92. Mr. Mutangana anticipated that additional delays may occur before the beginning of the Munyagishari trial. Mr. Mutangana stated that the Prosecution did not know the status of Mr. Munyagishari's lawyers. Mr. Mutangana anticipated that the Defence would argue that it should interview its own witnesses, such as the Defence argued in the Uwinkindi case. Additional delays could occur because of the need to work out a funding arrangement for the investigation of witnesses. Mr. Mutangana noted that the precedent established by the Uwinkindi case would potentially allow the pre-trial stage of proceedings to move more quickly. Monitoring Report for the Munyagishari Case (January and February 2014) 15

16 93. Mr. Mutangana noted that the Defence could potentially file an appeal if an adverse decision is rendered by the High Court as to the language of the proceedings. 150 III. CONCLUSION 94. The High Court will issue a Decision on the issue of Mr. Munyagishari's nationality and the language of the proceedings on 19 March Respectfully submitted, Samuel Algozin Mechanism Monitor for the Mu ishari Case Monitoring Report for the Munyagishari Case (January and February 2014) 16

17 TRANSMISSION SHEET FOR FILING OF DOCUMENTS WITH THE MECHANISM FOR INTERNATIONAL CRIMINAL TRIBUNALS/ FICHE DE TRANSMISSION POUR LE DEPOT DE DOCUMENTS A LA MECHANISME POUR LES TRIBUNAUX PENAUX INTERNATIONAUX I - FILING INFORMATION / INFORMATIONS GENERALES To/ A: MICT Registry/ Greffe du MTPI /1 Arusha/ Arusha The liague/ is Haye From/ De: Chambers/ Chambre Defence/ Defense Prosecution! Bureau du Procureur Other/ Autre : Monitor Case Name/ Affaire: Munyagishari Case Number/ MICT Affaire No: Date Created/ Date 7 March 2014 Date 7 March No. of Pages/ 16 du: transmitted/ 2014 No de pages: Original Language / 11 English/ French/ Kinyarwanda B!C/S Albanian! Langue de Anglais Francais Albanais Title of Document/ Monitoring Report for the Munyagishari Case (January and February 2014) Titre du document: Classification Level/ Categories de classement: Document type/ Type de document: ' Unclassified/ Non classe Strictly Confidential/ Strictement confidentiel Confidential/ Confidentiel Ex Parte (specify/ precise* Ex Parte Ex Parte Prosecution Other Ex Parte/ Ex Parte Autre (specify/ Defence excluded/ precise* excluded/ Defense exclu Bureau du Procureur exclu Indictment/ Acte d'accusation Warrant/ Mandat Motion/ Requete Decision/ Decision Order/ Ordre Affidavit/ Declaration sous sermon Correspondence Judgement/ Jugement Appeal Book/ Notice of Appeal/ Livre d'appel Acte d'appel Submission from non-parties! Ecritures deposes par des tiers Submission from parties/ Ecritures deposes par des parties Book of Authorities! Livre de sources juridiques II - TRANSLATION STATUS ON THE FILING DATE/ ETAT DE LA TRADUCTION AU JOUR DU DEPOT Translation not required/ La traduction n'est pas requise Filing Party hereby submits only the original, and requests the Registry to translate/ La Partie deposante ne soumet que l'original of sollicite que le Greffe prenne en charge la traduction (Word version of the document is attached/ La version en Word se trouve en annexe) English/ Anglais L French/ Francais Kinyarwanda B/C/S Albanian/ Albanais Filing Party hereby submits both the original and the translated version for filing, as follows/ La Partie deposante soumet ci-joint /'original et la version traduite pour depot, comme suit : Original/ English/ French! Kinyarwanda B/C/S Albanian! Albanais Original en Anglais Francais Translation! English/ French/ Kinyarwanda B/C/S Albanian/ Albanais Traduction en Anglais Francais Filing Party will be submitting the translated version(s) in due course in the following language(s)/ La Pattie deposante soumettra la (les) version(s) traduite(e) sous peu, dans la (les) langue(s) suivante(s): English/ Anglais French/ Frangais Kinyarwanda B/C/S Albanian/ Albanais Send completed transmission sheet to/ Veuillez soumettre cette fiche pour le depot des documents et: Judicial FilingsArushaPun.org OR JudicialFilingsl-laguePun.org