These 668 days of hearings make this trial the "longest trial in modern criminal history", wrote on 22 August Norman Marquis (Canada), in a motion where he "renders the ICTR and its principals, responsible". Rather than to consider a relative leniency even a reduced sentence, he stated that "only an end to the proceedings against him represents a fair solution to a trial which has not been for a long time and which will never again be, was it ever".
On 25 August according to the last list established by the Tribunal, the average duration of detentions before judgment was eight years and twenty days. Ntahobali, who has until now lived eleven years and a month in preventive detention, considers that this time "exceeds, and by far, any concept of a fair trial held within a reasonable delay".
The concept of a reasonable delay is a concept which arises from that of a fair trial. Indeed, according to Marquis, a trial is fair only if it is held within a reasonable delay. The two concepts are found in Articles 19 and 20 of the ICTR Statute.
The European Court of Human Rights issued a framework of evaluation of the duration of proceedings. According to this framework, the proceedings start at the date "where the suspicions which the party in question was the subject have important repercussions on their situation". Thus the Ntahobali case started with his arrest on 23 July 1997.
The calculation of a reasonable delay from the beginning of the proceedings can "include the period incurred until the end of the appeal" by taking into account "the periods of stagnation of the judges and of the proceedings" established by the European courts.
Mr. Marquis, after himself mathematically calculating, affirms that the Ntahobali's trial, if he had been tried alone and not with five others, would have been only of a "probable duration of 48 days".
Ntahobali considers that each of the three bodies of the ICTR hold a share of responsibility in the flow of events for all this time which has caused him harm, in particular in the development of his defence case.
The prosecutor did not take long to reply: the study of the respect of the law to a fair trial "is case-specific and limited to the egregious circumstances presented by the case", he reminded.
According to him, it is the complexity of the case, and it is the only solid argument which he will develop, which justifies such procedural lengths.
While the defendant points out that proceedings have already been abandoned before national courts due to non-respect of deadlines, the prosecutor considers that the crimes prosecuted over there are not in any way "comparable to the crimes alleged against the accused Ntahobali". The courts do not try, according to him, facts of the same magnitude.
It is to forget, according to the defence, which replied to the answer submitted by the prosecutor, the trial of Ntuyahaga in Belgium and others, for example in Canada. Moreover, the mentioned cases were regarded as rulings of principle which makes the criteria "applicable to any category of crimes".
Before the international tribunals, the circumstances in which the defendants are tried are not the same either, underlines the prosecution: the defendant is often arrested in a foreign country at the ad hoc tribunals; the evidence and the witnesses are dispersed in various countries; the cases require the co-operation of numerous countries; and the evidence comes from several crime scenes. Although these factors do not justify the violation of human rights, "they invariably affect the circumstances of the case".
The prosecutor recognizes that the trial is long, but the amount of time is not "exorbitant or unreasonable, given the particular circumstances of the case", he estimates.
He presents, finally, "that the defendant Ntahobali has not demonstrated that he has suffered actual and irreparable harm". He concluded by stating that "the circumstances show that the defendant Ntahobali has received a fair trial".
Ntahobali was upset by the answer of the prosecutor and reproaches him of having denatured his case by limiting his arguments to very precise points and isolating them from each other. He underlines that it is "the accumulation of time" which is important and the fact of "being detained is not, also, without importance". "What about the harm suffered by the claimant of the simple fact of his detention during all these years?", request his lawyer.
Before the International Criminal Tribunal for the former Yugoslavia, on four cases almost identical to that of Ntahobali, since they have been using co-defendants, facts of genocide and war crimes, none have exceeded three years and seven months of trial, pointed out the defence lawyer.
Joseph Kanyabashi in May 2000 and Pauline Nyiramasuhuko in February 2004 had already tried to take advantage of their right in the same way, both were dismissed. None of the ICTR defendants have benefited so far from a single day of provisional release, contrary to many authorizations granted by the ICTY. Well the defendants have sometimes requested it, they never received the least compensation for these long days in prison.
Ntahobali was for a long time "the only ICTR defendant not to have held any official function in Rwanda in 1994", underlines the motion. Besides being the son of Pauline Nyiramasuhuko, government minister on trial besides him, he is accused of having held a roadblock in Butare where many Tutsis were killed and sometimes raped. The ICTR was created in 1994 to try the organizers of the genocide. Before this Tribunal, his lawyer wonders: "Does the concept of a reasonable delay truly exists?".
AV/PB/MM/SC
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