THE
INTERNATIONAL CRIMINAL TRIBUNAL FOR RWANDA (“Tribunal”),
SITTING as Trial Chamber III,
composed of Judges Lloyd G. Williams, Q.C., Presiding, Andrésia Vaz, and
Khalida Rachid Khan (“Chamber”);
BEING SEISED of the “Prosecutor’s Motion for Leave to Sever
an Indictment and for Directions on the Trial of Tharcisse Muvunyi”,
filed on 5 November 2003 (“Motion”);
NOTING that the Accused did not file a response to the Motion
within the timeframe stipulated in Rule 73(E) of the Rules of Procedure
of Evidence (“Rules”) and that the Accused did not either request that
these timeframes be extended;
CONSIDERING the Statute of the Tribunal (“Statute”) and the Rules;
NOW REVIEWS the Motion on the sole basis of the written brief filed
by the Prosecutor, in accordance with Rule 73(A) of the Rules.
Submissions
of the Parties
Prosecution
1.On the one hand, the Prosecutor requests the Chamber
to order the severance of Tharcisse Muvunyi’s trial, on the basis of Rules
54 and 82(B) of the Rules. In this regard, the Prosecutor recalls the relevant
procedure while emphasising that Tharcisse Muvunyi has been arrested on 7 February 2000, whereas one of his co-Accused, Idelphonse Hategekimana,
was arrested recently, on 16 February
2003, and whereas the other Accused, Idelphonse Nizeyimana, remains at large.
The Prosecutor also recalls that, since 6 June
2002 at the status conference, he has stated his readiness for the commencement
of Tharcisse Muvunyi’s trial.
2. The Prosecutor contends that, pursuant to Rule 82(B), the Chamber can order
such severance in order to avoid a conflict of interests that might cause
serious prejudice to the Accused. According to the Prosecutor, a joint
trial in respect of the three Accused entails the simultaneous presentation
of evidence which will necessarily cause prejudice to the Accused Muvunyi,
given that his case is ready for trial. In support of this claim,
the Prosecutor also refers to jurisprudence from both International Criminal
Tribunals where, in situations similar to the present one, Chambers have
dismissed motions for joinder of trial, or granted motions for severance
of trial.
3. The Prosecutor argues that, in accordance with Rule
54 of the Rules, the Chamber can issue all such orders as it deems necessary
for the conduct of trial. According to the Prosecutor, granting severance
of the trial in the present case is within the Chamber’s competence pursuant
to that Rule.
4. Lastly, the Prosecutor alleges that severance of the
trial is in the interests of justice and, in the interests of the Accused
since it will allow him to be tried without undue delay, thus safeguarding
his right to a fair trial.
5. On the other hand, the Prosecutor requests the Chamber to issue directions
for trial and set a date for the commencement of trial. The Prosecutor
relies in this regard on his general impression that the Defence is not
ready for the trial to commence, notably because of the lack of communication
between Lead Counsel and the Accused, and considering the latter’s request
for withdrawal and replacement of Lead Counsel.
Deliberations
6.Rule 82(B) of the Rules states:
(B)The
Trial Chamber may order that persons accused jointly under Rule 48
be tried separately if it considers it necessary in order to avoid a conflict
of interests that might cause serious prejudice to an accused, or to protect
the interests of justice.
7.The Chamber is of the view that the severance of the Accused Tharcisse Muvunyi
from the other two Accused would be in the interests of justice. He was
arrested on 7 February 2000, and one of his co-Accused has not yet been apprehended. Further the Accused
himself requested severance when he made his initial appearance on 8 November 2000. The right to be tried without undue delay and the
readiness of the Prosecutor for trial favour severance and a separate trial
for Tharcisse Muvunyi. The Prosecutor’s motion for severance shall
therefore be granted. Consequently, the Prosecutor is ordered to file a
separate indictment containing appropriate charges against Tharcisse Muvunyi
within 14 days of the date of this decision.
8.The request for directions as to a date for trial will
be dealt with in due course. The question in relation to the Accused’s
request for withdrawal of Lead Counsel has already been settled by the Decision
of the Trial Chamber dated 18 November 2003, and is therefore moot.
ACCORDINGLY,
THE CHAMBER,
I. GRANTS the Prosecutor’s motion for severance of Tharcisse
Muvunyi;
II. ORDERS the Prosecutor to file, within 14 days, a separate indictment against
Tharcisse Muvunyi;
III.DIRECTS the Registrar to take all necessary steps to appoint Lead Counsel to
Tharcisse Muvunyi in an effort to avoid undue delay for the start of the
trial, as well as take all other necessary measures to afford commencement
of the trial;
IV. DENIES the Prosecutor’s motion in all other respects.
Arusha, 11
December 2003 |
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Lloyd G. Williams, Q.C. |
Andrésia Vaz |
Khalida Rachid Khan |
Presiding Judge |
Judge |
Judge |
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[Seal of the Tribunal] |
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