Before:

Registrar:

Date:

le'i«·oo·tlo- j' :1.1 - fill - &8' ,,~!~~~!!~!M~anda Tribunal penal International pour le Rwanda

TRIAL CHAMBF.R II

Judge Asoka de Silva. Presiding Judge Taghrid Hikmet Judge Seon Ki Pwk

Mr. Adama Dteng

22 September 2008

Tbe PROSECUTOR

'· Augustin NDINDILIYIMANA Augustin BIZIMUNGU

Fran~ois-Xuier NZUWONEMEYE Innocent SAGAHUTU

Ctm No.ICTR-00-56-T

OR: ENG

DECISION ON DEFENCE MOTIONS ALLEGING VIOLATION OF mF. PROSECUTOR'S DISCLOSURE OBLIGATIONS PURSUANT TO RULE 68

Office of the Prosecutor: Mr. Alphonse Van Mr. \loussa SetOn Mr. Segun Jegede Mr Lloyd Strickland Mr. Abubacarr Tambadou Ms. felistas Mushi Ms_ Faria Rekka> Ms. Marlize Keefer

Counsel for tbe Defence: Mr. Gilles St-l.aurent and Mr. Benoit Henry for Augustin Bizimuogu Mr. Christopher Black and Mr. Vincent Lurquin for Augustin Ndlndiliyimana Mr. Charles Taku and Ms. Be!h Lyons r..,r Franrois-Xavier Nzuwunemeye Mr. Fabien Segatwa and Mr. Seydou Doumbia fur Innocent Sagahutu

INTRODUCTION

L On 4 l'ebruary 2008, the Defence teams in this case presented oral submission' alleging violations of the Prosecutor's disclosure obligation pursuant to Rule 68 of the , 1 Rules of Procedure and Evidence (the "Rules")-' On the same day, the Chamber ordered the Prosecution to review the documents in its possession and to disclose to the Defence all exculpatory material by the end of February.2

2. On 29 February 2008, the Prosecu11on disclosed to the Defence a total of 140 un-redacred witness statements comprising approximately 3000 pages. On 7 March 2008, the Chamber ordered the Defence to file any motions relating to the Prosecution's 19 February 2008 disclosure no later than 28 March 2008.)

3. The Defence for Sagahutu filed its Motion on 17 March 2008;' the Defence for Bizimungu and the Defence for Nzuwonemeye both filed their Motions on 28 March 2008;' the Defence for Ndindiliyimana filed its Motion on 31 March 2008." three days outside the time limit set by the Chamber. The Prosecution responded to all the Motions.' Bizimungu and Nzuwonemeye replied on 7 Apri12008; Ndindiliyimana filed a Reply on 8 April 2008.1 The issue of late filings by the Ndindiliyimana Defence and the Prosecution has already been dealt with by the Chamber.'

4. The Prosecutton made cenain funher disclosures containing redacted statements penaining to RPF investigations on 19 March 2008, and other document> r~levant to the RPf on 23 April2008.

'T 4 Fobcuar) 2008, pp l- 13 10 S )_ ' T. 4 February 2008. pp. 12-ll (O.S. ). ' Sclloduling Order following rhe SM!tl< Coo!<:rome of 5 and ~ March 2008 (TC), 7 Man.'h 201!8, ' Requiro ""' !in< de communie>!lnn do pic" (<i<) It Mchargc ct oLJtre. Clc'menL< p<nincn" /\Miele 68 RPP. folcd on 17 March 2008 ("Sagohutu Motion"). ' Requftc en arret de< pro<Odures Cl "onclu<ions surn<idaircs, tiled on 28 March 2008 (""Bizimungu MoUon"); N/uwoncme)< Dcfonoe Motion, Based on Prose<ulion's Vtolalions of Rule 68 (Rules uf Procedure •nd Ev•dencc) and for RciJef. OJ>d Pur<uant to Rules .I, 90(0)(ii) •nd 9Q(GXtio) (Rules of Procedure •nd E'"idCllcc), filed "" 23 March 200& ("Nz:uwnnemcye Motion"). 'Augu,ton NJ•ndihylmana"< MO!<on for Discln.<ure Violations, Remedial and Punitive Measure>, liled on 31 March 2flOM_ ' Rcp<m>< dn Pm<ureur a Ia ··oequCte '"' fins de communication <k pio!ccs a de<hargc ct autres clements pertinent< Anick 68 RPP" pr<:scnrce par Ia dckn"' du capita1ne Inno-cent Sogohutu le 17M""' 2008, filed on ll Mar<h 2008; PO"Osecuw·, Joont Rcsp<m>e to Mojm Frane<urXavier N<uwonomcye ba><d nn Pro><cutioo< Violations of Rule &8 and fu; Relief. pue<Uan! \t> Rules 5. 90(g)(Li) and 90(g)(iiii RPE and Augustin 1\i;.imungu'< ""quJte en arrer des proco'dures et conclusion< s11hsidm•n:-' ··. filc'<J on 2 Apr~ I 2008; Pm-<<:outor'< Respnn>< to GCnOrat Au~u,in Ndnodiliyimana·, "Motion for Di><:losure, Violations, Rcmedoal M<l Pumli,·c mea.<ures", nted on 2 April2008. 'R.!plique rk All)(Wlln B•=imll•,gu iJ Ia "Pro,ecure><'> i<Mt Rc>poO<e to Mojnr Fran<;oi' ~'•uwottemeyc ba"J on Pro><cu!lon·_, V1ol"i'm< of Rule r,g and for Relief, pu,-,u•nt to Rule< 'i. 90(gXii) and 90(g)(ii1) RPE and Augustin Bi?imungu"s "r<qui!le ell (!rri!l de. pndduns <f c·onc/uslO/IS suhsuiimres"". fitcd on 7 April 2008 ("Bi<tmungu Reply .. ): Nzuwunomc)C Defence Reply"' Pwseeution·, [Jo1nt Respoo><J to Ntu"oncm<y< Defence MoHon, Flascd on Pmsecullon's Violuuons of Rule 6~ (Rub of Procedure and E•idcne<) and for Relief, anJ pu,.uant to Rule< 'i. ~O(G)(Li)and 90(G)(•i•) (Rub of Procedure and f;·idcnce), Iii<:<! on 7 Apnl 2GOS ("N?u"oncmeye Reply"'), Reply to Re;pondcnt's Rcspo"'e to Murion R' !li<elosun: >nd Rcmodiat Mcusures, !iled on 8 April 200& ("Xdind1hyim•na Reply'")_ ' !nt<nm Order on Defence l.lorion> Regarding the Prosecution'< Disdooure of Alleged t;xculpalor) Marerial (TC), 2J Ma) 2008, para. J >ltd !)"po.<ition

Prosecuwr ,- ;lugumn -~'dind•lly•mana era/., Case Xo. lCTR-01).'i6· T '"

'Moo C<k,-;,;-,-,-,.-,-,-,,-ncO_M_'_"_''-,-,-,-,0-ing Violauon> of thc-,-co-,.-,,-, .. -,,-Disc>co_"'_' --Tn S<pten1ber 2008

Obli ations Pur>uontlo Rule 6S

5. On 23 May 2008, the Chamber issued an Interim Order directing (i) the Defence teams for Bizimungu, Ndindiliyimana, and Nzuwonemeye to file the alleged exculpatory documents provided to them through the Prosecution's disclosure of 29 February 2008 relevant to their case; (ii) the Prosecution to file confidentially for the exclusive use of the Chamber the un-redacted versions of only the alleged exculpatory documents listed in the Defence Motions, including the thirty-nine pages of RPF materials mentioned in Nzuwonemeye's Motion and documents numbered R0000280-283, and R0000299-302 referred to in Sagahutu's Motion; and (iii) the Prosecution to clearly indicate the specific dates on which it disclosed the six statements referred to in its Response to Ndindiliyimana's Motion and to file un·redacted versions of them with the Chil!Ilber. The Chamber ordered that all necessary disclosures be made within seven days of the date of the Interim Order. 10

6. Following the Chamber's Interim Order, the Defence teams for N~uwonemeye, Ndindiliyimana and Bizimungu provided copies of the redacted statements ~ferred to in their earlier motions" The Prosecution complied with the Order by providing extensive material containing un·redacted statement< referred to in the Defence motions for the exclusive use of the Chamber." The Defence for Nzuwonemeye filed further observations on the Prosecution's latest disclosure."

7. Regarding disclosure of the RPF material, the representative of the Special Investigations Unit of the Office of the Prosermor filed nine statements relating to the RPF investigations, for the exc\u,ive use of the Chamber. The Prosecution further requested that if the Chamber was minded to order disclosure of any of the RPF statements to the Defence, it first hear the Prosecution in camera pursuant to Rule 68(0). On 10 July 2008. the Chamber after reviewing the RPF material, ordered the Prosecution to file wrirten submissions on an ex parte basis to indicate why four out of the nine statement> relating to the RPF should not be disclosed to the Defence." The Prosecution sought a funher extension of time to file it' submissions, citing the absence of the representative of the Special Investigations Unit. 1' The Prosecution filed its submissions'" following a further ex parte and confidential Order by the Chamber in which it found the request for addilional

"Interim Order on Dct<mce Mo"nn' n:g><rding the Prosocu~~n·• t)isclo•uro of Atlogod Exculpatory '-Aatcrial (TC").1J "-1>} 2008 " ~'-""onomeye Dcl<n« Compliance wHh tnt<:rim Order. Dated 23 Ma) 2008 m H.efcn:ncc w Prosc,otion D"cloourc, Pur<u11rH to Ruk 68. tiled on 19 May 2008: Augustm NdinUtlLytmana·; l'iling m Compliance with the Interim ardor of 23 ;vlay 2003 on tkfci\Oc Motions Rcgord1ng the Pro=uti~n·s Oi><elo'""' of Alleged hculpator)" Moterial. filed on 10 May 2008; Annexes il Ia RcquC!< en mOt des procedures <\ e<>ltclusion> <Ubsid•ircs de Ia DCfcn>e du GOner>! Augu,\on !l><;mungu c"nform.lmenr ii. I"OrOOnnance lnr.!nmah du 23 mai 200K, filed on JO Ma)" 1008. " Prosecution's liting or un·r«illct<d statements in compl1once wit~ the lnto:nm Qtder ol Trial Ch,mher tl dated 2J ),Jay 1008, filed on .10 May 200M. " ~•uwonemoye·, Defence Obscrvalinns on Pr~scrulion Disclosure. dated :10 May l008. Hied on 9 June ZOO& " Ex Parle and Conf'dential Order R,garding the Prose<ution's Disclosure of RPF Matcriol Pu"'"'"' to Rule 68 (TC). 10 lull 200~ 1' Pro>e<utQf"s Frling Pur>uant \u tho "lnal Chomher"s h Parte and ConHdcntial Order regord1ng the Pmsccuoor"s Disclosure of IU'F ),Jarcrial< pur<uant to Rule 6~. filed on I I July 2008. " Prose<utor"> Ex Parte ""d Confidcnd~al (>ic) Submi~<iom Regarding tho Pro<e<utor's Dtsclo<urc uf RPF Material Pur<uant Lo Rule 68, fLied on 15 Jul) 2001l

Prruec,lor" Augusltn .'ldmdrby•m""a e1 a/. Case No. llTR-00-:16· f 3122

time unreasonable. 1' In its submissions, the Prosecution objected to the discloSure of three out of the four statements identified in the Chamber's Order, on the grounds that >uch disclosure may endanger the :recurity of tile "'itneS£es ami prejudice ongoing investigations.

8. On l2 Aug!lSI 2008, the Chamber issued a further lntenm Order in which it directed the Parties to file, within 7 days, written submissions on whether the alleged pre­trial disclosure of the so-called "Belgian Files" by the Prosecution in May 2004, was redacted or not, and if redacted, to infonn the Chamber about the extent of those redactions." The Prosecution and the Defence teams for Nzuwonemeye, Ndindiliyinmna and Sagahutu filed submissions in response, which will be dealt with in a later pan of this decision.

DELIBERATIONS

(i) Applicable Lmv:

9. Rule 68(A) requires the Prosecution to disclose "any material, which in the actual knowledge of the Prosecutor may suggest the innocence or mitigate the guilt of the Accused or affect (he credtbility of Prosecution evidence_"'" The expression "actual knowledge'" has been consistently interpreted as requiring that the requested material be in the Prosecutor's custody or control.'" In Karemera eta/, the Appeals Chamber approved the dicta of the Bagasora eta/ Trial Chamber to the effect that "Whether infonnation 'rna} suggest the innocence or mitigate the guilt of the Accused' must depend on an evaluation of whether there is any possibility, in light of the submissions of the parries, that the infonna(ion could be relevant to the defence of the Accused."" The initial detennination of what material is exculpatnt)·, which is a fact-based judge men(, rest; with the Prosecu(ion."

11 F., Parrc and C:onfidentiat Orner Regarding tile Prooccution's Rcqu<St for Additional Time to F;to Writte11 Subrni«ion< Pursuont to Rule 68 (TC). )4 July l008. " Interim Ot<ler on Dd'enco MoMn' Rogordmg the Prusocutur'> Dt"lo>u•• of Atlegod F.'culpaWr) Mator._t, (TC). 12 Augu>t 200! " The mean1ng nt e<Outpatory ''i<lcnce ;, 'uppnrted !>y a "'ide bod}' of inwm•<Lonal jurioprudencc_ See p,"-<e<ul<>r , Karemua <1 aJ. C"= No tCTR-98·44-AR 7J ,"), D<cil•on on Interlocutory Appeal regard'"& tho role of the Prmocot&"• Etcclruo'c Di>dosore Suite '" discharging Di<etosure Obligation< (A C), JO June 2006 (Karemem !lcc1Sion ol JO June 2006), para. 9, f'rmec,ror ,._ lihom1r 8/askrc, Cil><: ';>lo. I f -9S-t4A, Judgement (AC). 29 Jul)' 2001 (8/rukrc Appeals Judgemem). f'lrOS. 263-267 S« al<o the recent dec'·""" of f'mwumr ,. Thomas Lubonga Dyilo, Case No IC"C·Ol/\)4..0\'06. Deci>ion on the Con,equence> of non-disclo,urc of exculp"ot)' ma<enal< co><red by Article 54(.1) (e) ·~reement< amltbe applio.t"'" to <la)' the prosecution of the accused, tog<lhCr with <CrWm <llhcr "'ue< raised at the Status Conference on lU June 200~ ( f('). 13 June 2008 (J.ubt'"il" Oed""" ot I J June 2008]. para:.. 88·89 " Pro"cutor ,. Jm·J"a/ Ka_telr}eil, Case No tCTR-98·4411-A. Judgement (AC), 23 Ma)' 2005, pora 262 ("Defence must forst e>tobh;h that the ev1dence "'"'' in the Pl''""'"" .,r "" l'ros«"tion"): Pro>ec'uiM v

Rados/ao Rrdj<min. ('a..e No_ lT"99·lbA. Decision on Appellant"> Motion for Di""ln>urc PorSuont to Role 68 and Motion for an Order to the Rcgi>tmr "' Disoto>< (;ertain Materials (A C), 7 IJccomb<r 2004 (Application mu<t "b< accompanied by all pmnafam prool> ""ding tu show !hal Lt is likoty that the c\·idence i' cxcutpator)' and i< in the possession of!ho p,.,.cution ')_ " Karemera" a/. IJeci•ion on 'Jn«ph N7irorcr0> Appeal from Decision on Tenth Rule 6~ Motion (AC), 14 Ma) 200& (Ka,mcra llociMn ol 14 May 2008), par-o I 2. citing v.ith appro\·a] Prose<W>r ,. Bagu.<m·a <1 a/, Ca.<e No. IClR-98-41·T. Dcci<ion on Diso;lo<ure of !leferu;c W"""-' St.atements in the Po«cssion of tho Prosecution Pursuant to Ruto 6~ (AI ("I C), 8 'vta"-'h 2Wii, paro 5_ " K~re..,ra er a/,. Deci,ion on Jo>eph Nzirorero"s lntcrloe<>tory Appeal (A('), 2~ April 2006 (Koremera l)ed,ion ol 2~ Ap'll 2(Ml6). para, 16: Hla<Mc Appeal> Judgement, P""· 2<>1: Ferdm~nd .\'ah1monu era/ >' The Pra>ecur&. Case ~o ICTR-99-52-A. D<cision on Appellant Jean-Bo>eo Rata)'ag"in's Motion' fm Lo.-·e to Prtsent Addltlonol Evidence Pul'>u,nt to Rule l t 5 of the Rule' of Procedure and l:>idene< (AC"I, 8 lle<em\>cr

Pro.secutm ,. Augusti" Ndindllipmona c/ a/, Caso No lCTR·00.~6-T

D<d"on on D<fcnoc MotiM• allcgini: Violations of the Pro>eoutoon'' Disclo•ore Obli ation' Pu"'uant to Rule 68

22 SeptOrnber i1~~ _]

\0. As a rule of disclosure, the provision in Rule 68 imposes a categorical obligation on the Prosecution which is not subject to a balancing test.ll The Prosecution therefore cannot refrain from disclosing exculpatory material on the ground that the document also includes material that incriminates the Accused."

1 L The Prosecution is also expected to actively review the material in its possesston for exculpatory content, and at the very least, inform the accused of its existence.'! This disclosure obligation extends beyond simply making the entire evidenc~ collection available in a searchable format A search engine such as the Prosecution's Electronic Disclosure Suite (FDS) canna! serve as a surrofate for the Prosecution's individualised consideration of the material in its possession.' According to the Appeals Chamber, " ... EDS [does not) make documents reasonably accessible as a general matter, nor [can] the Defence ... be assumed to know about all materials included in it." The Appeals Chamber further observed that "[i]t might be helpful if the Prosecution either separates a special file for Rule 68 material or draws the attention of the Defence to such material in writing and permanently updates the special file or the written notice''"

12. 'I he Proseculion's obligation to disclose exculpatory material is essential to a fair triaL11 !n determining whether Rule 68 has been violated, considerations of fairness are the overriding factor.10 According to the Appeals Chamber, the obligation to disclose exculpatory material forms part of the Prosecution's duty to assist in the administration of justice, and is as important as the obligation to prosecute.'" The duty to rlisclose exculpatory material under Rule 68(A) is of a positive and continumg nature, notwithstanding the public or confidential character of the material. In discharging it>

2006 INahjma>UJ <1 a/_ lkci•ion of g Dec<rnber 2006), para. 34, n:fornng lO jnJ.- a/ja Ftnfi>UJrni N~himu<ra e1

a/ v T"' Pro.secu/Or, Case No. ICTR·99·52·A, D<c,,on on Appellant Jcall·llosoo Barayag>•iza's Motioo Requesting tll>t the Pros<:<ution Di<elosure of the lnterviCV>' of Michel Bog..-•g"" lle Expunged tix>m the Record (A C), JO October 2006, !>='- 6 "Ka.-e,.,ra D<mwn of 14 Ma)' 2008, paro 1:1. " See Karemera tl<ci•ion of 14 M>) 200~, para t2; Pruseculor ,._ Thomos Lubanga Dy1/o. Cas. No. ICC· OIIIJ4.0tl06-llll·Anx2, D«:ision i>>uing a Conti~entlOI and a Public Redac(«( Vc<Sinn of 'De<.,ion on Di:;clo>u.-.: i"""'· ro•pon•ihilities for protecthe mo:mres and othcr pr<X:<>.!urol mattm ('1'('), 8 Mo) 2008, pora. 94, >.\hero the JCC TnaJ 0'""'""' ""'"' thMt the Accu><d ha< '·an absolute enhtlemenl" to potential]_, cxoulpatOT) Ol'ldcn<e Tho I rial Chamber •dLlcd "Tke fact that it may b< undom1tned by other O'ldOne<, nr tOe witne» ma) also pr<l' LrJ< ••criminating cvtdenoe ... arc all Lrrelovant for these purposes. tf the real po>sib,(ity exists that this e>·idencc may contribute to a re•olution of ma!<rLOI "'""' in the case '" fo,•our ot the ae<u>ed, he "'obcpruvLdedwithitl- 1" " Kur<mera 1-'<ctsion of 30 June 2006, para. 10. "'Koremero Decision of30 June 2006, para !0. " Ko""'"" De<-i.<tOn of JO June 2006, par; 15 " K""'"'"" D<mion nt 30 Jun< 2006, para. 9. "Pram·uU!r" Radt>lm· Kmic, Caso ~"- JT-9!r-JJ-A, Judgement (AC), t9 Apri12001, para. 181J. S<o also Proseculor " .v,-. Oric, Cose No. tT-Ol-6~·1', Deci,ion on Ongoing Complain~' obout Prooeoutonal Non­Comptiallce "ith Rule 68 (TC), tJ De<embcr 2005 (Or•c D<cision of 1J De«mber 2005), para 20, "-- the dL>closur< nf Rule 68 material to the Defence i• of paramount impurtane< to ensure the faimm of proce<:din~> l>cfor< th" ·1 ribunal." "Prosecwtr \' &mo Kordk ami Mano ('orl<ez. Caoe No.IT-95-1412-A, De<ision on Motion• to Extend for filLng Appellant's Drid> (A C), 11 Ma)' 2001, para. \4

Pro"cwar • Au!r"'lin NdtnJjfjymrorw et al . Coso l\o ICTR-00-56-T 5/22

~

'l-81~ 'Dedoion on D•fence Motion< alleging Vioiaiiono ol the Pro>ecuuon's Oi"'"'''''"'";---,c,c,c,,,O,C"'~l>Or 'I~

Obli ations PurSuant to Rule 68

obligation under Rule 68(A), the Prosecutor will be presumed to be acting in good faith, unless the moving party adduces prrmafacie evidence proving otherwise."

13. In order to succeed on a motion for disclosure of exculpatory infonnation under Rule 68(A), the Defence must: (i) define or identify rhe material sough! with reasonable specificity: (ii) if disputed, satisfy the Chamber on a primajac1e basis of the Prosecutor's custody and control of the requested material; and (iii) if di•puted, satisfY the Chamber on a prima facie basis of the exculpatory or potentially e~culpatory character of the requested material. ll

14. However, not every violation of t~e duty to disclose exculpatory material warrants a remedy. Before granting a remedy for a breach of Rule 68 obligations, the Chamber must ascertain that material prejudice has been caused to the accused, amounting to an infringement of his or her right to a fair triaL" Likewise, the choice of remedy is a mauer falling within the Trial Chamber's discretion and must be determined on a case-by­case basis taldng into acrount the scope and significance of the violation vis-A-vis the allegations in the Indictment, the persistence of the Prosecution's non-compliance, and the timing of any late discloSIIre in light of the stage of the proceedings." For example, where the Prosecution shows persistent disregard or lack of diligence in discharging ItS Rule 68 obligation to such an extent that he could be deemed to be obstructing the procct:dings or the interests of justice, the Trial Chamber may consider imposing sanctions again;! the Prosecutor. 15 On the other hand, where the Prosecution delays the disclosure of exculpatory material until its case closes. the Tnal Chamber may consider recalling some prosecution witnesses for further cross-examination by the Defence based on the lately-disclosed material.'" In addition, or in the alternative, the frial Chamber may allow the Defence to submit a list of additional witnesses it wishes to call in order to testify on the specific areas relevant to the lately disclo;ed exculpatory materiai.P According to the Oric De.:ision, a Trial Chamber may. where the violation of the disclosme obligation is so extensive or occurs at >uch a late stage of the proceedings that it would violate the right of the accused to trial without undue delay, or where 11 v.ould be impossible or impractical to recall prosecution witnesses without effectively re-opening the case in ib entirety, opt to draw

'' K.ord•c and Cerkeo, Judgement (ACJ, t 7 De<.<:mbet <004, para l~J ("tho gene<al practice of$e International Tribunal lS to respeol the Prosee»lioo's funotion in tho administration of ,Justice, and 1he Prosecution oxccu\Lon of ti1ol function in good faith''); Karem<ra De<ismn of2& Apnl 201}1;, f"<O- I 7. " Karem<m tkci>ion of 14 l-1>}' 2008. P"'' 9; (~'aMmaou er al Decision of 3 Dccembet 20();,), para_ 34; Blaskic Appeals Judgement, par11. 208, Karem<ra lledsion of?-8 Ap11t 2006, "'"" t J; Bagosoru « ui.,Decision on the Nu.bAuz.c Motion for D'S<Iosur< of vnroou< C•«goroe< M D<lcument< PurSUant to Rule 68 (TC). 6 October 2000, para 2: Bago>ora et a/., Dc"<i>lOn un Disdo>ure of Motor~ at, Relat1ng to Immigration S"'ton·><nts ol Do fen<:< WilOesses ( r(;), 27 September 2005. para.l_ See also Pro'"""""" Blask•c. c..., No. IT-95-14-T. tl<cision on tbe Defenco Motoon for "S•nctions for Pro>""uto<'s Rcpeo"d Violations of Rule 6~ of the Rul.-; of the Pro<edu.-.: and Evidence" (TC), 29 April t998, para, 14_ " K.a.-.mera !k<osinn of 2~ April 2006. P""· ? " Karcmera DO<i;oon of 28 April 2006. ]>!ras. 8·9_ "Kwemera el al., Decision on Dcfeoce Motion IUr Disclosure uf RPF Material an<l for Sonctions Again" th< Pro.ocution (TC), 19 October 200<,;, !"'"'"· 16-17 "Orr<", D<mion on Ur~cnl [)efenco Motion Regarding Pmsocutoriol non-Compliance "lth Rule 68 (TC). 27 Ootobor 20115, P- S; ''" also Kar-em.ra cl a/, DocJSion on Josopl> N'iro<cro's Sec<:md Mo\L<.>n to E'duck Testimon} uf Witm:s1 AXA oml f.douard Koremera's Motion to Rocall the \Vitn<:" (TC), 4 March 2008 ]>lra

" "/bod

Prosee•lor v Auguslin Ndindrlryimana eta/, Ca>e :.o !CTR-01}-56-T "'

~1 Dcri,.on on llefene< Motions alleging Vwlotu>ns of tOe Prooccutwn's DiSc''"""""'"c--,1"'''''''''""~~;!!.:~ _ Obligations Pursuant \o Rule 68 _

reasonable mferences from the disclosed mater~al at the stage of its definitive evaluation of the evidence. 31

15. Where material requested by the Defence under Rule 68 is known and could be retrieved by the Defence with relative ease, then material prejudice cannot be shown_3' By parit} of reasoning, "something which is not in the possession of or accessible to the Pro>ecution cannot be subject to disclosure: nemo tenetur ad impo.,_,;hi/e (no one is bound to an impossibility)."'" Therefore, if the sought material is not in the possession of or accessible to the Prosecutor, he cannot be obliged to disclose it

41

(i1) Alleged VtolaNon of Disclosure Obligations relating lo the 'Belgian Files ':

!6. In response to !be Chamber's Interim Order of 12 August2008, the Prosecution filed submissions indicating that after a peru"'! of its disclosure records, it was in a rosition to confirm that the '·Belgian Files" were disdosed m on-redacted format"

17. In its submissions, the Ndindiliyimana Defence cur.;orily submitted that it had never received the "Belgian files" in an) format, redacted or un-redacted. 41 On the other hand, the Nzuwonemeye Defence admitted that the documents it received as pa11 of the "Belgian Files" were not redacted.44 While the Defence for Sagahutu stated that the Chamber's lntenm Order did not concern its case because the documents that it requested in its motion were not part of the pre-trial disclosure referred to as the "Belgian Files".'1

the Defence for Bizimungu did not respond.

18. Having fully considered the submissions of the Pa11ies, the Cham\:>er tlnds that the pre-trial disclosure of the "Belgian files'' in May and July 2004 by the ?rosecution was not redacted. This is borne out by the submiSsions of the Prosecution and the candid admission by the Defence for Nluwonemeyc. Since the practice of the Prosecution is to make all relevant disclosures to a[[ the Defence teams at the same time, there is no reason to believe that an}1hing other than un-redacted disclosure of the Belgian files was made by the Prosecution in 2004_ The Chamber therefor• will not rely on the submissions made by the Defence for Ndindiliyimana that the Belgian files were never disclosed to it.

t 9. The Cham\:>er finds that the Defence teams have been in possession of the Belgian files in un-redacted form since 2004, and therefore, they cannot claim that tbe Prosecution violated its obligation to disclose exculpa!of) documents contained in that

" One Decision of t J Dccemt>er 1005, para_ 35. " Bla:rk1C, Demion on the App<lt•nt'> Motion; for the l'r<XIoehon of Moteriol, Su;pon>ion or "'"'"-""" of the Briefing Sc~edule, and AdditiOillll Filings (A C), 16 September 2000 (8/askJc D<o1"M of 26 Soptcmt>e' 2000), rara 38. " f'rosecul"r ' Ol!)'lt<gda. Case l'o.ICTR·%·1 ~-A, Jud~ement (AC). 9 July 1004, para_ 15. "!:omtJera e1 a/ Deci<ion on DJ>ci05Un'o of Wotnos> R<eonflrmalion StaO<ment> (TC), V febcuOC) 2005, ~"'-

' " Prose,ut<>t'< Response to Cltamber'< "Interim Order oo Defence Moti<>no rogardi<~g the Proscrutor'.< Disclosure of Alleged Exculpatory Malena! dated 11 August 2008", flied on t 'i /\ugust 2008, para. 9 " R."Jlly to Chamber's tnlerim Order dated Augu.<t 1 t. 2008 Rc Disclo>ure of hculpator)' Material, filed b)' t~c D<fcnoe \<); Ndindili)'im:ma on !8 Augu<t :was, P""' 1. " N?u\\oncmcy' Do fence Re.ponsc in Compl1Mc< ,.,;th Interim Order. dated t 1 /\ugu>t 1008, filed on I~

/\ugu>t 2~08. ~"'"''- 2-.l ' 1 R<pon.o • Ia "lntcnm Order on Defence Mutwns regording the Prose<outor'< Disdo>ute of Allcge<l hculpalm) Maton•l", filed by the Dcfcnc:c fuc Sagahutu on 15 /\ugu>t 2008. paras. 7-8.

D<:<i>lon on -Defence Motions aiicging Violauons of!ho ProseCut1oRs Di,clooore OOii •<ions Putsuoru ro Rule 68

disclosure. The Appeals Chamber has held that the Prosecution is relie~ed of its Rule 63 disclosure obligation where the matedal sought is reasonably accessible to the ~fence with the exercise of due diligence." The Chamber concludes that the documents disclosed by the Prosecution in May and July 2004 as part of the '"Belgian fries"', and more fully described in Confidential Annexe l tu this ~cision. ha~e been in the po"ession of the ~fence from the pre-trial phase in un-redacted fonn. Therefore, the Prosecution lms not violated its obligation under Rule 68 in respect of those documents.

20. As a result of this conclusion, the Chamber finds that there cannot be any violation of the Prosecution "s disclosure obligations in respect of the following statements since they were fully disclosed as part of the "Belgian files" a1 the pre-trial phase: (i) Statements of JB dated 16 June 1995 and 27 December 1994. (Ndindiliyimana and Nwwonemeye): (ii) Statements of MG, dated 27 ~cember 1994 and 16 June 1995", (NliJWOnemcye and Ndindiily1mana): (iti) Statement of AV. dated 5 Februar) 1997,( Ndindiliyimana): (iv) Statement of AL dated 21 April 1995, {Ndindiliyimana); (v) Statement of AN dated 10 January 1997, (Ndindilyimana); (vi) Statement ofVNM. dated 11 March 1997, (Ndindil\yimana); (vii) Statements of LR dated 6 October 1995 and 27 March 1998, (Ndindiliyimana and Nzuwonemeye) and (viii) Statement of JOT dated 4 January 1995,{ Nzuwonemeye.)

fm) Alleged Vwlarion of Disclosure Obliganons relalmg 10 RPF Material:

21. The Defence for Sagahutu specifically requests for the disclosure of two un· redacted statements pertaining to the Prosecution's investigations into the role of the RPF in the events that transpired in Rwanda in 1994, numbered R0000280 to ROOD0283, and ROOD0299 to R0000302." It claims that part of the criminal wnduct attributed to the Accused in this case, were acts committed by the RPI'.49 The Prosecution opposes the disclosure of both these statements, on the grounds that such disclosure may endanger the security of the w>messes, and cam;e prejudice to ongoing investigations-50

22. The Defence for :-.Jzuwonemeye subm>l!; that the Prosecution's disclosure of 39 pages of hea,·ily redacted RPI' statements (six witness statements) on 19 March 2008, violates the letter and spirit of Rule 68, and requests for the disclosure of these statements in un-redacted form.51 It submits that the identity of the individuals who made statements to the Office of the Prosecutor concerning the RPF is inextricably conne<;ted to the content of the statements. and as such, the redacted statements do not satisfY the disclosure requirements under Rule 68." The ~fence for Bizimungu spe<:ifically claims that the Prosecution's disclosure of redacted RPF materials on 19 March 2008 was not justifted

'"8/asi<.ic Ap]><als Judgcmonr, ~>""'- 296. "In r<la<ion to rbe 16 June 1995 S1.aromcnr, 1he Pmsecorion '""ponds lho< >he 16 June 1995 •talcmenl '"'-' di.<elosed in rodaded !brm on 24 Au guS! 2001, and 1hrn on 29 May 2008. (S<e Pros~:<olinn liling of 30 May 2008) ne Nzu"onemoye Defence. howc,·or, daims in i>s ta>ost submission that >he 16 June \995 stalomonr was al><l dosclosed in on-r«tactcd form "-' pan of the Belgian fil.,, {Ste Nzowonemeye Defence Response m Comphanco with Interim Order, dated II Augu>! 2008, f,led 011 15/\ugus> 2008. porn. 2). '' Sagallutu ),lo>ion. para. 24. "Sagahulu MoHon, puca. 26 '' Prosecution Rcspon,.; to SagaOulu Mo!lon, para. 4: l'rowcurion E' Parte at>d Confodonllal Submi><iOn>.

\':"r"' 1.1.]4 '~>uwonemcye Mo!lon, poras_ 17. 22_

'' 1--<zuwonomcye Motion, para. 20.

f'm«XU!Or ' Augu_!lin N<iindiUy!fflana el a/, Case No. tC l R--00-56·1

r:>ecislon on J)ef•n« Motions •llcging llioi,IIOns of lit< Pro"Se<"toon'> Di>elowre Obh ations Pur<u«nt to Rule 6S

·='-?1'7'1 22 September 2008

pursuant to Rule 39 (li) of the Rules, and the Prosecution was required instead to request special m~asures of prote<:tion for such witnesses from the Chamber." The Prosecut10n disputes the exculpatory nature of these statements, in that they do not contam any rderences to Nzuwonemeye, nor to the RECCE battalion at all times relevant to the charges against him.14 Accordingly, the Prosecution claims that the disclosure of the identifying infonnation of the authors of the statements is without legal basis "because the request is based on ~peculation that the statements might become exculpatory if the makers ofthe statements are known''"

23. The Chamber is not convmced by the Prosecution submission above. The Chmber notes that the purpose of disclosure of exculpatory material is to penni! the Accused to make effective use of it. This purpose will be defeated if the Prosecution is allowed to redact the statement so extensively as to conceal its exculpatory content or otherwise render it useless for the purposes of the defence." Rule 39 (ii) allows the Prosecutor to take special measures for the safety of potential witnesses and informants. Such measures may include reasonable redaction ofinfonnation in witness statements so as to remove any danger to their security_ However, where the identity of the witness or th~ maker of the exculpatory statement in question is so closely linked to the contents of the statement as to render the latter meaningless without the fonner, it would be impermissible to redact the identil} of the wttness.1'

24_ Rule 68 (D) requires the Prosecutor to apply to the Chamber to be relieved from the obligation to disclose exculpatOI)' material if such disclosure may prejudice further or ongoing investigations or is contrary to the public interest. Notwithstanding these provisions, in order to have meaningful disclosure under Rule 68, the redacted versions of exculpatory material must be "sufficiently cohesive, understandable and usable."" In other words, the Defence must be in a position to make e!Tective use of the disclosed material and present it to the Trial Chamber.

25. The Chamber has now had the opportunity to examine the an-redacted RPF statements provided to it by the Prosecution on an ex pone and confidential basis. Regarding the specific request by the Nzuwonemeye Defence for the on-redacted disclosure of the six statements contained in the 19 March 2008 di<elosure, the Chamber finds that statements numbered ROQ0,0284·0288, R000-0189·0196. R000-0056-0061, R000-0040-0043, and R000-0034-0036 do not contain exculpatory material relevant to the charges m this case, and do not relate to the credibility of the Prosecution evidence. The sixth statement (R000-0259·0268) will be analysed in the follo ..... ing paragraph_

"13i7imunsu Motion, par""- sg-59. "Prusocution Joint Kesponsc. pan~. 25. " Pro<ecution J11int Rcsf>OnS<, pan~. 2?. " F!l«<i<e, l)ecision on the Defence Motion for "Sanc<ions for Pro<ecu!Or's Repoarod Violariom< of Rule ~R of the Rul.s of Procedure and Evidence" (TC), 29 April 1'19& (8/ahrc Decision on S•ncrions), P''"· t6: "---"" e<tabllohcd """":liM of (exculpoWy) cvidonce from its context would not, in pronciple, be condud,·e to a full under,tanding of rhc t"l nor permit one 10 mca>urt its full scope." '' Bagosora '"a/, Dedston on Disclosure of Identity of Prosecution Informant (TC), 24 Ma) 20%, para ;\; f(aromera <1 a/. l)ecision on lo><ph ~zirorera's ).lotion to Compel Inspection and Di;dosur< (TC), 5 July 2(){)), pOra 20. " JlltJSkrc De"'ion on Sanorions, !"'"' 19.

9122

26. Of the four RPF statements on w~ich the Prosecution filed written submissiom following the Interim Order, the Chamber notes that the Prosecution object.< to the disclosure of three statements. i.e., ROO(l{I297·R0000302 dated 28 March 2002 (~tatement 1); R0000280-R0000283 dated 18 May 2002 (Statement 2); and R0000259-R0000268 dated 25 April 2002 and 2 May 2002 (Statement 3). On a careful further appraisal. the Chamber finds that Statement J does not contain any Rule 68 material. and doe.s not need to be disclosed to the Defence.

27. The Chamber, however, notes that Statements I and 2 are S['<:cifica\ly reque>ted by the Defence teams for Nzuwonemeye and Sagahutu and relate to the possible role of the RPF in the events of 1994 at CND among other locations. They provide particular infonnation on the role of the 'RPF techmcians" in the killings that occurred in various locations in Kigali in 1994 and rna} be relevant to the crimes attributed to the Accused in those locations. Despite tlte Prosecution's objections to such disclosure, the Chamber retains its discretion to gtllnt such disclosure in the interests of justice and in order to uphold the fa1r trial rights of the Accused. The Chamber notes that the case for disclosure JS

reinforced by the fact that the Prosecution has been in possession of these statements since 2002 This amounts to an impcnnissib!e disregard of the Prosecution's obligation to make timely disclosure of Rule 68 material.50 The Chamber, however, notes tllat Statement 2 belongs to a witness (ALPHA-!) who has appeared for the Nzuwoncmeye Defence in the last session To some extent, this fact mitigates the actual prejudice caused to the Defence. The Chamber will take into account thi' mitigating circumstance when dctennining an appropriate remedy. The ("hamber further finds that statement R0000303-R0000306 (Statement 4), requested b)· the 1\zuwonemeye Defence, contains e"culpatory material on the role of RPF '"technicians" in the killings of Lando Ndasingwa and Kavaruganda (the President of the Constitutional Court) among others. which are crimes ascribed to the Accused in paragraphs 48 and 49 of the lndictment. The Prosecution does not object to the disclosure of this statement. In light of the above reasoning, the Chamber, therefore, order; the Prosecution to disclose Statements I, 2 and 4 to the Defence in un-redacted form (details provided in the confidential annex.) 28. The Defence teams for Sagahutu and Bizimungu further make blanket request; for all materials contained in the RPF dossier."" The Prosecution claims that the Defence has neither identified the required documents nor demon>trated their exculpatory basis•• The Chamber fmds that the requests for blanket disclosure of all material in the RPF dossier lack specificity and must be denied."

" The Btzimun~u Defonce ol>o m,kes submissions on the latene>s uf the Prosecution Ji<elosu« (tlirJmungu Motion. par..,. 48....4~) " S.gahutu Motion. para. 3 l : Bizimungu Motion. p>ra. 50. " Pros«uli<>n Joint R.c>pnn>e. po.ra. 3). " f!~gwora e• al. Oecision on the Ntakabu« Mntion for Di30tosure of Vorious C"cgunes uf D<J<umcnc> Pursu:111t to Rule 68 (T("). 6 O<tober 2006. para. 2. where the Trial Chamber noted that a defer>dant claiming tltO\ Rule 68 ho.' "''"" •iula!cd b} the Pro<c<utinn must. among other things. defin' the e.culp>tol) m"erial wllh reasonabl< specificity. Sec al1o B<Jgosoro eo al .• Dcci•ion on Disclosure of Material> Rdaung to Immigration StntemenL' of Dcftncc Witnesses (TC). 27 September 200S. plll<l. J ("a request for production of documents ha. to be sufticionll~ <peoific as to the nature of the evidence sought and i!S being in the po«e>Sion of the addn:""" of the request'"); Blaskrc AppeLL I Judgemcn~ 29 July 2004, pan. 268.

(.Hcfz.._. r -boci>10n on Dofince Motion• allogli1g Violation• of tho Prosecutton'< Oisdo<urc --'l''"''''•'o'"'nlbcr 200~ .I 1 Obligations Pursuant to Rule 6~ ,

(iv) Reque,·ljor Document.,· riflhe Rwandan Mini.,·t>y of Defence

29. The Defence for Sagahutu requests disclosure of all internal documents of the Ministry of Defence in Rwanda prior to the overthww of the government in 1994''' The Defence for Bizimungu also requests diS<:Iosure of all documents pertaining to the Ministry of National Defence of Rwanda in relation to the Chiefs of Staff of the Anny and the Gendarmerie, as well as ''SITREPS", general orders, operational telegrams and other documents pertaining to the Rwandan army- particularly for the period between 1 January and 17 July 1994 ... lt indicates that the documents could demonstrate the functioning of the army during that period." 'I he Prosecution responds that the Defence has failed to show that such documents are Ln the Prosecution's p<~ssession, and that they are exculpatory in nature.66 The Bizimungu defence insists that the Prosecution is in possession of all documents emanating from MINADEF. since it had made such disclosure in Bagosora el at:' The Chamber, however, finds that such wholesale requests of both the Defence teams are not sufficiently specific. and must thcretOre fail.

(v} Analysis of Bizimung11 's Marian in Rcspe<·l of Other Mute rial.<:

30. The Bizimungu Defence claims that the Prosecution's disclosure of29 February 2008 did not contain statements of witnesses who saw Joseph Nzimrera and Casimir Bizimungu in Kigali on the night of6- 7 April 1994 and in the morning of7 April 1994. 61

The Defence, however, docs not refer to any particular witness who may have provided infonnation on this is~ue. The Prosecution states that the statement ofNB disclosed on 29 February 2008 indicates that N7.imrera took part in a meeting in Kigali on 7 April 1994 with Bagosora and other MRND leaders.'• Irrespective of the Prosecution's submission, the Chamber fLnds that it is unclear which witnesses the Bizimungu defence is referring to in their submissions and will therefore not speculate on the identtty of the w1tnesses on behalf of the Defence. The Defence has therel(Jte not discharged its burden in this respect.

31. The Prosecution disclosed as pan of its Responoe to the Hizimungu motion dated 2 April 2008 the document of the commiSSIOn nwa/aire of 7 June 2001 penaining to Joseph Nzirorera, in which the latter says that he was in Kigali on 6-7 April 1994.'

0 The

Defence claims that it has been prejudtced by this late disclosure as it was denied the opportunity to use this document to test the credibili~f, of witne<ses who alleged that N<.irorera wa~ in Ruhengeri on 6 - 7 April 1994. 1 The Chamber finds that the Prosecution· s disclosure of the commisswn mgaloire document relating to Nzirorera is an admission of its exculpatory nature, and that such belated disclosure, despite having it in its posse<Sion since 200 1, constitutes a violation of its obligation.

32_ The Defence further asks for the specific statement of Casimir Hizimungu at the enquiry conducted by Judge Brugiere in 2001 and claims that it is exculpatory for reason~

"SagoJ,utu Mot,on, para. l2_ "'lli"mungu Mo"""· fl'l'"- 34 •' ijozomungu Reply, para. JO. " Prooecution Re.pcnse to Sagahutu Motion, pano. 22; Prosecution Jo1n\ Respon;e, para. JO. "Bizimungu Reply, para<. 2s-29. "Rizirnungu Motion, par.l. 3>_ " !'roS<cution Juint Respon><, pan~. J I. " J>roS<cution Jomt Re<ponsc, pan.. 3 J " Bi•imungu R<~ly_ pams. JJ-34.

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--·---,------------

Decision on D<f<ncO-Motion< allcg1ng Violations of th< Prooecut1on's Disdo>ur<: I Obligations Pu"'uant to ~uk 6~

any material that might be considered to be exculpatory towards Bizimungu. fhere is therefore no violation by the Prosecution in this regard.

36. According to the Defence, the statement made by one soldier of the 52"" battalion is exculpatory of the Accused and was in the possession of the Prosecution 'ince April 1998." This soldier allegedly states that Bizimungu was often found encouraging the soldiers to conduct themselves welL" The Chamber finds that it is unclear which statement the Defence is referring to. This unspec1ftc request is therefore denied.

37. Finally. the Defence requests disclosure of exculpatory documents "in the possession of anyone working for the Tribunal."" The Prosecution states that the Defence has faded to specify the documents and adds that it does not have such a category of documents in its possession'' The Defence replies that the burden of identifying and disclosin~ potentially exculpatory documents rests with the Prosecutor rather than the Defence. 'The Chamber recalls that it is for the Defence to identify the documents with sufficient specificity. and if disputed, to also establish on a prima facie basis !hat the Prosecution is in possession of the said documents. Since the Defence bas failed to do >o in this case, the request is denied.

(v1) Anafy.<l.\ ofSia/emem_, commonly relied upon by Nzuwonemeye and Ndindiliyimana:

38. The Defence teams for Nzuwonemeye and Ndindiliyimana submit that the statements of PCK (6 November 1997 & 2 March 1999) contain exculpatory material pertaining to the ENJ Report. In particular. Ndindiliyimana submits that PCK describes the genesis of the ENI commis,ion in a manner that could not be attributed to Ndindiliyimana, and that <uch a document was never distributed to the gendarmes under Ndindiliyimana'' Nzuwonemeye states that while the Prosecution has sought to reduce the ENI Report to one of ito points that defined the enemy as Tutsis, PCK pn.wided a contradictory opinion that the Report went further than defining the enemy and encompassed a wide array of issues that included criticism of the RAF management." The two statements of PCK state inler alia, that the full ENI report was never published and that only the excerpted pan of the report which dealt with the definition of the enemy along ethnic lines was circulated to units of the R"andan army. PCK State._< that he does not believe the report was circulated to the gendarmerie. The statements also contain Information to the effect that the gendarmene were considered by the MRND leadership as accomplices of the enemy: that gendarmes collaborated with UNAMJR to search for "eapons in Kigali; that the meeting of senior militaf}' officers held on 7 April 1994 at ESM did not support the proposal for a military take-over of the country; that Ndindiliyimana was visibly agitated by news of the death of Prime Minister Agathe and said '"things would not work" if people were t>eing killed in that manner; and that Presidential Guard soldiers were eliminating opposition leaders in the morning of 7 April 1994. In light of the charges against Ndindili}imana and Nzuwonemeye tncluding con,piracy to commit genocide. the Chamner finds that the statements of PCK contain material falling within the ambit of Rule 68 and should have

"!lnimungu Mouon, paras. 42----43. "Bi,imungu Mmion, para. 4J_ "Bizimungu Motion, para 46_ "Pro•ecutionJoinl R ... ponso, para 32 " Bizimungu R<pl)', paras .. 16-39. "~dindiliy1mana Molion, para. 22 (k). " l'>uwonemeye Motion. pam•. 5 t -5J

I J/22

DeciSion Qn Defence Motinns allegong Vmlatinn' of the P'ro>O<u\ion's llisclo>ur< Obli tion> Pur<uant to Rul< 68

been disclosed to the Defence in a timely manner. The Prosecution submits that it disclosed the statements in redacted form on 26 May 2000 and in un-redacted fonn on 29 May 2008. 09 The Chamber concludes that the Prosecution has violated its obligation to disclo,;c these statements "as soon as practicable" -a requirement that is cenainly not satislled by disclosure several years after the trial has <tarted. 39. The Defence teams for Nzuwonemeye and ~dindiliyimana submit that the statements ofCR dated 6 October 1995,27 March 1998 and 4 March 1999 are exculpatory, in that they show that the decision taken at the ESM meeting of 7 Apnl 1994 was to suppon the Arusha Accord' and the institutions established under those Accords."" The Chamber agrees that the vanous statements describe the decisions taken at the meeting of 7 April 1994; the establishment and leadership of the Cri>is Committee on 6-7 Apri\1994: the killing of Prime Minister Agathe and the t"n Belgian soldiers, the establishment and membership of the EN! Commission: the massacre of rutsi refugees who were hous~d at the ETO and the effons made by Ndindiliyimana to <;ave those refugee•: the signing of a communique by ten senior officers of the Rwandan anny on 12 April 1994 calling for an end to the massacre of civilians and condemning the killing of the Belgian soldiers; Ndindiliyimana's effons to get RTLM and Radio Rwanda to tone down their ethnic rhetoric; Ndindiliyimana's saving of a Tutsi major from attack by the lnlerahamwe; as well as the effons ofNdindiliyimana and Bizimungu to ask political leaders in Gitarama to stop the massacres_ The Pm•ecution submits that it disclosed the statements dated 6 October 1995 and 27 March 1998 on II May 2004 as pan of the Belgian files, and again on 29 May 2008. Since this Chamber has already found that the Belgian Files were disclosed in un­redacted form, there cannot bt: a violation by the Prosecution in respect of these t\'.'0 ~tatements. However, the statement dated 4 March 1999 was disclosed for the ftrst time on 29 February 2008. As regards the latter. the Prosecution is. therefore, in violation of its disclosure obligations. since it provided un-redacted di><:lo~ure only as late as 2008.

40. Ndindiliyimana and N~uwonemeye submit that the statements of JOT contain exculpatory material N:ouwonemeye relies on the pan of the statement in which JOT states that members of the Presidential Guard led by Captain Hategckimana were respon;ible for the death of the Prime Minister. contrary to the testimonies of Prosecution Witne>>eS ALN, ANKIXAF. HP, DCK and OA.

01 Since the Chamber has already found that there is no violation with respect to the 4 January 1995 statement because it was disclosed tn un­redacted fonn as part of the Belgian ftles, it will not address Nzuwonemeye's submission any fun her. According to Ndindiliyimana, JOT states in a document dated 27 October 2000 that he (JOT) was infonned by a cenain Lieutenant that he had received a telegram from Ndindiliyimana asking him to do everythinp possible to prevent the people from killtng each other after the death of the President.' The Chamber finds that this statement could have been used by the Ndindiliyimana Defence in confronting Prosecution witne-ses who testified that Ndindtliyimana sent a telegram asking gendarmes to collaborate with the lmerahamwo and to provide them with weapons to further the allacb. The Prosecution's fa1lure to disclose this statement until 29 February 2008 constitutes an impermissible violation of its disclosure obligation under Rule 68. As a result, the Defence has been prejudiced in its right to a fair trial_

"Pruse<ution filing, JO Ma) 2008 "'N>uwoncm<)'O Mol1on. para_ 56; "dmdili)imana l.1otion, para 22 (i)_ " Nzuo,<memeyc M<J\ion, 1 able of hc"IPO!ory Evidence, p. I 8. "!'oldindiliyimana Motion, poro. 24(d)

14122

rr.;;;c;>oon <>n Defone< Motions ollcgitig Voolotioos of the Prosecution'; ""'"''''"''"''''--~To,~s~C0~te~ I Obligations Pu""""llo Rule 68

(vii) Analysis ufStatements Relied ~pon by Nztm1onemeye:

41. The Defence for Nzuwonemeye claims that the recent disclosure of the statement of CN dated 15 September 2000 caused irreparable prejudice to the Defence, since it was given by someone who claims to be Nzuwonemeye's military chauffeur on 6 and 7 April 1994. The Defence refers to the evidence of Prosecution Witness ALN who had claimed to be Nzuwonemeye's driver on those days, and submits that it "'as prevented by this late disclosure from confronting Witness ALN with this information."' The DefenC<' ful1her submits that the September 2000 statement of CN contains exculpatory information on the a.1sassination of the Prime Minister, which could affect the conspiracy charge against !he Accused"' The Prosecution submits that the Defence is mistaken in its characterisation of the statement, in that CN only states that he was "the dri•er of the banal ion commander until 1994", and not that he was "his driver on 6 and 7 April 1994"". The Prooocution further asserts that the Accused failed to challenge Witness ALN's identity as Nzuwonemeye's driver during his testimony. The Prosecution adds that Witness ALN only stated that he was one of the Accused'' personal drivers, which is not contradicted by CN's statement. In the end, the Prosecution dLSputes the exculpatory nature of the statement."

42. Tile Chamber has examined the statement at issue and finds that it contains material relating to the identity of the killers of Prime Minister Agathe tJwilingimana, the circumstances surrounding the death of the ten Belgian UNAMIR soldiers at camp Kigali on 7 April 1994, the identity of the Corporal who launched a b'l"enade into the building in which Belgian soldiers sought refuge in order to escape from the Rwandan soldiers at Camp Kigali, and the identity of the senior officer who gave the order for the Corporal to be issued with greMde• for the purpose of the attack on the Belgian soldiers. Since most of this infonnation appears to contradict the evidence given by Prosecution WitneSI ALN and other Prosecution witnesses. it constitutes material that should have been disclosed under Rule 68 either because it suggests the innocence of the Accused person, or could be utilio;ed by the Defence in cross-examining Prosecution "'itnesses The Chamber notes that, by the Prosecution's own admission. CN"s statement was only disclosed on 29 February 2008, nearly eight years after it was recorded and over three years after the commencement of trial. The Chamber finds that t~e Prosecution has violated its obligation to disclo•e exculpatory material under Rule 68_

43. The Defence claims that the statement of JG (29 March 1997) contains exculpatory material penaining to the ENl Report'' The Prosecution claims that the statement was with the Defence at tile time of the te~timony of Alison des Forges. since it formed part of the Prosecution's earlier disdosure.97 It further claims that the opinion of JG is contained in his book, which is available in the public domatn and could therefore have been retrieved by the Defence with relative case." The Chamber finds that JG clearly states that the version of the ENJ report that was in circulation was an abridged one. He noted tllat

" ~tuw<>nome;o \lotion, para>. 26- 3 L ""'-""oncmc;·o MotiOn, para 32. "rroseoutlon Joint RcsJXln><, para. za {i) "Nzu\\onemc;c Mot;oo, paras 44-50 " Pros«:ution Joint Re>JXlnse. po.ra. 28 {ii) {a) The Pro><o•t<nn fil1ng ol l~ \lay 2~~8 indicate> that th1> s<a<emenl ~~""-' onl; disclosed uo 29 Fehroar)" 2008. " Prosecution loin\ Rospon""- pant. 2S {io) {a).

ll-'22

the repon was wrongly interpreted and taken out C>f wntext and adds that one of its ~uthor> was a well-known human rights defender who opposed ethnic divisions. The Chamber does not find this statement to be exculpatory, since it does rmte deny Prosecution evidence 10 the effect that the version of the ENI report which was circulated to members of the Rwandan Armed Forces contained a chapter titled "Definition of the Enemy" which idenllfted the enemy as the Tutsi inside and outside Rwanda. The Chamb<:r therefore finds that there is no violation by the Prosecution of its disclosure obligation.

44_ Regarding the Centre hospitalier de Kigali (CHK) allegations, the Defence submits that the Prosecution failed to make timely disclosure of the statement of ANl. which contradicted the testimony of Prosecution Witnesses DAR and ZA, and is therefore potentially exculpatory.99 The Prosecution disputes the exculpatory nature of the sta\cment, since the ANI fails to spttify with exactimde the two weeks he spent at CHK during the months of April and May 1994. 100 The Chamber has considered this statement to the effect that over a period of two weeks between 19 April \994 and the end of May 1994, ANI went from ESM to CHK to receive treatment f<Jr war-related injuries. but that he did nor witness an} massacres at the ho•pital in the couroe of his visits. The Chamber finds that this statement could have been used b} the defence to cros~-examine prosecution witnesses who testified about rape and killing of civilians at CI!K. The Prosecution's failure to disclose the ahove statement violates its Rule 68 disclosure obligation.

45. The Defence further claims that in a statement dated 14 August 1Q98, JPF indicalcd that during the attack on Belgian soldiers at Camp Kigali on 7 April 1994, one "corporal" launched a grenade given to him by Lieutenant Colonel Nubaha ·'to fini>h off the Belgians" who at the time, had locked themselves up in a building.'"' According to JPF's statement Colonel Nubaha ordered Adjutant Sebutiyongera to give the corporal six grenades. The corporal in tum, launched the grenades through the window of the building in which the Belgians were holed up, which eventually killed them. In it• response, the Prosecution states that the statement also contains incrimmating mate,. a/. LO' The Cham!>er recalls that the Prosecution's obligation under Rule 68 is not subject to a balancing test. The mere fact that a statement contains incriminating material does not relieve the Prosecution of Lts obligation under Rule 68 if the statement al>O includes exculpatory material.'"' The Chamber finds that this eviden~e could have been used by the Defence for the purpo~e of cross--examining the t>rosecution witnesses who testified about the killing of the Belgian soldiers, the identity of perpetrators, and of the semor offkial who gave the order for weapons to be issued for the attack on the Belgians. The Prosecution's failure to disclose it was a clear violation of Rule 68.

46_ Th" Defence for Nzuwonemcye relies on the statements of NB dated 21 and 24 February 1997 to the effect that Nzuwonemeyc did not attend the meeting at the Army headquarters on the night of 6 April \994, and that the RECCE battalion among others did not have any direct link with the Director of Cabinet at MlNADEF.'"' The Prosecution submits that the statements contain ;evcral allegations that are not exculpatory to the

"'Nw"onemoye Mo"on. poras. ?5-79. '"' Ptn<,e<ution Jmnt Re•pon>e, para. 28 (li) (e) '" l'J_uwonemeye M<>l<Un. I able of Exculpatory Evidence. p. 18_ '" P""e<ution Jomt Response. paro 28 (1i) (J). "'Acre mere De<"inn of 14 May 2008. para. 12. ,._,. Nluwoncm<}O Motion, Table of Exculpatory Evidence, p. 19

'""

~on on Dcfen<:< Motions ollcgiJLg ViolotiOn< of the Prosecution\< Disd0..""'""--"'''''''""'''m""'•"r200~ Obi; ations Pursuant to Rul< 68

Accused. 1 05 The Chamber has reviewed this statemenl and recalls thai the Prosecution obligation is not limited to the disclosure of materials that are entirely exculpatory in content, pursuant to Rule 68. The Prosecution only di,doscd it on 29 February 2008 and even that was in redacted form. The Defence has therefore been prejudiced by this violation.

47. According to the Nzuwoneme}e Defence. the Slalements of JVN (1999-2000 and 18 July 1996) indicate !hat "a great majority opted for the implementation of the institutions mcntloned in tile Arusha Accords"' at the ESM meeting of7 April 1994. 1(16 "I he ProsecU1ion merely responds that the Nwwonemeye Defence is at liberty to call JVN a< a witness.'"' The Defence states that this submission of the Prosecution is an admission of the exculpatory content of the statements.'"' The Chamber notes that the identifted statements contain material exculpatory to the Accused, including infonnation regarding the ESM meeting. The Prosecution admits that it only disclosed this statement on 29 February 2008. The Chamber finds that the statements contain information that could have been useful to the cross-examination of Prosecution witnesses who gave evidence on thc~e issues and therefore should have been disclosed pursuant to Rule 68. This rttem disclosure, over three years afler the trial has started. clearly violates the requirement that the Prosecution must disclose exculpatory material "as soon as practicable."

48. The Defence for Nzuwonemeye also reiterates its request for the disclosure of the supporting materials on which the Koremera eta/. Indictment is based.'"'' The Defence for Sagahutu makes a similar argument. 1 10 This Chamber is not seized of the Koremeru et a/ case. Therefore, without a specific showing by the Defence that there is Koremera et a/ material in the possession of the Prosecution falling within the scope of Rule 68 with respect to N2uwonemeye and/or Sagatmru. the Chamber will not concern il,elf with materials pertaining to proceedings before another Trial Chamber." 1

(vtil) Ana/y$is of//"' RemainderofNdmdiliyimana"s Motion:

49. According to the Defence for Ndindiliyimana. LR's statement of November 1997 shows that the RTLM referred to Ndindiliyimana as lnyenzi for saving Tutsis.ttl In its response, the Prosecution submtts that this statement was disclosed to the Defence on 29 February 2008. '" The Chamber has reviewed the said statement and finds that it contains important infonnation which is potentially relevant to the Defence. In particular. the Chamber notes tllat LR claims to have anended a meeting of the gendarmerie general staff in May or early June 1994 which was convened so as to discuss the deteriorating security

'" Prosecution Jo1nt Motion, para. 28 (ii) (g) "'' l><zuw<m<m<)~ ).lotion. P>'"- S7 '"' Prosecution Joint Respon,., par•. 28 (ii) (c).

"' N'""""'"''Y< Reply, I"'"'· 7l. ;oo ~zuwonemoy< Motion. para. {>I 1

" Sago.hutu Motion. paras. l(>-2t "' Su S<ma..:a v The Prosm<tm·. Case No. ICTR.-97-20.A, Judgement (AC), 20 May lOOS. ]>lll'3. 45; Ndind•i•y•m<ma el a/ D<dsion on Nmwon<meye"s Supplemental Motions on Alleged D<f<ct> in tile fom1 of the ln~tctmcnt (TC). IS July 2008. rat•· I 0. '" /'>dindohyimana Mot<on. pan.. 2l (d). '" Pro>ecutinn Respnn""· para. 10.

Pro.<«'""'' v Aug,<lin Ndmdiliyimano <1 a/, Case No. !Cll!-00·56· T 17122

Situation in the country; he attributed this situation to the actions of the lnterahamwe mihtia. He further claims that Ndindiliyimana appeared powerless to deal with the situation. Furthermore, the gendarmerre as a group was powerless to fight against the lnlerahamwe because the latter was supported by the government in place, the army and the Presidential Guard. The Chamber finds that this statement should have been disclmed to the Defence because it contains material that the ~dindLiiyimana defence could ha;e used in its cross-c.,amination of Prosecution witnesses who testified about the role of the gendarmes m the massacres and therefore failure to disclose it in a timely manner has prejudked the ~fence_

50. The Defence submits that the statement of JH indicates that the Accused had been involved in saving Tutsis in Nyaruhengeri. 114 The Chamber has closely examined this statement and notes that JH gives a detailed account of efforts by Mrs. Ndindiliyimana to save the liv~s of t"'o Tutsi children. In itself, Mrs. Ndindiliyimana's actions do not exculpate her husband from any of the allegations in the Indictment. However, JH also adds that the Kansi Parish massacre was the re;ponsibility of the communal police and Burundian refugees, rather than gendarmes stationed at the Ndindiliyimana's hou:;e in Nyaruhengeri. For the latter reason, the Chamber finds that the statement falls within the ambit of Rule 68 in respect of the alleged responsibility of gendarmes for the massacre at ~ansi Parish, as contained in Parag

1

';'fh 73 of the_lndictment. Since the_ statement was d1sclo.>ed only on 29 Febroary 2008, - the Prosccul10n has voolated us obilgatton to make timely disclosure.

5 j_ The Defence alleges that the statements of both PV"" and SN117 also indicate Ndimliliyimana's involvement in saving Tmsis. The Chamber finds that SN's statement relates generally to Ndindiliyimana's character and has no direct relevance to the charges in the Indictment_ This statement therefore does not fall within the scope of Rule 68 material. The Chamber is unable to make a finding on the Statement of PV because it is written in Dutch.

52. The Defence also relies on the statements of DM and FU to show that the gendarmes were not involved in the commission of atrocities.'" DM's statement of 14 August 2000 contains information that two busloads of Presidential Guard soldiers came to Butare shortly after 6 April 1994. Together with the lnterahamwe, these soldiers insulted the gendannes in Butare and accused them of being !nlwumyi accomplices. l-Ie adds that because of their oppo<ition to the massacres that were taking place, the Butare gendannes were ordered to redeploy to Kigali around 19 April 1994. Soon after their redeployment, wide-scale killing of civilians commenced in Butare He also states that he never heard that gendarmes at Ndindiliyimana's house in Nyaruhengcri had committed any atrocitks. In his statement of 16 March \997, FU also states that Ndindiliyimana, along with Colonel Rusatira wanted the massacres to end The Chamber tlnds that these statements rna~ conlradict Prosecution evidence regarding the responsibility of gendarmes for ma1sacre!>.. panicularly in Butare, and should have been disclosed pursuant to Rule 68 Both statements

1" ~dindiliyimona Motioo, para. 24 (o) ''' Pro>e<ution f;Ling. JO May 200&. 1" Ndindi11)imana Motion, f"lr1.. 22 (c) 1

" Ndindtliyimana ),lotton, para. 22 (f). '" 'ldindili;tmana Motion, P'""· 23 (a), and (c)

Prosecutor ,. Au!;tJsti" Ndm<l/1/yimana et al. Case MJ_ JC rR--Q0.56-T 1!1.121

~*'" ~Oe<i«on on Oofencc Motion~ •lkging Vwt;u;;;;;<ofthe Pro•e<uiion's D"cl"<uro-- m-,,-,.-~,-,-(H.\8-

co'""''''''"''"''''''"'"""'"'''""''"'"'''"'-----------------------------------"------------·-' were disclosed for the first time on 29 February 2008. '" Tl>i• vwlation by the Prosecution has prejudiced the Defence in a significant manner.

53_ The Defence for Ndindiliyimana submits that the statement of NC contradicts Witness ANC concerning the events in Kacyiru on 6- 7 April 1994. The Defence funher claims that exculpatory information wru; redacted by the Prosecution and that the redactions were not limited to the identity of the witness. 120 The Chamber notes that the statement dated 16 September 2003 contains infonnatron 10 the effect that Ndindiliyimana evacuated

member; of the civilian population, including Tutsi from Kigali to Gitarama in May 1994. Ndindi1iytmana aho assigned gendarmes to protect the Tutsi families whom he had lodged at the Hotel T!H<risme Spurt in Gitarama. The Chamber find, that this information should have been disclosed to the Ndindiliyimana Defence. but this was not done until 29 February 2008 Thi• violates the Prosecution's obligation under Rule 68 and has occasioned prejudice to the Ndindiliyimana Defence.

54. The Defence submits that the statement of JPB indicates that Ndindiliyimana offered to send gendannes to ETO after the departure of the Belgian UNAMIR soldiers who "'ere prorecting the refugees, but the refugees themselves declined the offer since they thought the gendarmes would kill them."' On reviewing the statement dated 9 May 1997. the Chamber fmds that the statement contains potentially exculpatof)" material relevant to Ndindiliyimana. The disclosure of the statement for the first time on 29 February 2008 constitutes a violation by the Prosecution of its obligation under Rule 68.m

55. According to the Defence, the statement of AD dated 7 September 2000. confirms that in April1994, Ndindiliyimana visited the gendarmes in Butare and discussed the Arusha Accords and said it was necessaf)" to reconcile With the RPF.'" The statement abo contains material that blames the gendarmes for some of the kilting.1 that took place in Butare, and states that Ndindiliyimana was not against the massacres. Nom·ithstanding the fact that this statement contains both incrimmating and potentially exculpatof) material, the Prosecution has an obligation to disclose it under Rule 68. The Chamber finds the Prosecutor in violation of its disclosure obligation since this statement was disclosed only on 29 February 2008.

56. The Defence submits that even though the Prosecution had in its possession .statements from II Tutsi members of the Rwandan army or gendarmerie. it continued to lead evidence to portray the Rwandan army as mono-ethnic.'" The Defence admits that all these statements may not be completely exculpatof)" in nature, but maintains that they need to be disclosed. ill The Prosecution states that the fact that the Rwandan Armed Forces was also comprised of merttb<:rs of the rutsi ethnic group does not, by itself, trigger its disclosure obligation under Rule 68. since it is irrelevant to the Indictment."' The Chamber fonds that the mere fact that there were Tutsi in th~ Rwandan Army does not provide any

"' Prose<uoion 1\ILng. 30 May 200~. "" Ndindiliyimana Moo ion. pora. 22 (c) "' ~·ldindili)'mana Motion. P"""· 24 (•). "' Pro<ecuoion filing. JO May 2008. '" NdmdiliyimM• MOIL<.\1\, P""''· 23 (f) and (g) '" l-idindili}Lmana Motion. P""'· \~; 1\dindiliylmMo R<ply. para 8. "' N<l•ndthyimano M<l!<on. pom. !9. '" Pro<ocu\Lon Re.poll<e, pora. 16.

1~122

' JJ'c'"""-"" Defeo><:< Motions alleging VoolaHom of!lo-e Pr0>ccwiom '> bo><:losuro I O~logatooo> Pur<uarot lu Rule 6S

basis for Rule b8 disclosure in this case. The Defence has not identified any particular statement to support its submi»ions and the Chamber therefore finds the request to be unspecific. lt is accordingly dismissed.

57. The Defence avers that despite the Chamber's order, other exculpatory material tn the possession of the Prosecution is ; et to be disclosed, including the documents pertaining to the job intcn:iew of Nsanzimfura (the former G4 (logistics) in the gendarmerie) prior to his enrolment with the Office of the Prosecutor}" the investigative file relating to Paul Kagame, and a letter written by Alison Des Forges to the Prosecutor in favour of Mr Rus.atira.'" According to the Prosecution, the general allegation that excu~atory statements are missing is too vague to tngger it~ obligations under Rule 68.' The Chamber fmds that the Defence has failed to make a prima fw:ie showing of the exculpatory content of the materials requested. This requc•t i; therefore denied.

58. Lastly, the Defence requests the Chamber to order the Prosecution to disclose sufficient identifying infcmnation for all 20 witnesses whose statements are deemed exculpatory by the Defence.uo The Prosecution contends that the disclosed materials contain adequate infonnation to enable the Defence to locate the witnesscs01

' The Chamber finds that the un·redacted statements contain enough material with which the Defence can investigate the current whereabouts of the witnesses and therefore there is no need to order the Prosecution to disclose further identifying materiaL

!ixl RemeJ,es:

59. The Chamber finds the Prosecution to have persistently violated its disclosure obligation under Rule 68. The Chamber recalls that the Prosecution closed its case on 7 December 2006; the Defence cases for two of the Accused persons (Bizimungu and Ndindiliyimana) have also closed. The Nzuwonemeye Defence case is in progress and the Sagahutu Defence is scheduled to commence immediately afterwards. The Chamber therefore finds that the Prosecution has shown a lack of diligence in the disclosure of exculpatory matertal and its violations have prejudiced all the Ddi:nce teams m the preparation of their defences. The Accused in this case were deprived the opportunity of u~ing the exculpatory material to te;t the credibility of Prosecution witnesses_ Furthermore, Ndindiliyimana and Bizimungu were denied the opportunity of considering the exculpatory material and deciding whether or not to call any of the wimes<;es to testify on their behalf The Prosecution's conduct therefore violates the right of the Accused to a fair trial. In particular the rights of the Accused to e~amine or have examined the witnesses against them or to obtain the attendance and examination of witnesses on their behalf have been flagrant!;· infringed. Such a violation cannot go without remedy.

60. The Defence for both Bizimungu and Ndindiliyimana request the Chamber to

dismiss all charges a~ainst the Accused, or in the alternative, permit the Defence to call additional wimesses. 1 The Defence for Nzuwonemeyc asks for a range of remedi~s

'" Ndtndiliyimana Mot10n, paras. !1.-17. '" NJindi!1yimana Reply. para. II ,,. Pro>Coution R<$ponse, para_ I 7, ·" :>;o)or.diiJ)im•na Motion. para. 26. t-;dindili)ima"' Rep I)·, puro.2 "' Proocoutinn Rc>ponsc, para. l. "' Bonmongu Motoon. P"'"· 62 ff; Ndinditiyi"""'a Motion, P""'· 25-26.

211-'22

•

~Decision on Defence Mo.>Iion<allcging Violation.< nfthe Pm•<=<wn's Disclosure ----.-,c,Cs0p_"_m_b<' ;,,-,-,,-Obit ations Pur:suant to Roi<M ___ I

including withdrawal of charges, exclusion of testimonies of Pmsecution witnes,es, and stay of proceedings to permit further investigationsnl The Defence for Sagahmu re3ue<t<

for the wt!hdrawal of cenain charges in the Indictment, based <m the disdosureou "lh~ Defence teams for Bizimungu, Ndindiliyimana and Nzuwonemeye request for sanctions against the Prosecution for its blatant and systematic violation of its disclosure obligations.

61. The detennination of a suitable remedy falls within the Chamber's inherent power and responsibility to secure justice and ensure a fair trial for the Accused persons. The Chamber must consider a remedy that is appropriate in the circumstances of this cao;e and that pre,;erves the integril)l of the judicial process tn that respect, a large number of remedial options are available to the Chamber_ These include re.:alling relevant prosecution witnes;es for further cross-examination, allowing the Defence teams to call additional defence witnesses, excluding relevant parts of the prosecution evidence, drawing necessary inferences from the exculpatory material, dismissing charges touched upon by the exculpatory material, and ordering a stay of proceedings."' In determining which of these remedies is the most suitable, the Chamber must take into account the na1Urc and significance of the Prosccutton · s violations tn light of the current stage of proceedings, the rights of the Accused, the need to preserve the integrity of the proceedings, and it' obligation to discover the truth about the events that happened in Rwanda in 1994.

62. The Chamber notes that dismissal of charges,"6 exclusion of evidence,"' a stay of proceedings, 1" and drawing necessary inferences from the evidence"' are severe fonns of remedy that should be invoked only in exceptional circumstances where less severe measures rea;onably capable of remedying the Prosecution's violation are unavailable. The Chamber finds that none of these remedies are warranted at this stage of the proceedings.

63. The Chamber considers, however, that it i; still feasible to recall certain Prosecution witnesses for further cross-examination and, if necessary, to call additional Defence witnesses. Taking all relevant factors into account, the Chamber ftnds that this would be the most practical way of remedying the Prosecution's disclosure violations while preserving the rights of the Accu;ed to a full and fair defence and maintaining the integrity of the trial proceedings.

64. The Chamber is fully aware of the possible effect of its ftnding on the anticipated completion of this trial. However. as a judicial body, the Chamber must. in this ;itualton,

"' Szu,.,ooemoye Mntion. para. 82 "' ~agahutu Mo\Lon, !"S• 6_ '" Soe •~/l"a. oolo" I J6-IJ9. '" l''ose<""" ,. l<<ry,.hema and Ru,ndana, lase No ICTR-95·1· T, Deci"on on the PrelimioOt)' Motion F,le,J try the Dcfmoe (lC), 6 November 1996 where the Tnal Chamber held that it hod no "atutOt)' power lO annul \he lnd10Lment ·" Karem<'D <1 a/, Tle<"ion on Jn«ph l'lzorororn'' Sc"enteenth N<>tioc of lli;dosuro Violation; •nd ~1otion f& Rcmedcaland Poniti\'C Mca>ures tT('). 20 February 2008. pam. 20_ "' [ubanga ll<..""'on of I J June 2008. p.oras. 90, 91 CL!Lng the ICC Appeols Chomber thot "Where the breach"' of the rights of the accu.ed ..-.such "to m'ke it impo»ible f& h1m1~et to make htsiher dofonce \lith in the fr<mework of his rights, no fair trio! can toke plooe and the proceedings can be >t•yed." ~- The f'rasec"'"' v t•btmga DyUo. ICC -Oli04·01Xl6-772, Judgment on the Appeal of the Court pursuant to anicle 19(2) of the Statute ol J 0<\0ber 2006{AC), 14 D«omber 2006, pasa. 36. "'One OeciSJon of lJ Oeccmber 2005. pora. 35, holding mler aim, that the Chamber moy only draw occ<ss.ar)­inferenc" from the c.culpatory material "her< it is not fc.,ible to recall prosecution witnesse< fm funh<f cros<-e>amin•linn or call additional defence \l'itncs><:s.

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balance the competing rights of the Accused to a trial without undue delay, with th~ir right to examine witnesses called for and against them bearing in mind the ultimate objective of ensuring a fair triaL ·1 he Chamber finds that at this stage of the proceedings. the right balance ;, struck by giving the Defence an oppommity to further cross-examine selected Prose\:ution witnesses and, if necessary, call additional witnesses based on the exculpatory material to be disclosed pursuant to this Decision.

FOR THE ABOVE REASONS, THE CHAMBER

GRANTS IN PART the Defence Motion<:

FINDS that the Prosecution has violated its obligations under Rule 6S in resp~ct of se,eral documents di&;:ussed above: 140

ORDERS the Pro>ecution to immediately disclose to the Defence in on-redacted fonnat all the documents listed in ~onfidential Annexes 2 and 3 to this Decision;

ORDERS that if they wish to do so, each defence team must within 14 day~ of the date of this Decision, file a Motion to recall identified prosecution witnesses or additional defence witnesses based on the statements for which the Prosecution has bc:en found in violation of its Rule 68 obligations, provided that the Defence teams shall not call any other witness whose statement does not constitute the subject of violation found by the Chamber tn this Decision;

ISSUES a reprimand to the Prosecutor of the ICTR m respect of the Prosecution'~ lack of diligence in the disclosure of exculpatory material in this case and reminds the Pro>ecution of its responsibility as ministers of justice !0 assist the Chamber discover the truth about the allegations in the Indictment and to do justice to the international community, the victims and the accused. The Prosecution must always e~ercise the highest standards of tntegrity and care in discharging its obligations:

REQUF.STS the Registry to serve the present Oe<:ision on the Prosecutor in person.

Atusha, 22 September 2008.

~ A1oka de Silva Presiding Judge

Read and approved by

~ T aghrid Hikmet _____/ .,..,-

Judge · ~ (Absent at the tim~ of Signa.~~lr!'r'i'

'/' -- t -...__.,_, ' ,. - ' (;"'•-,--\~

[Seal of the Tribunal1J,2l_'' ': . __ , - I -; -w " - r·· "'· . "'' ~"'' _.- / ,;,_,c; ~---,/"'---.

'" ~c< Conr.~,ntiol Anne«s 2 >nd J for <iet>il'

Sean Ki Park Judge

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