Arusha, July 13, 2001 (FH) - A court of the International Criminal Tribunal for Rwanda (ICTR) has dismissed a Prosecutor's motion for an investigation into alleged contempt of the Tribunal, and issued a warning to prosecutors for misconduct. However, it also partially granted the Prosecutor's request for harmonization of protection measures for witnesses in the so-called ButareTrial of six accused.

3 min 49Approximate reading time

The case groups former Minister of Women's Development Pauline Nyiramasuhuko, her son and former militia leader Arsène Ntahobali, former mayor of Ngoma Joseph Kanyabashi, former mayor of Muganza Elie Ndayambaje and two former prefects of Butare, Sylvain Nsabimana and Alphonse Nteziryayo. All are charged with genocide and crimes against humanity for their alleged role in the 1994 genocide in Rwanda. The Prosecutor had alleged that four defence team members approached four prosecution witnesses in Butare, southern Rwanda, "on or about 1 to 6 June 2001" with a view to persuading them not to testify in the trial. The Prosecutor's motion says that the defence team members falsely represented themselves as ICTR investigators and also tried to obtain information under false pretences. The motion refers to people on the defence teams of Kanyabashi and Nsabimana. Trial Chamber Two of the ICTR, which is hearing the case, found that the Tribunal Rules would permit it to order an investigation. However, it said that considering the gravity of the allegations, the Prosecutor would first have to convince the court that there were "reasonable grounds to believe that contemptuous conduct may have taken place". The court said the Prosecutor had failed to do this. HearsayIn its decision, dated July 10th, the Chamber said the Prosecutor's allegations "lack precision", and that documents produced to support them amount only to hearsay and "double-hearsay evidence". The court pointed out that the Prosecutor had launched a very serious allegation against one defence team member, which she subsequently withdrew "without elaborating on the nature of this error or its scope". That, said the court, "casts substantial doubt on the overall reliability of the allegations made. "The Prosecutor originally alleged that: "An interpreter with the Defence team was identified by a prosecution witness as Rwandan national and a former member of the Interahamwe (Hutu militia), by the name of Joseph Biroto Nzabirinda". Nzabirinda is a defence investigator for the accused Sylvain Nsabimana. However, after Nsabimana's defence filed its response, the Prosecutor said she "withdraws the references to Joseph Biroto Nzabirinda. Since the filing of her Extremely Urgent Motion, she has new information that there was an error with regard to Nzabirinda". Nsabimana's counsel Charles Tchakoute Patie of Cameroon had told the court this was not enough, saying the damage had already been done and that Nzabirinda was in fear for his life. He called for the court to impose sanctions on the Prosecutor. The Chamber said it noted the prosecution's withdrawal of the allegations against Nzabirinda, but also that they "may since have been echoed in the Rwandese and international Media, as contended by Counsel for Nsabimana, thus possibly jeopardising the security, if not the life, of the concerned Defence investigator and thus possibly hampering the defence investigations". "The Chamber further notes in this regard that, although acting in good faith so as to urgently act on possible threats to the security of her witnesses, the Prosecutor should have acted more diligently in avoiding disclosure to the public at large of the identity of the members of the Defence teams concerned, so as to avoid such an unfortunate situation as that of Nsabimana's investigator," say the judges. "The Chamber accordingly finds that the attitude of the Prosecution qualifies in this regard as "Misconduct of Counsel". "The Chamber, having found the Prosecutor's Counsel to have conducted themselves improperly and recklessly in respect of the disclosure of the identity of Defence personnel allegedly in contempt of the Tribunal, consequently warns them in terms of Rule 46 (A) of the Rules to desist from such conduct, which is contrary to the interests of justice. "Defence satisfiedThe court said it did not agree with the defence argument that all accused in the case or all their lawyers had suffered prejudice in terms of a possible breach of the principle of presumption of innocence or damage to their professional reputations. It said that the motion mentioned only defence team members for Kanyabashi and Nsabimana and that "only these counsel and their respective Accused could therefore have suffered prejudice, if any, from such allegations, in the way they were brought". However, the court finds that this is not the case, especially as the allegations have been dismissed. "Indeed, the Judges of the Tribunal are professional jurists, capable of distinguishing between the issues at stake and those that are or will be alluded to at trial," says the Chamber. Partially granting the Prosecutor's request for harmonization of witness protection measures for the six Butare accused, the court ordered that "the contact or communication with either prosecution or defence protected victims or witnesses, or their close family members (…) is subject to a written request to the Trial Chamber or a Judge thereof, on reasonable notice to the Prosecution or the concerned Defence. If leave is granted, and with the consent of the concerned protected person or his or her parents or guardian if that person is under the age of 18, the party on behalf of which the victim or the witness would testify at trial shall undertake the necessary arrangements to facilitate such contact. ""This is an excellent decision," Kanyabashi's lead counsel Michel Marchand told Hirondelle on the telephone from Canada. "The court has rejected all the allegations, because they are unfounded. " He said the court had evaluated all the arguments set before it and that he was happy with the decision. "The decision also includes an order on witness protection," Marchand continued. , "but we are comfortable with that. Our aim is not to contact prosecution witnesses but to carry out investigations. "The case is before Trial Chamber Two of the ICTR, composed of Judges William Hussein Sekule of Tanzania (presiding), Arlette Ramaroson of Madagascar and Winston Churchill Matanzima Maqutu of Lesotho. JC/FH (BT0713e)