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Appeals Chamber Upholds Decision not to Transfer Munyakazi’s Case to Rwanda

Yesterday, the Appeals Chamber of the UN International Criminal Tribunal for Rwanda upheld the decision by the Trial Chamber of 28 May 2008 denying the application by the Prosecution for referral of Yussuf Munyakazi’s case to Rwanda.

The Appeals Chamber composed of Judges Fausto Pocar, presiding, Mohamed Shahabuddeen, Mehmet Gűney, Liu Daqun and Andrésia Vaz however granted one ground of the appeal by finding that the Trial Chamber erred in upholding that Rwanda does not respect the independence of the judiciary and that the composition of the courts in Rwanda does not accord with the right to be tried by an independent Tribunal and the right to fair trial.

However, it dismissed the remaining grounds of appeal, which relate to fundamental matters concerning whether Munyakazi’s right to obtain the attendance of, and to examine, Defence witnesses under the same conditions as witnesses called by the Prosecution, can be guaranteed at this time in Rwanda and whether the penalty structure in Rwanda is adequate for the purpose of transfer under Rule 11bis of the Rules. Consequently, despite granting one ground of the appeal, the Appeals Chamber found that the Trial Chamber did not err in denying the Prosecution’s request to refer Munyakazi’s case to Rwanda.

On 28 May 2008 the Trial Chamber denied the application for referral citing concerns about the sentence of life imprisonment in isolation which replaces the death penalty in the Rwandan law. The Trial Chamber was of the view that certain safeguards listed in the Decision should be put in place to make such a penalty conform with international human rights standards. The Trial Chamber further expressed serious concern about the fair trial right of the Accused, with specific reference to the independence of the tribunal that would try the case if referred, and the ability of the Accused to call witnesses in his defence and the witness protection program in place. The Trial Chamber was concerned that there is a lack of sufficient guarantees against outside pressure on the judiciary and that, based on the past actions of the Government, the independence of the judiciary would not be respected.

Munyakazi, who was a businessman and farmer in Cyangugu Province, was jointly indicted in 1997, with Bagambiki and Imanishimwe. In 2000, the Trial Chamber granted the severance of his case, and the indictment was subsequently amended in 2002, charging the Accused for genocide and alternatively complicity in genocide, and extermination as a crime against humanity.

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