OR: ENG

TRIAL CHAMBER II

Before:          
Judge William H. Sekule, Presiding
Judge Arlette Ramaroson
Judge Solomy Balungi Bossa

Registrar: Mr Adama Dieng

Date:  1 March 2005

The PROSECUTOR v. Élie NDAYAMBAJE
(Case No. ICTR-96-8-T)

The PROSECUTOR v. Joseph KANYABASHI
(Case No. ICTR-96-15-T)

The PROSECUTOR v. Pauline NYIRAMASUHUKO & Arsène Shalom NTAHOBALI
(Case No. ICTR-97-21-T)

The PROSECUTOR v. Sylvain NSABIMANA & Alphonse NTEZIRYAYO
(Case No. ICTR-97-29-T)

Joint Case No. ICTR-98-42-T

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DECISION ON THE CONFIDENTIAL PROSECUTOR’S MOTION TO BE SERVED WITH PARTICULARS OF ALIBI PURSUANT TO RULE 67(A)(ii)(a)

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Office of the Prosecutor

Defence Counsel for Ndayambaje Mr Pierre Boulé Mr Claude Desrochers Defence Counsel for Kanyabashi Mr Michel Marchand Ms Simone Santerre Defence Counsel for Nyiramasuhuko Ms Nicole Bergevin Mr Guy Poupart Defence Counsel for Ntahobali Mr Duncan Mwanyumba Mr Normand Marquis Defence Counsel for Nsabimana Ms Josette Kadji Mr Charles Tchacounté Patie Defence Counsel for Nteziryayo Mr Titinga Frédéric Pacere Mr Richard Perras

Ms Silvana Arbia Ms Adelaide Whest Ms Holo Makwaia Ms Adesola Adeboyejo Ms Althea Alexis Mr Michael Adenuga Mr Cheikh T. Mara Ms Astou Mbow, Case Manager

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 the Confidential “Prosecutor’s Motion to be served with the Particulars of Alibi pursuant to Rule 67(A)(ii)(a)” filed on 27 January  2005 (the “Motion”);

CONSIDERING the:

(A)              “Réponse à la Requête du Procureur intitulée ‘Prosecutor’s Motion to be served with the Particulars of Alibi pursuant to Rule 67(A)(ii)(a)’” filed by the Defence of Ndayambaje on 31 January 2005 (“Ndayambaje’s Response”);

(B)              “Réponse de Shalom Ntahobali et Pauline Nyiramasuhuko à la Requête du Procureur intitulée ‘Prosecutor’s Motion to be served with the Particulars of Alibi pursuant to Rule 67(A)(ii)(a)’” filed by the Defence of Ntahobali and Nyiramasuhuko on 31 January 2005 (“Joint Response of Ntahobali and Nyiramasuhuko”);

(C)              Confidential “Réponse d’Alphonse Nteziryayo au ‘Prosecutor’s Motion to be served with the Particulars of Alibi pursuant to Rule 67(A)(ii)(a)” du 27 janvier 2003’ filed by the Defence of Nteziryao on 1 February 2005 (“Nteziryayo’s Response”);

(D)              “Réponse de Joseph Kanyabashi à la Requête du Procureur demandant des ‘Particulars of Alibi’” filed by the Defence of Kanyabashi on 2 February 2005;

CONSIDERING the Statute of the Tribunal (the “Statute”) and the Rules of Procedure and Evidence (the “Rules”) in particular Rules 67(A) and 73 of the Rules;

NOW DECIDES the Motion pursuant to Rule 73(A) on the basis of written submissions filed by the Parties.

SUBMISSIONS OF THE PARTIES

Submissions of the Prosecution

1.                  The Prosecution submits that following receipt of the Pre-Defence Briefs wherein the Defence have cited witnesses they intend to rely on “it is apparent from the said briefs that all the Defendants will be bringing forth alibi evidence in support of their cases.”[1]

2.                  The Prosecution, relying on the provisions of Rule 67(A) (ii) (a) and the jurisprudence of the Tribunal[2], challenges the admissibility of any alibi evidence to be called by all Defence teams on the basis that the Defence have failed to serve the Prosecution with a notice and particulars of their alibi as early as practicable but in any event prior to the commencement of the trial. (Their emphasis)

3.                  The Prosecution submits that the information regarding alibi as discerned from the Pre-Defence Briefs is so general that it is unable to investigate the alibi before commencement of trial, thereby impeding its ability to prepare effective cross-examination of those witnesses who will bring forth an alibi defence.

4.                  The Prosecution relies on the jurisprudence of the Tribunal in Prosecutor v. Laurent Semanza[3] to submit that notwithstanding the provisions of Rule 67(B), the failure of the Defence to furnish a full, complete and accurate account of the alibi is prejudicial to the rights of the Prosecution and to the conduct of a fair trial. The Prosecution further submits that Rule 67 (B) should not be violated flagrantly by the defendants while they are aware they intend to advance such a defence.

5.                  The Prosecution therefore prays that the Chamber:

A. Directs the Defence to comply with the provisions of Rule 67(A)(ii)(a) of the Rules by furnishing:

(i)                  The place or places at which the accused claims to have been present at the time of the alleged crime;

(ii)                Names, addresses and other identifying information of any witnesses the Defence intends to call in support of the alibi;

(iii)               All other evidence on which the accused intends to rely in support of the alibi; and

B. Order the Defence to call only those witnesses who do not testify to alibi evidence until such a time as the Prosecutor has been served with the alibi notice and particulars thereby allowing the Prosecutor sufficient time upon receipt of alibi particulars to conduct a full and complete investigation of the alibi witnesses and Defence evidence for purposes of an effective cross-examination before such witnesses give evidence.

Ndayambaje’s Response

6.                  The Defence of Ndayambaje objects to the Motion. The Defence argues that the Prosecution essentially requests the Chamber to force the Defence to file information regarding a defence of alibi or any prospect thereof pursuant to the provisions of Rule 67(A)(ii)(a) of the Rules.

7.                  The Defence reminds the Chamber of the provisions of Rule 67(B) which provide that, “Failure of the Defence to provide such notice under this Rule shall not limit the right of the accused to rely on the above defences thereof.” The Defence argues that the above-cited sub-Rule does not create an obligation on the Defence rather it is there to protect the rights of the Defence. (Emphasis theirs)

8.                  With regard to the Prosecution’s reliance on the Semanza Decision, the Defence submits that it will do everything in its power to preserve judicial time having due regard to the rights of the Accused.

9.                  The Defence submits that the Accused had, since his arrest in Belgium, maintained his innocence of the crimes for which he is charged and that he has always denied having participated or having been present during the events that took place at the Mugombwa Parish and on Kibuye hill. Furthermore, regarding the allegations made by Prosecution witnesses, it is impossible to decipher the exact days and hours when the events at the Mugombwa Parish and the Kabuye hill occurred. Therefore, it is impossible for the Defence at this stage to give specific details of an accused alibi. In any case, Defence witnesses and the Accused himself will give evidence to establish the places where they were when the alleged events occurred at the Mugombwa Parish and the Kibuye hill.

Joint Response of Ntahobali and Nyiramasuhuko

10.              The Defence of Ntahobali and Nyiramasuhuko object to the Prosecution request that they furnish a notice of alibi pursuant to the provisions of Rule 67(A). The Defence argue that if the Prosecution considers that the information contained in the Pre-Defence Briefs is too general and insufficient to conduct investigations on the alibi of the accused thereby violating its right to conduct an efficient cross-examination, the Defence submits that information in their Pre-Defence Brief is no more general or imprecise than the Indictment and the Prosecution Pre-Trial Brief. The Defence argue that none of the Prosecution witnesses were able to give precise dates and times when they saw the Accused persons during the period when the alleged events occurred.

11.              Since Prosecution witnesses were unable to give precision as to dates and times when they saw the Accused persons during the period when the events allegedly occurred, the Defence submit that they do not have any obligation to furnish a notice of alibi under Rule 67(A)(ii)(a).

Nteziryayo’s Response

12.              The Defence of Nteziryayo objects to the characterisation by the Prosecution of the Accused case as being an alibi defence. The Motion itself is very vague and premature.

13.              The Defence submits that the Prosecution evidence was vague as to the exact time of the alleged events. While some Prosecution witnesses testified to an event having taken place in April 1994, other witnesses testified to the same event having taken place in June 1994. In these circumstances it is impossible to situate the time when the events occurred in order to give an alibi as to where the Accused was. This situation also applies to the place where certain of the events took place.

14.              When the Accused contests that an event took place, it does not mean that he is bringing forth a defence of alibi. For example, the Defence will bring forth evidence that there was only one ceremony held for his inauguration as prefect. The Accused’s defence is not one of alibi if proving that the second ceremony never took place.

15.              The Defence submits that a defence of alibi consists of positive circumstances by a person that she did not commit the crime for which she is charged because at the material time when the crime was committed, that person was in another place which can be specified. In essence, it is necessary to have a precise time when the event took place.

16.              The Defence further reminds the Chamber of the provisions of Rule 67(A)(ii)(a) and (B). The Defence adds that it will be up to the Chamber to evaluate whether it is reasonable to expect the Accused to remember where he was each minute of each day between April and July 1994, particularly when the Accused contests that he was present when a specific event occurred but cannot specify where he was when the said event occurred. For instance, if there are two witnesses who testify to an event and one testifies that the Accused was present while the other testifies that he was not, it does not mean that the witness who testified that the Accused was not present at the event is an alibi witness. The Defence submits that the Chamber will have to decide if proof of the presence of the accused was made beyond reasonable doubt.

17.              In conclusion, the Defence argues that Rule 67(A) (ii) (a) stipulates that “[…] at the time of the alleged crime.” It submits that it is only until the Prosecution specifies “the time of the alleged crime” that the Accused will be in a position to specify where he was at that specific time.

Kanyabashi’s Response

18.              As a preliminary matter, the Defence submits that it was in transit on the days when the Response to the Motion was due to be filed, i.e., 27 and 28 January 2005 and so it files its Response late.

19.              The Defence notes the Prosecution submission that “It is apparent from the said briefs [the Pre-Defence Briefs] that all the Defendants will be bringing forth alibi evidence of their cases” and by this, the Defence assumes that the Prosecution refers to seven of its listed witnesses[4] who will testify that they did not see or hear that the Accused was present at the places where the various events where crimes he is charged with occurred, in particular the events of Kabakobwa. The said witnesses do not claim to have been elsewhere with Kanyabashi when the crimes occurred. It is only when a witness claims to have been elsewhere with Kanyabashi when the crimes occurred that said witness’ evidence can be called an alibi.

20.              The Defence makes reference to various texts to support its submissions.[5] The Defence submits therefore that bringing forth evidence that an Accused person was not present at the place where a crime was committed does not mean that it is a defence of alibi. The Defence argues that Rule 67, which stems from the common law system, is also very specific on this issue, when it provides at sub-Rule (A)(ii)(a) that; “in which case the notification shall specify the place or places at which the accused claims to have been present at the time of the alleged crime and the names and addresses of witnesses and any other evidence upon which the accused intends to rely to establish the alibi.” (Emphasis theirs)

21.              The Defence submits that it is very possible for the Accused to indicate that he was not present when a specific event occurred but at the same time be unable to specify exactly where he was when the said event occurred. Generally the Accused is bringing an alibi each time he refutes being present when an event occurred.

22.              The Defence finally recalls the provisions of Rule 67(B) and submits that the provisions therein are clear with regard to the Chamber’s discretion to evaluate alibi evidence, for which notice to the Prosecution be given late.

23.              With regard to the six witnesses identified by the Prosecution to be alibi witnesses, the Defence submits that if the Motion was granted, the Defence would have to disclose their identities earlier that the 21 days prior to their testimony. The Defence hopes that the Motion is not an attempt to bypass the Chamber’s disclosure order which was contested by the Prosecution.

24.              The Defence thus prays that the Chamber receive the said Response and to reject the Motion.

DELIBERATIONS

25.              The Chamber recalls that Article 19 of the Statute of the Tribunal empowers it to ensure that the trial is fair and expeditious and that proceedings are conducted in accordance with the Rules;

26.              The Chamber further recalls the relevant provisions of Rule 67(A) and (B) to be:

Rule 67:          Reciprocal Disclosure of Evidence

Subject to the provisions of Rules 53 and 69:

(A)  As early as reasonably practicable and in any event prior to the commencement of the trial:

(i)                  […]

(ii)                The Defence shall notify the Prosecutor of its intent to enter:

(a)                The Defence of alibi; in which case the notification shall specify the place or places at which the accused claims to have been present at the time of the alleged crime and the names and addresses of witnesses and any other evidence upon which the accused intends to rely to establish the alibi;

(b)               […]

(B)  Failure of the Defence to provide such notice under this Rule shall not limit the right of the accused to rely on the above defences.

27.              The Chamber finds that if the Defence wishes to rely on the defence of alibi, it must make the necessary disclosures immediately, in accordance with the provisions of Rule 67. The Chamber notes that the obligations prescribed under the Rule are clear and unambiguous that the Defence is required to, as early as reasonably practicable and in any event prior to the commencement of the trial, notify the Prosecution of its intention to enter the defence of alibi, and in that notice, the Defence is obliged to specify the names and addresses of witnesses on which the accused intends to rely to establish the alibi.

28.              With respect to Kanyabashi’s submissions that the Prosecution may be attempting to bypass the Chamber’s disclosure order[6] that identities of Defence witnesses be disclosed 21 days before they testify, the Chamber finds this submission to be erroneous as the obligations prescribed under Rule 67 are totally different from disclosure of the identities of Defence witnesses.

29.              Accordingly, the Chamber grants the Motion and directs the Defence to immediately make the necessary disclosures in accordance with Rule 67, if it wishes to rely on the defence of alibi.

30.              Regarding the Prosecution’s second prayer, the Chamber finds that this does not arise at this stage, consequently, it is denied.

FOR THE ABOVE REASONS, THE TRIBUNAL

GRANTS the Motion in part; and

DIRECTS the Defence to immediately make the necessary disclosures in accordance with Rule 67, if it wishes to rely on the defence of alibi; and

DENIES the Motion in all other respects.

Arusha, 1 March 2005
William H. Sekule	Arlette Ramaroson	Solomy Balungi Bossa
Presiding Judge	Judge	Judge
	[Seal of the Tribunal]

[1] See the Motion at paragraph 1 and at footnote 2 it is submitted, ‘Accused Nyiramasuhuko; See for e.g. summaries of witnesses WHNC, MNW, TBM, FAH, CEM, CHT, CRS, RGH, WKNKI, WKKTD, WMKL, WBNJ, WCRB, LHC, WMCZ, WBND; Accused Nteziryayo; AND-1, AND-5, AND-14, AND-15; Accused Ntahobali; WCNF, WCMNA, WCNMC, WCUJM, HIB6, WUNBJ; Accused Kanyabashi; D-2-8-B, D-2-9-M, D-2-12W, D-2-13-G, D-2-14-D, D-2-15-K; Accused Ndayambaje; ANGE, GABON, LIMAN, LINDI, MARVA, TANGO..

[2] Prosecutor v. Kayishema et al. (Case No. ICTR-95-1-T) Decision on the Prosecution Motion for an Order Requesting Compliance by the Defence with Rules 67(A)(ii) and 67(C) of the Rules, (TC) of 15 June 1998, p 3; Prosecutor v. Rutaganda, Appeals Chamber Judgement (AC) of 26 May 2003

[3] Prosecutor v. Laurent Semanza, ICTR-97-20-T Decision on the Prosecutor’s Motion for Leave to call Rebuttal Evidence and the Prosecutor’s Supplementary Motion for Leave to Call Rebuttal Evidence (TC) 27 March 2002 paragraph 12

[4] Said witnesses are mentioned at footnote 1 above

[5] Archbold International Criminal Courts, Practice, Procedure and Evidence (Thompson, 2003) paragraph 17-35; Canadian Criminal Evidence (3^rd edition, McWilliams) paragraph 28: 10715.

[6] See the Chamber’s Oral Ruling in the T. 18 October 2004 pg 20