PROSECUTION v. LA BRIGITTE

PROSECUTION v. LA BRIGITTE

- Source: Amategeko - Section: Decisions (Judgements) - Date: 2014-03-21 - Case/document no.: RPA1043/12/HC/KIG - Collection: High Court

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PROSECUTION v. LA BRIGITTE [Rwanda HIGH COURT – RPA1043/12/HC/KIG (Uwamariya, J.) 21/03/2014] Criminal Law – Forged document – impersonation – Impersonation is an offence of forged document – Organic Law n° 01/2012/OL of 02/05/2012 instituting the penal code, article 609 Facts: La Brigitte Serianz Razic was charged of the offence while the Cooperative named La Reine and Kamodoka were the civil parties. The Court acquitted La Brigitte and ruled there will be no damages to be charged. The Prosecution appealed to the High Court arguing that, in ruling the case, the previous court base on the irrelevant law, the explanations are not coherent, the fact the judge has been contradicting in his analysis and his decision and the fact that the judge stated that there is doubt and then concluded that there is no evidence. Therefore, the prosecution requested her to be sentenced to 5 years as it was requested in the previous court. Held: Concerning the elements constituting the offence that Brigitte has impersonalized as General Manager, there is no contradiction between article 609 of the law no 01/2012/OL OF 02/05/2012 instituting the penal code that has been used in analyzing the elements of this offence and article 202 of the Decree Law no 21/77. This is similar to committing the forged document by impersonation (supposition de personne) since she has written that she is the

General Manager while she is not. The defendant cannot be sued basing on 614 of the Organic Law no 01/2012/OL since she is not accused of the use of forged document but rather impersonation in the letter she wrote the Intermediate Court of Nyarugenge. In punishinh this offence the basis should be article 609 of the abovemntioned Oraganic law since it provides lower sentence. The fact that the judge stated that the document alleged against Brigitte Serianz Rakic is not forged basing on that she did not reduce nor add something on it, doesn’t mean that the judgment is not motivated, therefore, what the prosecution states is not valid. There is no contradiction between the analysis of the case and the decision since the analysis of the case, the judge did never confirm that the acts committed by Brigitte Serianz Rakic do not constitute the offence of forged document (intellectual forgery). There is no difference between the doubt and the lack of evidence since the prosecution must prove beyond reasonable doubt to the judge that the person has committed the offence.In case the prosecution provides an evidence which does not convince the judge that the accused has committed an offence; when the judges doubts or finds not incriminate, the only evidence is that the accused is acquitted.Therefore, there is no contradiction between the doubt and the lack of evidence. Appeal with merit, The accused is convicted with the forged document The appealed judgment is reversed She is sentenced to one year of imprisonment but suspended With costs to the acccused.

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Statutes and statutory instruments referred to: Organic Law no 02/5/2012 instituting the penal code, article 609 and 614 Law no30/2013 of 24/5/2013 relating to the code of criminal procedure article 186 para. 5 No Case referred to. Judgment

BRIEF BACKGROUND OF THE CASE [1] This case commenced in the intermediate court of Gasabo when La Brigitte Serianz Razic was charged of the offence of forged document. In this case,Cooperative La Reineand Kamodoka Ndoli were the civil parties. La Brigitte Serianz Razic was acquitted and the court ruled that there will be no damages since the accused was acquitted. [2] The prosecution and Kamodoka Samuel appealed to the High Court. The appeal of the prosecution was recorded on RPA1043/12/HC/KIG while the one of Kamodoka Ndoli Samuel was recorded on RPA 1044/12/HC/KIG. La Brigitte Serianz Razic did not appear in court and the court ruled on the appeal of the prosecution in absence of La Brigitte Serianz Razic as she had been legally summoned. The appeal of Kamodoka Ndoli Samuel was striked off basing on article 186 para. 5 of the Law no30/2013 of 24/5/2013 relating to the code of criminal procedure since he did not have a follow up to his appeal. [3] The Prosecution explained that their ground of appeal is that the court, in ruling the case, based on the law which is wrong since it based on article 609 instead of basing on 614 of the Organic Law no 02/5/2012 instituting the penal code in the first and third part. Another ground of appeal is that the court ruled the case without motivation since it based on the law which is wrong and the provided explanations were contradictory.

The third ground is the contradiction of the judge in his analysis and the decision and that the judge had stated that there is doubt and finally concluded that there is no evidence. The prosecution argued that the judge should have explained that. The prosecution requested that the decision of the court should be amended so that the accused should be sentenced to five years of imprisonment as it was requested in the Intermediate Court.  What has to be analysed in this case is to know whether in ruling the case, the Intermediate court has based on the law which is wrong, whether the appealed judgment was not explained, whether there is contradiction in the analysis of the case and the decision and if there is contradiction between the doubt and the lack of evidence. II. ANALYSIS OF LEGAL ISSUES To know whether the Intermediate Court based on a wrong article in ruling the case. [4] The prosecution explained that in ruling the case, the judge based on article 609 of the new penal code and analysed it which led him to error while the facts of the offence relate to 614 para. 1 and 3. The prosecution argued that paragraph one states that any person who writes a

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document that states things in a wrong way, while the third paragraph states that anyone who willingly uses a false writing or modified is sentenced to more than five years up to seven years with a fine of 500.000 up to 2000.000 Rfrw. The prosecution finds that this article is the one that should have been used even if it has based on article 202 and 204 of the law which was in force when the offence was committed. The prosecution state that even if the dossier was transmitted to the court immediately before the enactment of the new penal code, this should not prevent the judge on the real law since the judge is seized to rule on the elements of the offence rather than the qualification of the offence as it has been ruled by the Supreme Court in the case RPA 0158/05/CS of Bizimungu Pasteur and others ruled on 17/02/2006. [5] The Court finds that La Brigitte Serianz Rakic was charged with the offence of forged documents in the Intermediate Court of Gasabo. This offence was committed by the fact that she wrote to the Intermediate Court of Nyarugenge requesting that the case RCOM 0267/06/TGI/NYGE can be postponed on another date. She wrote that letter as the General Manager of “HEMMA” while she was not at this time. [6] The court finds that in the interrogations of La Brigitte Serianz Rakic by the prosecution on 23/5/2012, she admitted that she made a mistake by writing to the

Intermediate Court of Nyarugenge and signed as the General Manager of “ HEMMA” while she wrote it when she was not the General Manager of HEMMA because she had special power to make a follow up of the case that was between Murenzi and HEMMA since that case started when she was still the General Manager. [7] Article 202 of the Decree Law no 21/77 of 18 August 1977 instituting the penal code provides that “ He/She will be sentence to five to ten years of imprisonment and a fine of less than a hundred thousand, Rwandan Francs, anyone who forges a document by forging signature, falsifying documents and signatures, impersonation and forging agreements, its provisions, obligations, discharged obligations” [8] The court finds that the acts committed by La Brigitte Serianz Rakic are provided by this article since she said that she represents HEMMA while she was not the General Manager(impersonation) and she admitted to this when interrogated by the prosecution. [9] Article 609 of the Organic Law no 01/2012/OL instituting the penal code states that “Any person who forges or alters documents by forged signature or fingerprint, falsifying documents or signatures or impersonation, forging agreements, its provisions, obligations, discharged obligations shall be liable to a term of imprisonment of more than five (5) years to seven (7) years and a fine of three hundred thousand (300,000) to

three million (3,000,000) Rwandan francs”. Considering this this article how article 609 has been used in this case while analyzing the constitutive elements of this offence and article 202 of the Decree Law no 21/77 abovementioned, the court finds that there is no contradiction in them with regards to the constitutive elements of the offence La Brigitte Serianz Rakic was charged that she said that she is the General Manager and this relates to the offence of forged document by impersonation which is called “Supposition de personne” since she wrote on that document that she is the General Manager while she was not. Therefore, what the prosecution states that article 614 of this law should have used, the court finds that this it is baseless since she was not charged of forged document but rather the impersonation that she committed in the letter she wrote to the Intermediate Court of Nyarugenge.

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[10] The Court finds that in punishing this offence, article 609 of this should be the basis as in provides for penalties which are not heavy. The basis of this to the court is article 8 and 765 of that Organic Law which implies that La Brigitte Serianz Rakic should be sentenced to six years of imprisonment [11] Article 76 of the Organic Law no 01/2012/OL of 02/5/2012 instituting the penal code provides that “The judge may consider the appropriateness of mitigating circumstances which preceded, accompanied or followed an offence.This article once again provides that the approval of mitigating circumstances must be justified”. Basing on this provision, the court finds that the offence committed by Brigitte can benefit the mitigating circumstances since she had been given the power by the General Manager of HEMMA Rakic Tomslav to represent this company in Kigali in the its case with Jean Murenzi until the end.This power was given to him on 19/2/2006.However, she cannot acquitted on this offence since she was not the general Manager but his representative. Due to all these reasons, basing on article 77 para. 4 and article 78 para.3, the court finds this penalty has to be reduced up to one year but basing on article 85 of Organic Law n o 01/2012/OL abovementioned, this penalty has to be suspended since the accuse dis the first offender. To know whether the appealed judgment was not

motivated [12] The prosecution states that in ruling this case, the court had no basis since when the judge rules on a case basing on a wrong law, the provided explanations don’t have any relationship with the issue to be solved and the grounds provided do not explain what should be explained, therefore, it should be considered that in taking the decision, there was no motivation. [13] The court finds that article 609 of Organic Law no 01/2012OL abovementioned to have been used by the judge while explaining the offence of forged document is the one that should be used to explain the qualification of this offence. The fact that the judge ruled that the document alleged to have been forged by Brigitte Serianz Rakic since she did not reduce or add something which is wrong does not mean that the judgment was not motivated. Therefore, what the prosecution states is not valid. To know whether there is contradiction in the analysis of the judgment and the taken decision [14] The prosecution explained that in the hearing, the prosecution and the civil parties told the judge that the forged document charged against La Brigitte is the intellectual forgery so that the judge may not be mistaken to use article 609 of the new Organic Law of Penal Code since that article punishes the material forgery. While analyzing, the judge used the doctrine and explained that “ faux intellectual est la

redaction d’un document dont les enonciations sont contraire a la verite, qui affirme des faits qui sont inexistants, le faux intellectuel se caracterise par les mensonges ou des omissions”. The judge concluded stating that what Brigitte wrote in that document and what she requested are not false. They stated that basing on ordinary explanations,that false information are those which do not state the truth, and Brigitte wrote stating that she is General Manager and this is what should be analyzed by the court and once found that she was General Manager she would be acquitted. [15] The court finds that there is no contradiction in the analysis between the analysis of this case and the decision taken since in the analysis of this case, the judge had never confirmed that the acts of Brigitte Serianz Rakic constitute the offense of intellectual forgery.

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To know whether there is contradiction between the doubt and the lack of evidence. [16] The prosecution explains that in taking the decision the judge based on the ground of doubt and finally concluded that there is no evidence while these are two things which are different. The prosecution stated that when the judge states that there is doubt, she should have demonstrated the doubtful elements or demonstrate that there is no evidence instead of considering them together. [17] Article 165 of the Organic Law no 01/2012/OL of 02/5/2012 instituting the penal code states that “The benefit of doubt shall be given in favour of the accused. If the proceedings conducted as completely as possible do not enable judges to find reliable evidence proving beyond reasonable doubt that the accused committed the offence, the judges shall order his/her acquittal”.Basing this provision, there is no difference between the doubt and the lack of evidence since the prosecution has the burden to prove beyond reasonable doubt to convince the judge that the accused has committed the offence. In case the prosecution provides an evidence that do not convince the judge that the accused committed the offence; when the judge doubts or does not found that it incriminates, the only consequence is that the accused is acquitted. Basing on this article and the provided explanations, the court finds that there is

no contradiction between the doubt and the lack of evidence. Therefore, the statements of the prosecution are not valid. III.THE DECISION OF THE COURT [18] Orders that the appeal of the prosecution is not valid [19] Orders that La Brigitte Serianz Rakic is convicted of the offence of forged document [20] Orders that the decision of the appealed judgment RP 0301/12/TGI/GSBO is reversed. [21] Sentences Brigitte Serianz Rakic to one year imprisonment with suspension of the sentence in a period one year. [22] Orders that the court fees are located to Brigitte Serianz Rakic