The Hague, 21 November 2008 (FH) - The alibi is the defense element by excellence in criminal law. But it has not often been retained before the International Criminal Tribunal for Rwanda (ICTR).

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Thus, Simeon Nchamihigo sentenced to life in prison in first instance six weeks ago but whose ruling was only published last week, saw his alibi refused for the reason, according to the judges, that it "lacks credibility".

Nchamihigo had first of all said that before March 1994 he did not work nor lived in Cyangugu but was in other districts. He could not thus, according to him, participate in the various preparation activities which proceeded from 1992 until the beginning of 1994.

Then, he affirmed to have remained all day, every day from 6 April to 17 July 1994, at his office and that he had not been able to move since his car was broken down. It was, thus, not possible that witnesses saw him circulating in his car during that period.

He, finally, assured that on 12 April 1994, he could not be in Gatare to encourage civilians to kill since he was helping Belgian nuns to cross the border in Bukavu. The First Instance Chamber did not validate the first two alibis. As for the third, it believed the defendant but considered that it did not last more than an hour. The two events, thus, could have occurred on the same day and various testimonies are not contradictory.

The exclusion of an alibi by the judges, points out the First Instance Chamber III, does not exonerate the prosecutor from proving his case beyond a reasonable doubt. Thus, this refusal does not call into question the principle of presumption of innocence.

The alibi is regulated by the ICTR basic legal documents. Article 67 of the Rules of Procedure and Evidence (RPE) clearly lays out in its consecutive subparagraphs the conditions under which it can be used.

The defence is held to inform the prosecutor "as early as reasonably, practicable and in any event prior to the commencement of the trial" of its intention to use an alibi. It is also the same for all pieces of evidence, which make it a reciprocal obligation.

This information, in the form of a statement, must contain: "the place or places at which the accused claims to have been present at the time of the alleged crime and the names and addresses of witnesses and any other evidence upon which the accused intends to rely to establish the alibi".

The subparagraph B) of article 67 specifies that it is not because the defence did provide the notification that it cannot establish an alibi. But the jurisprudence of the First Instance Chamber specifies for this reason that it can take into account this failure of presentation to appreciate the cogency of the defence "when the existence of valid reasons (...) is not established" (Kayishema and Ruzindana ruling, 21 May 1999, §239).

Under the terms of the general principle of criminal law mentioned in article 20 (3) of the ICTR Statute, "the accused shall be presumed innocent until proven guilty according to the provisions of the present Statute". From this principle comes the one according to which the prosecutor has the burden of proof.

Thus, if the defence must communicate its elements, it is up to the prosecutor to show that the alibi used by the defendant does not hold true. However, this principle is not always scrupulously respected.

In the Laurent Semanza case, for example, Adjovi and Mazeron, during an analysis published in the African Yearbook of International Law of 2004, pointed out that the burden in this case was directly allotted to the defence. They remind that the usual practice of the ICTR is that the burden of proof is shared "but the question would have at least deserved some legal development", they regret.

Andre Guichaoua, a sociologist and regular prosecution expert witness at the ICTR, considers generally that "the defendants before the ICTR knew that at a given time, they were going to answer for their acts, and they consequently prepared their defence". He had been invited to give his opinion during the Alfred Musema case, whose judgment has been final since November 2001.

But it seems contrary to the Yearbook of Great lakes Africa of 1999-2000 that "the defence of the alibi [of Musema] was solid and could have led the Tribunal to accept the reasonable doubt". Judge Lennart Aspegren considered in his dissenting opinion that "Musema's alibi holds up". The authors think that "the Musema case produced the most debatable judgment since the beginning of the ICTR".

They regret, finally, as it was the case in the Semanza case, than the burden of the proof on the defence in this case was almost "equivalent to the obligation to demonstrate the innocence of the defendant".

Using an alibi defence implies that "the defendant does not only deny to have committed the crimes which are charged to him, but affirms that he was, at the time of the commission of the aforementioned crimes, in a place other than that where they were committed", points out the First Instance Chamber in the Musema ruling (§108). The alibi defence must be retained if it is probable.


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