Untitled Document

G. Seventh Ground of Appeal : Irregularities in the Examination and Cross-Examination

310. Akayesu raises several grounds of appeal with respect to AD cross-examination: [552]

311. Akayesu raises two separate issues. Firstly, he submits that the Trial Chamber erred in law by restricting the scope of the cross-examination, and, secondly, that the Trial Chamber unlawfully prohibited the Accused from asking leading questions. Akayesu submits that the convictions on all counts should be quashed as a result of such irregularities.[553]

312. Akayesu submits that on 14 January 1997, the Trial Chamber set strict and improper limits on cross-examination when it directed the parties to ask questions which had direct bearing on the facts as set out in the Indictment. He submits that such prohibition violates Article 20 of the Statute as well as Sub-Rule 90 (G) of the Rules[554] and is at variance with jurisprudence of the United States, Great Britain and Canada.[555] Akayesu claims that, ultimately, his fundamental right to cross-examine Prosecution witnesses was violated. Therefore, Akayesu contends that he suffered grievous prejudice in that his Counsel were unable “to explore the various tools available to them to cross-examine witnesses for the Prosecution and the wide range of options to impugn the reliability of their testimony with facts not referred to in the Indictment.”[556] The Trial Chamber was thus “deprived of information essential for its determination of the guilt of the accused.”[557]

313. The Prosecution submits that Akayesu patently misinterpreted the remarks by the Presiding Judge of the Trial Chamber.[558] Furthermore, Sub-Rule 90 (G) was only adopted in June 1998 and was not in force in January 1997. Therefore, Akayesu cannot argue that such a provision of the Rules was breached.[559] It is the Prosecution’s submission that Article 20 of the Statute was not breached either. Lastly, Akayesu failed to show that he suffered prejudice.[560] He also failed to cite a single example of material evidence which was not tendered before the Trial Chamber. Nor did he show that the testimony of any of the Prosecution witnesses might possibly have been impugned.

314. On 14 January 1997, the Presiding Judge of the Trial Chamber stated as follows:

315. Can Akayesu argue, on the basis of the Presiding Judge’s remarks, that his right to cross-examine witnesses before the Trial Chamber was violated? It is the opinion of the Appeals Chamber that Akayesu may not, for several reasons.

316. The Appeals Chamber points out once again, that extracts from transcripts must, firstly, be placed in their proper context so that the intent of the persons who made the impugned remarks may be understood. In the instant case, the 14 January 1997 hearing was devoted, inter-alia, to the cross-examination of Witness K by Akayesu himself.[562] Judge Kama wished to open the hearing with some introductory remarks aimed at “remind[ing] […] the parties of some provisions of the Rules which he deemed important for them to bear in mind”,[563] i.e. Rules 77 and 80 of the Rules, as well as the rules of evidence.[564] The latter part of the Presiding Judge’s remarks was more specifically directed at the accused. That is precisely when Judge Kama made general comments on the rules governing cross-examination together with the remarks impugned by Akayesu.

317. Thus, the Presiding Judge’s remarks were mainly aimed at guiding and controlling the proceedings before the Trial Chamber. In this case, his remarks were addressed to all the parties at trial (including the Prosecution, the Accused and his Defence Counsel). Although the latter part of such remarks relating to cross-examination were specifically aimed at the Accused, (which was understandable since Akayesu was about to cross-examine a witness himself), the Presiding Judge’s introductory remarks, challenged by Akayesu in the instant case, were intended for all the parties at trial.

318. Having recalled the context in which Judge Kama’s remarks were made, it is easier to understand their true import. It is clear to the Appeals Chamber that the Presiding Judge of the Trial Chamber had actually sought to underscore the vital distinction to be made, during cross-examination, between matters germane to the case and other extraneous comments of a general nature. In other words, when Judge Kama directed the parties to ask questions that are directly related to the facts as described in the Indictment, and not general questions, he was reminding them, properly so, that cross-examination should not be impeded by matters that were immaterial and/or not relevant to the case. Thus, Judge Kama’s remarks were made squarely within his duty as the Presiding Judge of the Trial Chamber, to ensure that cross-examination not be impeded by useless and irrelevant questions. Such clarification was in no way intended to restrict or limit cross-examination.[565] It was solely meant to guide the proceedings to ensure that there were no undue departure from the case at bar. Accordingly, the Appeals Chamber finds that in so doing the Presiding Judge was merely performing his duty to exercise control over the process of examination and cross-examination of witnesses appearing before the Chamber as has since been enacted under the Rules.[566] Consequently, the Appeals Chamber finds that Judge Kama’s remarks imposed no undue limitation on the scope of cross-examination nor did they unfairly deprive Akayesu of his right to cross-examine Prosecution witnesses.

319. The Appeals Chamber further notes that Akayesu had failed to cite a single example showing that he had clearly been denied his right to cross-examine witnesses. No transcript extract was tendered to show that Akayesu was not allowed to ask a particular question following the clarifications provided by Judge Kama. Thus, he failed to show any prejudice. Accordingly, the Appeals Chamber finds that no error was committed by the Trial Chamber in this regard.

320. Akayesu submits that on 15 January 1997, the Trial Chamber unlawfully forbade him from asking leading questions during his cross-examination of a Prosecution witness. He recalls that while leading questions are not allowed during direct examination, they are generally allowed during cross-examination.[567] Such is the case under American, British and Canadian Law. Furthermore, the Trial Chamber imposed such restriction only on the Accused but not on his Counsel nor on the Prosecutor.[568]

321. The Prosecution recalls, firstly, that Akayesu has made no reference to the record to sustain his allegations[569] and, secondly, that he is not seeking any particular remedy for the prejudice he allegedly suffered.[570] The Prosecution further submits that the Statute and the Rules do not contain any provisions on leading questions. Akayesu relies on a number of examples drawn from domestic jurisprudence, but he has not established that in this case such jurisprudence is binding on the Tribunal.[571] Furthermore, it is within the Trial Chamber’s discretion to determine the procedure to be adopted for questioning,[572] and in the instant case, the Presiding Judge did exercise effective control over the trial proceedings.[573] In any event, Akayesu has failed to show any prejudice.

322. On 15 January 1997, the Presiding Judge of the Trial Chamber stated the following:

323. The Appeals Chamber recalls that the Rules of the Tribunal have never contained any specific provision on the issue of leading questions. However, they do lay down general rules on examination and cross-examination of witnesses,[575] which appear to be patterned on the United States Federal Rules of Evidence.[576] True, under this system, leading questions are allowed and used during cross-examination whereas they are not permitted during examination-in-chief. Still in the opinion of the Appeals Chamber, the Rules take on a life of their own upon adoption. Interpretation of the provisions thereof may be guided by the domestic system it is patterned after, but under no circumstance can it be subordinated to it.[577]

324. Did Akayesu suffer such prejudice as to invalidate the Judgment on account of the remarks made by Judge Kama on 15 January 1997? The Appeals Chamber points out that error invalidating a Judgment may not be shown by pointing to an anecdotal breach of the Rules by the Trial Chamber. It must be shown on an overall assessment of the trial that the TrialChamber failed to render justice. In the instant case, Akayesu, firstly, failed to show that the Trial Chamber adopted a general policy on leading questions and applied it throughout the trial. The only example mentioned by Akayesu is that of the 15 January 1997 hearing. He does not cite any other example. The Appeals Chamber further notes that the prohibition imposed by Judge Kama on 15 January 1997 was directed solely at the Accused and not at his Counsel, much less at the Prosecution. It must also be observed that Akayesu suffered no prejudice during the hearing, since the question disallowed by the Presiding Judge had already been put to and answered by the Witness before the Presiding Judge made his remarks. Lastly, Akayesu also failed to show any prejudice suffered by him as a result of Judge Kama’s remarks. He did not show that he was subsequently prevented from effectively cross-examining all or most of the witnesses. The Appeals Chamber notes that during the appeal hearings, Akayesu conceded that his Counsel had been able to ask a number of questions and that there was no need “to exaggerate the importance of the refusal to allow leading questions.” [578]

325. Accordingly, the Appeals Chamber finds that Akayesu has failed to show any prejudice such as would invalidate the Judgment.

326. As a result, in light of its findings with respect to the first issue raised by Akayesu and of its observations on the second issue, the Appeals Chamber rejects all the grounds of appeal against the cross-examination.

H. Eighth Ground of Appeal: Unlawful disclosure of Defence Witness Statements[579]

327. Akayesu describes the alleged error as a “minor irregularity”. The Appeals Chamber has explained above how it intends to address issues falling under this heading. Indeed, only after the Appeals Chamber has addressed the main grounds of appeal will it pass on such issues.[580]

I. Ninth Ground of Appeal: The letter written by Witness DAAX to the judges [581]

328. This ground of appeal relates, essentially, to the testimony of Defence Witness DAAX and to a letter that he allegedly sent to the judges of Trial Chamber I following his testimony. Akayesu fails to specify whether the alleged error is one of fact or of law, but he submits in his Brief that the appropriate remedy is a “termination of proceedings” under the abuse of process doctrine.[582] He submits that the error committed is sufficient, in itself, to justify a termination of proceedings.[583]

329. Two main issues will be addressed under this ground of appeal: (i) the impact (if any at all) of the letter sent by Witness DAAX to the judges of the Trial Chamber following his testimony; (ii) the allegedly inadequate and selective nature of Witness DAAX’s testimony. Akayesu submits that it was impossible for him to have a fair trial under such circumstances.[584]

330. As a preliminary remark, the Appeals Chamber notes that Akayesu raises the issue of the alleged arrest of Witness DAAX upon his return to Rwanda following his testimony before Trial Chamber I. [585] Akayesu alleges that Witness DAAX was arrested and detained by the authorities of Rwanda on 1 May 1998, when he returned to Kigali.[586] Akayesu, submits in his Brief that he had written to the Registry about that,[587] but that at the time of filing his Brief, the Registry had not confirmed, as directed by the Decision of 24 May 2000,[588] whether Witness DAAX had been detained by the authorities of Rwanda. This arrest was later confirmed in a letter dated 20 June 2000 from the Registry, which was attached to a fax dated 13 July 2000.[589] Nevertheless, the Appeals Chamber notes that, upon receipt of said information, Akayesu failed to show either in his Reply nor during the Hearing on Appeal, [590] why the arrest of Witness DAAX was relevant to the issue raised in this ground of appeal.[591] The same goes for the other evidence sought to be disclosed in this regard.[592] Akayesu has failed to show the relevance of the information in question to this ground of appeal.[593] Witness DAAX testified on 3 March 1998. He was arrested on 1 May 1998, that is after he had testified. With respect to this ground of appeal, Akayesu failed to show the relevance of protective measures put in place to ensure the safety of Witness DAAX during his testimony before the Tribunal on the one hand and of his arrest following his testimony on the other hand.[594] The Appeals Chamber finds this information to be of no relevance. Therefore, it will disregard the documents in question and related facts.

331. Akayesu alleges that his trial was tainted as a result of a letter dated 3 March 1998 (“the Letter”),[595] sent by Witness DAAX to the judges of Trial Chamber I following his testimony. Akayesu claims that in the Letter, Witness DAAX provides additional information on his, [Akayesu’s], conduct during the events of 1994. Akayesu submits that the five points revisited or expanded in the Letter were very prejudicial to his case.

332. The Appeals Chamber notes, firstly, that Akayesu seeks leave to file a copy of the Letter before it.[596] The Prosecution does not deny that the Letter existed, nor its contents, nor the fact that it was sent.[597] Therefore, the Appeals Chamber considers that the said Letter may be considered under this Ground of Appeal.[598]

333. Akayesu sets out the contents of the Letter, of which only some parts relate to the testimony of Witness DAAX before the Trial Chamber.[599] He takes issue with the points raised as, for example, “pure denouncement or accusatory denigration based on hearsay with no possibility for the accused to defend himself.”[600] He further asserts in the same vein that this was a “pernicious attack against the accused, behind his back ”[601] and a “negative Judgment, which is an attack on the accused […] a stab in the back of the accused […].”[602]

334. Akayesu submits that it can be presumed that the Judges (and the Prosecution) received and read the Letter.[603] From that moment on, it was impossible for him to have a fair trial on the grounds, inter alia, that the Letter (private communication) generally constitutes a violation of his right to a fair and public trial; private communications between a Trial Chamber and a witness, in particular one who is a senior official, are inadmissible evidence which violate the fundamental principle that criminal trials are to be conducted in public; Akayesu was prevented from cross-examining Witness DAAX on the issues raised in the Letter; the Trial Chamber would have reached a different verdict if Akayesu had enjoyed a full and more zealous defence ; the Tribunal failed to condemn the fact that the Letter was sent and to take any safeguards in relation thereto.[604]

335. The Prosecution submits that if Akayesu wants to rely on the abuse of process doctrine, he must “show either that there has been a delay which has made a fair trial of the accused impossible, or that the circumstances of this case are such that proceeding with the trial of the accused would contravene the court’s sense of justice, due to pre-trial impropriety or misconduct.”[605] The Prosecution does not dispute the general proposition that “it is improper for a person who is not a party to the proceedings to send ex parte communications to a judge concerning the merits of issues in dispute in a matter pending before the judge.”[606] However, the Prosecution argues that in the absence of evidence to the contrary, one must presume that a professional judge would “completely disregard” such communication.[607] The Prosecution submits that Akayesu fails to allege any evidence that the judges took the Letter into account in their Judgment. The Prosecution argues that since both itself and the Defence received the Letter and declined to raise the matter before the judges, it could indicate their “understanding and satisfaction that the Judges would disregard it.” [608] The Prosecution submits that the Appellant’s request for a stay of proceedings should be rejected.[609]

336. No evidence has been brought before the Appeals Chamber to show that the issue of the Letter and its impact was formally raised by either party before the Trial Chamber.[610] ICTY Appeals Chamber recently upheld the general principle that “a party should not be permitted to refrain from making an objection to a matter which was apparent during the course of the trial and to raise it only in the event of an adverse finding against that party.”[611] However, in the instant case, the Letter had been sent to the judges. The parties do not appear to dispute the fact that the judges had received it. Under those circumstances, the Appeals Chamber finds that the matter had been brought to the attention of the Trial Chamber.[612] Consequently, the instant case is a “special circumstance” such as would warrant an exception to the principle of waiver.[613]

337. Akayesu’s arguments are largely based on speculation as to decisions or action taken by the Trial Chamber upon receipt of the Letter. It bears recalling that Akayesu invoked the abuse of process doctrine in arguing for a stay of proceedings. The Appeals Chamber has already had occasion to consider the issue of abuse of process, albeit it in a different factual context. In the Barayagwiza Decision, the Appeals Chamber held that : “Under the doctrine of abuse of process, proceedings that have been lawfully initiated may be terminated after an indictment has been issued if improper or illegal procedures are employed in pursuing an otherwise lawful process.”[614]

338. The question that arises is whether the sending of the Letter violated Akayesu’s right so as to cause the Appeals Chamber to consider that the Decision of the Trial Chamber to proceed on the charges against him, or a Decision by the Appeals Chamber to uphold the convictions “would cause serious harm to the integrity of the judicial process.”[616]

339. It should be noted that case-law on this issue reflects mainly findings of serious injustice. Courts generally invoke procedural defects when they find it necessary to protect an accused from an abuse or a prejudice, for example. Abuse of process has been defined as “something so unfair and wrong that the court should not allow a Prosecutor to proceed with what is in all other respects a regular proceeding.”[617] Indeed, the Appeals Chamber observes that Akayesu himself recognizes that a stay of proceedings is an exceptional remedy for a finding of abuse of process,[618] although, he submits that this case warrants resort to such an exceptional remedy.

340. It is the opinion of the Appeals Chamber that the burden of showing that there has been an abuse of process rests with the accused. Establishing such abuse will depend on all the circumstances of the case.[619] The Appeals Chamber finds that it is, however, more important that the accused show that he had suffered prejudice. Thus, “an order staying proceedings on the ground of abuse of process […] should never be made where there were other ways of achieving a fair hearing of the case, still less where there was no evidence of prejudice to the defendant.”[620]

341. This case is unique in that Akayesu has not shown in any way to what extent or on what grounds this doctrine is applicable to his case. Above all, he failed to explain how the sending of the Letter caused him prejudice and has merely alleged, in general terms, inter alia that the verdict would have been different (without explaining how), that he was denied the right to a fair and public hearing and that as a result of the Letter being sent he was denied the right to cross-examine the Witness on the contents thereof. Such rights could only be found to have been violated, if Akayesu had managed to show clearly that the contents of the Letter were taken into account as evidence against him. Now, Akayesu has offered no evidence to suggest that the contents were in any way taken into account or relied upon by the Trial Chamber in arriving at its above decision.

342. Witness DAAX testified in camera on 3 March 1998. The Trial Chamber referred to his testimony in its findings on paragraphs 3 and 4,[621] 12[622] 12(A) and 12(B)[623] of the Indictment. The Trial Chamber makes no direct reference to the Letter in its findings and Akayesu did not show how the findings in the Judgment reflect the said allegations.[624] Akayesu has failed to provide any evidence of a prejudice that he might have suffered.

343. The Appeals Chamber agrees with the Prosecution that in general “it is improper for a person who is not a party to the proceedings to send ex parte communications concerning the merits of issues in dispute in a matter pending before the judge.”[625] However, the fact that this occurred is not sufficient to justify a stay of proceedings. As stated above, the judges of this Tribunal are professional judges – it must be assumed that they will consider each case before them on the basis of the evidence presented and admitted in that case and that they will disregard evidence not presented to them. Furthermore, it is to be presumed that they will only enter a conviction of guilt if, solely on the evidence before them, they are satisfied beyond a reasonable doubt of the guilt of the Accused.[626]

344. The Appeals Chamber finds that Akayesu has failed to show that the sending of the Letter constituted a violation of his right to cross-examine Prosecution witnesses. Nor did Akayesu show that he suffered a prejudice as a result. Consequently, this argument is dismissed.

345. Secondly, Akayesu alleges that his trial was unfair as a result of the testimony given by Witness DAAX in camera on 3 March 1998. Akayesu characterizes the testimony as “selective” and asserts that the witness forgot to mention material facts, in particular, the fact that Akayesu had asked for more gendarmes prior to 18 April 1994 and his “interventions” during the meetings in Murambi on that date.[627] Here again, Akayesu contends that it was impossible for him to have a fair trial due, inter alia, to the said testimony.[628] The Prosecution did not respond to this argument.

346. It is important to state, from the outset, that it should be assumed that Akayesu was involved in the decision to call this Witness as a witness for the Defence. Clearly, in principle, such a decision rests solely with the person calling the witness, in this case the accused. Similarly, it should be presumed that the accused takes such a decision after having assessed the information and evidence that he believes he can reasonably elicit from the witness, generally after talking with the witness and collecting his/her prior statement. Akayesu submits that:

347. Akayesu alleges that the Prosecution had originally intended to call Witness DAAX. When the Prosecution thought the better of it, Akayesu moved the Trial Chamber by motion to subpoena the witness to appear for the Defence. It appears that this decision was based primarily on Witness DAAX’s prior statement, which Akayesu considered to be favourable to his defence. The Trial Chamber granted the motion,[630] and the Witness was called. This is the factual background to the decision to call this Witness.

348. No party can predict with certainty what a witness will testify to in court. It is of course a risk that all parties take. The only duty imposed on any witness is that reflected in the solemn declaration which he or she must swear prior to testifying: “I solemnly declare that I will speak the truth, the whole truth and nothing but the truth.”[631] That the witness’s evidence did not fully reflect what had allegedly been originally disclosed to Akayesu is no reason for Akayesu to suggest that the trial was inherently unfair or so tainted as to result in a miscarriage of justice. Here again, it should be recalled that it was open to the Trial Chamber to assess and weigh the evidence it had heard in light of both the context in which it had been elicited and the other testimonies and evidence.

350. For the foregoing reasons, the Appeals Chamber rejects this ground of appeal.

[552] Akayesu was granted leave to add a ground of appeal relating to this issue. See annex B.

[553] Akayesu’s Brief, Chapter 7, para. 28; Chapter 15, para. 3.

[554] Akayesu submits that although Sub-Rule 90 (G) was adopted only in June 1998 (and therefore not applicable at the time the impugned remarks were made), it still applies in the instant case. In his opinion, “the adoption of this rule goes to confirm principles already applied by legal systems where cross-examination is practised […]. It is difficult to imagine that the right to cross-examine witnesses on matters that are not included in the indictment applies solely to trials that took place after June 1998, but not to that of the Appellant.” See Akayesu’s Reply, para. 84.

[555] Akayesu’s Brief, Chapter 7, para. 4: Akayesu submits that the only limit to cross-examination is provided in Sub-Rule 90 (G) of the Rules, patterned on United States Law, i.e. that cross-examination shall be conducted taking into account the points raised in the examination-in-chief. See Transcript (A), 1 November 2000, p. 86.

[556] Akayesu’s Brief, Chapter 7, para. 5. Akayesu submits that, “this amounts to a formal refusal to allow cross-examination on all peripheral issues, on all material matters which form part of the process of cross-examination which should go beyond the charges brought against the accused in the indictment.” See Transcript (A), 1 November 2000, p. 87.

[557]Akayesu’s Brief, Chapter 7, para. 25. Akayesu submits further that the question put to the lay witnesses and expert witnesses should have focussed on: the involvement of a witness’s family in the RPF; recruitment of members of a witness’s family by RPF since 1989; political activities of a witness in Rwanda since 1990; organization of witnesses, possible, membership in a syndicate of informers (here, Akayesu is referring to paras. 45, 46 and 47 of the Trial Judgment and submits that the Trial Chamber unfairly “criticised Defence Counsel for not questioning Prosecution witnesses on, inter alia, the “membership” of witnesses in a syndicate of informers”); the relationship between witnesses; evidence given by a witness in other trials in Rwanda; an interest or benefit to be derived in testifying and obtaining a verdict of guilty; their relationship with key witness, Ephrem Karangwa; persons who travelled with the witnesses; the preparation of testimony (with whom? when? etc… ); bias on the part of the expert witness, Alison DesForges, and her involvement since the 1960s. See Akayesu’s Brief, Chapter 7, para. 27.

[558] Prosecution’s Response, para. 8.8 The Prosecutor notes that the passage cited by Akayesu actually contains two directives issued by the Presiding Judge of the Trial Chamber: first, he directed Akayesu to stay within the boundaries of the examination-in-chief and second, he made it known to the parties that other questions would be allowed as long as they did not take the form of general comments.

[561] Transcript, 14 January 1997, pp. 8 and 9.

[562] At the time, Akayesu was personally cross-examining Witness K. On 13 January 1997, the Trial Chamber allowed Akayesu, together with Counsel assigned to him, to cross-examine Prosecution witnesses pending the Chamber’s ruling on his motion to replace his Counsel. This provisional order was ultimately withdrawn on 16 January 1997. See “Decision on the Motion by the Accused to Replace Counsel Assigned to Him,” The Prosecutor vs. Jean-Paul Akayesu, Case No. ICTR-96-4-T, Trial Chamber I, 16 January 1997.

[564] Transcript, 14 January 1997, pp. 2 to 6.

[565] The limits to cross-examination were also outlined by the Presiding Judge of the Trial Chamber. He had stated, just before making the remarks now being challenged by Akayesu: “Second important clarification addressed to the accused, cross-examination by the accused must necessarily stay within the boundaries of matters raised by the Prosecutor in her examination-in-chief; in other words, the accused is absolutely free to seek clarification of any point to which the answer given did not seem to him to be clear.” See Transcript (Trial Chamber), 14 January 1997, p. 8 Akayesu obviously does not disagree with the above remarks which are absolutely in conformity with generally accepted rules of cross-examination.

[566] Sub-Rule 90 (F) and (G) as adopted on 8 June 1998 provides that: “(F) The Trial Chamber shall exercise control over the mode and order of interrogating witnesses and presenting evidence so as to: (i) make the interrogation and presentation effective for the ascertainment of the truth; and (ii) avoid needless consumption of time. (G) Cross-examination shall be limited to points raised in the examination-in-chief or matters affecting the credibility of the witness. The Trial Chamber may, if it deems it advisable, permit enquiry into additional matters, as if on direct examination.

[567] Akayesu’s Brief, Chapter 7, para. 22; Akayesu’s Reply, para. 88.

[573] Transcript, 1 November 2000, pp. 140 and 141.

[575] These were adopted on 8 June 1998. Sub-Rule 90(F) provides that: “The Trial Chamber shall exercise control over the mode and order of interrogating witnesses and presenting evidence so as to: (i) Make the interrogation and presentation effective for ascertaining the truth; and (ii) needless consumption of time.” Sub-Rule 90(G) provides, on the other hand, that “Cross-examination shall be limited to points raised in the examination-in-chief or matters affecting the credibility of the witness. The Trial Chamber may, if it deems advisable, permit enquiry into additional matters, as if on direct examination.

[576] Rule 611 of the United States Federal Rules of Evidence reads as follows: “(a) Control by Court. The court shall exercise reasonable control over the mode and order of interrogating witnesses and presenting evidence so as to (1) make interrogation and presentation effective for the ascertainment of the truth; (2) avoid needless consumption of time; and (3) protect witnesses from harassment or undue embarrassment; (b) Scope of the cross-examination. Cross-examination should be limited to the subject matter of the direct examination and matters affecting the credibility of the witness. The court may in the exercise of discretion, permit inquiry into additional matters as if on direct examination; (c) Leading questions. Leading questions should not be used on the direct examination of a witness testimony. Ordinary leading questions should be permitted on cross-examination. When a party calls a hostile witness, an adverse party, or a witness identified with an adverse party, interrogation may be by leading questions”.

[577] In this connection, the Appeals Chamber recalls Rule 89(A) of the Rules: “The rules of evidence set forth in this Section shall govern the proceedings before the Chambers. The Chambers shall not be bound by national rules of evidence.

[578] Transcript (A), 1 November 2000, p. 122.

[579] The Appeals Chamber granted leave to Akayesu to add this ground of appeal in its Decision of 24 May 2000. See annex B.

[581] The Appeals Chamber granted leave to Akayesu to add this ground of appeal in its Decision of 24 May 2000. See annex B for further details.

[582] Akayesu’s Brief, Chapter 12, para. VII. In fact, Akayesu cites principles referred to in Chapter 4 of his Brief without detailing how they should be applied in the instant case. “The appropriate remedy to such a situation is a termination of proceedings in accordance with the principles laid down in Chapter 4 on conflict of interest.” The request for leave to add the ground of appeal referred to in Chapter 4 was dismissed in the Decision of 22 August 2000. However, the Appeals Chamber also noted that, overall, the review of the case-law cited in that chapter related to the specific issue raised in ground of appeal and not to the ground of appeal envisaged in the instant case. See also Akayesu’s Brief, para VII (sic) where Akayesu mentions the “irreparable prejudice caused to the Appellant by the accusatory letter (the verdict would have been different).”

[583] Akayesu’s Brief, Chapter 15, para. 1. During the hearing on appeal, Akayesu did not put forward any arguments on the merit concerning this ground of appeal, except to say that “[..] Chapter 12 on DAAX we will leave you with. We will not address ourselves to that question, we understand it’s a certain irregularity which in and of itself would not be sufficient to stay the proceedings by itself. It is an irregularity which we think should have been drawn out publicly.” Transcript (A), 1 November 2000, p. 85. Since Akayesu has advanced specific arguments in his Brief, and since he stated in his Reply that he was reiterating his arguments as set out in his Brief, the Appeals Chamber will address this ground of appeal.

[584] Akayesu’s Brief, Chapter 12. Para. 1.10.

[585] See also Akayesu’s Brief, Chapter 6, para. 10 on Akayesu’s third Ground of Appeal. In this Section, Akayesu submits that: “Furthermore, the Appellant intends to show, with supporting facts, that the incident testified to on 3 March 1998 by Witness DAAX (Defence Witness), does illustrate that the Appellant could not have had a just and fair trial under the circumstances, his witness having been arrested and detained upon his return to Rwanda following his testimony. He further intends to argue most strenuously that he was deprived of his right to produce his witnesses and to present his case, in breach of the guarantees affirmed by ICTR Appeals Chamber [..]” The Prosecutor submits in this instance that “t(here are allegations concerning the arrest of DAAX in Rwanda, but the Appellant has made no arguments and is seeking no relief in respect of them.” Prosecution’s Response, footnote 295.

[586] Akayesu’s Brief, Chapter 12, para. 1. 9. Akayesu describes in some detail, the transfer of the Witness between prisons until he arrived several months after his arrest, in the Kimironko prison.

[587] Akayesu requests leave to file his letter to the Registry concerning this issue dated 19 June 2000. Akayesu’s Brief, Chapter 12, para. V. The letter is later filed as Exhibit 51 in the Appellant’s Appeal’s Book Exhibits 30 to 53, Chapter 6 to 14. This letter has already been received by the Appeals Chamber and in any event, for the reasons which will be set out below as irrelevant to the issues raised in this ground of appeal. It is therefore not necessary to formally rule on this request.

[588] In the Decision of 24 May 2000, the Registry was directed to confirm, based on documentary material available to it at the time, whether Witness DAAX had been imprisoned by the authorities of Rwanda.

[589] Akayesu filed this confirmation letter in the Supplementary Appeals Book , Exhibit 6, on 13 October 2000. It appears that the letter was dated 20 June 2000, the Registry did not send it to Akayesu until the time for filing his Brief had lapsed. It is stated in this letter that “DAAX was a senior official in Rwanda who was called to appear by Akayesu’s Counsel. The witness was subpoenaed and after discussion with him regarding and based on fears expressed by him, the Witnesses and Victims Support Section (WVSS) filed a request with the Trial Chamber for additional protective measures. Following a hearing in camera, the Trial Chamber granted the request and directing that the order sought be complied with. After testifying, Witness DAAX was sent back to Kigali. A month later, he was arrested.”

[590] In his Reply (para. 136), Akayesu merely states that he reiterates and reaffirms the submissions made in Chapter 12 of his Brief and submits that the failure to denounce the disclosure of out of court evidence undermines the administration of justice.

[591] Or even under Akayesu’s third Ground of Appeal

[592] This refers to the transcript of the meeting held in the Office of the Prosecutor (although the Decision of 24 May 2000 and subsequent correspondence refer to the “Prosecutor”) and the motion filed on 18 February 1998 by the Witnesses and Victims Support Section. On appeal, Akayesu requested that the two documents be disclosed. The motion was disclosed by the Registry to him on 10 July 2000, but it appears that the minutes of the meeting were not disclosed. In any case, Akayesu failed to show the relevance of the documents.

[593] Akayesu submits that “The Chamber also determined that as relates to the merits of the appeal, the Appellant would have to prove the allegation made in this ground of appeal. This implies putting into evidence the material and documents referred to in the motion to amend the Notice of Appeal.” Akayesu’s Brief, Chapter 12, para. 2.

[594] As mentioned earlier, Akayesu refers to the arrest of Witness DAAX under his third Ground of Appeal. In this third ground, while alleging that it was impossible for the Accused to have a fair trial due to the war in Rwanda, as well as intimidation and murder of potential defence witnesses, Akayesu submits (there again in very general terms), that several witnesses were afraid and did not come to testify. Akayesu’s Brief, Chapter 6, Annex, para. 1L. Moreover, in his conclusions regarding “Other Issues” (protection of witnesses), he submits that the fact that the Trial Chamber disclosed information concerning protected witnesses, frightened other witnesses whom they wish to call. In particular, he referred to the disclosure to the Press of the name of his wife and the identity of the Préfet of Gitarama, as well as the identification by the Presiding Judge of the Trial Chamber of the identity of Witness DFX (although he states that the Presiding Judge apologized later). Lastly, he mentions that Witness DAAX was identified in the 6 March 1998 issue of the Hirondelle Newspaper as “that former high official.” Akayesu’s Brief, Chapter 13, para 6. The Appeals Chamber has already explained how it intends to address the issues raised in this section of Akayesu’s Appeal. It notes, however, that such general allegations are not, no matter the context in which they are made, supported by any argument or examples of initiatives taken by Akayesu or his Counsel to call witnesses to the stand and specifying when and why such persons allegedly refused to testify and how it ties in with a ground of appeal. Similarly, Akayesu gives no example of instances where he brought such information to the attention of the Trial Chamber and requested assistance from the Chamber to prevent a witness from appearing. See with respect, generally, to the requirements for the presentation of witnesses at trial and recourse to protective and coercive measures: Tadic Decision (Additional Evidence).

[595] Akayesu’s Brief, Chapter 12, para. 1. This seems to be the central issue of Ground 1 and moreover, is the only issue to which the Prosecution responded, para. 13.1 to 13.11.

[596] Akayesu’s Brief, Chapter 12, para. 5, Akayesu has filed the Letter as exhibit 49 in the Appeals Book, Exhibits 30 to 53,Chapters 6 to 14.

[597] Prosecution’s Response, para. 13.3 to 13.11. The Prosecution also submits that “it is not in dispute that a copy of this letter was in fact also received by counsel for the Prosecution and the Defence.”, para. 13.9.

[598]In the Decision of 24 May 2000, the Appeals Chamber held that Akayesu could request a copy of the Letter from the Registrar and that he was at liberty to request that it be included in the Record on Appeal. The Registry misconstrued the Decision of 24 May 2000 – to its letter of 10 July 2000 sent to Akayesu, the Registry attached a document which it thought was the requested Exhibit R1, whereas the document concerned was the exhibit R1 referred to in Section 1 of the Decision of 24 May 2000 which had been rejected.

[599] Akayesu’s Brief, Chapter 12, para. 1.7.

[600] Ibid, para. 1.7(b) [referring to the second point raised].

[601] Ibid, para. 1.7( c) [referring to the third point raised and similar to the criticism under point 4, para. 1.7(d)].

[603] Ibid, para. 1.8 Akayesu submits that: “The Appellant received a copy and is in possession of information to the effect that this important missive was actually read by those to whom to whom it was sent.”

[604] Akayesu’s Brief, chapter 12, para. 1.10 and chapter 6. As already explained, the question of Counsel’s incompetence is addressed essentially under Akayesu’s second Notice of Appeal.

[607] Ibid, para. 13.5 to 13.7. The Prosecution submits that “ The mere fact that such a communication has been sent to and received by a Judge cannot give rise to a presumption that the Judge took the contents of the communication into account as evidence in the trial before any court, simply by sending a letter relating to the proceedings to the Judges.”

[610] See Akayesus’s Brief, Chapter 12, para. 1.10 (e), where Akayesu complains of the Counsel’s incompetence in this regard (see below).

[611] Celebici Appeal Judgment, para. 640. See also Tadic, para. 55, quoted in the Kambanda Appeal Judgment, para. 25.

[612] See Tadic Appeal Judgment, para. 55, quoted in the Kambanda Judgment, para 25: “The obligation is on the complaining party to bring the difficulties to the attention of the Trial Chamber forthwith so that the latter can determine whether any assistance could be provided under the Rules or the Statute to relieve the situation. The party cannot remain silent on the matter only to return on appeal to seek a trial de novo [..].”

[613] In Kambanda’s Appeal Judgment, para 25, the Appeal Chamber held that: “t(he fact that the Appellant made no objection before the Trial Chamber…means that, in the absence of special circumstances, he has waived his right to adduce this issue as a valid ground of appeal.” (reference Furundzija Appeal Judgment, para. 174). The Appeals Chamber notes that in para. 649 of the Celebici Appeal Judgment, ICTY Appeals Chamber held that, with respect to one of the grounds of appeal, it did not accept “the explanation by counsel […] for her failure to raise the issue before the Trial Chamber itself.” Nevertheless, ICTY Appeals Chamber considered the merits of the ground of appeal, at that stage, and eventually dismissed it for lack of real prejudice (para. 615).

[614] Barayagwiza Appeal Decision, para. 74. Reference is made to the case of R. Latif; R. Shahzad,[1996] 1All ER 353, or the House of Lords (citing R. v. Horseferry Road Magistrates’ Court[1993] 3All ER 138)’ held that “Proceedings may be stayed in the exercise of the judge’s discretion not only where a fair trial is impossible but also where it would be contrary to the public interest in the integrity of the criminal justice system that a trial should take place.”

[616] Barayagwiza Appeal Decision, para. 75.

[617] Hui-Ch-Ming v. R [1992] 1 A. C. 34, PC See also Connelly v. DPP, (1964 (AC, 1254 (HL): “’The power (which is inherent in a court’s jurisdiction) to prevent abuses of its process and to control its own procedure must in a criminal court include a power to safeguard an accused person from oppression or prejudice”, DPP v. Humphreys (1977( A.C. 1, HL, at p. 55E-G: “While Judges should pause long before staying proceedings which on their face are perfectly regular, it would indeed be bad for justice if in such fortunately rare cases…their hands were tied and they were obliged to allow the further trial to proceed.” Also, Re Barings Plc and others (No.2); Secretary of State for Trade and Industry v. Baker and others [1999] 1 All E.R. 311, CA (Civ. Div), “a court may stay proceedings where to allow them to continue would bring the administration of justice into disrepute among right thinking people and that this would be the case if the court was allowing its process to be used as an instrument of oppression, injustice or unfairness.” See also, Hui-Ch-Ming v. R (1992( 1A.C. 34, PC.

[618] Akayesu’s Brief, Chapter 4, para. 37, where Akayesu states that: "a stay of proceedings is an exceptional remedy for abuse of process.”

[619] Archbold 2000, para. 4-51 and 4-57: “Each case will depend on its own facts.”

[620] DPP v. Hussain, The Times, 1 June 1994, cited in Archbold 2000, para. 4 to 55 (emphasis added).

[622] Trial Judgment, paras. 185, 186 and 189.

[623] Trial Judgment, para. 458 – The Trial Chamber simply noted here that the witness was not in a position to know what occurred in the bureau communal as he was not present in the commune of Taba during this period. He also testified that he had lost contact with Akayesu after 18 April 1994 before the killings began.

[624] The Letter poses five questions which may be summarised as follows: (1) Why did Akayesu wear a military shirt and carry a military gun? (2) Why did the ex-bougmestre of Musambira allege that Akayesu took part in attacks on families in Musambira and killed Tutsis in certain families in the evening of 19 April 1994? (3) Why did Akayesu not warn the Préfet about a massive attack by the Interahamwe on refugees and certain families and only pointed out some acts of intimidation? (4) Why was Akayesu not dismissed, as recommended by a Minister of President Kambanda? and (5) Why did Akayesu stay with the Interahamwe, leaving the country with them when it was well known that most of the Bourgmestres not directly involved in the genocide did not leave Rwanda “so as to dissociate himslef, albeit belatedly, from the genocidal Government?” See also, Akayesu’s Brief, Chapter 12, para. 1.7.

[625] Prosecution’s Response, para. 13.5. See also Akayesu’s Brief, Chapter 12, para. 1.10.

[626] Rule 87(A) of the Rules: “After presentation of closing arguments, the Presiding Judge shall declare the hearing closed and the Trial Chamber shall deliberate in private. A finding of guilty may be reached only when a majority of the Trial Chamber is satisfied that guilt has been proved beyond reasonable doubt.”

[627] Akayesu’s Brief, Chapter 12, para. 1.6.

[628] Akayesu describes the situation as “public failings” Ibid, para. 1.7.

[629] Akayesu’s Brief, Chapter 12, paras. 1.2 and 1.3.

[630] “Decision on a Motion for the Appearance and Protection of Witnesses called by the Defence” 9 February 1998.

[631] Rule 90(B) of the Rules of Procedure and Evidence (testimony). Witness DAAX was not an exception. Transcript, 3 March 1998, pp. 3 and 4 (in camera).