THE INTERNATIONAL
CRIMINAL TRIBUNAL FOR RWANDA (“Tribunal”),
SITTING as Trial Chamber III, composed of Judges Dennis C.
M. Byron, Presiding,
Karin Hökborg and Gustave Gberdao Kam (“Chamber”);
NOTING the “Prosecutor’s Motion for an Order for Temporary
Transfer of Witnesses pursuant to Rule 90bis” (“Motion”), filed ex
parte on 27 April 2005.
NOTING the “Order for Filing Additional Information to Prosecutor’s
Motion for Temporary Transfer of Witnesses”, delivered by the Chamber on 6 May 2005;
NOTING the “Prosecutor’s Filing in Response to Trial Chamber
III Order of 6 May 2005
concerning the Prosecutor’s Rule 90bis application”, filed ex
parte on 13 May 2005;
NOTING the “Prosecutor’s Supplemental Filing in Response to
Trial Chamber III Order of 6 May 2005 concerning the Prosecutor’s Rule
90bis application”, filed ex parte on 19 May 2005.
NOTING the “Prosecutor’s Second Supplemental Filing in Response
to Trial Chamber III Order of 6 May 2005 concerning the Prosecutor’s Rule
90bis application”, filed ex parte on 23 May 2005.
HEREBY
DECIDES the Motion.
Introduction
1. The
Separate Indictment against the Accused André Rwamakuba has been filed on
23 February 2005. The trial is scheduled
to commence on 9 June 2005.
2. On 27
April 2005, the Prosecution filed ex parte a Motion seeking that
the Chamber orders the temporary transfer of two detained witnesses from
the Republic of Rwanda
to the Tribunal Detention Facilities in Arusha. The said witnesses would
be required to give oral evidence in the present case. The Prosecution
contends that the requirements set out by
Rule 90bis of the Rules for the said transfer are met. It also indicates
that a letter from the Rwandan Minister of Justice will be filed, as soon
as it is received, to confirm these representations.
3. Before
addressing the Motion, the Chamber noted that the Prosecution did not specify
the grounds for its ex parte filing and therefore directed the Prosecution
to show cause why it should be heard ex parte. In addition, the Chamber was of the view that
the Prosecution should provide additional information in support of its
request. Accordingly, on 13 and 19
May 2005, the Prosecution filed additional submissions.
4. In
its additional submission of 13 May 2005, the Prosecution contends that Motions seeking transfer
of detained witnesses are purely administrative and ex parte by
nature. The Defence would have no interest to be asserted in deciding in
such a Motion. It further submits that the filing of such Motion inter
partes increases the risk of threat or intimidation against the requested
witnesses prior their arrival in Arusha. Finally, it notes that ex parte filing
of such Motion is a usual practice of the Prosecution. To support its Motion,
the Prosecution attached to its submissions of 19 and 23 May 2005, letters from Rwandan authorities.
DELIBERATIONS
On
the ex parte Filing
5. As a general rule, applications
must be filed inter partes. Ex parte filings should be entertained
only when they are in the interests of justice “where the disclosure to
the other party or parties in the proceedings of the information conveyed
by the application, or of the fact the application itself, would be likely
to prejudice unfairly either the party making the application or some person
or persons involved in or related to that application”. This requires consideration
on a case-by-case basis and accordingly a practice of the Prosecution could
not as such justify any ex parte filing.
6. The submissions filed by the Prosecution
on 19 and 23 May 2005 contain information that could jeopardize the protective
measures granted to the requested witnesses. Accordingly, the Chamber considers
that, in the circumstances of this case, ex parte filing should
be granted regarding the Prosecution’s submission of 19 and 23 May 2005.
7. Conversely, the Chamber is of
the view that an inter partes filing of the Motion of 27 April 2005
and the additional submission of 13 May 2005 does not cause any unfair
prejudice to the requested witnesses or the Prosecution, while the Defence
and the Accused are obliged to comply with the protective orders delivered
by the Chamber. These submissions should be
disclosed to the Defence. The urgency of the matter and the fact that the
rights of the Accused to be tried without undue delay require a prompt
disposal of the Motion to ensure the beginning of the trial as scheduled
on 9 June 2005. Accordingly,
the Chamber addresses now the Motion.
On
the Request to Order Transfer of Detained Witnesses
8. Pursuant to Rule 90bis(B)
of the Rules, a Chamber shall issue a transfer order only after prior verification
that the following two conditions are met:
(ii) Transfer of the witness does not extend the period
of his detention as foreseen by the requested State.
9. From the last information provided
by the Victims and Witness Support Unit to the Prosecution, it appears
that Witness GIN is required for criminal proceedings in Rwanda. The Prosecution indicates that it will
make a further supplemental filing in support of its 90bis application
for Witness GIN as soon as the Rwandan Ministry of Justice provides the
necessary clarifications. The Chamber will therefore address that request
when it would be provided with sufficient elements to verify that the requirements
set out by Rule 90bis are met.
10. The Prosecution filed with the Chamber a letter from
the Rwandan Minister of Justice, dated 19 may 2005, notifying that Witness
GIQ is available to testify before the Tribunal. In the Chamber’s
view, that information is
sufficient to support the conclusion that Witness GIQ will not be required for
any criminal proceedings in progress in the territory of Rwanda during
the period required by the Tribunal; or that duration of the transfer of
that Witness to the Tribunal for the need of the testimony will not extend
the period of the detention in Rwanda. Accordingly, the Chamber is satisfied that the requirements
set out by Rule 90bis of the Rules are met in
relation to Witness GIQ in the present case and for the requested period.
FOR THE ABOVE REASONS,
THE CHAMBER
DIRECTS the
Registrar to disclose to the Defence the “Prosecutor’s
Motion for an Order for Temporary Transfer of Witnesses pursuant to Rule
90bis”, filed ex parte on 27 April 2005, and “Prosecutor’s
Filing in Response to Trial Chamber III Order of 6 May 2005 concerning
the Prosecutor’s Rule 90bis application”, filed ex parte on 13 May 2005;
ORDERS pursuant to Rule 90bis of the Rules
that detained Witness GIQ be transferred to the United Nations Detention Facilities in
Arusha at an appropriate time prior to the testimony during the trial session
set to commence on 9 June 2005 until 15 July 2005 inclusive;
REQUESTS the
Government of Rwanda to comply with this Order and to arrange for the transfer
of Witness GIQ in cooperation with the Registrar and the Tanzanian Government;
DIRECTS the Registrar to:
(1) Transmit this Decision to the Governments
of Rwanda and the United Republic
of Tanzania;
(2) Ensure the proper conduct of the transfer,
including the supervision of the Witness in the United Nations Detention
Facilities in Arusha;
(3) Remain abreast of any changes which might
occur regarding the conditions of detention provided for by the requested
State and which may possibly affect the length of the temporary detention
and, as soon as possible, inform the Trial Chamber of any such change.
Arusha, 23 May 2005, done in English. |
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Dennis C. M. Byron |
Karin Hökborg |
Gberdao Gustave Kam |
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Presiding Judge |
Judge |
Judge |
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[Seal of the Tribunal] |
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