ADVOCATES OF THE CAMEROON BAR
Taku Chambers
SENIOR ADVOCATE:
Chief Charles A. TAKU, Esq. (Head of Chambers)
Lead Counsel, UNICTR
Lead Counsel, Special Court for Sierra Leone, Counsel ICC
Honorary Member of the Law Firm of Angus Gloag and
Jonathan Goodman and Co.
ADVOCATES
Caroline MUNGE TIME
Shufai Blaise SEVIDZEM B
Chief NJI Jerome FOTULLAH
AWUNGNJIA Tetchounkwi
Lawrence LYONGA NGANDA

Taku's Chamber

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Articles & Court Cases Post New Entry

The PROSECUTOR v. Aug-u stin NDINDILIYIMANA Augustin BIZIMUNGU Francois-Xavier NZUWONEMEYE Innocent SAGAHUTU Case No. ICTR-00-56-T

Posted by Chief Moderator on May 26, 2013 at 3:40 PM

International Criminal Tribunal for Rwanda

Tribunal penal international pour le Rwanda

OR: ENG

Before: Judge Asoka de Silva, Presiding

Judge Taghrid Hikmet

Judge Seon Ki Park

Registrar: Mr. Adama Dieng

Date: 29 February 2008

The PROSECUTOR

v.

Aug-u stin NDINDILIYIMANA

Augustin BIZIMUNGU

Francois-Xavier NZUWONEMEYE

Innocent SAGAHUTU

Case No. ICTR-00-56-T

DECISION ON NZUWONEMEYE'S MOTIONS TO ADDRESS DEFECTS IN THE

FORM OF THE INDICTMENT AND TO ORDER THE PROSECUTION TO

DISCLOSE ALL EXCULPATORY MATERIAL

Office of the Prosecutor:

Mr. Alphonse Van

Mr. Moussa Sefon

Mr. Segun Jegede

Mr. Lloyd Strickland

Mr. Abubacarr Tambadou

Ms. Felistas Mushi

Ms. Faria Rekkas

Ms. Marlize Keefer

Counsel for the Defence:

Mr. Gilles St-Laurent and Mr. Ronnie MacDonald for Augustin Bizimungu

Mr. Christopher Black and Mr. Vincent Lurquin for Augustin Ndindiliyimana

Mr. Charles Taku and Ms. Beth Lyons for Franqois-Xavier Nzuwonemeye

Mr. Fabien Segatwa and Mr. Seydou Doumbia for Innocent Sagahutu

Decision on Nzuwonemeye's Motions To Address Defets in the Form of the Indictment and to order the

Prosecution to disclose all exculpatory material

5. On 28 February 2008, the Defence for Nzuwonemeye filed a further motion

requesting the Chamber to make a ruling on its motion for defects in the form of the

indictment or in the alternative, to order the Prosecution to fulfil its Rule 68 obligations to

the ~efence." On the same date, the Defence for Nzuwonemeye filed a second motion

requesting the disclosure of all exculpatory material."

DELIBERATIONS

6. As a preliminary issue, since the motions filed in this instance relate to the issue of

defects in the indictment, the Chamber finds that it is in the interests ofjudicial economy to

deal with all the motions in one consolidated decision.

(i) Defects in the Form of the Indictment

7. The Chamber notes that, issues relating to alleged defects in the form of an

indictment should have been raised, in principle, in a preliminary motion pursuant to Rule

72(A)(ii). The Trial Chamber notes that the Defence application falls within the category of

a preliminary motion, pursuant to Rule 72(B)(iii). The Trial Chamber observes that Rule

72(A) requires that all preliminary motions must be .filed within thirty (30) days following

disclosure by the Prosecutor to the Defence of all materials envisaged by Rule 66(A)(i).

Rule 72(F) further provides that failure to comply with the time limits prescribed in this

Rule shall constitute a waiver of the rights unless the Trial Chamber grants relief from such

a waiver upon showing good cause.

8. In the Second Nzuwonemeye Motion, the Defence makes no attempt to show good

cause to warrant a waiver of the time limits.

9. In the First Nzuwonemeye Motion, the Defence submits that the nature of the defects

in the form of the indictment are such that they eviscerate the right of the accused to a fair

trial and therefore the Chamber should consider the motion in the interests ofjustice.12 The

Defence further argues that the reason that precluded Lead Counsel for Nzuwonemeye

from objecting to the defects in the indictment is that he did not want to interrupt the

proceedings. The Defence avers that a decision on the issue at this stage of the proceedings

will help it to reduce its witness list and spare the court's time.')

10. The Chamber finds that the Defence submissions do not amount to a showing of good

cause pursuant to Rule 72(F). The Chamber notes that Defence for Nzuwonemeye has had

ample time to object to the defects in the indictment. Instead, he elected not to exercise his

right on the misplaced notion of saving the court's time. The Chamber further notes that the

purpose of Rule 72 is to ensure that all fundamental issues, including defects in the form of

the Indictment, are dealt with before the commencement of the trial on its merits. The

Chamber finds that the submission of the Defence for Nzuwonemeye to the effect that the

of Her Entourage, and for Murders of Nzamurambaho, Ndasingwa, and Kavaruganda, Or, In the Alternative,

Pursuant to Rule 54. To Order the Prosecution to Fulfill Its Rule 68 Obliaations to the Defence In Respect to

These Allegations", filed on 11 February 2008 (Sagahutu Defence ~otioni

lo See Nzuwonemeye Defence Motion on Pending Trial Chamber Decisions on its Motions,filed on the 28

February 2008. " See Nzuwonemeye Defence Motion in Response to Notice of Exculpatory Evidence and Potentially False

Testimony,Filed 22 February 2008, by the Bicamumpaka Defence. Dated 28 February 2008

I2 First Nzuwonemeye Motion, para. 24.

l3 First Nzuwonemeye Motion, paras. 26,28.

Decision on Nzuwonemeye's Motions To Address Defets in the Form of the Indictment and to order the

Prosecution to disclose all exculpatory material

INTRODUCTION

1. On 18 October 2007, the Defence for Nzuwonemeye filed a motion, alleging defects

in the form of the Amended Indictment of 23 August 2005.' These alleged defects relate to

the pleading of joint criminal enterprise, the pleading of forms of criminal responsibility

pursuant to Articles 6(1) and 6(3) of the Statute of the Tribunal and the substantive counts

of conspiracy to commit genocide, crimes against humanity (rape and murder) and

violations of Article 3 Common to the Geneva Conventions and Additional Protocol I1

(murder, rape and humiliating and degrading treatment)?

2. In its response of 23 October 2007, the Prosecution requests the Chamber to dismiss

the motion, since the Defence has not shown good cause pursuant to Rule 72(F) of the

Rules of Procedure and ~videnceT.~he other Defence teams did not respond to the motion.

On 25 October 2007, the Defence for Nzuwonemeye filed a further reply.4

3. On 6 February 2008, the Defence for Nzuwonemeye filed a second motion requesting

the dismissal of the allegations against the Accused Nzuwonemeye and the RECCE

battalion, relating to the murders of Prime Minister Agathe Uwilingiyimana and three

members of her entourage, and for the murders of Frederic Nzamurambaho, Landould

Ndasingwa, and Joseph ~avaru~andaT.'h e Nzuwonemeye Defence requests the dismissal

of these allegations on the ground that such crimes are attributed solely to the Presidential

Guard in the various indictments in Prosecutor v. Karemera et al. (Karemera

~ndictments)T.~h e Nzuwonemeye Defence requests, in the alternative, that the Prosecution

be ordered to disclose exculpatory material on the issue, pursuant to Rule 68.7 On 11

February 2008, the Nzuwonemeye Defence filed a Corrigendum to its original moti~n.~

4. On 11 February 2008, the Defence for Sagahutu filed a response in support of the

Second Nzuwonemeye ~otion?T he Prosecution and the other Defence teams did not file a

response.

' Nzuwonemeye Defence Motion on Defects in the Form of the Indictment in light of the Chamber's Decisions

in respect to the Defence 98bis Motions and Pursuant to Rule 72(F), filed on 18 October 2007 ("First

Nzuwonemeye Motion").

2 First Nzuwonemeye Motion, paras. 64, 67, 70, 71, 72, 82, 90, 109, 110, 115, 125, 150, 152 -156, 158-163,

164-1..6."6 , 1.7.1-- 1.7 . 4. . ' Prowcutor's Responsc to ..Nzuuoneme)e Defence Motion un Defcctb in the Form of the lndictment in light of

the Chamber's Decisions in resnect to the Defence 98Bis Motions and Punuant to Rule 721.F.l".. t iled on 23

October 2007, para. 12. ' Nzuwonemeye Defence Reply to Prosecutor's Response to Nzuwonemeye Defence Motion on Defects in the

Form of the Indictment in light of the Chamber's Decisions in respect to the Defence 98Bis Motions and

Pursuant to Rule 72(F), tiled on 25 October 2007. ' Motion to Dismiss Allegation in respect to Accused Nzuwonemeye's Responsibility for Murders of Agathe

Uwilingiyimana and Three Members of Her Entourage, and for Murders of Nzamuramhaho, Ndasingwa, and

Kavaruganda, Or, In the Alternative, Pursuant to Rule 54, To Order the Prosecution to Fulfill Its Rule 68

Obligations to the Defence In Respect to These Allegations, tiled by the Defence for Nzuwonemeye on 6

February 2008 ("Second Nzuwonemeye Motion").

SecondNzuwonemeye Motion, paras. 3,9, 12. ' Nzuwonemeye Defence Motion, paras. 12, 14. ' Corrigendum on Motion to Dismiss Allegation in respect to Accused Nzuwonemeye's Responsibility for

Murders of Agathe Uwilingiyimana and Three Members of Her Entourage, and for Murders of Nzamuramhaho,

Ndasingwa, and Kavaruganda, Or, In the Alternative, Pursuant to Rule 54, To Order the Prosecution to Fulfill

Its Rule 68 Obligations to the Defence In Respect to These Allegations, filed by Defence for Nzuwonemeye on

11 February 2008.

Riponse de la DCfense du Capitaine Innocent Sagahutu en soutien de la "Motion to Dismiss Allegation in

respect to Accused Nzuwonemeye's Responsibility for Murders of Agathe Uwilingiyimana and Three Members

Decision on Nzuwonemeye's aotions To Address Defe&ts in the Form of the Indictment and to order th

Prosecution to disclose all exculpatory material

filing of a preliminap motion at an early stage of the case would have interrup- :d the

proceedings misconstrues the purpose of a preliminary motion. Finally, the Chambe notes

that the filing of a motion of this nature at this late stage of the case will not expec ite the

proceedings. However, the Chamber notes that this determination does not precl~l e the

Defence for Nzuwonr:meye from traversing the issue of defects in the form )f the

Indictment in their Clo!;ing Brief.

11. The Chamber observes that the Defence for Nzuwonemeye filed a notice in o der to

reserve the right of the Accused to contest the jurisdiction and competence of the T ibunal

in respect to the allegalions in the indictment. The Chamber notes that the mere ser ing of

a notice does not relieve a party from complying with the time strictures in r :lation

preliminary motions picscribed in Rule 72.

(ii) Disclosure of Excul pato y Materials

12. The Chamber re~:alls that it has already ordered the Prosecution, on two occasi ms, to

disclose to the Defencc all exculpatory material in its custody or control by 29 Fe mary

2008.'~ The Chamber, therefore, finds that it does not need to make any further o der in

this regard at this stqe given the fact that its order encompasses the disclosure of all

exculpatory material a1 the disposal of the Prosecution.

FOR THE ABOVE REASONS, THE CHAMBER

DISMISSES the Defencc motions.

Arusha, 29 February 20013

Seon Ki Par :

Presiding Judge Judge

[Seal of the Tribunal]

T. 4 February 2008, pp. 11-1 2 (French); T. 11 February 2008, p.1 (French)

4

TRANSMISSION SHEET

FOR FILING OF DOCUMENTS WITH CMS

Nations Unias (Art. 27 of the Directive for the Registry)

I - GENERAL INFORMATION (To be completed by the Chambers I Flllng Party)

I

I (names) 1 I I

Case Name: I The Prosecutor vs. A. Ndindilivimana et al. 1 Case Number: ICTR-00-56-T

Appeals Chamber 1 Arusha

F. A. Talon

I

From:

I I

Dates: I Transmitted: 29 February 2008 ( Document's date: 29 February 2008

No. of Pages: 1 4 I Original Language: English [7 French Kinyawanda

Trial Chamber Ill

C. K. Hometowu

I i I

- - -

ti" DECISION ON NZUWONEMEYE'S MOTIONS TO.ADDRESS DEFECTS IN THE FORM OF THE

- -

Document: INDICTMENT AND TO ORDER THE PROSECUTION TO DISCLOSE ALL EXCULPATORY I

a Trial Chamber II

To: R. N. Kouambo

Chamber

Hussein Mohamed

Mohamud

I MATERIAL

Classification Level: I

U Trial Chamber I

N. M. Diallo

U Appeals Chamber I The Hague

R. Burriss

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Categories: ICTR, Chief Barrister Charles A. Taku, ICC

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