PROSECUTION v NYANDWI

# PROSECUTION v NYANDWI

- Source: Amategeko - Section: Decisions (Judgements) - Date: 2024-06-21 - Case/document no.: RPAA 00477/2023/CA - Collection: Court of Appeal

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PROSECUTION v NYANDWI [Rwanda COURT OF APPEAL – RPAA 00477/2023/CA (Kanyange, P.J.) June 21, 2024] Criminal procedure – Appeal – Time Limits for Appeal - When a judgement is pronounced while the accused is in the police custody, it is clear that s/he cannot file an appeal, because, based on the structure of the system (IECMS), concerning the judgments adjudicated for the suspects who are detained, they are communicated to the correctional facilities where they are detained, the correctional facilities’administration is then responsible for notifying the concerned individuals and assisting them in filing their appeals through this electronic system, this means that the accused cannot be aware of the court's decision in his/her case to enable him/her to file an appeal, rather, upon arrival in the correction facility, s/he can be informed of the judgment ruling, consequently, the time limits for filing an appeal for such individual must be calculated starting from that day. Criminal procedure – Appeal – When an appeal should be admitted by the Court but was dismissed, the decision to reject the appeal is revoked, and the appeal is transferred to the Court so that the case is heard on the merits. Facts: This case started from the Intermediate Court of Rusizi, where the defendant was being prosecuted for the crime of child defilement, after the defendant was caught red-handed by the father of the seventeen (17) year old child M.M. he was defiling, for indicting him, the Prosecution relied on the elements of evidence including his confession during his interrogation and the victim accussed him as well as the witnesses who caught him

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red-handed. The defendant pleaded guilty, stating that they had mutually consented because she told him that she was eighteen (18) old. The Court ruled, declared him guilty of the crime of the child defilement, and sentenced him to twenty years (20) of imprisonment. The defendant appealed to the High Court, Chamber of Rusizi, arguing that he was sentenced to a severe penalty despite he pleaded guilty. The Prosecution raised the objection related to the inadmissibility of the appeal because it was filed after the time limit as prescribed by the law as the appealed case was decided on May 27, 2021, and he prepared the court submissions on July 28, 2021, and submitted them to the Court on August 2, 2021. Therefore, the appeal was late, as he should have filed not later than May 26, 2021. The defendant contested this objection, explaining that the delay in filing the appeal was due to the COVID-19 pandemic and lockdown measures, as he was notified of the case on July 26, 2021, and filed the appeal on July 28, 2021 adding that he was able to file the appeal only after arriving at the correctional facility. The High Court, Chamber of Rusizi, ruled the case and declared the appeal inadmissible as it had been filed after the time limit set by law. The defendant filed a second appeal in the Court of Appeal, arguing that the High Court had dismissed his appeal, disregarding the fact that the case he had appealed against was decided while he was in police custody due to the Covid-19 situation, and that he could only be able to appeal upon arrival in the correctionl facility; that in case the Court finds his appeal would have been admitted, the case should be transferred to the High Court, Chamber of Rusizi for being heard on the merits. The Prosecution also pleaded by stating that Nyandwi's appeal would have been admitted because he was tried being in the

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police custody due to the Covid situation in the Country, so that those who were in custody stayed there for preventing them to be detained in the correctional facility as they would infect others, and they were notified of the decisions of their cases upon arrival in the correctional facility, he would not have had the opportunity to appeal; therefore his case should be transferred to the High Court, Chamber of Rusizi, for being heard on the merits. Held: 1. When a judgement is pronounced while the accused is in the police custody, it is clear that s/he cannot file an appeal, because, based on the structure of the system (IECMS), concerning the judgments adjudicated for the suspects who are detained, they are communicated to the correctional facilities where they are detained, the correctional facilities’administration is then responsible for notifying the concerned individuals and assisting them in filing their appeals through this electronic system, this means that the accused cannot be aware of the court's decision in his/her case to enable him/her to file an appeal, rather, upon arrival in the correction facility, s/he can be informed of the judgment ruling, consequently, the time limits for filing an appeal for such individual must be calculated starting from that day. 2. When an appeal should be admitted by the Court but was dismissed, the decision to reject the appeal is revoked, and the appeal is transferred to the Court so that the case is heard on the merits. Therefore, Nyandwi's appeal is transferred to the High Court, Chamber of Rusizi for being heard on the merits. The appealed judgment is quashed. The case file is transferred to the High Court, Chamber of Rusizi, for beaing adjudicated.

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Statutes and statutory referred to: Law n° 027/2019 of 19/09/2019 relating to criminal procedure, article 181 and 193. Case laws referred to: Prosecution vs Bogere Barige, RPA 0022/14/CS decided by the Supreme Cour on 23/03/2018. Prosecution vs Niyinizeye Pacifique, RPAA 00055/2023/CA decided by the Court of Appeal on 22/03/2024. Prosecution vs Kabayiza Sylver, RPAA 00020/2022/CA decided by the Court of Appeal on 05/01/2023. Judgment I. BACKGROUND OF THE CASE

On 24/04/2021, Nyandwi Innocent was caught red- handed by the father of a seventeen (17) year-old child, identified as M.M. in the appealed judgment, while defiling her. He called neighbors who rushed to the scene and immediately arrested him and handled him to the Rwanda Investigation Bureau, where the prosecution against him commenced.

After the investigation, the Prosecution indicted him in the Intermediate Court of Rusizi for the crime of child defilement based on the fact that he confessed to the crime during the interrogation, the testimony of the child he defiled as well as the witnesses who caught him red-handed, and also a birth certificate showing that M.M. was 17 years old. The Prosecution requested for him a sentence of 25 years of imprisonment.

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Nyandwi Innocent defended himself by stating that he defiled M.M on 30/04/2021 and it was the third time, but they mutually consented to it because she told him that she was eighteen (18) years old.

The Court rendered the judgment RP 00144/2023/TGI/RSZ on 27/05/2021, it found that there are the elements of evidence to convict Nyandwi Innocent, which consist of: - his statements, where he confessed to the crime upon his arrest, explaining that he defiled M.M. more than twice; - the statements of M.M., who accused him of defiling her; - the statements of witnesses, including the father of the child who caught him red-handed; - the birth certificate of M.M indicates that she was defiled when she was seventeen (17) years old, therefore the statement of Nyandwi Innocent that he defiled after they mutually consented and she was adult, cannot be considered as it contradicts with that certificate. However, it found that the fact that Nyandwi Innocent easily pleaded guilty, from the investigation, should be a mitigating circumstance, and it ruled that he is convicted of the crime of child defilement, sentenced him to twenty (20) years of imprisonment.

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Nyandwi Innocent appealed to the High Court, Chamber of Rusizi, submitting that he was sentenced to severe penalties despite he pleaded guilty.

The Prosecution raised the objection related to the inadmissibility of his appeal because it was filed after the time limit provided for by the Law, due to the fact that the appealed judgment was decided on 27/05/2021, and he prepared the court submissions on July 28, 2021, and he submitted them to the Court on August 2, 2021, he delayed to lodge appeal as he should have filed not later than May 26, 2021.

With regard to this objection, Nyandwi Innocent stated that the delay in filing appeal was due to the Covid situation and lockdown as he was notified of the case on 26/07/2021 and appealed on 28/07/2021, upon arrival in the correctional facility, he was able to lodge appeal.

The Court rendered the judgment RPA 00327/2021/HC/RSZ on 09/11/2023, it held that: - the judgment against which Nyandwi Innocent appealed was heard in person, he was notified that it would be pronounced on 27/05/2021, he appealed on 28/07/2021, about two (2) months later, that is, after the 30-day period provided for by law, and as provided for by the court legal position set by the Supreme Court1, a party who was present or represented when the case was adjudicated, a person who was notified of the date of the decision and did not appear or send a representative, must appeal

1 It based on the judgment RPA 0022/14/CS decided on 23/03/2018

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within a period not exceeding thirty (30) days from the date the case was decided; - the statement of Nyandwi Innocent that the time limit should be calculated from the date he was notified of the judgment on 26/07/2021 contradicts with the position set in the judgment mentioned above; - his statement that he delayed to file appeal due to being placed in quarantine and lockdown, is not evidenced, and it is evident that during the COVID- 19 pandemic, the job was electronically performed. Therefore, it holds that his appeal is not admitted as it was filed after the time limit provided for by law.

Nyandwi Innocent filed a second appeal in the Court of Appeal, the case was registered under no RPAA 00477/2023/CA, the hearing was fixed on 04/06/2024, on that day the hearing was held, he was assisted by Counsel Ntazika Néhémie, the Prosecution was represented by Ninahazwa Roselyne, the National Prosecutor.

In his appeal submissions and pleading, Nyandwi Innocent and his counsel argue that the High Court dismissed his appeal, disregarding the fact that the appealed case was decided while he was in the police custody due to the COVID-19 pandemic, and that he was able to appeal upon arrival in the correctional facility; that if the Court finds that his appeal would have been admitted, the case should have been transferred to the High Court, Chamber of Rusizi, for beaing heard on the merits.

The Prosecutor also argues that the appeal of Nyandwi Innocent would have been admitted, because he was tried being

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in the police custody due to the Covid situation in the Country, and he would not have had the opportunity to appeal; therefore, his case should be transferred to the High Court, Chamber of Rusizi for beaing heard on the merits.

The debate in this case is based on whether the appeal of Nyandwi Innocent should have been admitted by the High Court. II. ANALYSIS OF THE LEGAL ISSUE i. Determine whether the appeal filed by Nyandwi Innocent should have been admitted to the High Court, Chamber of Rusizi

Nyandwi Innocent and his counsel argue that the High Court dismissed his appeal because he filed it after the time limit for the appeal provided for by law, disregarding the fact that it was due to the unavoidable reason of the COVID-19 pandemic, because at the first instance he was in the police custody while the case was being heard because they refused to let him go to where others were in order to prevent the pandemic, that he was notified of the decision of the judgment on 12/07/2021 and he appealed on 28/07/2021, that therefore his appeal should have been admitted and considered, that since this had not been done, the case should be transferred to the High Court, Chamber of Rusizi, to be heard.

The Prosecutor states that the case file of Nyandwi Innocent indicates that he appeared at the first instance on 26/04/2021 while he was in the police custody, the judgment was pronounced on 27/05/2021 while he was still in the police custody due to the exceptional circumstances caused by COVID-

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19, which delayed the transfer of detainees to correctional facilities to prevent the infection of others, and they learned about the decisions of their cases upon arrival in the correctional facility and the case file indicates that Nyandwi Innocent arrived there on 08/07/2021, therefore, due to these exceptional circumstances, the time limits for appeal were calculated from the time he arrived in the correctional facility and therefore, based on the provisions of article 193 of Law n° 027/2019 of 19/09/2019 relating to the criminal procedure, the Court should declare that his appeal should have been admitted, dismiss the appealed case and his appeal be transferred to the High Court, Chamber of Rusizi, for being heard on the merits. DETERMINATION OF THE COURT

Article 181 of Law nº 027/2019 of 19/09/2019 relating to the criminal procedure provides that: “An appeal must be filed within a period of thirty (30) days from the pronouncement of the judgment with respect to a party that was present or represented at the pronouncement of the judgment. Such time limits also apply to a party duly notified of the date of judgment but fails to appear or to send a representative. An appeal is filed within a period of thirty (30) days from the date the judgment was notified to the party who was not present at the pronouncement’’.

Regarding the time limits for filing an appeal, the Supreme Court set a position in case no RPA 0022/14/CS, decided by the Supreme Court on 23/03/2018 between Prosecution and Bogere Barige, which was upheld by other cases, including the case no RPAA 00055/2023/CA, decided on 22/03/2024 between Prosecution and Niyinizeye Pacifique, which states that a party who was present or represented when

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the judgment was pronounced, and a party who was duly notified of the date of the pronouncement of the judgment but fails to appear or send a representative, must file an appeal within 30 days from the date of the pronouncement of the judgment.

According to the case file, Nyandwi Innocent appeared in the Intermediate Court of Rusizi on 26/05/2021, and was informed that the judgment would be pronounced on 27/05/2021, and it was pronounced on that day. The case file also indicates that Nyandwi Innocent arrived at Rusizi Correctional facility (RCS arriving date) on 08/07/2021, meaning that the judgment against which he appealed to the High Court, Chamber of Rusizi, was pronounced while he was still in the police custody due to the COVID-19 pandemic, which forced the prisoners to remain in isolation in order to prevent the spread of the pandemic, according to the Prosecution, meaning that the High Court's statement that NYANDWI failed to provide evidence to justify that he was in isolation is contradicted with the contents of the case file, which states that he arrived at the correctional facility on 08/07/2021.

In accordance with the provisions of article 181 of Law no 027/2019 of 19/09/2019 mentioned above and upheld by the position set in the case mentioned above, the time limits for appeal for Nyandwi Innocent should have been calculated from 27/05/2021 due to the fact that he was notified of the pronouncement date even though he could not appear on that day, the Court finds that since the case was pronounced while he was in the police custody, it is clear that he could not have appealed, because, based on the structure of the system (IECMS), the judgments concerning detained suspects are communicated to the correctional facilities where they are detained. The correctional

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facilities’administration is then responsible for notifying the concerned individuals and assisting them in filing their appeals through this electronic system, because, although the High Court held that the technology was used at that time, it did not explain how a person who was in the police custody could use this technology to learn about his/her case and appeal.

The Court therefore finds that the fact that the case of Nyandwi Innocent was tried at the first instance while he was still in the police custody due to the circumstances faced by the Country caused by the COVID-19 pandemic, means that he could not be aware of the judgment ruling for filing appeal, rather upon his arrival in the correctional facility on 08/07/2021, he could be informed of the judgment decision, meaning that the time limits for filing appeal should be calculated from that day, therefore the fact that he wrote the appeal letter on 28/7/2021, he respected the 30-day period provided for by the law, because even though the correctional facility’s administration did not put a date on which they received his letter while it is within their responsibilities, it must be considered as if they received it on that day, meaning that his appeal should have been admitted and considered.

Regarding the fact that the Court should hear the appeal of Nyandwi Innocent, the Court finds that there is no debate because the parties agree that the case should be transferred to the High Court, Chamber of Rusizi, such is also consistent with the provisions of the paragraph one of article 193 of the Law n° 027/2019 of 19/09/2019 relating to the criminal procedure2, and

2 If the appellate court finds that the case was filed through procedures that comply with the law and the court that tried it at first instance declared that the case was not admitted when it was admissible, the appellate court admits the case and indicates that the case would have been admitted at first instance;

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it is also consistent with the decisions taken in other cases involving a similar issue, such as the case n° RPAA 00020/2022/CA decided by the Court of Appeal on 05/01/2023 between the Prosecution and Kabayiza Sylver, whereby, after finding that his appeal should have been admitted in the High Court, Chamber of Rwamagana, it declared that the judgment rendered by the same Court dismissing such appeal was quashed, and that his appeal should be transferred to that Court for being heard on the merits.

Based on the above explanations, the Court finds that the appeal of Nyandwi Innocent should have been admitted by the High Court, Chamber of Rusizi, and therefore the appealed case should be quashed, and the claim of appeal he had filed, should be transferred to that Court for hearing on the merits. III. DECISION OF THE COURT

Holds that the appeal of Nyandwi Innocent is founded;

Holds that the appeal filed in the High Court, Chamber of Rusizi should have been admitted;

Holds that the judgment nº RPA 00327/2021/HC/RSZ decided by the High Court, Chamber of Rusizi on 09/11/2023, is quashed;

Holds that the case file shall be transferred to the High Court, Chamber of Rusizi for hearing the appeal that Nyandwi Innocent had already filed;

annuls it and transfers it to the court that tried it in order to be heard on merits with no any other payment of court fees”

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Holds that the court fee is borne to the Public Treasury.