07.01.11 - ICTR/REFERRALS - DEBATE ON REFERRAL REQUESTS FOR THREE GENOCIDE-SUSPECTS YET TO START

Arusha, January 7, 2011 (FH) - Two months after the filing of new applications for referral of cases of three genocide-suspects to Rwanda for trial by Prosecutor of the International Criminal Tribunal for Rwanda (ICTR) Hassan Jallow, the debate on the matter has not started yet.
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The first five similar applications made in 2007 were rejected because the Chambers were of the view that the accused would not receive fair trials in Rwanda.

Basing on allegations that Rwandan government has expressed its willingness to accept and prosecute the accused for the crimes against the defendants after providing assurances that the accused would be prosecuted in accordance with established international standards, Jallow filed the new applications on November 4, 2010.

They involve Rwandan Pentecostal Church Pastor Jean Uwinkindi, who is detained at the UN Detention facility in Arusha, Fulgence Kayishema, former judicial police inspector of Kivumu commune in Kibuye prefecture (Western Rwanda) and Charles Sikubwabo, ex-mayor of Gishyita commune in the same prefecture, who are still at large.  

Acting under the Rules of the Tribunal, on November 26, 2010, the President Dennis Byron assigned two referral benches to determine the applications.

Trial Chamber II composed of Judges Florence Rita Arrey (presiding), Emile Francis Short and Robert Fremr would hear Uwinkindi's application and Trial Chamber III comprising Judges Vagn Joensen (presiding), Gberdao Gustave Kam and Mparany Rajohnson would determine the remaining applications concerning the two fugitives.

As of to date, no progress has so far been made in respect of applications for the two fugitives, including appointment of counsel apart from assignment of the referral bench. The Rules require that even where an accused is still at large the there should be a representation by a lawyer to defend interests of the fugitive before determination of the application.

Even in the case involving Uwinkindi, hearing of the central issue has not yet started. Matters going on at the moment are preliminary issues.

On November 10, 2010, the defence for Uwinkindi requested the referral bench to give him five months to file his response on the matter. He also applied for translation of the prosecution's motion to Kinyarwanda, the only language the accused understands.

The prosecution had, however, objected to the requests, urging that one month period was reasonable and that the translation of the motion was not necessary for the accused to understand the case against him.

In its decision dated December 8, 2010, the referral bench refused to give Uwinkindi's defence the requested five months to respond to the prosecution's motion, ruling that such period was excessive.

"In determining an appropriate period of time, the bench recalls that parity is not a synonym for the equality of arms and believes that the five months requested by the defence is excessive," the bench ruled.

However, the referral bench gave the defence 90 days to file its response after being satisfied that it had shown good cause for requesting a period of more that one month. It ruled further that according only one month to the defence to respond to the motion would be to place the accused at a substantial disadvantage vis-à-vis his opponent.

Furthermore, the bench granted the defence's request to have the motion translated into Kinyarwanda as the accused was entitled to be informed promptly of the nature and cause of the charge against him and directed the registry to notify it and the prosecution of the date of submission of translated motion to defence.

Determination of this cases is likely to take long time. As a matter of procedure, referral benches could only rule on the applications upon receiving arguments from the parties and even hearing opinions from friends of court, if any.

After decision, either of the parties may appeal to challenge the lower chamber's decision.

FK/ER/GF

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