Rutaganda Appeals Judgement VII

342.Under this ground of appeal, the Appellant challenges his conviction for genocide and crime against humanity (extermination), charged under Counts 1 and 2 of the Indictment, for having ordered, committed, aided and abetted in the preparation and execution of killings of members of the Tutsi group, and caused serious bodily or mental harm to members of said group. [564]

343.Based on the testimonies of Witnesses Q, BB and T, the Trial Chamber found beyond a reasonable doubt that in April 1994, members of the Tutsi group were singled out at a roadblock near the Amgar garage, and then taken to the Appellant’s office, where he ordered their detention. [565] It further found that the Appellant subsequently directed men under his control to take fourteen detainees to a hole near the Amgar garage. Lastly, it found that, on the orders of the Appellant and in his presence, these men killed ten of the detainees with machetes, and then threw the bodies into a hole near the Amgar garage. [566]

344.On appeal, the Appellant submits that the Trial Chamber committed errors of law and fact in its assessment of the evidence, and is therefore requesting that the Appeals Chamber set aside the Trial Chamber’s finding in respect of paragraph 12 of the Indictment. [567] The Appeals Chamber understands that the Appellant submits mainly that the Trial Chamber (1) committed errors of law and fact in its assessment and treatment of the testimony of Witness Q, (2) committed errors of fact and law in its assessment of the testimony of Witness BB, (3) committed an error of law in relying on the testimony of Witness T, (4) committed an error of law and fact by incorrectly applying the concept of corroboration and (5) committed an error of fact in its assessment of the Prosecution evidence.

345.In general, the Appellant submits that the Trial Chamber committed errors of fact and law in its assessment of Witness Q’s testimony by:

346.As Witness Q was the only witness to testify as to the alleged killings at the Amgar garage, the Appellant argues that the Trial Chamber should have examined his testimony with caution, considering that he was unreliable. [573] In Response, the Prosecution explains that the Appellant advanced similar arguments concerning the alleged inconsistencies at trial. [574] Having examined the Appellant’s submissions, the Prosecution’s Response thereto and Witness Q’s entire testimony, the Appeals Chamber finds that some of the alleged contradictions and inconsistencies do not relate to paragraph 12 of the Indictment and, as such, are immaterial to this ground of appeal. [575] Accordingly, the Appeals Chamber will only address those alleged contradictions and inconsistencies that relate to the killings at the Amgar garage in April 1994.

347.The Appellant submits that the Trial Chamber committed a number of errors of fact by disregarding (1) the many contradictions between the witness’s testimony and his prior statements, (2) internal inconsistencies in the witness’s testimony, and 3) lack of corroboration with Witness BB’s testimony.

348.In this regard, the Appellant first sets out the inconsistencies and contradictions between Witness Q’s pre-trial statements and his testimony at trial, namely:

349.The Appellant then alleges that the Trial Chamber erred by disregarding some internal contradictions he pointed out in Witness Q’s testimony concerning the following points:

350. Lastly, the Appellant alleges that the Trial Chamber erred by disregarding the contradictions between the testimonies of Witnesses Q and BB regarding, on the one hand, whether ordinary construction work was taking place at the time of the commission of the crimes [585] and, on the other hand, the use of the Hindi Mandal temple. [586]

351. In response, the Prosecution argues that the Trial Chamber was aware of those contradictions and the lack of precision in Witness Q’s testimony. It explains that the Trial Chamber considered the said contradictions in its evaluation of Witness Q’s credibility, in light of the trauma that the witness may have suffered from having to recount the events he witnessed and of which he was a victim. [587]

352.Having reviewed the relevant portions of the transcripts referred to by the Appellant, the Appeals Chamber has identified some contradictions concerning the following: (1) how long the witness stayed at the temple; (2) the existence of a registration process and (3) the use of the Hindi Mandal temple. Having reviewed the relevant portions of the transcripts, the Appeals Chamber agrees with the Prosecution’s contention that Witness Q’s testimony concerning the matters above is consistent. Moreover, the transcripts reveal that Witness Q, in cross-examination, clarified his answers in response to the Defense’s concerns regarding any discrepancies in the testimony at trial.

353. Before proceeding to analyse the discrepancies and their possible effect on the reliability of Witness Q” entire testimony, the Appeals Chamber will briefly recall the standards to be applied on appeal, as set out in the Introduction to this Judgement. Indeed, to the extent that the Trial Chamber was best placed to observe the witnesses first hand, the Appeals Chamber will only intervene in cases where the Appellant has demonstrated that evidence relied upon could not have been accepted by any reasonable tribunal or where the evaluation of the evidence is wholly erroneous. It should also be stressed that with regard to the assessment of the credibility of a witness and the reliability of testimony, the Trial Chamber may accept a witness’s testimony despite the existence of contradictory statements. [588] It therefore falls to the Trial Chamber to assess the contradictions pointed out and determine whether the witness — in the light of his entire testimony — was reliable, and his testimony credible.

354.The question before the Appeals Chamber is whether the Trial Chamber committed the alleged error by finding that some contradictions were not material and did not fundamentally affect the consistency of Witness Q’s testimony.

355. First, with regard to the allegations concerning discrepancies as to how long Witness Q stayed at the “Hindi Mandal” temple, [589] the record shows that the reference cited by the Appellant does not accurately reflect the testimony of the witness, and appears to be a transcription error found in the English version. [590] Indeed, the record shows that during his testimony, the witness was questioned several times about his stay at the temple, and that he was consistent in his answers as to the approximate length of time he remained at the temple. [591] . In the view of the Appeals Chamber, the Trial Chamber’s finding that the witness had stayed there for three hours is substantiated by the evidence. The Appellant’s argument is therefore unfounded.

356. Secondly, as regards the allegation that Witness Q’s account of the “registration process” at the Amgar garage was contradictory, [592] the Appeals Chamber notes, after examining the relevant portions of the transcript, [593] that the testimony of witness Q in relation to the “registration process” of the victims in the Appellant’s office indeed appears at times inconsistent, despite the Trial Chamber seeking further clarification from the witness on this aspect of his testimony. However, in the view of the Appeals Chamber, the inconsistencies are minor and immaterial to the substance of the allegations set out in paragraph 12 of the Indictment, namely that Tutsis were detained and killed at the Amgar garage.

357. Finally, as regards the alleged contradictions between the testimony of Witness Q and that of Witness BB as to what the building called “Hindi Mandal” (allegedly used as a prison and occupied by approximately two hundred people during April 1994 [594] ) was used for, the Appeals Chamber affirms that the record shows that during the events the witness was prevented from leaving the garage and that he did not personally go to the “Hindi Mandal” building. There is no evidence to suggest that the witness was in a position to have been aware of anything which may have been occurring within the building. Also, it appears that the witness was not aware of the initial use of the building, the state of its interior and that nothing was stored within it during the events. [595] Considering, therefore, Witness BB’s limited knowledge of the “Hindi Mandal”, and his predicament at the material time, the Appeals Chamber does not find that his testimony substantially contradicts that of Witness Q.

358.The Appeals Chamber therefore finds that the discrepancies identified by the Appellant are minor and, by themselves, insufficient to put into question the reliability of Witness Q in view of the charges that led to the Appellant’s conviction, and therefore rejects the Appellant’s arguments.

359. The Appeals Chamber further holds that the Appellant has failed to demonstrate any error of fact that could have led to a miscarriage of justice, through his general allegations that Witness Q showed a readiness to implicate Rutaganda or that he was a dangerous witness. [596] Accordingly, the Appeals Chamber dismisses the allegations, as they are unsubstantiated.

360. As recalled supra, the Appellant points to, inter alia, four errors of law, which the Appeals Chamber will consider seriatim in this section.

361. Firstly, regarding the Trial Chamber’s taking into account of the trauma suffered by the victims and of the Appellant’s contention that by so doing, the Trial Chamber committed an error of law in justifying and, thereby, discounting the inconsistencies in the evidence of Witness Q, the Appeals Chamber recalls that it has already examined this allegation under the ground of appeal on general allegations of errors of law, and therefore refers to its findings in that regard that the Trial Chamber did not commit an error of law in taking account of the trauma suffered by certain witnesses and in assessing their evidence in that light. [597] The same also applies to the alleged errors of law in the transcriptions which the Appeals Chamber dismissed on the ground that the Appellant failed to raise any convincing arguments warranting a review of the jurisprudence of the Appeals Chambers of both the ICTY and ICTR according to which it is both right and reasonable to take this factor into account. [598]

362.The Appellant further alleges that the Trial Chamber committed an error of law in discounting contradictions between the pre-trial statements of Witness Q and his in-court testimony, based on the fact that the said statements were not made under oath. [599] The Appeals Chamber notes, on the one hand, that the Appellant does not present any allegation in support of this argument in his submissions on appeal in relation to this ground. Of course, with regard to an error of law, the burden of proof on the Appellant is not absolute. Nonetheless, the appealing party must, at the minimum, identify the alleged error, present arguments in support of his allegation and explain how the error invalidates the decision, which is clearly not the case in this instance. On the other hand, the Appeals Chamber notes that the Appellant has already raised such arguments in his first ground of appeal and, once again, refers him to its conclusions on the said ground. [600]

363.Lastly, the Appellant submits that the Trial Chamber committed an error of law by reducing the burden of proof on the Prosecution by rejecting Rutaganda’s defence in this charge, in part because his evidence did not “exclude the Accused’s participation”, and by the contradiction between the testimony of Witness Q and condition of the grave site identified by him on Exhibit 168, by speculating that the grave site he referred to and the one that had been exhumed were not one and the same. The Appeals Chamber straightaway states that these arguments have already been dealt with under the first ground of appeal and thus refers to its findings on that matter. [601] The Appellant also submits that the Trial Chamber erred by failing to rely on the direct evidence of Witness Haglund and by disregarding his expert opinion. [602]

364.The Appellant explains that Witness Q identified the hole where 10 persons were killed and buried behind the Amgar garage on Exhibit 168, tendered by Prosecution expert witness Professor William Haglund and labelled by him as RUG-1. [603] The Appellant submits that no site was found containing ten or more bodies, and that the hole identified by Witness Q contained three bodies, not ten. He challenges the Trial Chamber’s findings on this matter and argues that the Trial Chamber unfairly excluded this evidence on the basis that it disagreed with Professor Haglund’s scientific method. [604] For its part, the Prosecution submits that the Trial Chamber had the discretion either to accept or reject the evidence of an expert witness, if that evidence was not helpful in determining the facts of the case. [605]

365.Considering the lack of clarity of the Appellant’s written submissions, and although he submitted these allegations in a section devoted to errors of law, the Appeals Chamber understands that they tend to show the existence of both an error of law (as he challenges the Trial Chamber’s exclusion of Professor Haglund’s evidence) and an error of fact (namely, if the evidence had been admitted, the Trial Chamber should have considered the discrepancies between the testimonies of Professor Haglund and Witness Q).

366.The Appeals Chamber recalls that with respect to expert witness testimony, the approach adopted by the Trial Chamber, consisting in hearing such a witness before deciding whether to admit him as an expert witness, was considered to be consonant with the spirit of the Statute and the general principles of law, and equally allows for a fair determination of the matter. [606] A combined reading of paragraphs 256 through 259 of the Trial Judgement setting out the reasoning which provides the basis for the Trial Chamber’s findings contested by the Appellant shows that the Trial Chamber duly considered both the evidence of the Prosecution expert witness and the evidence of the expert witness called by the Defence. It must be emphasised that it was in the light of the testimony of the latter witness that the Trial Chamber held that it was not satisfied with the scientific method used by Professor Haglund. The Appeals Chamber therefore considers as unfounded the allegation that the Trial Chamber erred in law in discounting Professor Haglund’s expert evidence.

367.With respect to the alleged error of fact, the Appeals Chamber finds the Appellant’s argument unfounded. In assessing the reliability of the expert evidence, the Trial Chamber may, pursuant to Rule 89 of the Rules, admit any relevant evidence which it deems to have probative value. In the absence of any showing by the Appellant that no reasonable trier of fact could have discounted Professor Haglund’s evidence, the Appeals Chamber must a priori give a margin of deference to the Trial Chamber’s assessment of the evidence presented at trial and to its factual findings, as the Trial Chamber is best placed to hear the witnesses and assess the probative value of their evidence. [607] The Appeals Chamber holds that the Appellant has not shown that the Trial Chamber erred in discounting Professor Haglund’s evidence, which it found to be of little relevance in determining the facts of the case, as the Trial Chamber explained at paragraph 258 of its Judgement: “the Prosecutor failed to show a direct link between the findings of Professor Haglund […] and the specific allegations in the Indictment”. What was germane to the issue before the Trial Chamber, and rightly so, was whether the bodies of the victims were thrown in a hole, and not the question as to the exact location of the hole. The Trial Chamber’s interest was justifiable under the circumstances.

368. The Appeals Chamber therefore finds that the Trial Chamber did not commit the alleged errors of law and fact in its assessment and evaluation of the testimony of Witness Q. The Appeals Chamber therefore dismisses this first argument on appeal.

369.While the Trial Chamber also noted that the Defence had indicated some contradictions in Witness BB’s testimony under cross-examination, it, however, held that such contradictions were immaterial to Witness BB’s credibility. [608] According to the Trial Judgement, Witness BB testified that he was arrested at a roadblock near the Appellant’s residence because he was a Tutsi. [609] He further testified that, upon discovering that he was a Tutsi, the Interahamwe told him that they had received orders that very day to take anyone apprehended at the roadblock to the Appellant’s office at Amgar garage. [610] At trial, Witness BB identified Amgar garage on the slide tendered by Prosecution as exhibit 145. It must be noted, therefore, that Witness BB did not proffer evidence regarding the killings at Amgar garage. Based on Witness BB’s testimony, the Trial Chamber was satisfied beyond a reasonable doubt that in April 1994, Tutsis who had been separated at the roadblock in front of Amgar garage were taken to the Appellant’s office. [611]

370.On Appeal, the Appellant challenges Witness BB’s credibility on two grounds, [612] namely:

372.The Appellant submits that the Trial Chamber improperly asked leading questions during Witness BB’s testimony. [613] The Appellant refers to the portion of the transcript where Judge Aspegren asked: “[…] were you considered to be the slave of Mr. Rutaganda?” and the witness answered: “Yes, I was his slave because normally I did not work for him.” [614] The Appellant therefore contends that the Trial Chamber improperly stated in its Judgement that Witness BB considered himself to be a slave of the Appellant’s. [615]

373.In response, the Prosecution argues that the Appellant must demonstrate that this line of questioning amounts to an error of law under Article 24 of the Statute of the Tribunal. [616] It further argues that the Appellant’s only problem with Judge Aspegren’s question was the fact that the Trial Chamber had noted in its summary of Witness BB’s testimony that the witness considered himself to be a slave of the Appellant’s.

374.The Appeals Chamber considers that in this instance, the Appellant alleges two separate errors, namely: an error of law as to whether it was appropriate for the Judge to ask a leading question and, an error of fact for misrepresenting the witness’s testimony regarding his having been Rutaganda’s slave.

375.As to whether Judge Aspegren was entitled to ask the question in issue, the Appeals Chamber recalls that the Rules contain no provisions on leading questions. As the Appeals Chamber held when considering the ground of appeal on allegations of bias (where the Appellant makes a similar allegation), Judge Aspegren’s question was, to be sure, a leading question, but it came after a lengthy discussion with the witness regarding his activities at the Amgar garage, and was aimed at clarifying the witness’s testimony. Moreover, the Appeals Chamber reaffirms that leading questions per se are not proscribed before the Tribunal. [617] Accordingly, the Appeals Chamber takes the view that the Appellant’s allegation of an error of law is unfounded.

376.As regards the allegation of an error of fact, the Appeals Chamber recalls that although the Appellant’s answer to the question whether he was the Appellant’s slave was in the affirmative, he stated what he meant by that (that is, on the orders of the Accused; forced, unpaid labour). The Appeals Chamber again reaffirms that the impugned statements, cited in the summary of Witness BB’s testimony, were not used by the Trial Chamber as a basis for any of the guilty verdicts entered against the Appellant. The Appeals Chamber therefore finds the Appellant’s arguments unfounded.

377. The Appellant submits that Witness BB’s testimony was not credible. [618] Given that Witness BB’s testimony was “palpably unreliable”, the Appellant can see no reason why a reasonable tribunal would consider such evidence credible. Hence, the Appellant challenges the Trial Chamber’s finding that “although […] the Defence pointed out some contradictions in the testimonies of Witnesses BB and Q, such contradictions are not of a material nature and do not vitiate the consistency of the substance of their testimonies, as to their account of the facts at issue in the instant case”. [619] In particular, the Appellant argues that the Trial Chamber failed to consider the following inconsistencies:

378. The Prosecution argues in response that these alleged inconsistencies are “either non-existent or highly peripheral”. [627] It also argues that the alleged inconsistencies are immaterial to the primary issue of Witness BB’s credibility. [628] The Prosecution therefore submits that there is nothing incredible or incongruous about Witness BB’s account of the events at the Amgar garage. [629]

379. The Appeals Chamber recalls that the Trial Chamber did not rely upon Witness BB’s testimony in order to determine whether the Appellant ordered, committed, aided and abetted in the killings at the Amgar garage. Rather, the Trial Chamber relied upon Witness BB’s testimony as corroborating evidence in order to determine whether Tutsis were separated at the roadblock and then taken to the Appellant’s office at the Amgar garage. Having examined the transcripts, the Appeals Chamber is not convinced that the alleged inconsistencies called Witness BB’s credibility into question. [630] Moreover, the alleged inconsistencies do not directly relate to the separation or detention of Tutsis at the roadblock near the Amgar garage. More importantly, it is an undisputed fact that there was a roadblock at the Amgar garage and that Witness BB, a member of the Tutsi group, was detained at the said garage. The Appeals Chamber therefore finds that the Appellant has failed to demonstrate that the Trial Chamber erred in considering Witness BB as a credible witness, and therefore dismisses the Appellant’s arguments on this matter.

380. The Appellant submits that the Trial Chamber erred in law by relying on the hearsay evidence of Witness T, even though the evidence was presented without any indicia of reliability. [631] The Appellant raises the question whether the hearsay was even reliable enough to be probative evidence for the purpose of admission, as, according to him, no evidence was provided as to any indicia of reliability that might attach to this hearsay. [632] The Appeals Chamber notes that the Appellant advances two general arguments in support of this allegation. [633]

381. In response, the Prosecution submits that Witness T’s evidence was not the only evidence upon which the Trial Chamber relied to convict the Appellant for his role in the killings of Tutsis at Amgar garage. [634] It further explains that the Trial Chamber only used Witness T’s evidence concerning his neighbour’s experience at Amgar garage, in determining whether Tutsis were brought and detained there. [635] The Prosecution therefore submits that the Trial Chamber did not err in its limited reliance upon this alleged hearsay evidence.

382. The Appeals Chamber understands that, in this instance, the Appellant challenges the admissibility of the hearsay evidence contained in Witness T’s testimony. The Appeals Chamber, indeed, notes that the Appellant challenges the admission of hearsay evidence consisting of statements that Witness T himself made during his testimony, regarding events of which he was not an eyewitness. The Appeals Chamber recalls, in this Judgement, the principles governing the admissibility and assessment of hearsay evidence and, therefore, refers to the relevant sections on this matter. [636] The Appeals Chamber further recalls that it endorsed the jurisprudence articulated in the Akayesu Appeal Judgement: “[…] the test to be met before ruling evidence admissible is accordingly high. It must firstly be shown that the evidence is so lacking in terms of the indicia of reliability as to be devoid of any probative value.” [637]

383.The Appeals Chamber notes that the Trial Chamber not only considered Witness T’s testimony reliable enough for the purpose of admission as hearsay evidence, but it also found the witness to be credible. [638] The Appellant, in support of his allegation, advances only two general arguments, which cannot be considered as showing that the evidence is so lacking in terms of the indicia of reliability as to be devoid of any probative value. [639] Moreover, the Appeals Chamber has held in this Judgement that it is unlikely, in the absence of an objection, for a Trial Chamber to find that the indicia of reliability of the evidence of a witness it has heard in person is so lacking as to render his evidence devoid of any probative value and inadmissible. In the instant case, it must be stated that after Witness T gave his testimony, it was put on the record, as transcribed, and no objection was raised. [640] In any event, the Trial Chamber stated that it has the discretion to consider hearsay evidence, and that where the Chamber decides to consider such evidence, it is inclined to do so with caution. [641] As a precaution, the Trial Chamber did not rely solely on Witness T’s evidence to hold the Appellant guilty of the crimes committed at Amgar garage. Rather, as the Prosecution correctly explained, the Trial Chamber only relied on Witness T’s evidence in determining whether Tutsis were detained at the Amgar garage.

384.Accordingly, the Appeals Chamber finds that the Appellant has not shown that the evidence of Witness T is so lacking in terms of the indicia of reliability as to be devoid of any probative value, and that the Trial Chamber thereby erred in law by admitting the hearsay.

385.The Appeals Chamber understands that the Appellant points out two errors in support of this general allegation, which errors he qualifies, on the one hand, as error of law (the Trial Chamber allegedly erred in law by misapplying the concept of corroboration as regards Witnesses Q, BB and T [642] ) and, on the other, as error of fact (the Trial Chamber allegedly erred by adjudicating that the testimony of Witness Q was corroborated by the evidence of Witnesses BB and T whereas, on balance, the testimony of Witnesses BB and T contradicted Q’s account [643] ).

386. Having examined the written submissions referred to by the Appellant (which are identical for both alleged errors), the Appeals Chamber notes that the Appellant has presented no argument in support of his allegation of error of law. As the Appeals Chamber has stated supra, the appealing party must, at the minimum, identify the error, present arguments and explain how the error invalidates the decision, which, once again, is not the case in this instance. The Appeals Chamber therefore dismisses straightaway the Appellant’s allegation of an error of law, and will examine only the alleged error of fact.

387. The Appeals Chamber notes that the Appellant challenges the Trial Chamber’s conclusions in paragraph 260 of the Judgement, which reads as follows:

The Appellant submits, on the one hand, that the testimonies of Witnesses Q and BB, as well as those of Witnesses Q and T, are not corroborative, and, on the other, that the testimonies of Witnesses BB and T did more to contradict Witness Q’s account more than confirm it.

388. With respect to the allegations relating to Witnesses BB and Q, [644] the Appeals Chamber does not share the view of the Appellant that the testimony of Witness BB proves that Q’s account is implausible and that the Trial Chamber unfairly picked the similarities between Witness BB and Witness Q’s testimonies, while ignoring the bigger problems in Witness BB’s testimony. [645] Indeed, although the Appellant alleges a number of contradictions or implausible details, [646] the Appeals Chamber notes, nonetheless, that both testimonies are analogous as they relate to material facts of the case, namely: (1) whether there was a roadblock near the Amgar garage; (2) whether there were Tutsis at the Amgar garage; (3) whether Tutsis were separated and detained at the Amgar garage; and (4) whether Tutsis were taken to the Appellant’s office at the Amgar garage. [647] Moreover, the Appeals Chamber finds that the Trial Chamber did not find that the evidence of Witness BB corroborated that of Q’s in all respects. The Appeals Chamber considers that the Appellant has failed to show that no reasonable tribunal would have reached the impugned decision of the Trial Chamber. Accordingly, in the opinion of the Appeals Chamber, the Appellant has not demonstrated the alleged error of fact.

389.With respect to the allegations relating to Witnesses T and Q, [648] the Appellant submits, on the one hand, that Witness T’s testimony does not corroborate Q’s account, as Witness T provided little evidence about the events at the Amgar garage [649] and, on the other, that there are significant contradictions between Witness T’s hearsay evidence and the testimony of Witness Q. [650]

390. First, with regard to the Appellant’s allegations in respect of the tenor of the testimony of Witness T, [651] the Appeals Chamber recalls that it is not enough to pick and choose from a witness’s evidence or to submit different factual conclusions the Trial Chamber could have made. The Appellant must show that no reasonable tribunal could have found beyond a reasonable doubt that the testimonies of Witnesses Q and T corroborated each other as to whether the Appellant ordered the Tutsis that were brought to him to be detained at Amgar. The Appeals Chamber finds that the Appellant’s arguments in this regard are not persuasive.

391.Secondly, the Appellant submits that the Trial Chamber ignored significant contradictions between the testimonies of Witnesses T and Q. According to him, the Trial Chamber should have used Witness Q’s hearsay evidence to cast doubt on Witness Q’s testimony. The Appeals Chamber notes that the Appellant identifies three contradictions, namely: (1) according to Witness T’s testimony, there were no ethnic divisions or killings until 24 April 1994; (2) as of 24 April, the Presidential Guard came and calmed the situation (whereas Witness Q testified that it was responsible for killings) and (3) Witness T did not describe the Hindi Mandal temple as a prison, even though he lived in the neighbourhood. [652]

392.The Appeals Chamber recalls that it falls to the Trial Chamber to assess and weigh the evidence presented at trial. The Appeals Chamber will substitute its findings to those of the Trial Chamber only when it has been established that the assessment of the evidence is wholly erroneous. The Appeals Chamber notes that the Trial Chamber found Witnesses T and Q to be credible witnesses. Based on the totality of the evidence presented by the parties, the Trial Chamber found beyond a reasonable doubt that Rutaganda ordered the detention of Tutsis at Amgar. Having examined the transcripts referred to by the Appellant, the Appeals Chamber finds that the Appellant’s arguments are unfounded and do not show the alleged error of fact.

393. The Appellant submits that the Trial Chamber misapprehended the evidence given by Witnesses DD, DF, DS, DEE and DDD, when it concluded that their testimonies did not exclude the Appellant’s participation in the events alleged in paragraph 12 of the Indictment. [653] According to the Trial Chamber, “such testimonies were offered to prove that the Accused was transacting business at Amgar during that period.” [654] However, the Prosecution argues that none of these witnesses was in a position to know what was happening at the Amgar garage during the times relevant to the Indictment. [655]

394. The Appeals Chamber finds that a review of the record confirms that these witnesses were unable to refute keys facts established at trial. Facts such as a roadblock being erected near the Amgar garage; the separation of Tutsis at this roadblock; and the killings at the hole, were never refuted by the testimonies of these witnesses. In this regard, it was reasonable for the Trial Chamber to conclude that these witnesses did not refute the material facts established at trial, such as the Appellant’s being in his office at the Amgar garage from 15 to 24 April 1994. As such, the Appellant’s submissions on this sub-ground of appeal are without merit.

395. For the foregoing reasons, the Appeals Chamber finds that the Appellant has failed to demonstrate that the Trial Chamber erred in evaluating the evidence proffered by Witnesses Q, BB, T, DD, DF, DS, DEE and DDD.

396. The Appeals Chamber therefore rejects the ground of appeal concerning the crimes committed at the Amgar garage.

[564] Trial Judgement, paras. 388, 389 and 406.
[565] Ibid., paras. 228 to 261.
[566] Ibid., para. 388.
[567] Supplemental Document, p. 32 and Rutaganda’s Brief, para. 354.
[568] Ibid., point (9), p. 31 and, paras. 313 to 328.
[569] Ibid., point (1), p. 30 and, paras. 324 to 326.
[570] Ibid., point (2) and para. 327.
[571] Ibid., point (3). The Appellant cites page 1296 of Rutaganda’s Brief, which contains no argument regarding this alleged error.
[572] Supplemental Document, points (5) and 6), and Rutaganda’s Brief, para. 318.
[573] Rutaganda’s Brief, para. 315.
[574] Prosecution’s Response, para. 6.4 (citing Rutaganda’s Brief, paras. 315 to 332).
[575] The following alleged contradictions and inconsistencies set forth below all relate to the following points mentioned in para. 316 of Rutaganda’s Brief:

-     When he learned that the Presidential plane had been shot down;
-     Whether Rutaganda distributed weapons;
-     How he hid at the house of Rucogoza and his subsequent detention;
-     Whether the person who arrested him knew his father;
-     How long he stayed at the home of a disabled person by the name of Thomas;
-     Whether the witness had heard the Appellant say that killings at the ETM school should be
     carried out at night;
-     Whether he was asked to rape a girl or had learnt that a girl had been raped;
-     Whether he could move around freely at Cyuma’s home; and
-     Whether he saw a white man who was with Rutaganda.

[576] Rutaganda’s Brief, para. 316, point (10). The Appellant refers to T, 9 October 1997, pp. 24, 28 and 90.
[577] Ibid. point (12). Reference to T, 9 October 1997, pp. 85 to 86.
[578] Ibid., point (9). The Appellant cites T, 9 October 1997, pp. 24 and 88.
[579] Ibid., point (17). The Appellant refers to T, 9 October 1997, pp. 46 to 47.
[580] Rutaganda’s Brief, para. 316, point (6). The Appellant refers to T, 9 October 1997, p. 21 and to paragraph 238 of the Trial Judgement.
[581] Ibid., point (7). The Appellant refers to T, 9 October 1997, pp. 81 to 82 and 85.
[582] Ibid., point (8). Reference to T, 9 October 1997, pp. 21 to22 and para. 93 of the Trial Judgement
[583] Ibid., point (11). The Appellant refers to T, 9 October 1997, pp. 24 to 25 and 48 to 49.
[584] Ibid., point (20). Reference to T, 9 October 1997, pp. 46 and 117.
[585] Ibid., point 13. The Appellant refers to T, 29 May 1998, pp. 52 to 53 (Witness BB).
[586] Ibid., point (5). The Appellant is referring to T, 9 October 1997, p. 21 (Witness Q), and to T, 29 May 1998, p. 62 (Witness BB).
[587] Prosecution’s Response, para. 6.8
[588] See Musema Appeal Judgement, para. 89, Čelebići Appeal Judgement, para. 497, and Kupreškić Appeal Judgement, para. 156.
[589] Rutaganda’s Brief, para. 316, point (6). The Appellant submits that the Trial Chamber “misapprehended this evidence”, by finding that Witness Q stayed at the “Hindi Mandal” temple for a number of hours. In support of this argument, he invokes the English transcript where the Appelant testified that he was there for three days.
[590] The Appeals Chamber observes that the witness testified in Kinyarwanda, and was interpreted directly into English.
[591] T, 9 October 1997, pp. 21, 22 and 78 and 79 or T, 9 October 1997, pp. 23, 24 and 93.
[592] Rutaganda’s Brief, para. 316, point (7).
[593] T, 9 October 1997 pp. 81, 82 and 85.
[594] Rutaganda’s Brief, para. 316, point (5). The Appellant contends that Witness BB was aware that people were detained in the “Hindi Mandal” building, given the proximity of his house to the garage.
[595] T, 29 May 1998, pp. 20 to 25, and 62 and 69.
[596] Rutaganda’s Brief, paras. 319 to 323.
[597] See Part IV of this Judgement.
[598] Ibid.
[599] Supplemental Document, para.16(3). The Appellant is referring to page 1296 of Rutaganda’s Brief, which contains no argument concerning the allegation of error.
[600] See Part IV of this Judgement.
[601] Idem.
[602] Supplemental Document, paras. 15(5) and 15(6) and Rutaganda’s Brief, para. 318.
[603] Rutaganda’s Brief, para. 318.
[604] Rutaganda’s Brief, para. 318. The Appellant is referring to paragraph 259 of the Trial Jugement, which reads as follows: “Accordingly, the Chamber holds that the findings of the said expert witnesses do not help the Chamber determine the facts of the case. Moreover, the Chamber is not satisfied that the grave site referred to by Witness Q and the one exhumed by Professor Haglund are one and the same”.
[605] Prosecution’s Response, para. 6.41.
[606] See Part IV of this Judgement.
[607] Aleksovski Appeal Judgement, para. 63.
[608] Trial Judgement, para. 252.
[609] Ibid., paras. 230 and 231.
[610] Idem.
[611] Ibid., para. 260.
[612] Supplemental Document, para.16(10). The Appellant seems to be referring to Rutaganda’s Brief, paras. 329 to 334.
[613] Supplemental Document, para. 16(10) and Rutaganda’s Brief, paras. 330 to 332.
[614] Ibid., para. 330 (citing T, 29 May 1998, p. 29).
[615] Trial Judgement, para. 231.
[616] Prosecution’s Response, paras. 6.51. to 6.52.
[617] See Part III of this Judgement.
[618] Rutaganda’s Brief, para. 333.
[619] Trial Judgement, para. 252.
[620] Rutaganda’s Brief, para. 333, point (1). Reference to T, 29 May 1998, pp. 70-72.
[621] Ibid., point (2). The Appellant refers to T, 29 May 1998, pp. 17 and 42.
[622] Ibid., point (3). The Appellant refers to T, 29 May 1998, pp. 17, 28 and 29 and to the Trial Judgement, para. 232.
[623] Ibid., point (4). The Appellant refers to T, 29 May 1998, p. 18.
[624] Ibid., point (5). Reference to T, 29 May 1998, pp. 19 to 20.
[625] Ibid., point (6). The Appellant cites T, 29 May 1998, p. 59.
[626] Ibid., point (7). The Appellant cites T, 29 May 1998, pp. 73 and 75.
[627] Prosecution’s Response, para. 6.70.
[628] Ibid., para. 6.59.
[629] Ibid., para. 6.65.
[630] T, 29 May 1998.
[631] Supplemental Document, point (4), p. 30. The Appellant refers to paragraphs 338 through 350. The Appeals Chamber states, however, that only paragraphs 346 through 348 appear to specifically support the allegation of an error of law.
[632] Rutaganda’s Brief, para. 346
[633] Rutaganda’s Brief, paras. 347 to 348.
[634] Prosecution’s Response, para. 6.81.
[635] Ibid., para. 6.82.
[636] See Part IV, section C of the present Judgement.
[637] Akayesu Appeal Judgement, para. 286 in fine. (Emphasis added)
[638] Trial Judgement, para. 252.
[639] Rutaganda’s Brief, paras. 347 and 348.
[640] T, 11 March 1998, pp.24 to 29.
[641] Trial Judgement, para. 18.
[642] Supplemental Document, p. 30, point (7), referring to Rutaganda’s Brief, paras. 335 to 350.
[643] Ibid., point (8), p. 31, referring to Rutaganda’s Brief, paras. 335 to 350.
[644] Rutaganda’s Brief, paras. 335 to 337.
[645] Ibid., para. 337.
[646] Rutaganda’s Brief, paras. 335 to 337. The Appellant argues that: 1) Witness BB did not testify that the Hindi Mandal temple was used as a prison (Appellant referring to T, 29 May 1998, pp. 52 to 53); 2) Tutsis were systematically eliminated while he was spared and fed (Reference to T, 29 May 1998, p. (22) and (3) Rutaganda hired construction workers nothwithstanding that there were detained Tutsis whom he could have forced to carry out this work (the Appellant cites T, 29 May 1998, p. 52).
[647] See T, 9 October 1997 and 29 May 1998, Witnesses Q and BB, respectively.
[648] Rutaganda’s Brief, paras. 338 to 345 and 349 to 350.
[649] Ibid., paras. 340 to 345.
[650] Ibid, paras. 349 to 350.
[651] Ibid, paras. 343 to 344.
[652] Ibid, para. 349(a), (b) and (c). The Appellant refers to T, 11 March 1998, pp. 9, 6, 15, 56 and 68, respectively.
[653] Supplemental Document, para. 16(11). Rutaganda’s Brief, para. 351.
[654] Trial Judgement, para. 255.
[655] Prosecution’s Response, para. 6.99.

VII. CRIMES COMMITTED AT THE AMGAR GARAGE