PROSECUTION v. MUTEMBEREZI

# PROSECUTION v. MUTEMBEREZI

- Source: Amategeko - Section: Decisions (Judgements) - Date: 2016-03-18 - Case/document no.: RPAA 0004/11/CS - Collection: Supreme Court

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PROSECUTION v. MUTEMBEREZI [Rwanda SUPREME COURT – RPAA 0004/11/CS (Hatangimbabazi, PJ, Karimunda and Gatete, J.) March 18, 2016] Criminal Procedure Law – Recourse for two ways of appeal – Application for review for the case that is not final – It does not apply till the case for which it is applied is final. When it is done, the last appeal is annuled and things become as before– Law Nº 30/2013 of 24/5/2013 relating to the code of criminal procedure, article 192. Criminal Procedure Law – Cancel off a case – If the appellant fails to appear without valid reason, his appeal may be cancelled – Law Nº 30/2013 of 24/5/2013 relating to the code of criminal procedure, article186. Facts: The accused was bought before the Intermediate Court of Gasabo, accused of having defiled a minor aged of 11 years old, to whom he was a guardian, because he was married to her mother. The court found him guilty and sentenced him to life imprisonment and the fine of one hundred thousand Rwandan francs (100.000 frw). He appealed before the High Court, where his appeal was rejected due to the fact that he did not respect the time limit of 30 days provided for by the law to appeal. He lodged an appeal before the Supreme Court, stating that the High Court wrongly decided that his appeal was late, while in the hearing held on 12 May 2009, he was told that the case would be his pronounced on 22 May 2009 but on that day, for the reasons not dependant to him, he did not appear till the day he was informed of the decision in the penitentiary office on 17 August 2009 and he lodged an appeal on the same day; reason why he thinks he should not be victim and be prevented from getting justice. The accused was not present during the hearing and it was proved that he was released by the case RP 0048/13/TGI/GSBO of application for review. Held: 1. When someone applied for review for the case that is not final as provided for by the law, it is a ground to annul the application for review. Moreover, the concerned stay in same situation as when he/she applied for review. 2. When appellant does not follow up his appeal for long time and when it is proved that he/she did not appear despite a lawful summon, his appeal is cancelled. Appeal cancelled off the court’s books. Court fees charged to the appellant. Statutes and statutory instruments referred to: Law Nº 30/2013 of 24/5/2013 relating to the code of criminal procedure, articles 192 nd 186. No case law referred to. Judgment

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I. BRIEF BACKGROUND OF THE CASE. [1] The case started in the Intermediate Court of Gasabo, Mutemberezi Silas accused to have defiled a minor named Muk. Aged of 11 years old, to whom he was a guardian, because he was married to her mother Kibukayire. On 22 May 2009, the court found Mutemberezi guilty of the offence he was charged with and sentenced him to life imprisonment and the fine of one hundred thousand Rwandan francs (100.000 frw). [2] Mutemberezi appealed before the High Court, where on 19 November 2010, his appeal was rejected due to the fact that he did not respect the time limit of 30 days provided for the law to appeal, because the case was pronounced on 22 May 2009 and he appealed on 17 August 2009. [3] Mutemberezi lodged an appeal before the Supreme Court, stating that the High Court wrongly decided that his appeal was late, while in the hearing held on 12 May 2009, he was told that the case would be his pronounced on 22 May 2009 but on that day, for the reasons not dependant to him, he did not appear till the day he was informed of the decision in the penitentiary office on 17 August 2009 and he lodged an appeal on the same day; reason why he thinks he should not be victim and be prevented from getting justice. [4] The hearing was scheduled on 1 June 2015, and it was postponed because Mutemberezi was not present. On his summons was written by the legal officer of the prison that he was no longer in Gasabo prison, but released. The court requested to the prosecution to be informed better and then communicate to it the situation of the accused. [5] On 16 June 2015, the court received the letter nº 669/D11/A/ONP/ASB from the General Prosecutor, proving that Mutemberezi was released after being acquitted by the case RP 0048/13/TGI/GSBO application for review of the case RP 0330/07/TGI/GSBO. [6] The public hearing was re-opened on 7 September 2015, Mutemberezi not present but his counsel Uwimana Channy appointed by the Rwanda Bar Association was present, while the Prosecution was represented by Niyonkuru Françoise, the National Prosecutor. [7] On 2 October 2015, the Supreme Court annuled the judgment RP 0048/13/TGI/GSBO rendered on 25 October 2013, because after losing the case in the Intermediate Court of Gasabo, Mutemberezi lodged an appeal before the High Court and his appeal was dismissed because he had not respected the time limit for appeal, and he appealed again to this court on 02 December 2010. In the meanwhile, he applied for review for the judgment rendered by the Intermediate Court of Gasabo, while it was not yet final as provided for by article 192 of Law nº 30/2013 of 24/05/2013 relating to the code of criminal procedure. Therefore, the appeal he had opted for is the one to proceed, reason why the judgment RP 0048/13/TGI/GSBO rendered on 25 October 2013 applying for review for judgment RP 0330/07/TGI/GSBO must be annulled and the case must proceed Mutemberezi being imprisoned as it was, when he lodged an appeal against the previous decision.

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[8] The court decided that Mutemberezi Silas be immediately arrested according to the judgment RP 0330/07/TGI/GSBO, and that the hearing would be re-opened on 30 November 2015. [9] On 30 November 2015, the hearing was re-opened in the absentia of Mutemberezi Silas, who had as counsel, Uwimana Channy, the Prosecution proved that he was not yet arrested as the Court had ordered, because his new address was unknown, requesting that he be summoned at unknown address as provided for by the law and the hearing was postponed on 15 February 2016. [10] On the same date, the hearing was postponed Mutemberezi Silas being not present but it was proved that he was summoned at unknown address as provided for by the Law; Niyonkuru Françoise, representing the Prosecution, requested that his appeal be cancelled. II. ANALYSIS OF THE LEGAL ISSUE Weather appeal lodged by Mutemberezi Silas should be cancelled. [11] The Prosecution contends that the fact that Mutemberezi Silas is the appellant and did not appear while he was legally summoned, his appeal should be cancelled as provided for by the law. Opinion of the court. [12] Article 186, 5 of the Law nº30/2013 of 24/5/2013 relating to the code of criminal procedure provides that An appeal may also be cancelled if the appellant fails to appear without valid reason or to request for the setting of the date of hearing within six (6) months of the filing of the appeal. [13] The court finds that the fact that Mutemberezi was summoned if Gasabo Prison when he was incarcerated and the administration proved that he was released, the fact that he was then summoned at his domicile and it was proved that it was unknown and he was then summoned to unknown address as provided for by the law and he did not appear not give a relevant reason; the fact that the case lasted for long time without nothing done on it, his appeal must be cancelled from the court’s books as his summons respected the provisions of the law as explained above. III. THE DECISION OF THE COURT. [14] Decides that the appeal lodged by Mutemberezi Silas be cancelled; [15] Orders Mutemberezi Silas to pay the court fees amounting to frw 100.000.