PROSECUTION v BIMENYIMANA

# PROSECUTION v BIMENYIMANA

- Source: Amategeko - Section: Decisions (Judgements) - Date: 2022-05-26 - Case/document no.: RPAA 00048/2020/CA - Collection: Court of Appeal

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PROSECUTION v BIMENYIMANA [Rwanda Court of Appeal-RPAA 00048/2020/CA (Nyirandabaruta, P. J.) 26 May 2022] Criminal laws – Mitigating circumstance – Guilty plea – Guilty plea that is raised for the first time before an appellate court cannot constitute a mitigating circumstance for the offence since that such contradicts the provision of article 59 of the Law n0 68/2018 determining the offences and penalties in general. Facts: This case started from the Intermediate Court of Musanze, the Prosecution arraigned the accused for different offences that included the offence of attempt to commit rape, serious intentional assault and battery on another person and sexual torture. The seized Court heard the case and held that the accused is convicted for the offences of serious intentional assault and battery as well as sexual torture, it sentenced him to the life imprisonment. The accused was not satisfied with the judgment ruling and appealed against the verdict before the High Court, Musanze Chamber, he submitted that he was sentenced to severe penalties, he requested for the penalty reduction as he admitted that he beat and injured the victim, but he did not pierce a stake into her sexual organs. The very Court heard the appeal and sustained the appealed judgment. The accused appealed against the above ruling before the Court of Appeal and he submitted that (at this instance) he appealed for pleading guilty and apologizing as he took the victim and attempted to rape her due to drunkenness, she refused and he violently pushed her down, at all levels, he denied it because he was advised by his fellow inmates to do so, later he understood the gravity of offence and that is why he seeks forgiveness. The Prosecution submitted that he accused does not challenge appealed judgment since it examined his request (to be declared innocent to the offence of sexual torture), for that offence he was sentenced to life imprisonment; it finds that his request was unfounded because there are incriminating elements of evidence and it expounds that he does not even deserve penalty reduction because he cruelly committed the offences of which he was convicted. Held: 1. Guilty plea that is formulated for the first time before an appellate court cannot constitute a mitigating circumstance for the offence since that such contradicts the provision of article 59 of the Law n0 68/2018 determining the offences and penalties in general. The appeal lacks merit. Statutes referred to: Law No 68/2018 of 30/08/2018 as modified by Law n0 69/2019 of 08/11/2019 determining offences and penalties in general, articles 59 and 114; Law No30/2018 of 02/06/2018 determining the jurisdiction of courts, article 52, paragraph one; Law No 027/2019 of 19/09/2019 relating to criminal procedure, article 183, paragraphs 5 and 6.

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Cases referred to: Prosecution v. Munyagishari, RPA/GEN 00004/2019/CA rendered by the Court of Appeal on 07/05/2021; Prosecution v. Habiyakare, RPAA 00013/2020/CA rendered by the Court of Appeal on 31/12/2021; Prosecution v. Rusesabagina and others, RPA 00060/2021/CA rendered by the Court of Appeal on 04/04/2022. Judgment I. BRIEF BACKGROUND OF THE CASE

The case started from the Intermediate Court of Musanze, the Prosecution arraigned Bimenyimana Jean Paul for the offences he committed in the night of 18/09/2018 that included the attempt to commit rape, serious intentional assault and battery and sexual torture against Nyirakanza Séraphine.

On 07/11/2018 the Intermediate Court of Musanze heard the case RP 00464/2018/TGI/MUS and held that Bimenyimana Jean Paul is convicted of serious intentional assault and battery as well as sexual torture and it sentenced him to life imprisonment.

Bimenyimana Jean Paul was not satisfied with the verdict and he appealed the case before the High Court, Musanze Chamber, he submitted that he was sentenced to severe penalties, he requested for the penalty reduction as he admitted that he beat and injured Nyirakanza Séraphine but he did not pierce a stake into her sexual organs.

On 11/04/ 2019, the High Court, Musanze Chamber heard the case RPA 00563/2018/HC/MUS and with reference to the testimonies given by Nyirakabanza Séraphine, Rwemeza Félicien and the Executive Secretary of Kirebe Cell, all testified that it is Bimenyimana Jean Paul who assaulted Nyirakabanza Séraphine and to the medical report issued by Dr. Nkinzingabo Rusangiza Evariste on 28/09/2018 detailing on the state of Nyirakabanza Séraphine’s health at her arrival at the hospital, it held that the appeal filed by Bimenyimana Jean Paul is unfounded and it held that the verdict of the case RP 0046/2018/TGI/MUS rendered by the Intermediate Court of Musanze on 07/11/2018 is sustained.

Bimenyimana Jean Paul again appealed the above verdict before the Court of Appeal submitting that he is now pleading guilty for the offence of raping Nyirakamana Séraphine due to drunkenness, and he sought forgiveness.

The hearing was conducted in public on 06/04/2022, Bimenyimana Jean Paul was assisted by Counsel Nyirabera Josephine while the Prosecution was represented by Rudatinya Nyangezi Gaspard, National Prosecutor. I. ANALYSIS OF LEGAL ISSUE

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i. Whether the guilty plea of Bimenyimana Jean Paul that is formulated for the first time before the Court of Appeal can be for him a ground for penalty reduction

Bimenyimana Jean Paul submits that he has appealed with a purpose of pleading guilty and seeking forgiveness for the offence of attempting to rape Nyirakabanza Seraphine due to drunkenness, at all levels, he denied it because he was advised by his fellow inmates to do so, later he understood the gravity of offence and that is why he seeks forgiveness from the Court, the Prosecution and the offended victim because he had enough time to reflect on the gravity of the offence and he has repented from it and he is seeking for penalty reduction since he is now pleading guilty and he apologizes for it.

Counsel Nyirabera Josephine who assists Bimenyimana Jean Paul submits that her client appealed with a purpose of pleading guilty to the offence and seeking forgiveness, she states that it is the drunkenness that made him to assault Nyirakabanza Seraphine and he seeks forgiveness from her and the whole Rwandan community since he has already learnt and repented from the offence. The Counsel has also requested the Court to consider the age of Bimenyimana Jean Paul and realise that he can be rehabilitated so that he does not deserve the penalty of life imprisonment.

Counsel Nyirabera Josephine went on and requested the Court to consider the provisions of articles 49,58, 59 and 60 of the Law determining offences and penalties in general and requested the Court to hold that the guilty plea of Bimenyimana Jean Paul constitutes a mitigating circumstance and apply to him the penalty reduction on basis of the reference judgment RPAA 0124/09/CS rendered by the Supreme Court wherein the parties were the Prosecution v. Twizeyimana Isaïe as well as on the article 35 of the Criminal Procedure which provides that the penalties imposed to him can be reduced down to the half as he pleads guilty for the offence.

She also argued that while determining an appropriate penalty for the accused, the Court should consider his age and find that some of the purposes of punishment include educating and correcting, Bimenyimana Jean Paul committed the offence when he was 19 years old, sentencing him to life imprisonment would not be appropriate, rather he should alternatively be sentenced to penalty of community service instead of being a burden to the country while in jail. She also submitted that though the accused committed the offence with extreme cruelty, the High Court has simply looked at the gravity of the offence and sentenced him to life imprisonment with no consideration to his age and she requested that such should be rectified. The Counsel has as well stated that all the case-laws that the Prosecution put forth for reference, do not indicate that in some circumstances the accused is not entitled to plead guilty.

The Prosecutor argued that as upheld in paragraphs 5 and 8 of the appealed judgment, Bimenyimana Jean Paul pleaded by denying the offence of sexual torture against Nyirakabanza Séraphine, he only pleaded guilty for the offence of assault and battery against the victim, but he always denied the offence of piercing a stake into her sexual organs. The Prosecutor stated that the Court found his grounds of appeal unfounded because there are elements of evidence evidence that incriminated him for the offence of sexual torture and included the testimony of Nyirakabanza Séraphine who explained how the accused proposed her for sexual intercourse and when she declined it, he beat her and pierced a stake into her genitals. The victim’s testimony is corroborated by the statements of a certain witness and medical report, the High Court, Musanze Chamber underscored those elements under paragraphs 9 and 10 of the appealed judgment.

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He further submitted that Bimenyimana Jean Paul does not challenge the appealed judgment since the Court examined his request (to declare him innocent on the charge of sexual torture) for which he was sentenced to life imprisonment as the Court found his appeal unfounded because there are incriminating elements of evidence against him, it expounded (see paragraph 11 of the appealed judgment) that he does not deserves the penalty reduction because he cruelly committed the offence against Nyirakabanza Séraphine of which he was convicted.

The Prosecutor argues that the Court’s decision of not reducing the penalty imposed to Bimenyimana Jean Paul is justified by the extreme cruelty that characterised his offence and aligns with the position set in the judgment RPAA 0021/14/SC rendered by the Supreme Court on 13 October 2017 where the Court held that an offence committed with extreme cruelty is a cause of not reducing the penalty and the Court upheld that “Though Ntabanganyimana pleads guilty, he does not deserve the penalty reduction due the extreme cruelty with which he committed the charged offence because the judge is not obliged to reduce the penalty for defendant who pleads guilty in case he/she notes that it was committed with extreme cruelty”.

The Prosecutor also sustains that the article 35 of the Criminal Procedure 2013 stated by the lawyer of Bimenyimana Jean Paul and which is no longer into force ( the procedure law is of immediate effect) and there is the new law relating to the criminal procedure of 2019, its article 65 ( replacing article 35 of the former law) provides for the criminal proceedings against a person caught red-handed, its paragraph 5 provides for the procedure for prosecuting and trying an accused, the judge seized may reduce specified penalties and this is done at the first instance, due to the fact that Bimenyimana Jean Paul denies the charges in the Intermediate Court and the High Court, these courts could not reduce the penalties in accordance with the foregoing article 65.

The Prosecutor states that laws evolve, that the judgments cited by the lawyer of Bimenyimana Jean Paul which upheld that there is no fixed time limit for an accused to plead guilty and later the High Court rendered the judgment n0 RPA/GEN 00004/2019/CA of 07/05/2021 with the Prosecution v. Munyagishari Bernard and held that the appeal ground of Munyagishari Bernard to plead guilty at the appellate level for an offence he denied from the first instance, should not be admitted because, the fact that he did not exercise his right of pleading guilty in the outset of the proceedings, indicates that he opted for declining the procedure of pleading guilty, it held that it should not hear his appeal for the guilty plea lodged at the first time at the appellate level because the Court of Appeal examines the defects of law or facts indicated by the appellant.

The Prosecutor argues that for a guilty plea to serve as a mitigating circumstance, the article 591 of the Law n0 68/2018 of 30/08/2018 determining offences and penalties in general provides that a guilty plea can only be a mitigating circumstance if it is formulated before the commencement of the prosecution or at the outset of the trial in the first instance. Therefore, the

1 The judge may reduce penalties, especially when: 10 the accused, before the commencement of prosecution, pleads guilty and sincerely seek forgiveness from the victim and the Rwandan society and expresses remorse and repairs the damage caused as much as would be expected from him/her; 20 the accused turns himself/herself into competent judicial authority before or during the pre-trial proceedings; 30 at the outset of the trial in the first instance, the accused pleads guilty by a sincere confession; 40 the offence has minor consequences.

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fact that Bimenyimana Jean Paul did not plead guilty in the provided time limit and thus secure a mitigating circumstance for his offence, means that he deprived himself such right, more so that he does not provide the special reason for failure to do se, because stating that his fellow inmates advised him not to plead guilty is unfounded since they do not understand his right and his benefits better than him, he requests the Court of Appeal to uphold that it lacks the jurisdiction to hear for the first time the case related to confession and guilty plea.

He further submits that there are other cases rendered by the Supreme Court that held that if the accused pleads guilty, their penalties cannot be reduced due the extreme cruelty with which they committed the offences such as the case RPA 0282/08/CS rendered by the Supreme Court on 12/03/2010 whereby the Court held that reducing or not reducing a penalty is not a matter of law, the seized judge may or may not reduce a penalty depending on the gravity of the committed offence. The Prosecutor has also cited the case RPAA 0021/2014/CS rendered by the Supreme Court on13/10/2014 whereby the Court held that though Ntabanganyimana pleads guilty, he does not deserve the penalty reduction due to the extreme cruelty with which he has committed the offence. The same stance was held in the case RPA 0282/08/CS rendered by the Supreme Court on 12/03/2010 where the Court held that reducing or not reducing a penalty for the accused who pleaded guilty is not binding to the judge even if the accused pleads guilty by a sincere confession, in case the judge deems the penalty reduction inappropriate, he/she cannot to reduce the penalty2; in consideration of the cruelty with which Bimenyimana Jean Paul committed the offence for which he is accused, no one can state that he deserves the penalty reduction as he pierced a stake in the sex at a depth of 32 cm.

With regard to the age of Bimenyimana Jean Paul indicated by his lawyer as mitigating circumstance for penalty reduction, the |Prosecutor maintains that the accused was adult and other people who committed offences at the age of majority, got sentenced. Concerning the fact that he can be sentenced to the community service, the Prosecutor submitted that Musanze correctional facility has a farmland of six hectares, in case Bimenyimana Jean Paul is interested, he can still express his request for farming and breeding cows as well as serve the Community while bein in jail. DETERMINATION OF THE COURT

Article 114 of the Law n0 68/2018 of 30/08/2018 as modified by the Law n0 69/2019 of 08/11/2019 determining offences and penalties in general, provides that « any person who causes damage to genital organs of another person commits an offence. Upon conviction, he/she is liable to a term of life imprisonment ».

Article 52, paragraph one of the Law n0 30/2018 of 02/06/2018 determining the jurisdiction of courts provides that “the Court of Appeal has jurisdiction to hear at the first level of appeal cases tried at first instance by the High Court, the Commercial High Court and the Military High Court » while paragraph two of the same article provides that « The Court of Appeal has also jurisdiction to try at the second level of appeal cases tried by the High Court, the Commercial High Court and the Military High Court, if such cases:-----, whereas paragraph six of the very article stipulates that « Cases tried by the Court of Appeal are not appealable».

2 Rwanda Law Reports, nº8, p.15

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Article 183, paragraphs 5 and 6 of the Law n0 027/2019 of 19/09/2019 relating to the criminal procedure provides that « an appeal is filed in the form of a written submission instituting a claim indicating the following: 5° list of defaults of the judgement for which rectification is required and other issues to be considered; 6° explanations for each default or issue showing the mistakes made and how they should be rectified in accordance with laws, evidence and court recommendations, »

Article 59 of the Law n0 68/ 2018 of 30/08/2018 determining offences and penalties in general as modified by the Law n0 69/2019 of 08/11/2019 provides that “the judge may reduce penalties, especially when : 1º the accused, before the commencement of prosecution, pleads guilty and sincerely seek forgiveness from the victim and the Rwandan society and expresses remorse and repairs the damage caused as much as would be expected from him/her; 2º the accused turns himself/herself in to competent judicial authority before or during the pre-trial proceedings; 3º at the outset of the trial in the first instance, the accused pleads guilty by a sincere confession; 4º the offence has minor consequences ».

For the appealed case RPA 00563/2018/HC/MUS, the High Court, Musanze Chamber finds that (see paragraph 10) with reference to the testimony of Nyirakabanza Séraphine and the medical report issued by Dr. Nkinzingabo Rusangiza Evariste on 28/09/2018, indicating that Nyirakabanza Séraphine arrived at the Hospital walking painfully with blood all over her clothes and with a bulge on her forefront, there was a stake pierced in 32cm deep into her sex to an extend that it required to inject her with a general anaesthesia to remove it from her body and on basis of the article 49 of the Law n0 69/2018 of 30/08/2018 determining offences and penalties in general, shall not reduce his penalty and the appealed judgment is sustained.

With regard to whether a guilty plea that Bimenyimana Jean Paul formulated for the first time before the Court of Appeal can be for him a mitigating circumstance that might lead to the penalty reduction, with reference to the case RPA/GEN 00004/2019/CA rendered on 7/05/2021 with the Prosecution v.Munyagishari Bernard, the case RPAA 00013/2020/CA with the Prosecution v. Habiyakare Olivier and the case RPA 00006/2021/CA with the Prosecution v. Rusesabagina Paul, Nsabimana Callixte alias Sankara and others, all three rendered by this Court and many more cases, the Court of Appeal held that a guilty plea that can favour the accused is a guilty plea that is at least formulated before the closing of the hearing at the first instance. For all the above mentioned cases, the Court always held that an accused who finally pleads guilty at the appeal level for an offence he/she has been denying all along the first instance secures no favour and such guilty plea is not admissible since the accused deprived himself of such right and that means that he/she declined the right of pleading guilty. The Court of Appeal finds that it cannot hear his guilty plea at the appeal level since it examines the mistakes (which are in the appealed judgment) pointed out by the appellant and which are based on the issues of law and facts. This is in line with the provision of paragraph one of the above mentioned article 52 of the Law n0 30/2018 of 02/06/2018 determining the jurisdiction of courts and article 183, paragraphs 5 and 6 of the Law n0 027/2019 of 19/09/2019 relating to the criminal procedure, those articles clarify that the Court of Appeal examines the mistakes indicated in the judgment, and the issues of pleading guilty and seeking forgiveness that Bimenyimana Jean Paul is bringing forth, are not mistakes from the appealed judgment, he intends to plead them for the first time, they are not under the jurisdiction of this Court.

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With regard to the statements of Bimenyimana Jean Paul and his lawyer that he deserves a penalty reduction on basis of the position set by the Supreme Court which held that an accused has no time limit to retract and plead guilty for the charges, they cite the case RPAA 0124/09/SC rendered by the Supreme Court on 01/06/2012 between the Prosecution and Twizeyimana Isaïe, whereby the Court held that the fact that Twezeyimana Isaïe indicated that he rethought and sincerely pleaded guilty for the charges, his guilty plea can be for him a mitigating circumstance for penalty reduction even if he complicated the court hearings by denying the charge. The Court of Appeal finds that such position has been set and applied to many other judgments that include the case n0 RPA 0282/08/2008 rendered by the Supreme Court on 12/03/2010 with the Prosecution v. Nyirangondo Virginie, whereby the Court held that her late guilty plea is not itself a ground for not granting to her the penalty reduction because there is no time limit for an accused to plead guilty for the charges, rather not granting the penalty reduction may be justified by the extreme cruelty with which the offence has been committed; the same applied to the case RPA 0246/09/CS rendered on 14/12/2012 with the Prosecution v. Mukankusi Victoire3 and other cases. However, the Court finds that following that position, the Law n0 68/2018 of 30/08/2018 determining offences and penalties in general modified by the Law n0 69/2019 of 08/11/2019 determining offences and penalties in general provides in the article 59, 3o that a guilty plea that can be considered as mitigating circumstance and therefore serve for penalty reduction is a guilty plea that is submitted at the outset of the trial in the first instance when the accused pleads guilty by a sincere confession.

The Court therefore finds that the position set by the Supreme Court that the guilty plea for the first time at the appellate instance is not itself a ground for the penalty reduction for the convicted as there is no time limit for the accused to retract and plead guilty in case he/she pleads guilty by a sincere confession, such position was changed by the Law n0 68/2018 of 30/08/2018 as modified by the Law n0 69/2019 of 08/11/2019 determining offences and penalties in general which unequivocally provides that a guilty plea that can serve as mitigating circumstance is the guilty plea that is formulated at the outset of the trial. This is why the Court of Appeal which was conferred many of the duties of the Supreme Court before the establishment of the Court of Appeal, has currently ceased referring to that position set by the Supreme Court and applies the legal provision, because any position set by a court cannot contradict a law. It is therefore clear that the non-application of that position is not a fact of disregard, rather it is due to the fact that such position got changed by a law; in consideration of the jurisdiction of this Court, the latter finds that it lacks the jurisdiction to hear the case about a guilty plea that is formulated for the first time at the appeal level. Therefore, the request of Bimenyimana Jean Paul for penalty reduction on basis of his guilty plea he intends to submit for the first time at the appellate level is not admitted due the above provided reasons.

With regard to the fact that Bimenyimana Jean Paul should be granted the penalty reduction in consideration of his age by the time he committed the offence, the Court finds that, as indicated in the case file, Bimenyimana Jean Paul was born on 01/01/ 1999, and he committed the offence for which he is accused on 28/09/2018, when he was 19 years old, and this means that he was old

3 Rwanda Law Reports, Vol II, 2013, n⁰ 17, April, 2013

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enough for criminal prosecution4. The Court also finds that despite the existence of other cases rendered by this very Court5 whereby it held that a judge might consider reducing penalties on basis of the age of the accused, such as the fact that it is evident that the accused has freshly got out the age of minority or he/she has attained the age of majority provided under the law, those circumstances are not alone taken into account; in addition, the accused should plead guilty in the outset of the prosecution or trial by a sincere confession, such is not the case for Bimenyimana Jean Paul since he categorically kept denying the offence of damaging the victim’s genital organ, a crime he committed with an extreme cruelty. It is therefore clear that the simple fact that he committed the offence while he was still young and freshly got out the minority, alone might not be enough for his penalty reduction. Therefore, the request of Counsel Nyirabera Josephine, seeking for penalty reduction for her client in consideration of the fact that he committed the offence at a younger age, has no justification.

With regard to the statements of the counsel of Bimenyimana Jean Paul seeking the sentence to community service as alternative to life imprisonment, arguing that an appropriate punishment must achieve a correctional purpose; the Court of Appeal finds that the requested sentence is provided under article 35 of the Law n0 68/2018 of 30/08/2018 as modified by the Law n0 69/2019 of 08/11/2019 determining offences and penalties in general, whereby paragraph 4 of the above article provides that a Presidential Order shall determine the modalities for the execution of the penalty of community service; therefore, as such Presidential order has not yet been enacted, the Court has no basis to decide such penalty, because there are no modalities of its execution.

Considering all the above provided explanations, the Court of Appeal finds that nothing changes on the judgment RPA 00563/2018/HC/MUS rendered on 11/04/2019 by the High Court, Musanze Chamber, and held that a sentence to life imprisonment imposed to Bimenyimana Jean Paul, is sustained. III. DECISION OF THE COURT

Holds that the appeal filed by Bimenyimana Jean Paul has no justification;

Holds that the judgment RPA 00563/2018/HC/MUS rendered by the High Court, Musanze Chamber is sustained;

Holds that the court fees are borne to the Public Treasury as Bimenyimana Jean Paul is already detained.

4 See sub-paragraph 8 of article 2 of the Law n0 68/2018 of 30/08/2018 as modified by the Law n0 69/2019 of 08/11/2019 determining offences and penalties in general, which provides about …. A child: a person under the age of 18 5 See case RPAA 00013/2020/CA rendered by the Court of Appeal on the 31/12/2021 with the Prosecution v. Habiyakare Olivier.