THE INTERNATIONAL CRIMINAL TRIBUNAL FOR RWANDA (the “Tribunal”),
SITTING as Trial Chamber II composed of
Judge William H. Sekule, Presiding, Judge Arlette Ramaroson and Judge Solomy
Balungi Bossa (the “Chamber”);
BEING SEISED of Ntahobali’s Motion for
Separate Trial, filed on 18 January 2005 (the “Motion”),
CONSIDERING:
-
The Prosecutor’s Response to Arsène
Shalom Ntahobali’s Request for a Separate Trial, filed on 24 January
2005 (the “Prosecutor’s
Response”);
-
Kanyabashi’s Response to Arsène Shalom
Ntahobali’s Motion for Separate Trial, filed on 24 January 2005 (“Kanyabashi’s
Response”);
-
Nsabimana’s Response to Arsène Shalom
Ntahobali’s Motion for Separate Trial, filed on 26 January 2005 (“Nsabimana’s
Response”);
-
Ntahobali’s Reply to the Prosecutor’s
Response to Arsène Shalom Ntahobali’s Request for a Separate Trial, filed
on 31 January 2005 (“Ntahobali’s Reply to the Prosecution”);
-
Ntahobali’s Reply to Kanyabashi’s and
Nsabimana’s Responses to Arsène Shalom Ntahobali’s Motion for Separate
Trial, filed on 31 January 2005 (“Ntahobali’s Reply to Kanyabashi’s and
Nsabimana’s Responses”);
NOTING the “Decision on Prosecutor’s Motion
for Joinder of Trials” rendered on 5 October 1999 in the present case (the “Joinder
Decision”);
NOTING FURTHER the Oral Ruling of 18 October
2004 on the order of presentation of the Defence cases (the “Oral Ruling
of 18 October 2004”);
CONSIDERING the Statute of the Tribunal
(the “Statute”) and the Rules of Procedure and Evidence (the “Rules”);
NOW DECIDES the matter, pursuant to Rule
73 (B), on the basis of the written submissions of the Parties.
SUBMISSIONS OF THE PARTIES
Ntahobali’s
Motion
1. The
Defence for Ntahobali reminds the Chamber that the order of presentation
of the Defence case was decided on 18 October 2004 and that it was ruled
that the Defence for Ntahobali should present its case in the second place,
after the presentation of Nyiramasuhuko’s Defence.
2. The
Defence submits that the Pre-Defence Briefs filed by the various Defence
teams reveal a conflict of interests which is a new fact that substantially
prejudices the Accused Ntahobali’s right.
3. The
Defence submits that pursuant to Rule 82(A), in joint trials, each accused
shall be accorded the same rights as if he were being tried separately and
that, in accordance with Rule 82(B), the 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.
4. The
Defence submits that the Motion is not grounded on the risk of contamination
of evidence, because the bench is composed of professional judges who can
deal with such a risk. The Defence further submits that motions for severance
of trial may be filed at any time, when one of the criteria for severance
has been met.
5. The
Defence relies on the jurisprudence to submit that the advantages of a joint
trial must be balanced against the rights of the accused to a trial without
undue delay and any other prejudice to the accused that may be caused by
joinder.
6. According
to that jurisprudence, the Defence submits that it is sufficient to demonstrate
either the existence of a conflict of interests that might cause a serious
prejudice to the Accused, or that the interest of justice requires a separate
trial. The Defence submits that during the presentation of the Prosecution
Case, it became obvious that the Defence strategy of some Accused was contradictory
to that of Ntahobali: their Defence strategy was reproving the Interahamwe and,
consequently, Ntahobali. The Pre-Defence Briefs filed by Kanyabashi and Nsabimana
confirmed this orientation:
· Kanyabashi
lists Defence Witness SW, who was formerly on the Prosecution list of Witnesses,
before the Prosecution dropped him from their list. It appears from the statement
of SW of 15—17 November 1995 that his testimony incriminates Ntahobali.
· Kanyabashi
is also planning to call agents of African Rights to testify on words they
heard about some Prosecution Witnesses. According to publications by African
Rights, the appearance of those agents may be the occasion of new allegations
against Ntahobali. This would cause a serious prejudice to Ntahobali who
will have ended the presentation of his case by the time Kanyabashi presents
his case. That means that Ntahobali will be obliged to request leave to call
additional Defence witnesses in rebuttal.
· Kanyabashi
intends to call several witnesses implicating the Interahamwe in massacres
in Butare.
· There
is a high probability that Kanyabashi and Nsabimana will call previous Prosecution
Witnesses who were withdrawn from its list. The Defence for Ntahobali will
only be informed that they were previously on the Prosecution list when they
testify.
· Nsabimana
Defence Witnesses IBO, LALA and BUBU will also testify on the responsibility
of the Interahamwe.
· Accused
Nsabimana himself will testify on his relationship with the Interahamwe.
· Defence
for Nsabimana have also indicated their intention to rely on documentary
evidence that would incriminate Ntahobali: those documents were known previously
but were not filed as evidence.
7. The
Defence for Ntahobali submits that, as opposed to the Defence for the other
accused, it will neither be aware of the totality of the acts he is charged
with, nor have the facilities to prepare its case and to conduct investigations
in order to rebut the allegations against the Accused. Therefore, the Defence
submits that a conflict of interests has arisen in the strategy of the various
Defence teams, which may cause a serious prejudice to the Accused. This situation
is similar to the situation where Ntahobali would have been obliged to present
his case in the middle of the Prosecution Case and compromises the right
of the Accused to have a full defence, his right to equality before the Tribunal,
his right to be informed of the charges against him and his right to have
sufficient time and facilities for the presentation of his case.
8. The
Defence submits that, even if Ntahobali is allowed to rebut new evidence
against him, this would not cure the prejudice: Ntahobali would have prepared
his Defence Case and designed his strategy without being informed of the
totality of the charges against him. This situation would also lengthen the
duration of the trial.
9. The
Defence submits that this situation would also violate the equality between
co-accused enshrined in Rule 82(A). If the Accused was tried alone, he would
be completely informed of the evidence against him. Additional evidence,
such as the evidence brought by Kanyabashi and Nsabimana, would not be brought
against Ntahobali if he was tried alone.
10. The Defence also submits that
the requested severance would be in the interests of justice. The conflict
of interests jeopardizes the right of Ntahobali to have a fair trial. Moreover,
the joinder has considerably lengthened the duration of the Trial and aggravated
the complexity of the case. In the current situation, Ntahobali will have
to present his case twice, once after the Prosecution Case and a second time
after the Kanyabashi and Nsabimana Defence cases.
11. The Defence submits that,
if the severance is granted, Ntahobali accepts to have his trial continued
at the current stage. He also accepts that his separate trial be resumed
at any time the judges will find appropriate.
12. The Defence concludes that
two solutions are possible to avoid the prejudice that is described:
· To
put off the presentation of Ntahobali’s case to follow the presentation of
Nsabimana’s and Kanyabashi’s cases. However, this solution would not solve
the problems of the duration of trial and it would still cause prejudice
to the Defence. But this prejudice would be less serious. Ntahobali’s Defence
does not lay accusations at Kanyabashi and Nsabimana: therefore, those co-accused
would suffer no prejudice.
· To
order the severance and the continuation of Ntahobali’s trial as soon as
possible.
Prosecutor’s
Response
13. The Prosecution submits that
the Defence does not provide sufficient legal basis for severance. The Pre-Defence
Briefs of the co-accused do not contain substantially new information or
evidence that should not have been anticipated by the Defence of Ntahobali
prior to the close of the Prosecution case.
14. The Prosecution submits that
the alleged criminal acts, including the Conspiracy to commit genocide, were
undertaken in furtherance of a single and common enterprise. It is still
in the public interest for the six accused to be tried jointly. The Prosecution
reiterates the submissions it made in its initial application for joinder
of the accused on 17 August 1998 which was granted by the Trial Chamber on
5 October 1999.
15. The Prosecution submits that
a severance at this stage of the proceedings is likely to result in delay.
The issue of the right to be tried without undue delay, as mentioned by the
Defence, is inapplicable here since the Prosecution has closed its case and
the time table for the presentation of the Defence case has been set. The
Prosecution submits that the Kovacevic Decision on which the Defence
relies was rendered before the end of the Prosecution
case and that this distinction is fundamental.
16. The Prosecution relies on
several decisions rendered by the ICTY and domestic courts to sustain that
the arguments advanced by the Defence for Ntahobali do not render the severance
necessary. The Prosecution submits that Counsel for Ntahobali will be given
full opportunity to cross-examine the witnesses called by his co-accused.
17. As regards the option to reorder
the sequence of the Defence so that Ntahobali presents his Defence after
the Defence for Kanyabashi and Nsabimana, the Prosecution admits that it
is at the Chamber’s discretion, but submits that there is no compelling reason
to alter the established sequence.
18. The Prosecution therefore
prays the Chamber to dismiss the Motion.
Kanyabashi’s
Response
19. The Defence for Kanyabashi
leaves the issue of severance at the Chamber’s discretion but submits that
the Motion itself recognises that this issue is not new and that the Chamber
was therefore aware of that problem when ruling on 18 October 2004 on the
order of presentation of the Defence cases. The Defence for Kanyabashi submits
that this Motion is an attempt to relitigate the Oral ruling of 18 October
2004.
20. Therefore, the Defence for
Kanyabashi prays the Chamber to dismiss the request that Kanyabashi present
his case before Ntahobali.
Nsabimana’s
Response
21. The Defence for Nsabimana
leaves the issue of severance at the Chamber’s discretion.
22. As regards the order of presentation
of the Defence cases, the Defence for Nsabimana submits that the Motion is
an attempt to relitigate the Oral ruling of 18 October 2004. The Defence
for Nsabimana submits that the allegation that its witnesses may reprove
Ntahobali is not founded. Defence for Ntahobali cannot make presumptions
about Nsabimana’s Defence strategy solely on the basis of his Pre-Defence
Brief. Nsabimana’s case has not started yet and it is too early to say that
Ntahobali will be prejudiced as a result of how Nsabimana conducts his case.
The Defence for Nsabimana submits that the Motion is therefore premature.
23. Consequently, the Defence
for Nsabimana prays the Chamber to dismiss the request to alter the order
of presentation of the Defence cases.
Ntahobali’s
Reply to the Prosecution
24. The Defence reiterates the
prejudices caused to Ntahobali by the joinder and submits that, pursuant
to Rule 82(B), the onus is limited to the demonstration that he may be prejudiced.
25. The Defence repeats that the
recall of witnesses after the presentation of Nsabimana’s and Kanyabashi’s
cases will automatically cause new delays that could be avoided by a severance.
On the other hand, the Defence does not understand how the severance of the
case could cause additional delays, the time of presentation of the Defence
case remaining the same.
26. The Defence submits that the
stage at which the Motion for severance is made does not change the applicable
law. Rule 82(B) does not specify when such a motion can be made.
27. The Defence submits that the
severance will minimize hardship caused to the witnesses and is in the interest
of judicial economy, by avoiding the recall of Ntahobali Defence witnesses
in rebuttal after the close of the Nsabimana’s and Kanyabashi’s cases.
28. The Defence submits that the
opportunity to cross-examine the witnesses called by its co-accused does
not counterbalance the prejudice resulting to Ntahobali’s right to have a
full defence. Ntahobali must be given the opportunity to be informed in advance
of the evidence against him and to call witnesses to challenge the allegations
of Nsabimana and Kanyabashi witnesses.
Ntahobali’s
Reply to Nsabimana and Kanyabashi
29. The Defence for Ntahobali
submits that the issue of conflict of interests was raised prior to the 18
October 2004 Oral ruling, by Counsel for Nyiramasuhuko only and did not concern
Ntahobali. This Motion was therefore never ruled upon by the Chamber. The
Defence for Ntahobali further recalls that the Chamber decided that in the
event of any difficulties in the course of the proceedings, appropriate measures
would be taken to deal with such difficulties.
30. The
Defence for Ntahobali submits that the right to cross-examine Nsabimana and
Kanyabashi witnesses can in no way remedy the prejudice caused to him if
he is not given the opportunity to call witnesses in rebuttal.
DELIBERATIONS
On the Issue of Severance
31. In accordance with Rule 82(B),
a “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”.
32. The Chamber recalls that the
jurisprudence on Rule 82(B) shows that the Chamber has a discretionary power
to order a separate trial. The Appeals Chamber of the International Tribunal
for the Former Yugoslavia (ICTY) ruled in its Decision on Request to Appeal
rendered in Prosecutor v. Brdanin and Talic, on 16 May 2000
that:
[S]ub-Rule 82 (B) is permissive rather than obligatory, thus
leaving to the relevant Trial Chamber the power to determine the matter of
separate trials in the circumstances of the case before it.
33. It
results from Rule 82(B) that the moving Party requesting the severance has
to demonstrate the existence of a conflict of interests of such a nature
as might cause serious prejudice to an accused or that the interests of justice
are compromised.
34. The
Chamber notes the Defence submission that it appears from the Pre-Defence
Briefs filed by co-accused Joseph Kanyabashi and Sylvain Nsabimana that their
defence strategies would implicate Arsène Shalom Ntahobali, as member of
the Interahamwe. Consequently, the Defence submits that there is a
conflict of interests between Arsène Shalom Ntahobali and his co-accused,
which may cause a serious prejudice to its defence. According to the order
of presentation of the Defence cases as decided in the Oral Ruling of 18
October 2004, Arsène Shalom Ntahobali is to present his case before Joseph
Kanyabashi and Sylvain Nsabimana and will not be aware of the incriminating
evidence that Kanyabashi and Nsabimana may bring against him. According to
the Defence, this situation prejudices Ntahobali’s right to a fair trial
and to be informed of the evidence against him before the presentation of
his case.
35. The Chamber notes the ICTY
Trial Chamber’s ruling in Prosecutor v. Brdanin and Talic in the “Decision
on Motions by Momir Talic for Separate Trial and for Leave to File a Reply” of
9 March 2000:
Nor does the Trial Chamber see any possibility of serious
prejudice resulting from the prospect that Brdanin may give evidence which
incriminates Talic or that Talic will be unable, without fear of contradiction,
to blame Brdanin and others for the orders which the prosecution may establish
that he followed. A joint trial does not require a joint defence, and necessarily
envisages the case where each accused may seek to blame the other. The
Trial Chamber will be very alive to the “personal interest” which each accused
has in such a case. Any prejudice which may flow to either accused from the
loss of the “right” asserted by Talic here to be tried without incriminating
evidence being given against him by his co-accused is not ordinarily the
type of serious prejudice to which Rule 82(C) is directed. The Trial Chamber
recognises that there could possibly exist a case in which the circumstances
of the conflict between the two accused are such as to render unfair a
joint trial against one of them, but the circumstances would have to be
extraordinary.
36. It is the Chamber’s view that
this decision, which was upheld by the ICTY Appeals Chamber, is consistent with the jurisprudence of some
domestic courts in relevant respects. In R. v. Crawford, for instance,
the Supreme Court of Canada held that the use of an antagonistic defence
is not sufficient to compel the severance of a joint trial:
There exist […] strong policy reasons for accused persons
charged with offences arising out of the same event or series of events
to be tried jointly. The policy reasons apply with equal or greater force
when each accused blames the other or others, a situation which is graphically
labelled a "cut-throat defence". Separate
trials in these situations create a risk of inconsistent verdicts […]
Although the trial judge has a discretion to order separate
trials, that discretion must be exercised on the basis of principles
of law which include the instruction that severance is not to be ordered
unless it is established that a joint trial will work an injustice to the
accused. The mere fact that a co-accused is waging a "cut-throat" defence is not in itself sufficient.
37. Similarly, in R. v. Cairns,
Zaidi and Chaudhary, the Court of Appeal of England wrote:
Of course the trial court has a discretion
to be exercised in the interests of justice. But the
fact that one defendant is likely to give evidence adverse to a co-defendant,
after that co-defendant has given evidence, will not of itself normally
require separate trials. It is, after all, a feature of trials where cut-throat
defences are being run, a common enough experience of the courts.
38. Furthermore, it has been observed
in the decision of the Court of Appeals for the US First Circuit in United
States v. Talavera, that severance is envisaged only to avoid a situation
where the conflict of interests leaves a risk that a jury may confuse the
responsibility of one co-accused with that of the other:
It is well settled that "antagonistic
defences do not per se require severance, even if the defendants are hostile
or attempt to cast the blame on each other". Severance is required
only where the conflict is so prejudicial and the defences are so irreconcilable
that the jury will unjustifiably infer that this conflict alone demonstrates
that both are guilty.
39. In
consequence of the observation noted in the preceding paragraph, this Chamber
observes as follows: First, the Chamber is composed of professional judges,
who are aware that, pursuant to Rule 82(A), each accused in a joint trial
shall be accorded the same rights as if he or she were being tried separately.
Second, as mentioned in the Oral Ruling of 18 October 2004,the
Rules of Procedure and Evidence provide for several remedies, which are always
available should any prejudice arise within the course of the trial. In particular, the Defence has a full opportunity
to cross-examine the witnesses called by other co-accused. And, where necessary
and the legal requirements have been met, it may be open to a party to apply
for leave to call additional evidence in rebuttal. Above all, the Chamber
will always remain alive to the need for a fair trial with due considerations
given to the rights of the accused within a joint trial, in order to ensure
that he or she would not lose the rights that he or she would have if he
or she was tried alone.
40. In
view of all the foregoing, the Chamber is not satisfied that the Defence
has demonstrated that there is a conflict of interests of such a nature as
may cause serious prejudice to the Accused, or that it is otherwise in the
interests of justice to order a severance.
On the Issue of Re-Ordering the Sequence of Presentation of the Defence Case
41. The
Chamber reminds the Defence that this issue was previously raised and ruled
upon orally during the Status Conference of 18 October 2004. The Chamber
recalls that after hearing the submissions made by Counsel for Pauline Nyiramasuhuko
on that issue, the
Chamber heard additional submissions from Counsel for Arsène Shalom Ntahobali,
who expressly mentioned the fear that the order of presentation of the Defence
cases may cause a prejudice to the Accused. The decision to maintain the order of presentation
of Defence was rendered in this context.
42. The
Chamber finds no compelling reason to vary the order of presentation of the
cases for the Defence. It is therefore the view of the Chamber that the prayer
to re-order the presentation of the defence case has already been ruled upon
and may not now be reopened.
FOR THE ABOVE REASONS,
THE TRIAL CHAMBER
DENIES the Motion in its entirety.
Arusha, 2
February 2005 |
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|
| |
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|
William
H. Sekule |
Arlette
Ramaroson |
Solomy
Balungi Bossa |
Presiding
Judge |
Judge |
Judge |
| |
[Seal
of the Tribunal] |
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