Decision on Request for Protection of Fundamental Rights of

\
UNITED
NATIONS
io
J
Case No.
Mechanism for International Criminal Tribunals
MICT-12-16
Date:
17 January 2014
Original:
English
SINGLE JUDGE
Before Judge:
Vagn Joensen, Single Judge
Registrar:
Jolm Hocking
Received by the Registry
Mechanism for Intemational Criminal Tribunals
171011201412:17
The PROSECUTOR
v.
ELIEZER NIYITEGEKA
Case No. MICT-12-16
DECISION ON REQUEST FOR PROTECTION OF FUNDAMENTAL RIGHTS OF
APPLICANT ELIEZER NIYITEGEKA AND FOR AN ORDER TO ASSIGN COUNSEL
TO REPRESENT HIS INTEREST
The Office of the Prosecutor
The Applicant
Hassan B. Jallow
Richard Karegyesa
Takeh B. K. Sendze
Eliezer Niyitegeka
'~,
'i
,\1
I
Decision on Request for Protection of Fundamental Rights ofApplicant Eliezer Niyitegeka andfor
An Order to Assign Counsel to Represent his Interests
17 January 2014
INTRODUCTION
1. On 16 May 2003, Trial Chamber I of the International Criminal Tribunal for Rwanda
("ICTR") convicted Eliezer Niyitegeka of genocide, conspiracy to commit genocide, direct
and public incitement to commit genocide, murder, extermination, and other inhumane acts
as crimes against humanity. Niyitegeka was sentenced to life imprisonment. I The ICTR
Appeals Chamber confirmed the sentence on 9 July 2004?
2. The responsibility to address new requests in the Niyitegeka case lies with the Mechanism
for International Criminal Tribunals ("Mechanism") since 1 July 2012. 3
3. By decision of 28 August 2013 I, as Single Judge, denied Niyitegeka's motion that the
Prosecution be ordered to disclose to him materials concerning the statements made to the
Public Prosecution Section of Canada ("PPSC") in the case against Jacques Mungwarere
before the Superior Court of Ontario by a witness who had previously testified in
Niyitegeka's case. The Motion was denied because the Prosecution was not in possession of
the requested material. 4
4. On 9 October 2013, Niyitegeka filed a Motion with the President of the Mechanism
("Motion") requesting him to order the Registrar to appoint him counsel to protect his
interests and to ensure his fundamental rights, including assistance to obtain the
aforementioned materials from PPSC. 5
5. On 22 October 2013, the Prosecutor filed a response objecting to the Motion ("Response") as
premature 6 and on the same day I was designated as Mechanism Single Judge to rule on the
Motion. 7
6. Niyitegeka's reply was filed on 9 January 2014 ("Reply,,).8
The Prosecutor v. Eliezer Niyitegeka, Case No. ICTR-96-14, Trial Judgment, 16 May 2003.
Eliezer Niyitegeka v. The Prosecutor, Case No. ICTR-96-14, Appeal Judgment, 9 July 2004.
3 Security Council Resolution 1966, S/RESI1966 (2010).
4 The Prosecutor v. Eliezer Niyitegeka, Case No. MICT -12-16 ("Niyitegeka"), Decision on Eliezer Niyitegeka' s
Request for an Order for Disclosure of Exculpatory Evidence and Other Relevant Evidence, 28 August 2013.
5 Niyitegeka, "Requete aux fins de la protection des droits fondamentaux du requerant Eliezer Niyitegeka et d'une
ordonnance en designation d'un Conseil pour representer ses interest (Article 19(2) et (4) du Statut du MTPI,
Articles 46, 108 et 146 Reglement)", 9 October 2013 ("Motion").
6 Niyitegeka, Prosecutor's Response to Eliezer Niyitegeka's "Requete aux fins de la protection des doits
fondamentaux du requerant Eliezer Niyitegeka et d'une ordonnance en designation d'un Conseil pour representer
ses interest (Article 19(2) et (4) du Statut du MTPI, Articles 46, 108 et 146 Reglement)", 22 October 2013
("Response"). I note that the Prosecutor's Response was filed on 22 October 2013 and the translated version was
received by the Mechanism Registry on 28 November 2013. Proof of service fi'om Niyitegeka acknowledging
receipt of the French version of the Prosecution's Response to his Motion was signed on 29 November 2013.
7 Niyitegeka, Order Assigning a Single Judge, 22 October 2013.
8 Niyitegeka, Memoire en replique ala Reponse du Procureur ala Requete aux fins de la protection des doits
fondamentaux du requerant Eliezer Niyitegeka et d'une ordonnance en designation d'un Conseil pour representer
ses interest, 9 January 2014 ("Reply").
I
2
MICT-12-16
2
Decision on Request for Protection of Fundamental Rights ofApplicant Eliezer Niyitegeka and for
An Order to Assign Counsel to Represent his Interests
17 January 2014
DE LIBERATIONS
Preliminary Matter
7. With respect to Niyitegeka's Reply, I note that while it is signed and dated 14 November
2013, it was not received and filed by the Mechanism Registry until 9 January 2014. This
delay appears to be due to a failure on the part of the prison in Mali to deliver Niyitegeka's
Reply to the Mechanism. I request the Mechanism Registrar to work with the authorities in
enforcing States to put in place measures to ensure timely transmission and delivery of filings
and correspondences to and from persons convicted by the ICTR.
Discussion
8.
Niyitegeka in his request relies on Article 19 (4) (d) of the Mechanism Statute and Rule 46
of the Mechanism Rules which grant an "accused" the right to legal assistance where the
interests of justice so require. Niyitegeka, however, has no pending case before the
Mechanism and is therefore no longer under "accused" status.
9. When addressing post-appeal requests for assignment of counsel, the Mechanism Appeals
Chamber previously held that it would follow the approach of the ICTR Appeals Chamber. 9
Indeed, as a matter of principle, the ICTR Appeals Chamber has stated that it is not for the
[ICTR] to assist a convicted person whose case has reached finality with any new
investigation he would like to conduct or any new motion he may wish to bring by assigning
him legal assistance at the [ICTR's] expense and that it is only in exceptional circumstances
that a convicted person will be ~ranted legal assistance by the [ICTR] after a final judgement
has been rendered against him. I
10. Niyitegeka contends that the Witness, in his statements before the PPSC, retracted the
testimony he gave in Niyitegeka's trial and said that it was Jacques Mungwarere who was
responsible for the murder which the Witness had accused Niyitegeka of at the ICTR. 11
11. Niyitegeka submits that he should be assigned Counsel by the Mechanism in the interests of
justice to assist him in obtaining the statements that contain exculpatory evidence and
evidence affecting the credibility of the Witness in his ICTR case. 12
9 Karera v Prosecutor, Case No. MICT-12-24-R, 4 December 2012, para. 10. See also Pheneas Munyarugarama v.
Prosecutor, Case No. MICT-12-09-AR14, Decision on Appeal against the Referral Pheneas Munyarugarama's Case
to Rwanda and Prosecution Motion to Strike, 5 October 2012, paras. 4-6. The Mechanism is bound to interpret its
Statute and Rules in a manner consistent with the jurisprudence of the ICTR and the International Criminal Tribunal
for the former Yugoslavia ("ICTY").
10 Karera v. Prosecutor, Case No. MICT-12-24-R, 4 December 2012, para. 10; Francois Karera v. The Prosecutor,
Case No. ICTR-OI-74-R, Decision on Requests for Review and Assignment of Counsel, 28 February 2011, para. 41;
Eliezer Niyitegeka v. The Prosecutor, Case No. ICTR-96-14-R, Decision on Fourth Request for Review, public
redacted version, signed on 12 March 2009, filed on 21 April 2009, para. 52.
11 Motion, paras. 6, 11, 16, 18.
12 Motion, paras. 6, 11-15. Niyitegeka contends that he is unable to obtain the statements himself due to his
incarceration, his indigent status, and his inability to find a pro bono counsel to carry out work that he states will
involve substantial cost.
MICT-12-16
3
Decision on Request for Protection of Fundamental Rights ofApplicant Eliezer Niyitegeka and for
An Order to Assign Counsel to Represent his Interests
17 Jam/my 2014
12. Niyitegeka believes that the statements made by the Witness to the PPSC can reveal "new
facts" Justifying a review of the trial jUdgement pursuant to Rule 146 of the Mechanism
Rules 1 and that assigned Counsel will enable him to obtain the statements and put together
"convincing arguments" for a prospective request of review. 14
13. Further, Niyitegeka previously filed a request for an investigation order, alleging that the
Witness provided false testimony in his ICTR triaL 15 This request was subsequently denied
by a Trial Chamber in its 28 November 2012 Decision. I6 However, Niyitegeka argues that
assigned Counsel will assist him in finding arguments to establish that strong grounds do
exist to initiate false testimony proceedings against the Witness pursuant to Rule 108 of the
Mechanism Rules. 17
14. Niyitegeka further argues that as a detainee in the detention unit in Koulikoro, in Mali, it is
not possible for him to address the Canadian authorities on his own or to obtain pro bono
counsel to assist him.I8
15. It appears from Niyitegeka's submissions that his preparations for filing a request for review
of his judgement are at a very preliminary stage. As held by the Mechanism Appeals
Chamber, in such situations, counsel is only assigned in extraordinary circumstances. 19 I
consider that Niyitegeka has not shown that such circumstances exist.
16. However, in the interests of justice and due to Niyitegeka's present incarceration, I consider
it reasonable to request the Registrar to forward this Decision to the Superior Court of
Canada as a request to disclose to Niyitegeka, through the Registrar, the statements allegedly
made to the PPSC by the Witness, initially assigned the pseudonym TIP 100 in the case of
Jacques Mungwarere.
13 Motion, paras. 13, 16, 18,20. Mechanism Rule 146 states that where a new fact has been discovered which was
not known to the moving party at the time of the trial or appeal proceedings of the ICTY, the ICTR, or the
Mechanism; which could not have been discovered through the exercise of due diligence; and which could have
been a decisive factor in reaching the decision, the convicted person or, within one year after the final judgement has
been pronounced, the Prosecutor, may make a motion to the President for review of the judgement.
14 Motion, paras. 16-18.
15 Motion, para. 21. See Eliezer Niyitegeka v. Prosecutor, Case No. ICTR-96-14-T, Requete aux fins d'une
ordonnance d'enquete sur Ie faux temoignage ou, alternativement, d'annulation des measures de protection des
temoins, dated 15 February 2012, filed 13 March 2012.
16 Motion, para. 21. See Elilizer Niyitegeka v. Prosecutor, Case No. ICTR-96-14-T, Decision on Eliezer
Niyitegeka's Request for Investigation Order or, in the Alternative, Rescission of Protective Measures for
Prosecution Witnesses, 28 November 2012.
17 Motion, para. 22.
18 Motion, paras. 12-13.
19 Karera v. Prosecutor, Case No. MICT-12-24-R, 4 December 2012, para. 10; Karera v. Prosecutor, Case No.
ICTR-01-74-R, Decision on Requests for Review and Assignment of Counsel, 28 February 2011, para. 41; Eliezer
Niyitegeka v. The Prosecutor, Case No. ICTR-96-14-R, Decision on Fourth Request for Review, public redacted
version, signed on 12 March 2009, filed on 21 April 2009, para. 52; Kajelije/i v. Prosecutor, Case No. ICTR-98-44,
Decision on Request for Assignment of Counsel. According to the ICTR Appeals Chamber review is an exceptional
remedy and an applicant is only assigned counsel at the Tribunal's expense if the ICTR Appeals Chamber authorizes
the review or ifit deems it necessary to ensure the fairness of the proceedings.
MICT-12-16
4
Decision on Request for Protection ofFundamental Rights ofApplicant Eliezer Niyitegeka and for
An Order to Assign Counsel to Represent his interests
i7 January 20 J4
17. While I consider it in the interests of justice to assist Niyitegeka in this assistance, I wish to
inform him that future requests of this nature should be directed to the Court in possession of
the materials sought or, in the alternative, a request for assistance to forward such
applications can be made directly to the Mechanism Registrar.
FOR THE FOREGOING REASONS, I
DISMISS Eliezer Niyitegeka's motion in its entirety; and
REQUEST the Registrar to forward this Decision to the Superior Court of Canada as a
request to disclose to Eliezer Niyitegeka, through the Registrar, the statements allegedly
made before the Public Prosecution Section of Canada by the Witness initially assigned
the pseudonym "TIP 100" in the case of Jacques Mungwarere.
Arusha, 17 January 2014, done in English and French, the English being authoritative.
/ (1
JUdgella~~~en r
Singk Judge
\
(Seal of the Tribunal]
MICT-12-16
5
TRANSMISSION SHEET FOR FILING OF DOCUMENTS WITH THE
MECHANISM FOR INTERNATIONAL CRIMINAL TRIBUNALS/
FICHE DE TRANSMISSION POUR LE DEPOT DE DOCUMENTS A LA
MECHANISME POUR LES TRIBUNAUX PENAUX INTERNATIONAUX
----------------------------
I - FILING INFORMATION / INFORMATIONS GENERALES
o The Haguella Haye
rz:I Arusha/ Arusha
Tol A:
MICT Registryl Greffe du MTPI
Froml
De:
~ Chambersl
Chambre
Duty Judge
Case Namel Affaire:
The Prosecutor v. Niyitegeka
Date Createdl Date
du:
Original Language I
Langue de
Title of Document!
Titre du document:
17 January I No. of Pagesl
5
17 January 2014\ Date
2014
No de pages:
trans m ittedl
Albanian!
OFrenchl
Kinyarwanda
BICIS
rz:I English/
Anglais
Albanais
Franc;ais
Decision on Request for Protection of Fundamental Rights of Applicant Eliezer
Niyitegeka and for an Order to Assign Counsel to Represent his Interests
Classification Levell
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classement:
~ Unclassified! Non classe
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exclu
Document typel
Type de document:
IndictmenU
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o
Defence/
Defense
o
Prosecutionl
Bureau du Procureur
I Affaire
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No:
o
o
o
o
o WarranU
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rz:I Decision!
Decision
o Other/ Autre:
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o
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o
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o Order! Ordre
o AffidaviU
Declaration sous sermon
o Correspondence
o JudgemenU Jugement
--
MICT-12-16
--
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-f2]Filing Party hereby submits only the original, and requests the Registry to translate!
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(Word version of the document is attached! La version en Word se trouve en annexe)
o English! Anglais rz:I French! Franc;ais
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o Filing Party hereby submits both the original and the translated version for filing, as follows/
La Partie deposante soumet ci-joint I'original et la version traduite pour depot, comme suit:
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Original en
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Translationl
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o Albanian! Albanais
Traduction en
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Fran c;a is
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