Mechanism for International Criminal Tribunals Date: 2 October 2013 APPEALS CHAMBER

Transcription

1 UNITED NATIONS MIC-1-1:.L- L 'f - f\ ('2 ~o8, ) Case No: MICT A Mechanism for International Criminal Tribunals Date: 2 October 2013 Original: English APPEALS CHAMBER Before: Registrar: Judge Theodor Meron, Presiding Judge Bakone Justice Moloto Judge Christoph Fliigge Judge Burton Hall Judge Liu Daqun Mr. John Hocking AUGUSTIN NGIRABATWARE v. THE PROSECUTOR. PUBLIC PROSECUTION RESPONSE TO NGIRABATWARE'S SECOND RULES 73, 74 AND 142 MOTION Office of the Prosecutor Hassan Bubacar lallow 1 ames 1. Arguin Inneke Onsea Evelyn Kamau Counsel for Augustin Ngirabatware Mylene Dimitri Guenael Mettraux Deogratias Sebureze Gaia Guastella Received by the Registry Mechanism for Intemational Criminal Tribunals 02110/ :23

2 ~ Ngirabatware's motion l to have Pauline Nyiramasuhuko's Karemera testimony admitted, fails to address three crucial questions: Why was he was unable to access the public Karemera testimony or to call Nyiramasuhuko as a witness, although he knew that she could have relevant information? How could Nyiramasuhuko's testimony have been a decisive factor at trial, although it was not admissible at trial? And-even assuming that the testimony would have been admissible-how could it be relevant for Ngirabatware's 7 April alibi, although it contains no information about that date? As shown below, the answers to these questions demonstrate that relief is not warranted because Ngirabatware knew about the information before trial, the evidence was not admissible in any event, and even if admissible it would not have had an impact on the verdict. A. Nyiramasuhuko's testimony was available at trial 2. A motion for admission of additional evidence on appeal must demonstrate that the evidence was not available at trial in any form.2 Ngirabatware provides no submissions about the availability of Nyiramasuhuko's testimony at trial. He implies, however, that only the Karemera transcript-disclosed after tria13- informed him about Nyiramasuhuko's knowledge about his stay at the Presidential Guard Camp.4 3. This implication is incorrect. Ngirabatware himself testified that Nyiramasuhuko was at the Presidential Guard Camp between 7 and 8 April He therefore knew, fi'om the very beginning of the proceedings, that Nyiramasuhuko might have knowledge relevant to his alibi. Even if he could not have discovered Nyiramasuhuko's public Kare777,era testimony with due diligence-a claim for which he provides no support-lithe information 1 Dr. Ngirabatware's Second Motion Pursuant to Al:ticles 73, 74 and 142 of the Rules of Procedure and Evidence, 2 September 2013 (Motion). 2 Augustin Ndindiliyimana et al. v. The Prosecutor, Case No. ICTR A, Decision on Fran90is Xavier Nzuwonemeye's Motion for the Admission of Additional Evidence, 3 May 2013 (Ndindiliyimana Decision), para Motion, Annex A (Disclosure of 17 May 2013). <I Motion, paras. 7, T. 3 February 2011, p. 4, lines 6-19; see also T. 18 October 2011, p. 23, lines 14-30; The Prosecutor v. Augustin Ngirabatware, Case No. ICTR T, Judgement and Sentence, dated 20 December 2012 and filed on 21 February 2013 (Judgement), para. 533 (Defence Witness Musabeyezu-Kabuga testified that she saw Nyiramasuhuko at the Presidential Guard Camp). See also Motion, para. 9 (fn. 10), p. 10 (fn. 36, 37). 1

3 contained"g in that testimony was available to him in a different form from the beginning of trial. 4. Furthermore, the late disclosure of Nyiramasuhuko's public Karemera transcript did not violate the Prosecution's disclosure obligations. The Appeals Chamber has repeatedly held that "the Prosecution may be relieved of its [ICTR] Rule 68 obligations if the existence of the relevant exculpatory material is known to the Defence and if it is reasonably accessible through the exercise of due diligence."7 It also held that, where testimony was given in open session at the seat of the Tribunal, an applicant must show why he could not have discovered that testimony through exercising reasonable diligence. 8 Ngirabatware has not made, and cannot make, such a showing because he knew that Nyiramasuhuko might have relevant information In any event, as shown below, the transcripts were inadmissible and irrelevant to Ngirabatware's 7 April alibi.lo He therefore suffered no prejudice from the late disclosure. B. No impact 6. Since the evidence Ngirabatware seeks to have admitted was available at trial, he must show that its exclusion would lead to a miscarriage of justice in that, if it had been admitted at trial, it would have had an impact on the verdict. 11 Nyiramasuhuko's Karemera transcript, however, would not have impacted on the Chamber's decision because the transcript was inadmissible. 12 Under ICTR Rule 92 bis (D) (Rule 110 (A»13, transcripts that go to acts and conduct of the accused-that is, a critical element of the prosecution's case-are 6 See Prosecutor v. Vujadin Popovic et al., Case No. IT-05-88A, Decision on Radivoje MiletiC's First and Second Motions for Admission of Additional Evidence on Appeal pursuant to Rule 115, 15 April 2013, paras (finding that, while certain notes were unavailable to the applicant, the information contained in those notes was not). 7 E.g. Prosecutor v. Ferdinand Nahimana et al., Case No. ICTR A, Decision on Appellant Jean-Bosco Barayagwiza's Motions for Leave to Present Additipnal Evidence Pursuant to Rule 115 of the Rules of Procedure and Evidence, 8 December 2006, para. 33 [addition added]; Prosecutor v. Tihomir Blashi6, IT A, Judgement, 29 July 2004, para B Ndindiliyimana Decision, para. 22 in conjunction with fn See above para See below paras II Ndindiliyimana Decision, para The result would be the same even ifthe "could" test was applicable (which it is not). 13 All references to the Rules are to the MICT Rules of Procedure and Evidence, unless otherwise specified. 2

4 inadmissible.l 4 Since Ngirabatware's presence at the crime sites was a critical element of the Prosecution's case, Nyiramasuhuko's Karemera transcript would have been inadmissible at trial, at least to the extent that it was offered to prove Ngirabatware's alibi But even if Nyiramasuhuko's Karemera transcript had been admissible at trial, it would not meet the threshold for admission under Rule 142. According to Ngirabatware's own summary of Nyiramasuhuko's Karemera transcript, it provides no information about his whereabouts on 7 April Nyiramasuhuko's testimony states that Ngirabatware was one of the ministers she saw at the Presidential Guard Camp while she had sought refuge there. 17 She did not testify that she saw Ngirabatware throughout the time she was at the Presidential Guard Camp from 6 to 8 April, or that she saw him specifically on 7 April. 8. Likewise, Ngirabatware neither has submitted nor can submit that the information in Nyiramasuhuko's Karemera transcript would have affected any of the Chamber's considerations for rejecting Ngirabatware's alibi witnesses. IS It is therefore irrelevant for his alibi on that date, and thus would not have had an impact on the verdict. The irrelevance of Nyiramasuhuko's information IS buttressed by Ngirabatware's own decision not to call her during his trial. 9. Nyiramasuhuko's Kare171,era transcript also would not add anything materially different from evidence already on the record. 19 Nyiramasuhuko, like NgiJ'abatware and some of his alibi witnesses, said that Ngirabatware was at the Presidential Guard Camp.20 Merely repeating the same testimony does not make it more likely to be true, particularly where the Chamber considered and rejected 14 Prosecutor v. Jadranlw Prlic et al., Case No. IT AR73.6, Decision on Appeals against Decision Admitting transcript of J adranko PrliC's Questioning into Evidence, 23 November 2007, paras. 58, 59, citing with approval Prosecutor v. Du lw Sillirica et al., Case No. IT-95-8-T, Decision on Prosecution's Application to Admit Transcripts under Rule 92bis, 23 May 2001, para Rule 111 allowing admission of transcripts going to acts and conduct of the accused did not apply at trial. In any event, that Rule would request that the witness be called. 16 Motion, para. 8, pp The Prosecutor v. Edouard J{aremera et al., Case No. ICTR T, T. 3 May 2010, p. 38, line 28 to p. 39, line 1 (Motion, Annex B). 18 Judgement, paras , See Prosecutor v. Ante Gotovina and Mladen Marlwc, Case No. IT A, Public Redacted Version of the 21 June 2012 Decision on Ante Gotovina's and Mladen MarkaC's Motions for the Admission of Additional Evidence on Appeal, 2 October 2012, paras. 27, Judgement, para. 664 (with reference to Defence Witnesses Musabeyezu-Kabuga, Byilingiro and Bwonga). 3

5 nearly identical testimony because it did not raise a reasonable doubt regarding Ngirabatware's presence at the crime scene. 21 For this reason, too, Nyiramasuhuko's Karemera transcript would not have had an impact on the verdict. C. Remedy 10. Since Nyiramasuhuko's Karelnera transcript was available at trial but would have been inadmissible and, in all events, not materially different from evidence already on the record, it cannot be admitted under Rule Likewise, the transcript cannot be judicially noticed under Rule It constitutes neither an adjudicated fact (a fact determined in a final judgement)23 nor a fact of common knowledge (a fact not reasonably subject to dispute).24 In any event, the rules on judicial notice cannot be used to circumvent the rules for the admission of additional evidence. Rather, the Appeals Chamber will only take judicial notice of facts that also meet the requirements of Rule 142 (or ICTR Rule 115).25 D. Conclusion 12. The Motion should be dismissed. Word Count: 1484 Dated and signed this 2nd day of October 2013 at Arusha, Tanzania. Inneke Onsea Senior Appeals Counsel Evelyn Kama u Appeals Counsel 21 Judgement, paras. 664, 675, 685, 696; see also Judgement, paras about the feasibility to travel between Kigali and Gisenyi (Nyamyumba commune). 22 See Motion, paras. 6, Ephrem Setalw v. the Prosecutor, ICTR A, Judgement, 28 September 2011, para LalLl'ent Semanza u, the Prosecutor, ICTR A, Judgement, 20 May 2005, para Prosecutor u. Bla.goje Simic, Case No. IT-95-9-A, Decision on Blagoje Simic's Motion for Admission of Additional Evidence, Alternatively for Taking of Judicial Notice, 1 June 2006, para, 26. 4

6 TRANSMISSION SHEET/FICHE DE TRANSMISSION FOR FILING OF DOCUMENTS WITH THE ARUSHA BRANCH OF THE MECHANISM FOR INTERNATION CRIMINAL TRIBUNALS/ POUR LE DEPOT DE DOCUMENTS A LA DIVISION D'ARUSHA DU MECHANISME POUR LES TRIBUNAUX PENAUX INTERNATIONAUX To/ A: I - FILING INFORMATION; INFORMATIONS GENERALES MICT Registry/ Grefte du MTPI From/ D Chambers/ D Defence/ [8J Prosecution/ D Other/ Autre: De: Chambre Defense Bureau du Procureur James Arguin Case Name/ Augustin Ngirabatware v. The Prosecutor I Case Number! MICT A Affaire: Affaire No: Date Created! 2 October 2013 I Date transmitted! 2 October 2013 Date du: Transm;s le: No. of Pages/ 5 I Original Language! [8J English/ D French/ D Kinyarwanda No de pages: Langue de I'original: Anglais Franr;:ais Title of Document! Titre du document Prosecution Response to Ngirabatware's Second Rules 73, 74 and 142 Motion Classification [8J Unclassified/ Non classe D Strictly Confidential! Strictement confidentiel Level/ D Confidential/ Confidentiel D Ex Parte (specify/ preciser): Categories de D Ex Parte D Ex Parte D Other Ex Parte/ Ex Parte Autre (specify/ classement: Defence excluded/ Prosecution excluded/ preciserj: Defense exclu Bureau du Procureur exclu Document type/ D Indictment! D Order/ Ordre D Appeal Book! D Notice of Appeal/ Type de Acte d'accusation Livre d'appel Acte d'appel document D Warrant! D Affidavit! D Submission from non-parties/ Mandat Declaration sous sermon Ecritures deposes par des tiers DMotion/ D Correspondence [8J Submission from parties/ Requete Ecritures deposes par des parties D Decision/ D Judgement! Jugement D Book of Authorities/ Decision Livre de sources juridiques 11 - TRANSLATION STATUS ON THE FILING DATE; ETAT DE LA TRADUCTION AU JOUR DU DEPOT [8J Translation not required/ La traduction n'est pas requise DFiling Party hereby submits only the original, and requests the Registry to translate/ La Partie deposante ne soumet que I'original et sollicite que le Grefte prenne en charge la traduction (Word version of the document is attached/ La version en Word se trouve en annexe) D English/ Anglais D French/ Franr;:ais D Kinyarwanda D Filing Party hereby submits both the original and the translated version for filing, as follows/ La Partie deposante soumet ci-joint I'original et la version traduite pour depot, comme suit : Original! D English/ D French/ D Kinyarwanda Original en Anglais Franr;:ais Translation/ D English/ D French/ D Kinyarwanda Traduction en Anglais Franr;:ais D Filing Party will be submitting the translated version(s) in due course in the following language(s)/ La Partie deposante soumettra /a (Ies) version(s) traduite(e) sous peu, dans la (Ies) langue(s) suivante(s): D English/ Anglais D French/ Franr;:ais D Kinyarwanda Send completed transmission sheet to: IudicialFilingsArusha@un.org Veuillez soumettre cette fiche pour le depot des documents a: IudicialFilingsArusha@un.org