PROSECUTION vs NDINDIRIYIMANA

# PROSECUTION vs NDINDIRIYIMANA

- Source: Amategeko - Section: Decisions (Judgements) - Date: 2014-12-12 - Case/document no.: RPAA 0278/10/CS - Collection: Supreme Court

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PROSECUTION v. NDINDIRIYIMANA [Rwanda SUPREME COURT – RPAA 0278/10/CS (Zayinabo, P.J., Mukandamage and Gatete J.) December 12, 2014] Evidence law – Incriminating evidence – His admission which has been stressed by the statement of his colleague that he stole money from in the vehicle he did not know is prove that he is guilty of theft through housebreaking and must be sentenced to 2 years of imprisonment multiplied by two instead of 15 years due to the law which provides for the lesser penalty Organic Law Nº 01/2012/OL of 02/05/2012 instituting the penal code, articles 298, 300 and 301 Decree-law Nº 21/77 of 18/08/1977 instituting the penal code, article 400 Evidence law – Incriminating evidence – He cannot found guilty of the crime in case there is no proof that it had been committed. Facts: Ndindiriyimana Augustin and Barawigirira Alias Ngemba were indicted in Intermediate Court of Musanze. They were charged of formation of a criminal gang and theft by violence. They were found guilty of this crime and sentenced to 15 years of imprisonment. They appealed to the High Court, Musanze Chamber. It upheld the decision of the Intermediate Court of Musanze. It holds that though they have admitted to have committed simple theft, the fact that they have wounded a person aggravate it. Ndindiriyimana Augustin appealed to the Supreme Court disputing that the Court had left out evidence that he had submitted. During the hearing he declared that he pleads guilty but not guilty of formation of criminal gang. Held: 1. The fact that he had admitted in the Judicial Police that he is among thieves who rob from in the pocket of their victims in addition to his admission that he had robbed money from in the car which he did not know the owner which had been confirmed by his co-accused is proof that he is guilty of theft through housebreaking. 2. The punishment of 15 years of imprisonment that he had been sentenced to must be reduced to 2 years multiplied by two in accordance with the new Law which provides for the lesser penalty. 3. He must be acquitted of formation of the criminal gang because of lack of evidence of its existence Appeal has merit in part; He is only guilty of theft through housebreaking and not formation of criminal gang; He must be immediately released; Court fees to the public fund. Statutes and statutory instruments referred to: Organic Law nº 01/2012/OL of 02/05/2012 instituting the penal code, articles 298, 300 and 301 Decree-Law nº 21/77 of 18/08/1977 Instituting the penal code, article 400

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No case was referred to Judgment I. BRIEF BACKGROUND OF THE CASE [1] Ndindiriyimana Augustin and Warawigira alias Ngemba were indicted by the Prosecution before the High Court, the Chamber of Musanze for formation of criminal gang and theft with violance. The Prosecution alleged that they were in the group of three persons who stole who robbed from Nayituriki Viateur from inside his pocket and when he held their hand from therein, they they slashed him with a blade. He stated further that they broke into glasses of the vehicle of the person called Karemera and robbed from therein 180 000 Frw. The Court found them guilty of thse crimes and sntence them to fifteen years (15). [2] Both Ndindiriyimana and Barawigirira appealed to then High Court, Chamber of Musanze and the latter upheld the decision of Intermediate Court of Musanza because, though they accepted that they rob from people’s poket, the fact of wounding the person they robbed is an aggravating circumstance. In addition, the fact that they stated they know other thieves and enumerated their names indicates that they had formed a criminal gang. [3] Ndindiliyimana Augustin appealed to the Supreme Court lamenting that the Court left out evidence he submitted and sentence him for the crimes he had never participated to their commission. Nonetheless, during the hearing he accepted that he robbed money from inside of the car of someone he could not remember. He denied the crime of formation of criminal gang. [4] The hearing of the case was conducted on November 11, 2015 in an open court. Ndindiriyimana was assisted by Kayitare Serge while the Prosecution was represented by Mutayoba Alphone, a National Prosecutor. II. ANALYSIS OF LEGAL ISSUE Whether the acts which Ndindiriyimana accepted to have committed constitute simple theft and whether they do not constitute formation of criminal gang. [5] Ndindiriyimana states that he asks forgiveness because he had stoled money from inside the car of someone he did not know and share it with his colleagues but he dinied having ever been part of a criminal gang. [6] Kayitare, his counsel, stated that the crime which Ndindiriyomana accepted to have committed but he had never had any agreement with other persons for the formation of the criminal gang nor the prosecution submitted evidence in support. According to him, the fact that the previous court held that Ndindiriyimana declared that he knows other thieves cannot constitute the base to conclude that he is guilty of formation of criminal gang. He requests the Court to acquit his client for that crime.

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[7] The Prosecutor accepted that based on the statments of Ndindiriyiman, no criminal gang has ever been formed since each one among his colleagues used to stole on his own. He concluded that he must be acquitted of that crime. [8] With regard to aggravated theft that Ndindiriyimana was punished for, to his view, he must be punished for theft through housebreaking as he broke the glasses of the vehicle. This would then be done in accordance with article 765 of Organic law Nº 01/2012/OL of 02/05/2012 instituting the panl code so that he can be sentenced in accordance with article 301 of that law since it is the one which imposes the lesser penalties on that crime compared to article 401 of of the Decree law Nº 21/77 of 18/08/1977 instituting the penal code which was into effect at the time of the commission of that crime and sentence him to 2×2 which is equivalent to 4 years. The view of the Court [9] Article 300 of Organic law Nº 01/2012/OL of 02/05/2012 instituting the penal code provides, '' any person who commits theft without violence or threat shall be liable to a term of imprisonment of six (6) months to two (2) years and a fine of two (2) to five (5) times the value of the stolen property or one of these penalties.'' Article 301(1) provides that the maximum penalty under Article 300 of this Organic Law shall be doubled if the theft is committed through housebreaking, climbing or fake keys. [10] The Court finds that these articles are the ones which are appropriate in this case since they provides for lesser panalties compared to those provided for article 400 (1) of Decree law 21/77 of 18/08/1977 instituting the penal code which was into force at the time of the commission of the crime on the crime of theft through house breaking1 to 10 years of improsonment. [11] Before the Judicial Police Ndindiriyimana admitted that he is among thieves who rob of the pocket of individuals in the Musanze Town. This matches with the statments of Nayituriki Viateur who accused him of being in the thieves who roobed him from in the pocket the pocket whereby Mbabazi slashed him on the leg and that they stole 180 000 Frw from inside the vehicle of Kabera after they broke the glasses. [12] Before this Court, Ndindiriyimkana admitted that he robbed money from in side of the vehicle of the someone he hd not known, which he was accused by his co-accused, Barawigirira, before the previous instances. [13] Based on those statements, the Court finds that Ndindiriyimana ia guilty of theft through housebreaking which is provided for by articles aforementioned. Hence the panalty of 15 years that was imposed on him must be reduced given the new Law which provides for the lesser 1 Article 298 of Organic Law N° 01/2012/OL of 02/05/2012 instituting the penal code provides that housebreaking consists of: 1° forcing, damaging , demolishing, digging, removing fence, a wall windows, doors, the roof of a building, or any kind of buildings 2° acts mentioned above committed on a vehicle, boat, aircraft or train; 3° breaking into cupboards or other locked furniture, used for keeping belongings even if the housebreaking has not been carried out in the place of location of the belongings

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penalty. Hence, he must be sentenced to two years multiplied by two which is equal to (4) four years. [14] With regard to formation of criminal gang, the Court finds that as admitted by the Prosecution, there is no evidence proving that that gang has ever been formed. Hnce Ndindiriyimana must be acquitted of that. [15] The Court finds further that as indicated by detention statement dated November 12, 2008, Ndindiimana was detained since then. It demonstrates therefore that the time he spent in prison is longer than the imposed term of imprisonment. Therefore, he must be released immediately after the judgment pronouncement. III. THE DECISION OF THE COURT [16] Decides that appeal lodged by Ndindiriyimana has merit in parts; [17] Holds that Ndindiriyimana is only guilty of theft through housebreaking and not guilty of formation of criminal gang; [18] Sentences Ndindiriyimana to to four (4) years of imprisonment; [19] Orders his immediate release immediately after the judgment delivery as he had already served his sentence;