Arusha, March 24, 2011 (FH) -The International Criminal Tribunal for Rwanda (ICTR) which is going to conduct this year "special deposition" in order to preserve prosecution evidence against three accused still at large, in a ruling, explains that this procedure does not amount to trial in absentia.

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Those hearings will be conducted under rule 71 bis adopted in May 2009 at the Plenary Session of ICTR Judges.

Among the three accused concerned is Félicien Kabuga presented by the prosecution as the main financier of the 1994 Tutsi genocide.

In his submissions, Mr Bahame Tom Nyanduga, Duty Counsel representing Kabuga's interests at the stage, had claimed that the procedure violates the rights of the accused to a fair trial.

"In the Chamber's view, it needs to be clearly emphasized that Rule 71 bis procedure does not amount to a trial in absentia", reads part of the decision. "An important distinction between this procedure and a trial is that the single Judge presiding over these proceedings will not have the powers to enter a verdict of guilt or innocence, and cannot make decisions regarding the admissibility or the weight of the deposition evidence," the tribunal further says.

"It will be for a future Trial Chamber, acting within the confines Rule 71bis (O), to decide the admissibility of evidence recorded and preserved through the Rule 71 bis procedure," according to the Tribunal.

Although Rule 71 bis does appear to impose some limitations in the accused's fair trial rights, the Tribunal further said, it is worth noting that a future Trial Chamber would be able to assess the relevance and probative value of the preserved evidence.

The future judges will take "into consideration the rights of the accused and the fact that the Duty Counsel cross-examining the witness during the special deposition did not receive instructions from the accused and was not Counsel  of the accused's choice," it added.

Rule 71 bis states, among others, that "if within a reasonable time, a warrant of arrest has not been executed, the Prosecutor may submit a request to the President that evidence relating to the indictment be preserved for a further trial by special deposition recorded in a proceeding conducted by a single Judge."

According to sources inside the ICTR, Kabuga has been carrying out prosperous business in Kenya. The two other accused targeted for preservation of prosecution evidence are former minister for Defence Augustin Bizimana who is said to be hiding in RDC and former Commander of the Presidential Guard Major Protais Mpiranya who may be hiding in Zimbabwe.

For the prosecutor, Hassan Bubacar Jallow, the three are key suspects among the 10 accused still on the run. He fears that evidence against them may be lost or deteriorate due to the passage of time, death and incapacity of unavailability of witnesses later on.

Special deposition will be conducted in closed session.


© Hirondelle News Agency