PROSECUTION v. HABYARIMANA

# PROSECUTION v. HABYARIMANA

- Source: Amategeko - Section: Decisions (Judgements) - Date: 2014-10-10 - Case/document no.: RPA0152/12/CS - Collection: Supreme Court

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PROSECUTION v. HABYARIMANA [Rwanda SUPREME COURT – RPA0152/12/CS (Havugiyaremye, P.J., Kanyange, Munyangeri ,J.) 10 October 2014] Criminal procedure – unlawful detention –Imprisonment in case there is appeal while the trial court has not ordered the immediate imprisonment of the accused– In case neither the trial court nor the appellate court has ordered the imprisonment of the accused, the imprisonment of the accused is considered unlawful – Law nº 30/2013 of 24/05/2013relating the code of criminal procedure, article 183 Facts: Habyarimana Philbert, Manirakiza Emmanuel and Habimana Melchior have accused by the prosecution alleging that they have participated in the criminal gang that has been directed at the house of Nzeyimana Jerome on 15th October 1996, it killed his wife and cut his arm. The court ruled that all the accused are convicted of the offense of murder and sentenced them to life imprisonment with damages to Nzeyimana Jerome equal to 20.000.000 Frw, 4 % of that amount equal to 800.000 Frw and court fees. Habyarimana appealed to the Supreme Court on 24 April 2012 but later, he was arrested and jailed in Rusizi Prison and then filed a case to the Supreme Court stating that he has been unlawful detained while the appealed judgment RP 0009/06/HC/RSZ convicting him was tried being in provisional release. Habimana Melchior also appealed against that judgment in the Supreme Court on 24 May 2012 and applied for review in High Court but in the trial of 26 March 2013, the High Court ruled that the case is not admissible. Held: In case neither the trial court nor the appellate court has ordered the imprisonment of the accused, the imprisonment of the accused is considered unlawful. The appellants are unlawfully detained The accused must be immediately released The case will be tried by this court Statutes and statutory instruments referred to: Law nº 30/2013 of 24/05/2013relating the code of criminal procedure, article 183 No case referred to.

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Judgment BRIEF BACKGROUND OF THE CASE [1] Habyarimana Philbert, Manirakiza Emmanuel and Habimana Melchior were charged by the prosecution in High Court, Rusizi Chamber of having taken part in the criminal gang that took place in the night of 15 October 1996 at Gishagara in Nyamaronko, Nyakabuye Sector,Rusizi District.The attack was directed to the family of Nzeyimana Jerome, they killed his wife and cut his arm. [2] In the judgment RP0009/06/HC/RSZ rendered in absentia on 28 March 2012 while they had been legally summoned, the court ruled that Habyarimana Philbert, Manirakiza Emmanuel and Habimana Melchior are convicted of the offence and sentenced them to life imprisonment with 20.000.000 Frw of moral damages to Nzeyimana Jerome, 4% of that amount of money equal to 800.000 Frw and to pay the court fees. [3] Habyariamana appealed to the Supreme Court on 24 April 2012 [4] On 23 July 2013, he was arrested and detained in Rusizi Prison. In a letter of 9 April 2014, he lodged a complaint to the Supreme Court that he was unlawfully detained while the judgment RP0009/06/HC/RSZ that is being executed was rendered without being jailed and appealed against that decision. [5] Habimana Melchior also appealed against that judgment in the Supreme Court on 24 May 2012 and also applied for review in the High Court which ruled. However, in the judgment rendered on 26 March 2013, the court ruled that the application for review is not admissible. [6] The case publicly tried on 15 September 2014 , Habyarimana being assisted by the council, Rwangabwoba Bernard, Habimana Melchior assisted by the council, Mihigo Bernard Nzeyimana Jérôme was assisted by the council, Niyibizi Remy while the prosecution was represented by Munyaneza Nkwaya Eric. [7] Before rendering the case in substance, the court first ruled on whether Habyarimana Philbert and Habimana Melchior are unlawfully detained basing on that they had been arrested by the prosecution while they had appealed being on provisional release during trial as it was mentioned that it is contrary to article 183 of the Code of Criminal Procedure II. ANALYSIS OF THE LEGAL ISSUE Whether Habyarimana Philbert and Melchior are unlawfully detained [8] Habyarimana Phibert states that the judgment RP 0009/06/HC/RSZ rendered in absentia, after being notified of its decision, he appealed but after that he was arrested and detained. He added that after a short period he was released but later on was once again detained. Thus, he requests for being released as it was during the trial of appealed judgment.

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[9] His Council, Rwangabwoba Bernard states that even before when he was provisionally detained, he had been granted provisional release without any appeal. He further stated that basing on article 183 of the Law No 30/2013 of 24 May 2013relating to the Code of Criminal Procedure which provides that " If the accused remaining free during trial is sentenced to imprisonment, he/she shall remain free during trial if he/she has filed an appeal against the penalty unless the court orders his/her immediate arrest”. He stated that the prosecution has decided in general on two individuals while they had used different legal remedies. [10] The representative of the prosecution notified the court that he is not still keen on the submissions of the other prosecutor but rather stated that the basis of the prosecution is article 227 of the code of criminal procedure which provides that regarding the execution of judgments, by the court, and therefore, the prosecution is required to implement the decision of the court. [11] Regarding the relation between article 227 of that law which he states to have been the basis and article 183, he states that Habyarimana and Habimana have been detained after being notified that they did not appeal as it can be evidenced by the certificate of non appeal. [12] The council, Mihigo assisting Habimana Melchior states that the case under process has not yet been res judicata to be executed that article 227 of the law relating to the code of criminal procedure which is the basis of the prosecution is not valid, thus the legal basis is article 183. [13] He further explained that article 183 paragraph 1 of the law no 30/2013 of 24/05/2013(that came into force on 8 July 2013) which provides that if the accused remaining free during trial is sentenced to imprisonment, he/she shall remain free during trial if he/she has filed an appeal against the penalty unless the court orders his/her immediate arrest.He then stated that Habimana appealed against that judgment on 24 May 2012 and he was arrested on 23 July 2013 while it was not ordered by the trial court or by the Supreme Court. He stated that the fact the prosecution states that Habimana Melchior is detained basing on the judgment RP 0024/12/HC/RSZ proves the unfairness since he is detained without any court decision providing for that imprisonment as the trial court ruled that the application for review is not admissible. THE VIEW OF THE COURT [14] The prosecution states that Habyarimana and Habimana are detained in the context of executing the decision of the court and they had not appealed. [15] The file of the case demonstrates that the case RP 0009/06/HC/RSZ rendered on 28 March 2012 has been appealed against on 24 April 2012 as it observed in the letter written to the Supreme Court while Habimana appealed on 24 May 2012 as evidenced by the document provided by the Supreme Court Registry of 24 May 2012 after being notified the decision of the court which means that in case it is clear that the accused have appealed without any decision from the appellate court while the appealed judgment has attained the time for execution as provided by article 180 of the law no 30/2013 of 24 May 2013 which provides that “The execution of a judgment shall be stayed until the expiration of the time limits for appeal and if the appeal is filed, until the decision on appeal is rendered”. [16] Once again article 183 of that law provides for the following,

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[17] If the accused remaining free during trial is sentenced to imprisonment, he/she shall remain free during trial if he/she has filed an appeal against the penalty unless the court orders his/her immediate arrest [18] He/she may be arrested and detained if there are serious and exceptional reasons given to the court seized of the appeal.The writings found in this case file demonstrate that Habyarimana and Habimana were free during trial and got sentenced to life imprisonment without an order of immediate arrest by the trial court and appealed against that case but meantime they have been arrested and detained without any decision upon that appeal or that the appelate court itself has ordered that the accused can meanwhile be imprisoned as provided by paragraph 2 of article 183 of the abovementioned law. [19] The court finds that the information and documents considered as evidence by the prosecution detaining Habyarimana and Habimana should not be the basis since they are not true. [20] Basing on all these explanations, the court finds that the detention of Habyarimana Philbert and Melchior is unlawful and therefore have to be immediately released to be tried being free. III. DECISION OF THE COURT [21] Ruled that Habyarimana Philbert and Habimana Melchior are unlawfully detained [22] Orders that they have to be immediately released and get tried in substance being free. [23] Rules that the trial of this case in substance will continue on 29 October 2014