Brussels, 17 April 2009 (FH) - Trial Chamber II of the International Criminal Tribunal for Rwanda (ICTR) decided, at the request of the prosecutor, to draw up the judicial notice of six facts in the Augustin Ngirabatware case. This decision comes as the trial of this former minister of planning is still in preparation.

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The defendant will thus not have the possibility of disputing them during his trial, since they are henceforth excluded from the debate, the following facts: from 6 April to 17 July 1994 I) there was a genocide against Tutsis; II) the Rwandan citizens were "severally identified" into three ethnic classifications falling under the protection of the Convention on the Prevention and Punishment of the Crime of Genocide of 1948; III) Tutsis were victims of systematic and generalized attacks and it resulted from it, within their group, a great number of deaths; iv) the armed conflict in Rwanda was not of an international character; v) Rwanda was a state member of Convention on the Prevention and Punishment of the Crime of Genocide of1948 that it ratified in 1975; VI) and finally Rwanda was a state member to the various Geneva Conventions of 1949 and their additional protocols that it ratified.

The purpose of the judicial notice, a current practice before the ICTR, is notably used for judicial savings. It indeed makes it possible for the prosecutor to no longer have to prove facts which are regarded as being of "common knowledge", thus, the procedures can be faster. Whereas in the lawsuit of Augustin Ngirabatware must be finished by the end of this year, this decision is hence welcomed.

The process can also aim at the "consistency of judgements" since the facts are then considered in the same manner in various cases.

But for the defence, the practice is, under certain aspects, debatable.

The judicial notice is organized by Article 94 of the RPE. "A Trial Chamber hall not require proof of facts of common knowledge but shall take judicial notice thereof". And "this standard is not discretionary" according to jurisprudence (Karemera, 06.16.06). Thus, as soon as the judges conclude that a fact is of common knowledge, they must draw up the judicial notice of it.

It is the Semanza case, on 3 November 2000, which defined for the first time the concepts. Neither Article 94 of the RPE nor none of the preceding decisions had taken the care of doing so.

A fact of common knowledge, it explains, is that which "is not subject to reasonable dispute" thus "commonly or universally known". Are thus aimed "general facts of history, generally known geographical facts and the laws of nature". A judge had illustrated this point by referring to the days of the week.

However, in the case of Augustin Ngirabatware, and in others which preceded it, the judges considered, as facts of common knowledge, components of infringement. In fact, and for example, item III) refers to the crime against humanity.

The defence considers that that undermines the principle of the presumption of innocence even if, according to the score of decisions on this subject, the prosecutor is not exempted from establishing the personal responsibilities of the defendant in the participation of the facts.

In 2005, the First Instance Chamber in the Karemera case, as in others before it, refused to do so with the reason that "the notice sought concerned a legal finding which constitutes an element of a crime against humanity". It added that "the prosecutor has an obligation to prove the existence of such an attack whenever he alleges that a crime against humanity occurred" (Karemera,11.9.05).

In the same manner, in another case, the judges considered that the question of the genocide "is so fundamental, that formal proofs should be submitted bearing out the existence of this jurisdictional element crime" (Semanza,11.3.00)

In fact, if the genocide and generalized attacks against Tutsis are not contestable facts, they still constitute infringements to the ICTR statute. They must thus be judicially proven by the prosecutor, as components of the infringement, beyond any reasonable doubt, each time he invokes them.

The task is perhaps unpleasant and takes a lot of time for the prosecutor but the process of the judicial notice, if it relates to components of the infringement, deprives the defence of its right, envisaged by the ICTR statute, to judicially criticize the materiality of the facts which are charged to him.

The appeal judges in the Karemera case, on 16 June 2006, settled the question quickly by eluding to the discussion with a disconcerting speed. The Appeal Chamber in the Semanza case in May 2005 already judged that these facts were of common knowledge. "The Trial Chamber was obligated to take judicial notice of them". Moreover, "there is no exception to Rule 94 A".

They will take more care to justify when they draw a judicial notice of the genocide.

In 1999, in the Simic case, the International Criminal tribunal for the former Yugoslavia had considered that such a notice had authority only between the parties of the case in which it was taken. It explains why the prosecutor must renew his notice request in each case that he wants to call upon it.

But the reasoning seems acquired. Trial Chamber II in the Ngirabatware case hardly justifies its process. It does not explain either why it decides to retain the formulation suggested by the prosecutor, "citizens (...) were severally identified [in] ethnic classifications" while in the Karemera case, the First Instance Chamber had expressly refused it. It had preferred another formulation, "the existence of the Twa, Tutsi and Hutu as protected groups failing under the Genocide Convention". The term "ethnic" was not clearly established by jurisprudence, according to it.


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