THE INTERNATIONAL
CRIMINAL TRIBUNAL FOR RWANDA (the “Tribunal”),
SITTING as Trial Chamber III, composed of Judges Dennis C. M. Byron, Presiding, Emile Francis Short
and Gberdao Gustave Kam (the “Chamber”);
BEING SEIZED of the Prosecution “Motion for Certification to Appeal
Trial Chamber’s Decision on Prosecution Motion for Judicial Notice of Facts
of Common Knowledge and Adjudicated Facts dated 9 November 2005”, filed
on 15 November 2005 (the “Motion”);
CONSIDERING “Joseph Nzirorera’s Response to Application for Certification to Appeal Decision
on Judicial Notice and Motion for Reconsideration”, filed on 18 November 2005 (“Nzirorera’s Response”) and the Prosecution’s Reply
thereto, filed on 21 November 2005;
CONSIDERING also the “Mémoire de M. Ngirumpatse sur la Application for Certification to
Appeal on Judicial Notice of Facts of Common Knowledge and Adjudicated
Facts”, filed on 21 November 2005 (“Ngirumpatse Joinder”) and the Prosecutor’s Reply
thereto, filed on 24
November 2005;
NOTING the Decision of this Chamber on the Prosecutor’s Motion for Judicial Notice, dated
9 November 2005, as well as the Prosecutor’s Motion for Judicial Notice
of 30 June 2005 and the relevant Annexes to that Motion;
HEREBY DECIDES the Motion pursuant to Rule 73(A) of the Rules of Procedure
and Evidence (the “Rules”).
INTRODUCTION
1. On 9 November 2005, the Chamber rendered
its Decision on the “Prosecutor’s Motion for Judicial Notice of Facts of Common Knowledge and Adjudicated
Facts” (the “impugned Decision”). As a result of that Decision, the Chamber
took judicial notice of two facts of common knowledge and denied all other
aspects of the request for judicial notice. The Prosecution applies to
the Chamber for certification to appeal the impugned Decision on its merits,
pursuant to Rule 73 (B) of the Rules of Procedure and Evidence (the “Rules”).
2. On 30 November 2005, the Defence for Ngirumpatse filed
a “Duplique” to the Prosecutor's Reply to Ngirumpatse’s Joinder. The
Chamber has not considered the submissions contained in that document in
this Decision. The Chamber is of the view that filings under Rule 73 cannot
continue indefinitely. The Rules do not provide a basis for Parties to
respond to each other’s submissions indefinitely, nor is it in the interests
of justice or judicial economy for the Chamber to allow parties to do so.
DISCUSSION
Certification
to Appeal – Rule 73(B)
3. Under
Rule 73 (B), certification to appeal is an exception to the general principle that Decisions rendered under Rule 73 are ‘without
interlocutory appeal’. In order to fall within that exception, the applicant
must satisfy two conditions. Firstly, it must show that the Decision involves an issue which would significantly
affect (a) the fair and expeditious conduct of the proceedings, or (b)
the outcome of the trial. Secondly, it must show that an immediate resolution
by the Appeals Chamber may materially advance the proceedings. The Prosecution
advances a number of issues which it submits are raised by the impugned
Decision, all of which, it submits satisfy both criteria to invoke an exercise
of the Chamber’s discretion under Rule 73 (B). The Defence for Nzirorera
submits that the Prosecution has satisfied neither criterion with respect
to any of the issues raised by it.
4. One
of the issues raised by the impugned Decision which the Prosecution submits satisfies the criteria to invoke
an exercise of the Chamber’s discretion is the Chamber’s refusal to take
judicial notice of a number of facts, as adjudicated facts, on the basis
that they might go directly or indirectly to the guilt of the Accused,
notably in relation to the pleading of their participation in a joint criminal
enterprise. It submits that, if interpreted widely, no fact could
be judicially noticed as, presumably, most facts introduced by the Prosecution
will go towards proving, either directly or indirectly, the guilt of the
accused.
5. The
Chamber is of the view that this
issue satisfies both criteria for certification. Firstly, this issue would
significantly affect the expeditious conduct of the proceedings. It is
clear that, if the Appeals Chamber ultimately shared the viewpoint of the
Prosecution, and judicial notice was taken of the facts concerned, witness
testimony could be reduced in terms of the number of witnesses called and
the scope of those witnesses’ testimonies. Furthermore, at the crux of
Rule 94 of the Rules is the concept of judicial economy and expediency,
and, as such, the scope of its application goes to the heart of the concepts
of fairness and expediency. Secondly, this Chamber holds the view that
an immediate resolution by the Appeals Chamber of this issue may materially
advance the proceedings. The impact of an Appeals Chamber decision in
the Prosecution’s favour upon the Prosecution’s witness list would reduce
trial time and the parties would be able to focus on the salient issues
in the trial. Furthermore, and with reference to the Bagosora Decision
of 29 July 2005, the determination of this issue by the Appeals Chamber
has the potential to affect the admissibility of broad categories of evidence,
or crucial matters of procedure or evidence, thereby having potential implications for the
methods of proof in the case before this Chamber, as well as in other matters
before this Tribunal.
6. Finally,
in relation to the Defence for Nzirorera’s application for reconsideration
of that part of the impugned Decision which took judicial notice of a fact
of common knowledge in wording slightly different from that contained in
the Prosecution’s Motion for Judicial Notice, the Chamber finds that the
Defence has failed to show that the test for reconsideration has been met
in this case.
FOR THOSE
REASONS
THE
CHAMBER
GRANTS certification of an interlocutory appeal under Rule 73 (B) from the Chamber’s “Decision on the Prosecutor’s Motion for Judicial Notice”, dated 9
November 2005.
Arusha,
2 December 2005, done in English. |
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Dennis C. M. Byron |
Emile Francis Short |
Gberdao Gustave Kam |
Presiding |
Judge |
Judge |
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[Seal of the Tribunal] |
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