MICT A ( ) ZS. Mechanism for International Criminal Tribunals Date: IN THE APPEALS CHAMBER

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1 UNITED NATIONS MICT A ( ) ZS Case No. Mechanism for International Criminal Tribunals Date: On gi nut: MICT A 5 March 2014 English IN THE APPEALS CHAMBER Before: Judge Theodor Meron, Pre-Appeal Judge Registrar: Mr. John Hocking Decision of: 5 March 2014 AUGUSTIN NGIRABATWARE V. THE PROSECUTOR PUBLIC DECISION ON AUGUSTIN NGIRABATWARE'S MOTION FOR CERTIFICATION OF STATEMENTS AND FOR STAY OF DEADLINE Counsel for Augustin Ngirabatware: Mylene Dimitri Guenael Mettraux Deogratias Sebureze Received by the Registry Mechanism for International Criminal Tribunals 06/03/ :15 The Office of the Prosecutor: Hassan Bubacar Jallow James J. Arguin Inneke Onsea Takeh Sendze

2 3344 I, THEODOR MERON, Judge of the Appeals Chamber of the International Residual Mechanism for Criminal Tribunals ("Appeals Chamber" and "Mechanism", respectively) and Pre-Appeal Judge in this case: I NOTING the "Judgement and Sentence" pronounced by Trial Chamber II of the International Criminal Tribunal for Rwanda on 20 December 2012 and issued in writing on 21 February 2013 ("Trial Judgement"):7 NOTING that Augustin Ngirabatwarc ("Ngirabatware") filed an appeal against the Trial Judgement and that the briefing with respect to his appeal was completed on 13 August 2013;3 BEING SEISED OF "Dr. Ngirabatware's Motion for Certification of Statements and Stay of Deadline", filed on 12 September 2013 ("Motion"), requesting a stay of deadline to seek leave to call 13 witnesses or to present their statements in lieu of oral testimony as additional evidence on appeal pursuant to Rule 142 of the Rules of Procedure and Evidence of the Mechanism ("Rules");4 NOTING Ngirabatware's related request that the Appeals Chamber direct the Registry of the Mechanism to appoint a Presiding Officer, pursuant to Rule 110(B) of the Rules, for the purpose of obtaining certified statements from nine of the 13 potential witnesses since he only has unsigned will-say statements in relation to their possible evidence;5 NOTING the "Prosecution's Response to Ngirabatware's Motion for Extension of Time Limit and Certification of Statements", filed on 23 September 2013 ("Response"), in which the Prosecution responds that Ngirabatware fails to demonstrate good cause for a stay of deadline,6 that certification of the statements of nine of the potential witnesses is unnecessary,7 and that, in relation to the remaining four witness statements, the motion is moot;' Order Assigning a Pre-Appeal Judge, 28 February 2013, p. 1. The Prosecutor v. Augustin Ngirabatware, Case No. 1CTR T, T. 20 December 2012, pp. 1-15; The Prosecutor s.. Augustin Ngirabatware. Case No, ICTR T, Judgement and Sentence, 21 February Augustin Ngirabatwarc's Notice of Appeal, 9 April 2013; Dr. Ngirabatwarc's Appeal Brief, 18 June 2013 (confidential) (the amended public redacted version was filed on 1 August 2013) ("Appeal Brier); Prosecution's Respondent's Brief, 29 July 2013 (confidential) (the public redacted version was filed on 31 July 2013); Dr. Ngirahalware's Brief in Reply to Prosecution Respondent's Brief (Pursuant to Rule 140 of the Rules of Procedure and Evidence), 13 August Motion, paras. 1, Motion, paras. 1, 16, 21. See also Annex to Dr. Ngirabatware's Motion for Certification of Statements and Stay of Deadline (confidential) ("Annex"), containing will-say statements in relation to witnesses DWAN-24, DWAN-28, DWAN-46, DWAN-95, DWAN-I27, DWAN-145. DWAN-148, Mica Ngirabatware, and DWAN-151, 6 Response, paras The Prosecution also argues that Ngirabatware's Motion constitutes an impermissible amendment to his Appeal Brief, thus circumventing the word and time limits applicable to appeal briefs. 'See Response, ras. 1, 10. Response, paras. I, 7-9. " Response. paras Case No. MICT A 5 March 2014

3 3343 NOTING "Dr. Ngirabatware's Reply to Prosecution's Response to Dr. Ngirabatware's Motion for Extension of Time Limit and Certification of Statements", tiled on 27 September 2013 ("Reply"), in which Ngirabatware contends that, in order to seek admission on appeal of the evidence of the nine potential witnesses for whom he only has will-say statements, he requires an order to obtain their certified statements in accordance with Rule 110(B) of the Rules;9 CONSIDERING that, under Rule 142 of the Rules, a motion to present additional evidence on appeal must be filed no later than 30 days from the date for filing of the brief in reply, unless good cause or, after the appeal hearing, cogent reasons are shown for the delay; CONSIDERING that, accordingly, Ngirabatware was to tile any motion for leave to present additional evidence no later than 12 September 2013; CONSIDERING that the good cause requirement in Rule 142 of the Rules obliges the moving party to demonstrate that it was unable to comply with the prescribed time limit, and that it submitted the motion in question as soon as possible after it became aware of the existence of the evidence sought to be admitted;' NOTING that Ngirabatware was aware of the existence of the evidence of nine of the potential witnesses with will-say statements during the trial proceedings," and that the only justification he provides for seeking a stay of deadline is the necessity to obtain their certified statements pursuant to Rule 110(B) of the Rules;12 CONSIDERING that Ngirabatware fails to provide any explanation as to why he did not seek to obtain certified or sworn statements from these potential witnesses so that he could seek the admission of their evidence on appeal within the time limit prescribed under Rule 142 of the Rules; CONSIDERING that, in relation to the remaining four potential witnesses, who provided signed statements, Ngirabatware fails to provide any reasons for not seeking the admission of their evidence on appeal within the time limit prescribed under Rule 142 of the Rules; Reply, para. 5. t(' The Prosecutor v. Pauline Nyiramasultuko et al., Case No. ICI'R A, Decision on Ndayanthaje's Motion for Extension of the Time Limit for the Filing of a Motion to Present Additional Evidence, 14 November 2013, p. 3 citing Prosecutor v. Vujadin Popnvie et at, Case No. 1T A, Decision on Defence Requests for Extension of Time to File Motions Pursuant to Rule 115, 1 June para. 10. See Reply, para. 5. See also The Prosecutor v. Augustin Ngiruhatware, Case No. 1CTR T, Pre-Defence Brief, 21 October 2010 (strictly confidential), RP (in relation to DWAN-24); (in relation to DWAN-28); (in relation to DWAN-46); (in relation to DWAN-95); (in relation to DWAN-127); (in relation to DWAN-145); (in relation to DWAN-148); (in relation to DWAN-I51); (in relation to Felieitd Ngirabatware). 12 Motion, paras. 2-3, 20; Reply, paras Case No. MICT A 5 March 2014

4 3342 FINDING, therefore, that Ngirabatware has failed to demonstrate good cause pursuant to Rule 142 of the Rules for staying the deadline for filing a request to present the evidence of any 01 the 13 witnesses as additional evidence on appeal; NOTING that this finding pertains strictly to Ngirabatware's request for staying the deadline under Rule 142 of the Rules;'3 FINDING that an order under Rule 1I0(B) of the Rules in relation to nine of the potential witnesses is unnecessary at this stage as the credibility of any witness statement and the need to call the respective witness on appeal would be better assesed as part of a motion for leave to present the additional evidence itself, should Ngirabatware tile one;" FOR THE FOREGOING REASONS, DISMISS the Motion in its entirety. Done in English and French, the English version being authoritative. Done this 5th day of March 2014, At The Hague, The Netherlands (Ivo 1\ \ Judge Theodor Meron, Pre-Appeal Judge [Seal of the Mechanism] 0 A request for admission of additional evidence on appeal may be filed after the expiry of the deadline set forth in Rule 142(A) of the Rules if good cause is shown or, after the appeal hearing, if cogent reasons are shown for the delay. I note that Ngirabatware has reserved his right to make submissions regarding the admissibility of the potential evidence on appeal. See Motion, paras. 3, 19. " Where a party seeks to call a witness at the appellate stage, it needs to provide "a statement or other documentation of the potential witness's proposed evidence", which the Appeals Chamber may admit as additional evidence on appeal and on the basis of which it may determine whether calling the witness to testify on appeal is necessary. See Gregoire Ndahimana v. The Prosecutor, Case No. 1CTR A, Decision on Gr6goire Ndahimana's Motion for Admission of Additional Evidence on Appeal, 2 May 2013, para. 20; Theoneste Bagosora at al. v. The Prosecutor, Case No. 1CTR A, Decision on Theoneste Bagosora's Motion for Admission of Additional Evidence, 7 February 2011, para. 8; The Prosecutor v. Miloinir StakW', IT A, Decision to Summon a Witness Propriu Motu, 20 September 2005; Prosecutor v. Stanislav Calk', Case No. IT-98-A, Decision on the First and Third Rule 115 Defence Motions to Present Additional Evidence Before the Appeals Chamber, 20 June 2005, para Case No, MICT A 5 March 2014

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 To/ A: MICT Registry/ Greffe du MTPI El Arusha/ Arusha 0 The Hague/ la Haye From/ De: N Chambers/ CI Defence/ 0 Prosecution/ CI Other/ Autre : Chambre Defense Bureau du Procureur Case Name/ Affaire: Date Created/ Date du: Original Language / Langue de l'original: Title of Document/ Titre du document: Augustin Ngirabatware V. The Prosecutor Case Number/ MICT A Affaire No: 05 March Date transmitted! 05 Mar No. of Pages/ Transmis le: 2014 No de pages: CI English/ 0French/ El Kinyarwanda 0 B/C/S OtherlAutre. Anglais Francais (specify/preciser): Decision on Augustin Ngirabatware's motion for certification of statements and for stay of deadline -,- Classification Level/ Categories de classement: Document type/ Type de document: Unclassified/ 0 Ex Parte Defence excluded/ Defense exclue Non classe El Ex Parte Prosecution excluded! Bureau du Procureur exclu ID Confidential! 0 Ex Parte R86(H) applicant excluded/ Art. 86 (H) requerant exclu Confidentrel Ex Parte Amicus Curiae excluded/ Amicus Curiae exclu 0 Strictly Confidential/ 0 Ex Parte other exclusion! Ex Parte autre(s) partre(s) exclue(s) Strictement confidentiel (specify / preciser): DMotionl 0 Submission from parties/ 0 Indictment! Requete Ecritures deposes par des parties Acte d'accusation '14 Decision/ 0 Submission from non-parties/ Warrant/ Decision Ecritures deposes par des tiers Mandel 0 Order/ 0 Book of Authorities/ IIII Appeal Book/ Ordre Livre de sources juridiques Livre deppel ID Judgement/ 0 Affidavit/ 0 Notice of Appeal/ Jugement Declaration sous sermon Acte deppel II - TRANSLATION STATUS ON THE FILING DATE/ ETAT DE LA TRADUCTION AU JOUR DU DEPOT 0 Translation not required/ La traduction nest pas requise Filing Party hereby submits only the original, and requests the Registry to translate/ La Partie deposante no soumet que Ibriginal of soil/cite que le Greffe prenne en charge la traduction (Word version of the document is attached/ La version en Word se trouve en annexe) 0 English! Anglais El French! 0 Kinyarwanda 0 B/C/S Other/Autre Francais (specify/preciser): 0 Filing Party hereby submits both the original and the translated version for filing, as follows/ La Partie deposante soumet ci-joint l'original at la version traduite pour dep6t, comme suit : Original/ 0 English/ 0 French/ 0 Kinyarwanda 0 B/C/S 0 Other/Autre Original en Anglais Francais (specify/preciser) : Translation! 0 English/ 0 French/ 0 Kinyarwanda 0 B/C/S 0 Other/Autre Traduction en Anglais Francais (specify/preciser) : 0 Filing Party will be submitting the translated version(s) in due course in the following language(s)! La Partie deposante soumettra la (les) version(s) traduite(e) sous peu, dans la (les) langue(s) suivante(s): 0 English/ Anglais 0 French/ 0 Kinyarwanda El B/C/S 0 Other/Autre Francais (specify/preciser): Send completed transmission sheet to/ Veuillez sournettre cette fiche pour le depot des documents a: judicialfilingsarushaftun.urg OR ludicialfilingshaguepun.org Rev: Feb 2014