umuhoza v rwanda application no 0032014 2017 afchpr 13 24 november 2017

AF'mUrtrAli[ itnillON UIIISN-AF]RIaAilNE: #*ffi JtrIin uunfro AFRIGANn, AFRlGAltli e.O[JRr trN flrltltftflHp ANU PEO1PTLE6' mEIrrF$ 60uro a,pnilcn]irlE EtEs DRGttT;g DE: trltlpMthtE Em DEB FEUFu_EB, !N THE MATifrEM EF [NgfiHmrE xflc]rGrrttEE uridiuHoiEA V* REPUBUE 6F RSIANDA APiEI-tGaT[@ilti r0gt]Igort * inlrgG3MENF &fl iltrMlE[llEER:,00(F The Court composed ofl Sytvain ORE, President, Ben KIOKO, Vice-president; Gdrard NIYUNGEKO, Augustino S. L. RAMADHANI, Duncan TAMBALA, El Hadji GUlssE, Raf6a Ben ACHouR, solomy B. BossA: Judges; and Robert ENo, Registrar. ln the Mattero;f: INGABIRE VICTOIRE UMUHOZA Represented by: a) Advocate Gatera GASHABANA Counsel b) Dr. Caroline BUISMAN Counsel V REPUBLIC OF RWANDA Represented by: Mr. Rubango Kayihura EPIMAQUE Senior State Attorney After deliberation, delivers the following Judgment: I. THE PARTIES 1- The Application is filed by lngabire Viotoire Umuhoza (hereinafter refened to as "the Applieant'), pursuant to Arlicles 5 (3) and 34 (6) of the Protocol to the African Charter on Human and Peoples' Rights on the Establishment of an Atican Court on Human and Peoples' Rights (hereinafter referred to as *the Frotocol,). 2. The Application is filed against the Republic of Rwanda (hereinafter refened to as "the Respondent state"). The latter became a Party to the African charter on Human and Peoples' Rights (hereinafter reterred to as "the Charter") on 21 Ootober, 1986, to the Protocol on25 May, 2004, and to the lnternationalCovenant L t^ "UG | {.-- on Civil and Political Rights (hereinafter refened to as "the ICCPR') on 23 March, 1976.|t filed the Declaration under Article 34 (6) of the Protocol on 22 January, ?013, and on 29 February, 2016, notified the African union commission of its intention to withdraw the said Declarationt. II. SUBJECT OF THE APPLIGATION 3. The instant Application emanates from the Judgment of the High Court of Kigali in Criminal Case No. RP 0081-0110/1O/HC/K]G delivered on 30 October, 2012, and the Judgment of the Supreme Court of Rwanda in Criminal Appeal No. RpA 0255112, delivered on 13 December, 2013, The Apptication relates to the anest, detention and trial of the Applicant, on the basis of which she alleges violation of her human rights and fundamefitalfreedoms. A. The Facts of the Matter 4. On 3 October,2014, the Applicant seized the Courtwith the Apptication stating that when the genocide in Rwanda started in April 1994, she was in The Netherlands in furtherance of her universi$ education in Economics and Business Administration. 5' The Applicant submits that in 2000, she became the leader of a political party known as the Rassemb/ement Republicain pour la Ddmocratie au Rwanda (RDR) (the Republican Movement for Democracy in Rwanda). She states that a merger of this pafty and two other opposition parties (the ADR and the FRD) led to the creation of a new politicat party known as Forces Ddmocratiques Unifiees (FDU lnkingi), which she leads to date. 6' The Applicant avers that in 2010, after spending nearly seventeen (17) years abroad, she deoided to return to Rwanda, according to her, to contribute in nation building. Her priorities included the registration of the potitical party - FDU lnkingi, t See the Court's Ruling in this matter ol 3tdt 2016 of the Respondent's withdrawal of its Declaration made pursuant to Article 34(6) of the protocol. 2 !^ /Vtr I d. @- ,-.t) in compliance with Rwandan law on political parties, which would have enabled her to popularise the political party at the national level with a view to future elections. 7. The Applicant contends that she did not attain this objective beeause from 10 February,2010, charges were brought against her by the judioial police, the prosecutor and the tribunals of the Respondent State^ 8, The Applicant further maintains that on 21 April, 2010, she was remanded in custody by the police, charged with complicity in terrorism and the ideology of genooide. Later, before the High Court, she alleges that she was charged with having committed the following: 'a. The crime of fpropagation of] ideology of genocide, an offence punishable,under Law No. 18/2008 of 23 July, 2008, on the punishment of the ideotogy of genocide; b' Aiding and abefting tenorism, an offence punishable underLaw No. 4El2008 o g September, 2008, on the punishment of the offence 0f terrorism; c. Seetarianism and divisisnlsm, an offence punishable undEr Law No. 4712001 of 1g December, 2001 ; sectarianism and divisionism: d. Undermining the intemal security of the State, spreading of rumours likely to incite the populalion against political authorities and mount citizens agalnst one another, punishable under Law No.21177 of 18 Ar.qust, 1997, instituting the penal Code; e' Establishing an armed branch of a rebel movement, an offence punishable unrlerAdicle 163 of Law No. 21177 of 1 8 August, 1 gg7, instituting the penal Codel and f. Attempted llecourse tQ terrorism, force of arms and such other forms of violenceto destabilize established authority and violate constitutionalprinciples, all offences punishable underArticles 21,22,24 and 164 of Law No. 2117T ol t6 August, 19g7, instituting the penal code,. B. Alleged Violations 9. On the basis of the foregoing, in the proceedings and the trial of her case before domestic Coutts, the Applicant alleges violation of some provisions of the following instruments: "a, Articles 1,7,10,1i, 18 and 19 of the universal Declaration of Hrrman Rights; b. Articles 3, 7 and g of the Charter; and c. Articles 7 , 14,, 15, 18 and 19 of the lCCpR,. 3 l^ NF | 1- @- --_) III. PROCEDURE AT NATIONAL LEVEL AS PRESENTED BY THE APPLICANT i. Pre-trial investigations 10. The Applicant avers that on 10 February, 2010, she received a summons requiring her to appear before a judicial police officer at the Criminal tnvestigation Department (ClD). According to her, she was accused of committing the offence of aiding and abefting terrorism, punishable under Article 12 of Law No. 45/2009 of 9 September, 2008, on the punishment of the offence sf terrorism. She states that the allegations were "exclusively based on contacts she is said to have had with some defectors of the Forces Ddmocratiques de Libdration du Rwanda (FDLR), with a view to establishing an armed branch of the political party called Forces Ddmocratiques Unififles, of which she is President". She further submits that she was also charged with "spreading the ideology of genooide, sectarianism and divisionism". 1 1. According to the Applicant, she was arrested on 21 April, 2010, and remanded in custody, and then brought before a Judge at the Gasabo High court .to adduce the means of her defence following a complaint filed by the legat body attached to thet Court, in which the said legal department demanded her remand in cr.rstody, on the grounds of alleged serious, grave and consistent indications of guilt, which could mean that the Applicanl committed the offence of aiding and abetting terrorism and the ideology of genocide as outlined above'. 12,The Applicant further indicates that during the Public Hearing an22 April, Z010, the Gasabo High Court issued a judicial interim release order with ceftain conditions, such as withholding of her passport, prohibition from leaving the city of Kigaliwithout authorisation, reporting two times a month obligatorily to the Organe Nationale des Poursuites Judicrares - National Prosecution Department (ONpJ). However, on 14 october, 2010, she was re-arrested, taken to the clD Headquarters and was again charged with terrorist acts, an offence punishable under Article 12 of Law No. 4Sl2008 of g September, 200g. 4 lt $; t-- ,-) 13. The Respondent did not contest the facts presented by the Applicant. ii. Proceedings before the High Gourt l4.According to the Applicant, she was anaigned before the High Court on the charges enumerated in paragraph I above, adding that "by an order of the President of the High Court, the matter was set down to be heard on 16 May 201 1. On the day of the hearing, the matter was joined with the case 'tfie Sfafe of Rwanda v. Nditurende Tharcisse, Kanlfa JM Vinney and Habiyaremye Noel, and the new matter acljourned for 20 June, 2011'. 15. The Applicant submits that on 20 June, 2011 , the matter was again adjourned to 5 September,20l1, and on the same day, she deplored the "various acts of violation perpetrated against her, sueh as systematic body search, by the security services'. According to her, "this situation was vehemently protested before the High Court which, through a pre-trial order, dEemed that the said security services had the letitude to carry out body search operations on anyone found in the courtroom, including the Counsel for the defence." 16.The Applicant claims that this decision of the High Court was appealed against, however. "in accordance with relevant Rwandese [aw, the qBpeal could be considered only after a final ruling on the merits of the main matter". 17. The Applicant avers that on 26 September, 201 1, in limine lifis. she raised "many objections to admitting that decision based on the fact that the indictment order was issued in violation of certain principles, such as the legality of crimes and penalties, nonrretroactivity, lack of jurisdiction, etc." The Applicant claims that on 27 September, 2011, she sent a letter to the President of the High Court, with copies to the President of the Supreme Court, the Attorney General and the President of the Bar Association, to inform "all these institutions oR how serious the situation was". lS.According to the Applicant, "by a pre-trial order issued on 13 October, 2011, the High Qourt systematically threw out all the objections and petitions". She avers that 5 A \ /- {)d- ,Nb (') \ L' ,'-) @- "from thal moment, the bench went ahead tq examine the merits of the rnatter, taking into aecount only the submissions of the prosecution and those of the accuqed pereons who had opted to plead guilty. Each time the defence attempted to question the accused persons to prove that their statements wer€ contrary to the truth and condemn their collusion w1h the Off,ce of the State Prosecutor and security services, the defence was called to order by the presiding judge, who in actual fact was actlng not as a judge but rather as a prosecution body. It is in this climate of mistrust and suspicion that Habimana Miqhel, a prosecution witness, was heard". 19. Still according to the Applicanl 'through a direct summons to a witness introduced at the behest of the Registrar-in-Chief of the High Court, a certain Habimana Michel was requested to appear before the Court sitting to examine a criminal matter at the public hearing of 11 April, 2A12, as prosecution witness". Counsel for the Applicant were able to put questions to the witness to obtain clarification, and according to the Applicant -to all these questions, the witness provided clear, conoise and precise answers, thus putting into question the very basis of the charges, showing in broad daylight all the farce and scenario that had been orohestrated based on false statements by the accused, Uwumuremyi Vital, working in connivance with the Office of the State prosecutgr and various services'. 20, The Appllcant claims that realising that its strategy hitherto based on statements made by the accused persons, Uwumuremyi Vital, Nditurende Tharcisse and Karuta J M Vianney, had been undermined by the witness, the prosecutor seized by panic, .started intimidating the witness by using subterfuge and intimidation manoeuvres". She alleges that "'without the knowledge of the bench and the defence, the State prosecutor ordered prison services to carry out a search on all the personal effects of the witness in his absence' [n the evening of 1 1 April, 2012, he was intenogated on the testirnony he made in Court'. 21. According to the Applicant, during the public hearing of 12 April, 2012 "the proseoution used such elearly illegal investigation to claim to have discovered reportedly comprornising documents against the defence... Upon analysing the content of the report, it was found that (i) the interrogation was held outside applicable legat 6 l^ l{' ile ,-) @- hours. (ii) the wttness was not aesisted by a counsel of his choice; (iii) the intepogation dwelt on statements rfiade by the witness in the morning before the court,. 22. Still according to the Applicant " the defence tried in vain to protest before the High Court against such practices, but was each time insulted and rudely intenupted by the presiding judge. Such acts have considerably undermined the fairhial nature of the trial and contributed to the Applioanfs decision to quit the trial,, 23'The Applicant stated that on 30 Octsber, 2012, the High Court delivered a judgment on the matter in which it " (i) admits the case submitted hy the O4gane Nattonale des poursuftes Judrblares and rules it partially founded ...(ii) rules in law that lngabire Victoire Umuhoza is guitty of rhe offences of eonspiracy to undermine established authority and vislate constitutional prjnciples by resorting to tenorism and armed force which are punlshable under Law llo. 2111977 instituting the Penal Code. lt further rules that Ms. lnEabire Victoire Umuhoza is guilty sf the offence of minimization of the genocide, an offence punishabte under Article 4 of Law No. 6/09/2003 on the punishment of genocide. crime against humanity and war crimes; (ili) sentences her on this csunt to I years of imprisonment with hard labouC'. 24. The Applicant asserts that in its judgment, the High Court indicated that the appeat "must be done in a period of 30 days following the sentencing,. 25' The Court notes that the Respondent State did not oontest the facts presented by the Applieant. c. Petition on unconstitutionality before the supreme court 26' While the matter was still pending before the l-ligh Court, the Applicant on 16 May, 2012, filed an application before the Supreme Court sitting in Constitutional Matters, seeking annulment of Artioles 2 to g of Law No. 1g/200g of 23 July, 200g, repressing the crime of genocide ideotogy and Artiole 4 of Law No. 33,bis/p003 of 6 September, 2003, punishing the crime of genocide, uimes against humanity ancl war crimes, on grounds of incompatibility with Articles 20, 33 and 34 of the Constitution of the Republic of Rwanda of 4 June, 2003, as amended and updated. 2T.According to the Appticant, "the aforementioned logal provieions havc been formulated in unintelligible and ambiguous terms llkely to generate confusion and arbitrary decision, to the point of immensely infringing the fundarnental human rights of individuals as enshrined in the Consfilution, especially with regard to freedom of expression in relation to the genocide whioh took place 7 l^ ll' -NG @- --) ih Rwanda. Furthermqre, the said legal provisions lend themselves to several interpretations'. 28.|n its Judgment of 18 October, 2012, the Supreme Court (i) "declares inadmissible lhe application flled by lngabire Victoire seeking annulment of Article 4 of Law No. 35 bis/2009 of 6 september, 2003, punishing the crime of genoclde ideology, crimes against humanity and war crimes, as unfounded; (ii) dectares inadmissible the reguesl filed by lngabire Mctoire seeking annulment of Artioles 4 to g of Law No. 18/2008 of 23 July, 2008, repressing the crime qf genocide ideology, as groundless; and (iii) however, declares admissible the application filed by lngabire Victoire seeking annulment of Artictes 2 and 3 of Law No. 18/2009 of July, 2009, supressing the crime of genocide ideology, but declar:es the application groundless',. D. Appeal before the $upreme'Court 29. Following the High Court judgment of 30 Ootober,2A12, both the Prosecution and the Applicant appealed before the Supreme Court of Rwanda, 30. The Frosecutlon argued on appeal, inter alia, that (i) it was not satisfied with the faot that the Applieant was not eonvicted of the crime of creating an armed group with the intent to carry out an armed attack, (ii) that the Applicant was acquitted of the offence of intentionally spreading rumours with the intent to incite the population against the existing authorities by disregardlng the legislation in force at the time; and (iii) that the sentence the Applicant received on the crimes of which she was convioted was extremely reduced given the g,ravity of the crimes at issue. 31, For her part, the Applicant submitted on appeal that the High court had disregarded the preliminary issues raised by her counsel, that the triat prooeedings had not respected the basic principles of fair trial and that she was even convicted for crimes she had not committed, 32. According to Applicant, in its judgment of 13 Decemb er, 2013, the Supreme Court ruled that she 'has been found guilty of conspiracy to undermine the Government and the Constitution, through acts of terrorism, war or other violent means, of downplaying genocide, and of spreading rumours with the intent to iniite the population against the existing authorities". She was sentenced to 15 years imprisonment by the Supreme Court. 33. The Court notes that the Respondent Stat€ did not contest the facts present€d by the Applicant. 8 l' "N | {, C @. ,-t) IV. PROCEDURE BEFORE THE GOURT 34, By a lefter dated 3 October, 2014, the Applioant seized the Court with the present Application through her Counsel, and the Application was served on the Respondent State by letter dated 19 November,2014, given 50 days within which to file its Response. 35, By a letter dated 6 February, 2015, the Registry,, pursuant to Rute 35(2) and (3) of the Rules of Court (hereinafter refened to as "the Rules'), transmitted the Application to the Chairperson of the African Union Commission (AUC) and, through her, to the Executive Council of the African Union, as well as to all the other States Parties to the Protocol. 36. By a letter dated 23 January, 2015, the Respondent State fonnrarded to the Court its Response to the Application" 37. By a letler dated g June, 2015, the National Commission for the Fight against Genocide of Rwanda applied to the Court for leave to appear as amicus curiae in the Application, and on 10 July, 201S, the Court granted the request, 38. By a letter dated 6 April, 2015, the Applicant filed her Reply to the Respondent's Response. 39.On 7 October,2015, at its 38th Ordinary Session, the Court ordered the Respondent State to fumish some relevant documentation, The Respondent did not do so, 40. By a letter dated 4 January, 2016, the Registry notified the Parties of the public Hearing set down for 4 March, 2016. 41.8y a letter dated 1 March, 2016, the Respondent State notified the Court of its deposit of an instrument of withdrawal of its Declaration made pursuant to Article 34(6) of the Protocol, The Respondent State in its letter contended that after I t^ A ,yc b- | ['' e '--) @- deposition of the same, the Court should suspend hearings involving the Republic of Rwanda until review is made to the Declaration and the Court is notified in due course^ 42.8y a letter dated 3 March, 201A, the Legal Counsel of the AUC notified the Court olt the submission of the Respondent State's instrument of witlrdrawal of its Declaration rnade under Article 34(6) of the Protocol, whioh was received at the AUC on 29 February, 2016. 43-. At the Public Hearing of 4 March, 2016, the Applicant was represented by Advocate Gatera Gashabana and Dr. Caroline Buisman. The Respondent State dld not appear, The Court heard the representatives of the Applieant on procedural matters in which they requested the Court to: "a. Reject the amlcus ,curiae brief submitted by the National Commission for the Fight against Genoeide; b. Order the Respondent State to facllitate access to the Apptioant by her representatives; c' Order the Respondent State to facilitate aooess to video conferencing technology for the Applicant to follow the proceedings of the Court and d. Order the Respondent SGte to comply with the Court's order of 7 October, 2018, ts flle pettinent documents". 44.ln an order issued on 18 March, 2016, the court decided as follows: "a. That Parties file written submissions on the effect of the Respondent's withdrawal of its Declaratisn made under Article 3a(6) of the Court Protocol, within fifleen (15) days oJ receipt of this Order. b' That its ruling on the effect of the Respondent's withdrawal of its Dectaration under Article 34(6) of the Court Pr:otocol shall be handed down at a date to be dUIy notified to the parties. c, That the Applicant file wriften submissions on the procedural matters stated in paragraph 14 above, within flfteen (1S) ctays of receipt of this Order,', 45'On 3 June,2016, the Court delivered a Ruling on the Respondent State's withdrawal of its Declaration made pursuant to Article 34(6) of the Protocol. ln that 10 l^ )JE | f,'-' .-.-) @- Ruling, as amended on 5 September 2016, the Court decided, among other things, -the thal withdrawal of its declaration by the Respondent State has no effect on the instant Application and that the Court has jurisdiction ts continue hear:ing the Application". 46. On 22 March, 2017, a Public Hearing was held to receive arguments on jurisdiction, adrnissibility and the merits. The Applicant was represented by Advocate Gatera Gashabana and Dr. Carollne Buisman. The Respondent State did not appear. 47. During the public hearing, the Judges posed questions to the Applicant,s representatives to whieh the latter provided answers. V. PRAYERS OF TI{E PARTIES 48. The Applieant prays the Court to: 'a. Repeal, with retroactiVe effecl, sestions '116 and 483 of Organic Law N. Ollz}llof 2 May, 2012, retating to the Penal Code as,wellas that of Law N" E4/2013 of 28 October, 2013, relating to the punishment of the crime of icteology of the Genocide; b. Order the review of the Caee; c' Annulment of all the deeisions that had been taken since the preliminary investigation up till the pronouncement of the last judgment; d. Order:the Applicant's release on parole;and e, Payrnent of costs and reparationsp, 49.The Applicant reiterated these prayers during the Public Hearing of ZZ Mar:ch. 2017 50. ln its Response to the application, the Respondent State prays the Court to 'a. Declare the Apprication vexatious, fivorous and without merit; and b. Dismiss the Applicafion with costo. VI. JURISDTCTION 51,|n accordance with Rule 39(1) of its Rules, the Court shall conduct a pr.eliminary examination of its jurisdiction, before dealing with the merits of the Application. 11 4ff; | 1-- @- f) A. Objection to the Materia! jurisdiction of the Court 52. The Respondent State contends that the Applicant has seized this Court as an appellate Court by reouesting the latter to reverse or quash the decisions of the Respondent State's courts, and to replace the Respondent State's legislative and judicial institutions. According to the Respondent, "..^the African Court is neither a Court of Appeal nor a legislative body which can nullifiT or reform court decisions and make national legislation in lieu of national legislative Assemblies". The Respondent State submits in this regard that an "application requesting the Court to take such action should be dismissed'. 53.ln her Reply to the Respondent State's Response, the Applicant submits that the Respondent State's argument is at variance with all evidence and cannot resist the slightest bit of serious analysis. She substantiates by indicating that theApplication mentions "the legal instruments of human rights duly ratlfied by the State of Rwanda which have suffered various violations in the course of proceedings or simply ignored". She reiterates that 'lt is clearthat this Court was not seized as an appellate jurisdiction as wrongly claimed by the Respondent, but rather as a court responsible for adjudicating disputes resulting from multiple human rights violations that considerably undermine the case beh^,een the Applicant and the National Public Prosecution Authority hefore the High Court and Supreme Court, respectively". 54^ This Court reiterates its position as affirmed in Emest Francis Mtingwi v. Republic of MalawP, that it is not an appeal court with respect ts decisions rendered by nationalcouils. However, as itunderscored in its Judgment of 20 November, ZOlS, in Alex Thomas v. United Republic of Tanzania, and confirmed in its Judgment of 3 June, 2016, in Mohamed A:bubakariv. lJnlted Repuhttc of Tanzania, this situation does not preclude it from examining whether the procedureo before national courts z-Application No. 001/2013. Decision on Jurisdiction 1513t2013, Emest Francis Mflngwiv Republlc of Malawi, paragraph 14. 12 \ )gb d.-' ) @-' ')- '--' '-- L--/ are in accordance with international standards set out in the Charter or other applicable human rights instruments to which the Respondent State is a party.g 55- Consequently, the Court rejects the Respondent State's objection that the Court is acting in the instant matter as an appellate Court and finds that it has material jurisdiction to hear the matter. 56. Furthermore, regarding its material jurisdiction, the Court notes that since the Applicant alleges violations of provisions of some of the international instruments to which the Respondent State is a party, it has materialjurisdiction in accordance with Article 3(1) of the Protocol, which provides that the jurisdiction of the Court "shall extend to all cases and disputes submitted to it concerning the interpretation and application of the Charter, this Protocol and any other relevant Human Rights instrument ratified by the States concemed", B. Other aspects of jurisdlction 57, The Court notes that its personal, temporal and territorial jrlrisdictions have not been contested by the Respondent $tate, and nothing in the pleadings lndicate that the court does not have jurisdiction. The court thus holds that: (i) it has jurisdiction ratlane personae given that the Respondent State is a party to the Protocol and depos-ited the declaration required under Article 34 (6) thereof, which enabled the Applicant to access the Court in terms of Article S(B) of the Protocol; (ii) it has jurisdiction ratione temporis in terms of the fact that the alleged violations are continuous in nature since the Applicant remains convicted on the basis of what she considers as unfair process; (iii) it has jurisdiction ratione /oci given that the facts of the matter occurred in the territory of a State Party to the pr:otocol, that is, the Respondent State. 58, From the foregoing, the Court finds that it has jurisdiction to hear the instant case. 2, Ernest Francis Mtingwi v. The Republic of Malawi, judgment of 15 March 2013, para. .14.3 Alex Thomas v' The United Republic of Tanzania, judgment otf ig wovember: 20'tE, para. i5o; Apptication, Mohamed Abubakari v Unrted Repubtic ot tanzaiia, of tJu;; 2016, Judgment ffi;ril rd. 13 l^ l{' r4c ,r-) @- VII. ADIYIISSIBILITY 59. Pursuant to Rule 39(1) of the Rules, 'the Court shall conduct a preliminary examination of ... admissibility of the Applicatlon in aceordance with Articles 50 and 56 of the Charter and Rule 40 of these Rules'. 60. Rule 40 of the Rules, which in substance restates the provisions of Article 56 of the Charter, provides as follows: "Pursuant to the provisions of Article 56 oJ the Charter to whieh Article 6(2) of the Protocol refers, Applications lo the oourt shall comply with the following conditions: 1, Diselose the identity of the Applicant notwithstanding the latter's request for anonymity; 2. Comply with the Constitutive Act of th€ Union and the Charter; 3. Not contain any disparaging or insulting language; 4. Not be based exclusively on news disseminated through the mass media; 5' Be filed after exhausting local remedles, 'if any, unless it is o vious that the procedure is unduly prolonged; 6. Be filed within a reasonable time frorn the date local remedies were exhausted or from the date set by the Court as being the commencement of the time limit within which it shall be seized with the matter;and V. Not raise any matter or issues previously seftled by the parties in accordance with the principles of the Charter of the United Nations, fhe Constitutive Act of the African Union, the provisions of the Charter or of any legal instrument of the African Union., 61. While some of the above conditions are not in dispute between the Parties, the Respondent State raises an objection relating to the alleged failure by the Applicant to exhaust local remedies, pursuant to Article 56 (5) of the Charter and Rule 40 (S) of the Rules. A. Obiection relating to non-compliance with Artiole 56 (5) of the Charter and Rule 40 (5) ot the Rules. 62. The Respondent State contends that the Applicant failed to seize the Supreme Court sitting in constitutional matters to challenge the provisions of Rwandan laws that she alleges to be inconsistent with the Charter and other relevant international instruments. The Respondent State contends that the Applicant is challenging the conformity of Law No. 33 b,b of 6 September, 2003, on the punishment of genooide, t4 ll \,- {ll-tr /Yb- e @- crimes against humanity and war crimes and that the Gonstitution of {re Respondent State empowers the Supreme Court to hear petitions aimed at reviewing laws that are inconsistent with the Constitution. 63' The Respondent State further contends that in terms of Articte 145(3) of the Constitution of Rwanda of 3 June, 2003, 'the Supreme Court has jurisdiction and the responsibility to hear petitions aimed at reviewing adopted laws that are inconsistent with the Constitution', and Article 53 of Organic Law N" OS:ZOIZ]OL of 13 June, 2012, determining the organization, functioning and jurisdietion of the Supreme Court, gives the Court, upon petition by any applicant, jurisdiction to "partially or completely repeal any Organic Law or Decree-Law for reasons of non- conformity with the Constitution". 64' The Respondent State further submits that sinee the Applicant alleges that Law No. 33 bts of 6 September, 2003, is inconsistent with the Constitution, "she must therefore exhaust the local remedies available for that purpose: this, by filing an application before the Supreme Court sitting in Constitutional Matters..." The Respondent State adds that "having failed to do so, makes the apptication inadmissible due to non-compliance with Article 56(5) [of the Charter] and Rule 40 of the Rules of Csurt", 65. The Respondent State avers further that the Applicant failed to seize competent courts to apply for judicial review of the deoisions against her. According to the Respondent State, Article 78 of the Organic Law No. 03/2012/OL of 1StO6t2O1Z, provides that the Supreme Court shall have exclusive jurisdiction over applications for review of final decisions due to injustice, and Arlicle S1(Z) provides that the grounds for an application for review due to injustice, which include, notably, the review of a Court decision in disfavour of anyone for injustice, especially when there are provisions in this regard and irrefutable evidence that the judge ignored in rendering the judgmenl The Respondent State submits that "by failing to make an application for the Supreme Court to review the decision that she considers uniust, the Applicant has failed to satisfy the requirement set forth in Article 56 of the Charter and Rule 40 of the Rules", and invites the Court to declare the application inadmissibJe. 15 tt* G- lJ? ) 66. The Applicant submits that the Respondent State's courts are not empowered to hear disputes concerning interpretation and application of the Charter, the Protocol and other human rights instruments. According to the Applicant, "Rwandan positive law has never put in place special courts or tribunals competent to adjudicate human rights issues", The Applicant concludes in this regard that "in the absence of Rwandan courts and tribunals competent to hear cases and disputes concerning the interpretation and implementation of the Charter, the Protocol and any other human rights instrument', the submission regarding the Applicant's breach of Article 56(5) of the Charter and Rule 40(5) of the Rules are devoid of any legal basis, and the objection must therefore be found "groundless". 67. On the Respondent State's submission that the Applicant failed to challenge the constitutionality of Law No, 33 b-t's of 6 September, 2003, before the Supreme Court, the Applicant's Gounsel contends that "she filed before the Supreme Court a Motion to challenge the constitutionality of Law No. 33 bis of 6 September, 2003, punishing the crime of genocide, crime against humanity and war crimes". To corroborate her argument, she adds that "the case was entered on the cause list as No. RINST/PENrcA?|12ICS, examined and pleaded before the Supreme Court for a ruling on the merits of the said Motion in open court on 19 July, 2012'. The Applicant concludes that "in its open court hearing of 10 October,2012, the Supreme Court dismissed the Motion, having found it groundless", and according to the Supreme Court, "Law No. 33 bis of 6 September 2003,.. is clearly consistent with the Constitution". 68. On the submission that the Applicant failed to avail herself of the of judicial review remedy, the Applicant contents that "the action instituted for review of a finatjudicial decision on grounds of injustice does not respect the criteria of etfectiveness, accessibility, efficiency and other criteria as required b'y international jurisprudence', According to the Applicant, pursuant to Article 79 ol the Organic Law 03/2012 of June,2012, only the Office of the Ombudsman can petition the Supreme Court over applications for review, adding that the remedy of judicial review is subject to the discretion of the Office of the Ombudsman, the General 15 \/: ,--..) @- lnspectorate of Courts and the President of the Supreme Court, and that the remedy may be subject to undue prolongation, * 69. Regarding the appeal on unconstitutionality, this Court notes from the records before it that the Applicant did aoproach the Supreme Court of Rwanda. which is the highest court in the Respondent State, to challenge the constitutionality of Law No' 33 bis of 6 September, 2003, on the punishment of genocide, crimes against humanity and war crimes, and the Supreme Court handed down its decision on 1g October, 2012, finding the motion groundless. 70.|n relation to the application for review, this Court notes that under Article 81 of Organic Law 03/201? of June 2012, on the Organization, Functioning and Jurisdiction of the Supreme Court, applications for review may be heard onty on the following grounds: "1o when there is an unquestionable evidence of comrption, favouritism or nepotism that were relied upon in the judgment and that were unknown to the losing party during the course of the proceedings; 2' when there are provisions and irrefutable evidence that the judge ignored in rendering the judgment; 3" when the iudgment cannot be executed due to the drafiing of its content.,, 71'An examination of these grounds shows that the review remedy would not have been sufficient to redress the Applicant's complaints which concerned alleged substantive violation of the Applicant's human rights and not only allegations of bias or technical and procedural errors. Moreover, under Article 7g of Organic Law 0312012 of June, 2A12, which governs the Procedure for petitioning the Supreme court over applicatlons for review of a final decision due to injustice: .The office of the ombudsman shall be the competent organ to petition the Supreme Court over application for review of a final decisisn due to injustice. When, the flnal decision is made and there is evidence of injustice refened to under Articte g1 of this organic Law, parties to the case shall inform the Office of the Ombudsman of the matter. When the Office of the Ombudsman finds that there is no injustice in handing down the decision, it shall inform the 77 \ $tr f_./ td- -- --' ) \---- applicant. When the Office of the Ombudsman finds that the decislon handed down is unjust, it shatl send to the President of the Supreme Court a letter accompanied by a repori on the iesue and evidence of suoh injustice and request to re-adjudicate the case'. 72. lt emerges from the above provisions that the capacity to exercise the review remedy lies exclusively with the Ombudsman which, in this regard, uses its discretionary power. The assessment on whether there has or has not been injustiee rest with the Ombudsman. 73. Furthermore, in view of the circumstances of this case, an appfcation for review under the Rwandan legal system is an extraordinary remedy which woul not constitute an effective and efficient remedy, and which the Applicant did not have to exhaust.4 74' h light of the foregoing, the Court dismisses the Respondent Staters objection and finds that this Application fulfils the admissibility requirement under Article 56 (5) of the Charter and Rute 40 (S) of the Rutes^ B. Compliance with Rule 40(t), (2), (3), (4), (6) and (7) of the Rutes 75^The court notes that the issue of compliance with sub-rules 4o(1), (2), (3), (4), (6) and (7) is not in contention, and nothing in the Parties'submissions indicates that they have not been complied with. The Court therefore holds thatthe requirements under those provisions have been met. 76' ln light of the foregoing, the Court flnds that the instant Applioation fulfils a1 adrnissibility requirements in terms of Article 56 of the Charter and Rule 40 of the Rules, and aceordingly declares the same admissible. VIII. ON THE MERITS a See Alex Thomas v^ The United Republic sf Tanzania, Judgment of 2g Novomber 201b, paragraph 63. 18 A \ /- tZ-b- L-/ ) lE-- 77,fhe Applicant alleges violation of Articles 3,7,9 of the Charter, Anicles 7,14,15, 18 and 19 of the ICCPR. lt emerges from the case fite that the Applicant's allegation focuses on the rights to a fair trial, equality before the law and freedom of opinion and expression, 78.|t should be noted here that although in her Application, the Applicant alleges violation of Articles 3 of the Charter, and Articles 7 and 1B of the lCCPR, she did not pursue these allegations in the course of the proceedings, and the Gourt will accordingly not adjudicate on them. A, Right to a fair triat 79. The elements of the right to a fair trial as raised in the instant case are as follows: a) the right to presumption of innocence; b) the right to defence; c) the right to be tried by a neutral and impartial court; d) the principle of legality of crimes and penalties and non-retroactivity of criminal law, 1. The right to presumption of innocence 80. The Applicant submits that the Respondent State's allegations linked to the terrorist attacks that occurred in the city of Kigali were a pretext orchestrated by the proseoution to impute to the Applicant the offence of complicity in the terrorism on the basis of the confessions unlavufully obtained from her co-defendarits. According to the Applicant, the co-defendants were allegedly torced to testify against themselves and to plead guilty; and it is on the basis of these inegularities that the prosecution justified remanding her in oustody. The Applicant submits in conclusion that this act constitutes a violation of the principte of presumption of innocence. Sl.According to the Respondent State, the Applicant's accusations are unfounded because her trial was conducted wrth all the guarantees provided by law and in 19 \* g.-' --) accordance with intemational standards. lt avers that the Applicant was given the opportunity to appear in court, to be assisted by Counsel and in the end was lawfully convicted. The Respondent State concludes that the ,Applicant's right to presumption of innocence and therefore, her right to a fair trial, has not been violated. * 82. The Court notes that presumption of innocenoe is a fundamental human right. This right is enshrined in intemational instruments, notably, in Article 7(1) (b) of the Charter, which provides that: "Every indMdual shall have the right to have hls cause heard. This comprises: b) the rign-t to be presumed innocent until proved guilty by a compelent court or tribunal". 83. Article 14 (2l,of the ICCPR also provides for the same right in the following terms: "Everyone charged with a criminal oftence shall have the right to be presumed innocent until proved guilty according to law'1. 84. The essence of the right to presumption of innocence lies in its prescription that any suspect in a criminal trial is considered innocent throughout atl the phases of the proceedings, from preliminary investigation to the delivery of judgment. and until his guilt is legally established. 85.The Court finds, on the basis of the pleadings, that the Applicant has not adduced evidence to the effeot that her right to presumption of inno;cence has been violated. It therefore dismisses this allegation. 2. The right to defence 86, The Applicant submits that the Prosecution harassed the defence witness, Mr, Habimana Mi0hel, employing subterfuge and intimidation manoeuvres. She alleges that, unknown to the Judge and the defence, the Public Prosecutor ordered 20 tty @- -t) the prison services to search all the personal effects of the witness in his absence in the evening of 11 April, 2012. she alleges further that the witness was questioned over his testimony in court earlier that day. 87. The Applicant further submits that at the public hearing on 12 April, 2012, the prosecuting ar,rthorities used material obtained from the search to alege the discovery of compromising documents against her. She avers that the documents seized included a letter referenced 165/PR/2012 dated 11 April, 2}1l,sent by the Remera Prison Superintendent, together with a report on the hearing of the witness. 88. The Applicant further contends that analysis of the report indicated that the questioning took place outside the applicable legal hours; that the witness was not assisted by Counsel of her choice and that the interrogation focused on the statements made in court by the witness in the morning of that day. According to the Applicant, this was an attempt to intimidate the witness; and that through her counsel' she sought to protest such a practice during the trial but to no avail; on the contrary, they were each time thoroughly insulted and rudely intenupted b,y the President of the Court. 89.The Applicant also avers that there were "various abuses,,characterised by systematic searches of the Defence team by the security services, According to her, this security measure was not applied to the prosecution team, thus creating an unequal treatment. She contends that the judges of the High Court "systematically" prevented her team of counsel from speaking. She claims that the written and oral protests of the Defence at both the High Court and the Supreme Court were not heeded. According to the Applicant, all these facts, inter alia, constitute a violation of the right to fair tr.ial. 90.According to the Applicant, the acts of intimidation and the threats to which the Defence witness was subjected undermines the right to defence. She avers that one of the Judges instead stated that the Counsel should not have intervened in favour of a person who was not his client. she added that, following that incident, the President of the Sqpreme Court terminated the examination of the defence Wtness followed by the withdrawal of lngabire's trial. For the Applicant, this is a 27 il.xs t /'-' a b- @- '-t ) flagrant violation of her right to a fair trial, contrary to Artiole 7 of the Charter; Article 14 (1) of the lccPR and Article 10 of the universal Declaration. 9f.The Respondent State submits lhat the search of the Defence witness was conducted after the witness gave his oral and written testimony in Court. lt avers that it is a eomrnon practice for prison guards to search prisoners from time to time, and that the search of members of the Defence team was conducted as part of security measures, as there had been grenade attacks in Kigali before the trial. 92. The Respondent State also eubmits that the Applicant was assisted by a team of two lawyers of her choice, one of whom was an intemational lawyrer, throughout the proceedings, and that they had full latitude to organise her defence without hindrance. lt further submits that the trial lasted two years and, therefore, alt the parties had the fime needed for them to defend their cause. According to the Respondent State, the allegations of violation of the right to defence are unfounded. t 93.The Court nores thatArticle 7 (1) (c) of the charter provides that: "Every individual shall have the right to have his oause heard^ This comprises: I ..,.1 c) the right to defence, including the right to be defended by Counsel of his choioe',. 94.An essential aspect of the right to defence includes the right to call witnesses in oners defence. Witnesses in turn deserve proteotion from intimidation and reprisals to ensure that they can assist the acoused persons and the authorities to reach a just decision. 95.|n the instant case, the Csurt notes that the Appticant subrnits two main allegations relating to her right to defence: searches conducted on her Defence Counsel at the entrance of the High Court and secondly, the search of the Defenee witness at the prison. Based on the records, at the High Court after the Defence Counsel 22 l,tl- "Ntr (4- ,,) complained, the High Court ordered that the searches have ts be done on all parties, including the public for security reasons. 96. Regarding the search of prisoners and detainees, the Court notes that, this is a normal practice in prisons, Regarding the search to which Defence Counsel and the public were subjected to, it was part of security measures taken by the Court, given that grenade attacks had happened in Kigali before the Applicantts trial. ln both cases, consequently, the Court is of the view that the right ts defense of the Applicant was not contravened. 97. The Court however notes from the pleadings that the search conducted in prison resulted in the seizure of certain documents, without the knowledge of the Defence, documents which were allegedly later used against the Appticant before the High Court. Further:more, the Applicant complained about the Judges' refusal to allow her Counsel to put questions to the co-accused; the questioning and the threats to which the Defence witness was subjected to on account of his deposltion upon return to prison; the difficulties faced by the Counsel in visiting their client; the use of the co-accused's statements obtained in suspicious conditions after the latter's stay in a military camp, Ihe Respondent did not refute each of these allegations but made a generat denial that the allegations of violation of the right to defence are unfounded, 98. The Court further observes that the right to defence is not limited to the choice of Counsel. This right also includes principles such as access to witnesses, and opportunity for Counsel to express themselves, consult with their clients and to examine and cross-examine witnesses. The right to defence further includes the right to know and examine documents used against one's trial, ln the instant case, the diffieulty encountered by the Applicant's Defence Counsel in putting questions to the co-accused, the threats and environment of intimidation faced by the defence witness and the use of documents selzed during what the Applicant considers an illegal search, that was later used against her, without giving her the chance to examined it, are incompatible with international standards pertaining to the right to defence. The Court therefore holds that the Applicanfs right to defence in this regard was violated, contrary to Article Z (1) (c) of the Charter, 23 l)u ,Y{; I d' tg ,---) \:_--- 99.As regards the questioning of a witness by prison authorities over the testimony heishe has given in the High court, the Court notes that this is not a conduct consistent with standards that aim to promote a fair trial. Such aotions may have an intimidating effect on witnesses' willingness and disposition to cooperate and adduce evidence against the Respondent State. This is especially so forwitnesses in detention or already serving prison sentences. However, as the questioning happened after the witness had given testimony in Court, the Court concludes that in the circurnstances of the case, this did not violate the right to defence of the Applicant. 3. The right to be tried by a neutral and impartial tribunal 100, The Applicant contends that the fact that the Judges of the Supreme Court and the High Court did not react to the national prosecution authorities' intimidation of a Defence witness, in the person of one Habimana Miclrel, and also that the Court considers the said acts of intimidation as having had no impact on the content of the witness's testimony, is proof of their parttality. The Applicant further argues that, at the Supreme Court, her counsel mounted a strong protest denouncing the abuses and excesses of the prosecution authorities vis-d-vis a defence witness. 101. The Respondent submits that this allegation is unfounded, since according to the latter, all the guarantees provided by law have been observed. rf 102. The Court notes that the Charter in its Article 7 (1) (d) provides thail "Every individual shall have the right to have his cause heard. This oomprises (...)(d) the right to be tried .., by an impartial court or tribunal', 5 103. According to the African Commission's Principles and Guidelines on the Right to a Fair Trial and Legal Assistance in Africa, "the impartiality of a judicial body eould be determined on the basis of [the following] three relevant facts: s See also: Article 14 (1) of the ICCPR: "...All persons shall be equal before the courts and tribunals. ln the determination of any criminalcharge againsl him, or of his rights and obligations in a suit at law, everyone shall be entitled to a fair and public hearing by a competenl, independent and impartial tribunal established by law...".Article 10 of the UniversalDeclaration of Human Rights:"Everyone is entitled in full equality to a fair and public hearing by an independent and impartial tribunal, in ihe determination of his rights and obligations and of any criminal charge against him' 24 I'M | {- @- l-tt -, 1. that the position of the juoicial officer allows him or her to play a crucial role in the proceedings; 2' the judicial offioer may have expressed an opinion which would influence the decision-making ; 3. the judicial official would have to rule on an action taken in a prior capaoity,.6 104. The aforementioned Guidelines provide that the impartiality of a judicial body would be compromised when; "1. a former public prosecutor or legal representative slts as a judlcial officer in a case in which he or she prosecuted or represented a party; 2. a judicial official secrefly particiBated in the investigation of a case; 3a judieial ofiicial has some connection with the case or a party to the case; or 4. a judicial official qits as member of an appeal tribunal in a case which he or she decided or participated in a lower judicialbody,.z 105. ln the instant case, the evidence adduced by the Applicant does,not sufficienly demonstrate that any of the above factors existed in the course of her trial. ln the circumstances, the Court dismisses this allegation. 4' The principle of legality of crimes and punishment and non.retroactivity of criminal law 106. The Applicant submits that she was first charged and convicted for the crime of propagating the ideology of genocide under Law No. 18/2008 of 23 July, 2008- Subsequently, the Supreme Court found her guilty of minimising genooide, requalifying the acts under a new law, that is, Law No. g4/2013 on the r:epression of the ideology of the crime of genocide which entered into force on 28 October, 2013. According to her, the reference to this new law by the Supreme Court violates the principle of non-retroactivity of the law and the non- retroactive applicafion of the criminat punishment. 107 - The Respondent contends that the principle of legality of crimes and penatties as provided under Article 7 (2| of the Charter was fully respected during the trial. T.lbidom tty 25 u) @- For the Respondent, any Judge both at the High Court and the Supreme Court has the last word in terms of re-eharacterising an offence and applying the appropriate law, and thls does not amount to a violation of the principle of tegality and non- retroactivity of the law. * 108. The Court notes that the relevant provision for the issue at hand is Article 7 (2) of the Charter, which states that: "No one may be condemned for an act or omission whioh did not constitute a legally punishable offence at the time it was committed. No penalty may be inflicted for an offence for which no provision was made at the time it was committed..." 109. The non',retroactivity of criminailaw is an important rule intrinsic to the principle of legality, which stiptllates, among others, that criminal responsibility and punishment must be based only on the prior promulgation of laws which prohibit a particular conduct. The principle of legality requires that society is intormed of prohibited behaviour before the law prohlbiting or criminalising such behaviour comes into force, ln other words, the prohibited conduct must be clear and verifiable and the punishment that an infringement entails should be specified before individuals are held accountable for the same. 110. The rule of non-retroactivity forbids the retrospective application of a criminal law to acts committed before the enactment of the law when such law makes previous lawful aots reprehensible or attaches new punishment to the existing criminal acts. The only exception where a criminal law may appty retroactively is when its application favours an individuat by decriminalising a previous criminal eonduct which he/she is accused of or provides lighter penatty than the law which was in force during the commission of the conduct.s 11 1' ln the instant case, the Court observes thatcrimes for which the Applicant was convicted were said to have been committed between 2003 and 2010. Dur.ing I See Article 15 (1) of the |CCPR. 26 l^ )tF | /-.-' ,--- ) @- this time, there were four criminal laws in the Respondent State governing the offences she was charged with: the 1977 law instituting the Penal Code, Law No, 33/2003 of 6 September, 2003, on the Repression of Cr:imes of Genocide and Crimes against Humanity of 2003, Law No- 18/2008 of the 23 July, 2008, on the Repression of the crime of ldeology of Genocide and Law No,45lz00g on counter-terrorism of I september, 2008. Law No. 181 2008 repealed the Law No. 33/2003 to the extent the latter contradicts the provisions of the former. 112. The Court notes that Article 4 of Law No. 33/2003 of 2003 contains a provision criminalising minimisation of genocide while Law No. 18/ 2008 of 2008 on the Crime of the ldeology of Genocide does not have a similar provision. ln other words, as far as the crime of minimisation of genocide is concerned; Law No. 33/2003 of 2003 continued to apply. However, in 2013, both Law No 33/2003 of 2003 and Law No. 18/2008 of 2008 were repealed by Law No. 84t2013 of 2013 on the Crime of Genocide and Other related offences. Similarly, the 1977 Law lnstituting the Penal Code was replaced by the 2012 Law lnstituting the Penal Code. 113. Under its Article 6, Law No. 84/2013 of 2013 provides for provisions on minimisation of genocide, ln comparison to Law No. 33/2003 of 2003, which provides for 10-20 years imprisonment for the crime of minimisation of genocide, Law No. 8412013 provides for five (5) to nine (9) years imprisonment for the same crime.e on the other hand, for crimes of conspiracy and threatening State security and the Constitution, and crimes of spreading rumours with intent to incite the population against the exlsting authorities, the 1977 Penal Code provides a criminal punishment extending up to life imprisonment while the 2012 Penal Code provides a maximum penalty ranging from 20- 25 years for these same crimes, 114. The Court notes that the Applicant was initially charged with propagating the ideology of genocide before the High Court on the basis of Law No 18i2008 of 2008. However, the High Court re-qualified the charge and convicted her for e Atliole 12 (3) Law No. 8412013 "cum" article 116 of the 2012Organic Law lnstituiing the Penal Csde. 27 ltl{-b .rV# ? @- the crime of revisionism of genooide on the basis of Arricle 4 of Law No. 33/2003 of 2003 and crime of treason to threaten state security and the constitution under the 1977 Penal code, and sentenced her to g years imprisonment. On appeal, the Supreme Court sustained the conviction but rejected the mitigating circumstances invoked by Applicant and crimes of which she was acquitted at the High Court. The Supreme Court, citing the existence of conourrence of crimes, imposed a punishment of 15 years imprisonment on the basis of Law No, 84/2013 of 2013 and the 2012 penal code forthe crime of minimising genocide and crimes of conspiracy and threatening state security. 115. TheCourtisof theviewthattheruleof non-retroactivityof thelawdoesnot preclude the requalification of a criminal charge in the course of a criminal trial resulting from the same facts, What is rather prohibited is the applrcation of new criminal laws, in the instant case, Law No. 84/2013 of 2013 and the 2012 Penal Code, to crimes alleged to have been committed before the ooming into force of such law. 116. However, as indicated above, the punishments for the crime of threatening State security and the Constitution in the 1977 Penal Code may extend to life imprisonment and for the crime of minirnisation of genocide in the Law No. 33/2003 of 2003 ranges from 10-zo years as opposed to 1E years, imprisonment in the 2012 Penal Code and 5-9 years imprisonment prescribed in the Law No. 8412013, respectively. 117. ll is therefore evident that the application of the 2012 Penal Code and Law No. 8412013 on the Applicant was in general favourable and is congruent with the exception to the rule of non-retroactivity, that new crimlnal laws may be applied to acts committed before their commission when these laws provide lighter punishment. The fact that the punishment imposed on the Applicant by the Supreme Court was higher than the penalty that was initially imposed by the High Court was not because of the retroactive apptication of the new laws. As the records before this Court reveal, this was rather because the Supreme Court had rejected the mitigating circumstances considered by the High Court, 28 l^ l/- ,Ytr @-- --_) and convicted the Applicant for an oftense (spreading of rumours) for which she had been acquitted by the High Court, This in itself is not a violation of the principle of non+etroactivity of criminal law. 118. The Court therefore, findsthat there was no violation of Article 7 (2) of the Charter^ 1 19, For the avoidance of doubt, the Court wishes to state that this finding of the Cout't relates only to the allegation of violation of the prinoiBle of non- rett'oactivity, and is without prejudice to its position with respect to the risht to freedom of expression and opinion below. B. Freedom of Opinion and expression 120. The Applicant contends that she was convicted for: minimisation of genocide whereas the opinion she expressed in the course of her speech at the Kigali Genocide Memorial concerned the management of power, the sharing of resources, the administration of justice, the history of the country and the attack that led to the demise of the former President of the Republie. The Applicant submits that she had no intention to minimise and trivialise genocide or to practice the ideology of genooide and that the right to express her opinion was protected by the Constitution of Rwanda and other international instruments. 121. The Applicant maintains that the laws of Rwanda which criminalise the negation of genocide are vague and unclear, and do not comply with the requirement that restrictions on the rights of individuals must be necessary. She added that the Respondent State had admitted that there were defeots in the laws Oenalising the minimisation of genocide. 29 il, )ts t /:'-' q- ,--') @- 122. The Applicant further contends that she was found guitty of spreading rumours likely or seeking to cause a revolt among the population against established authority. She also contends that in convicting her for propagating rumours, the local courts failed to prove or to substantiate their arguments through specific and corroborative evidence showing that her positions were likely to establish her criminal liabitity. 123. During the Public Hearing beforethis Court on22 March 2017, Csunselforthe Applicant, in reference to a letter from the Applicant, said: "we are not against a law to punish those who minimize the genocide committed against Tutsis in Rwanda, as is the case for other genocides committed elsewhere. But we demand solid benchmarks to avoid any amalgamation and the use of such a law for political purposes- Thus, we dem,and that such a law clearly show the border between the legitimate freedom of opinion and the actual crime of minimisation of genocide. " 124' For the Applicant, the theory of margin of appreciation invoked by the Respondent State refers to the latitude that the international monitoring bodies are willing to grant national authorities in fulfilling their obtigations under the intemational human rights instruments they have ratified. The theory can also be described as the latitude a government enjoys in evaluating factual 'situations and in applying the provisions set out in international human rights instruments. This theory is premised on the fact that the process of realising a "uniform standard" of human rights protection must be gradual because the entire legalframework rests on the fragite foundations of the consent of Member States. According to the Applicant, the margin of appreciation provides the flexibility needed to avoid damaging confrontations between human rights tribunals and Member States, and enables the Court to strike a balance between the sovereignty of States and their international obligations, 125. The Respondent State argues that the right to express one's opinion is subject to limitations and that considering the social context, the history of and environment in Rwanda, there was reason to enaet laws to penalise the 30 lt| {---Nb Gi-- "-'-) minimisation of genocide. lt,also notes that the Judgment of its Supreme Court had alluded to the fact that other countries had imposed similar restrictions so as to prevent the minimisation of genocide. 126. Tlre Respondent State affirms that this Court should apply the subsidiary principle and adopt a margin of appreciation in its assessment of the internal situation of Rwanda. 127. The Respondent State submits that in examining the Application, the Court should consider the margin of appreciatisn in complying with Article 1 of the Charter. ln this regard, it argues that "the content given to the right cannot be enforced in a vacuum and as such the ambit of its enforcement wilt be heavily influenced by the domestic context in which that right operates". To this end, the Respondent State avers that "it ls critical that the African Court gives serious contextual consideration to the domestic situation when evaluating a particular State's level of compliance'. On the principle of subsidiarity, the Respondent State submits that: "'. ' sinse the initial responsibility rests with the Respondent [StateJ to give effect to the rights guaranteed by the charter, she also has to be given an opportunity through her institutions to decide how to discharge this duty,, 128. The National Commission for the Fight against Genocide (CNLG), intervening as Amicus Curiae, argues that the theory of double genocide to which the Applicant referred is nothing but another way of denying the genocide perpehated in 1994 against Tutsis in Rwanda, According to CNLG, revisionism is structured around a number of affirmations which help to concealthe criminal intent that is an integral pait of the crime of genocide, without denying the reality of the massacres and to sustain the idea of double genocide. CNIG submits further that the theory of double genocide is intended to transform the 1994 genocide against Tutsis in Rwanda into an inter-ethnic massacre, and at the same time, exonerate the perpetrators, their accomplices anti their sympathisers. 129. CA/LG further alleges that the statements made by the Appticant at the Kigali Genocide Memorial constitute a form of expression of the theory of double genoclde in Rwanda, a manipulation skilfully executed and sowing the seeds 31 {r 4* /) \ ,'.- ,--t) (-d - of confusion around the genocide committed againsl the Tutsis in Rwanda in 1994. Accordlng to GNLG, this statement slgnifies that there were two genocides in Rwanda, and that the Tutsis are therefore as gullty as their executioners. lt submits that the Applicant's statements arc a revisionist manoeuvre with the peouliaf feature of using partial and dishonest methodotogy to select, disguise, divert or destroy information that corroborates the existence of genocide against the Tutsis. *** 130. The Court notes that the Charter in its Artiale I (2) enshrines the right to freedom of expression in the following terms: "Every individual shall have the right to express and disseminate his opinions within the law". 131. Article 19 of the ICCPR also providesthat: "1. Everyone shall have the right to hold opinions without interference 2. Everyone shall have the right to freedom of expressionl this right shall include freedom to seek, receive and imparl infonnation and ideas of all kinds, regardless of frontiers, either orally, in writing or in print, in the form of art, or through any other media of his choice. 3. The exercise of the rights provided for in paragraph 2 of this article carries with it special duties and responsibilities. lt may therefsre be subject to certain restrictions, but these shall only be such as are provided by law and are necessary: (a) For respect of the rights or reputations of others; (b) For the protection of national security or of public order (ordre puhtic), or of publio health or morals." '132. The right to freedom of expression is one of the fundamental rights protected by international human rights law, the respeot of which is cruciat and 32 \*L @- l-/_ indispensable for the free development of the human person and to create a democratic society. lt comprises rnfer a/ra, the freedom to express and communicate or disseminate information" ideas or opinions of any nature in any form and usi:ng any means, whether at national or international level. The right to free expression requires that States protect this right from interferences regardless of whether the interferences originate from private individuals or government agents, 133. While freedom of expression is as important as all other rights for the self- development of lndividuals within a democratic society, it is not a right to be enjoyed without limits. ln its Judgment in the Matter of Loh6 /ssa Konafe y Bu*ina Faso of 5 December 2014, this Court emphasised that freedom of expression is not an absolute right and under some circumstances, it may be subject to some restrictions. ln that judgment, relying on Article 19 (3) of ICCpR and the jurisprudence of the African Commission on Human and Peoples' Rights, and other intemational and regional human rights bodies, the Court held that the terms 'within the lau/' in Article I (2) of the Charter envisage the possibility where restrictions may be put in place on the exercise of freedom of expression provided that such restrictions are prescribed by law, serve a legitimate purpose and are necessary and proportional as may be expected in a democratic society.to 134. ln the instant case, the Court infers from the undisputed submissions of both Parties that the Applicant was convicted and sentenced both at the High Court and the Supreme Court of the Respondent State for the remarks that she made at the Kigali Genocide Memorial, and her interviews and other statements she expressed on different occasions, lt is no question that the said conviotion and sentence of the Applicant constitute a restriction on her freedom of expression for the purpose of Article I (2) and in terms of Article 19 (3) of lCCpR. The key issue that the Court should thus address is whether such restriction was admissible, in that, it was provided by law, served a legitimate purpose, and was necessary and proportionat in the circumstances of the case. 10 , Lohd lssa Konate v Burl(ina Faso, judgment of 5 Decemb er 2014 paragraphs 14b-166. 33 /) \ {4 | {.}-u- tr r.- e \ @_- 1) Whether the interference was provided by law 135. The Applicant does not dispute is no dispute the fact that her conviction and sentence for the crimes of minimisation (revisionism) of genocide, spreading rumours to undermine the authority of the government, propagating the ideology of genocide and threatening State security and the Constitution were based on the national law of the Respondent State. The records of the case reveal that both the High Court and Supreme Court in their verdicts relied upon Law No. 33/2003, Law No. B4lz01s and the 2012 penal code. However, the Applicant challenges the nature of these laws, asserting that they are 'vague and unclear'. 136. The Court recalls its established jurisprudence that the reference to the ,law' in Article 9 (2) of the Charter and in other provisions of the Charter must be interpreted in the light of international human rights standardsll, which require that domestic laws on which restrictions to rights and fteedoms are grounded must be sufficiently clear, foreseeable and compatible with the purpose of the Charter and international human rights conventions and has to be of general aPPlication.tz 137. ln the instant case, regarding the Applicant's asserlion that the laws relating to the minimisation of genooide is vague and unclear, the Court notes that some provisions of the aforementioned laws of the Respondent State are couched in broad and general terms, and may be subject to varlous interpretations.l3 It ldem, paragraph 129. 12 Human Rights Committee, A v. Australia, 30 April 1977, para.9,E: lnter-American Human Rights Committee, Coard and al. United States, 29 September 1999, paras 42-Sg; European Court of Human Rights, Medvedyev and others v. France. judgment of 29 March 2010, paras. g2-100. 13 See for exarlple, Article 8 of Law No. 84/2013 of 28 October 2013 on the crime of the ideology of genoclde, which stipulates that "The minimization of genocide is any intentionat act manifested in ig-blic aimed at: 1' Mlnimising the seriousness of the cdnsequences of the genocide; Z. minimising the methods by which the genocide was committed. Whoever commits an act provided for in ftre precEaing paragraph, shall be guilty of an offense of minimization of the genocide". -lhe Article 1 16 of tne CoOe of Criminal Procedure on negation and minimization of genocide atso siipuiates that: "Anyone. who, publicly'in his wsrds, writings,. images or in any-other way, denies perpetrated against lhe Tutsi, grossly trivializes it, seeks to justify the genocide ii or to approve its basis or conceals or destroys the evidence, is tiabte to imprisonment for more than (s) to (9) ybars 34 il #' | ,YE ,/-- v It V- ,-.-) @- 138. Nonetheless, the nature of the offences, that these laws seek to criminalise, is admittedly difficult to specify with precision. ln addition, considering the margin of appreciation that the Respondent State enjoys in defining and prohibiting some criminal acts in its domestic legislation, the Court is of the view that the impugned laws provide adequate notice for individuals to foresee and adapt 'their behaviour to the rules.la The Court therefore holds that the said laws satisfy the requirement of "the law" as stipulated under Article g(2) of the Gharter. 2) Whether the restriction served a legitimate purpose 139. ln its submissions, the Respondent alludes that, given its past history of genocide, the kind of restrictions imposed by the domestic law (which were applied on the Applicant) are meant to protect State security and public order, The nature of the crimes for which the Applicant was charged and convicted also relate to the protection of national security, from expressions which may create divisions among the people and internal strif€ agalnst the government, 140, Unlike Article 19 (3) of the ICCPR, the Court notes that Articte 9 (2) of the Charter does not list those legitimate purposes for which the right to freedom of expression may be restricted. Nonetheless, the general limitation ctause under Article 27 (2) of the Charter requires that all rights and freedoms must be exercised "with due regard to the rights of others, collective security, morality and common interesl". ln its case law, the Court has also acknowledged that restrictions on freedom of expression may be made to safeguard the r.ights of others, national security, public order, public morals and public health.rs 141. ln the instant case, the Court considers that the crimes for which the Applicant was convicted were serious in nature with potential grave repercussions on State security and public order and the aims of the abovementioned laws were to protect the same. The Court therefore holds that the restriction made on the Applicant's freedom of expression served the legitimate interests of protecting national security and pubtic order. 3) Whether the restriction was necessary and proportional 14lssa Konate Judgment, paragraph 128. ls lssa Konate v. Burkina Faso, judgment of E December 2014Judgment, paragraph, 1g4-1gs 35 il, )rF r /:.' 11 \, o t-/- ) @-- MZ fhe Court notes that restrictions made on the exercise of freedom of expression must be strictly necessary in a democratic society and proportional to the legitimate purposes pursued by imposing such restrictions.16 ln this regard, the Courtwishes to point out that, the determination of necessity and proportionality in the context of freedom of expression should consider that some forms of expression such as political speech, in particulaf, when they are directed towards the government and government officials, or are spoken by persons of special status, such as public figures, deserve a higher degree of tolerance than others.17 143. lt should also be noted that freedom of expression protects not only "information" or "opinions that are favourably received or regarded as inoffensive, but also those that offend, shock or disturb" a State or any section of the FoPulation.ts 144. The Court is also of the opinion that the assessment of necessity and proportionality under Article I (2) of the Charter and Article 19 (3) of tCCpR cannot be done in a vacuum and due consideration should be given to particular contexts in which the impugned expressions were made. 145, ln the instantApplication, the Respondent State and CNLG in their submissions aver that the various statements made by the Applicant on different occasions, including those made at the Kigali Genocide Memorial were intended to minimise the genocide committed against Tutsis, by propagating the idea of 'double genocide', and sought to undermine the authority of the govemment by inciting citizens to turn against the government by spreading rumours that create divisions and internal strife among the people of Rwanda. ln this regard, the Respondent State prays the Court, in determining the matter, to consider 16 lssa KonateJjudgment paragraph 145. " Pid, paragraph 155. See also: Afrlcan Commission on Human and Peoples' Rights, Kenneth Good v Republic ot Botswana, (2010), paragraph 198; lnter-American Court'of Hurian Rilnts, lvcher- Bronstein v. Peru, Judgment ol_6t2t2001, paragraph 15, Case of lvcher-Bronstein v. peru (lACtHR, Preliminary Objections,JVlerits, Reparations and Costs), Judgment of 2t7t 2004, paragraph 127, Case of Ricardo Canese v, Paraguay, lActHR, (Merits, Reparatr-ons and Costs), ludgme-nt iit slaizoqq; paragraph 98. 1.8 S.ee ECHf H.q(ysile v. the United Kingdom, (1976), paragraph 49, see atso Gunduz v. Turkey, Judgment of 411212003, paragraph 37, Human Rights Committle, General Comment a+ pOt{1, paragraph 1 1. 36 l^ )Jc t {-- /:, ''-/ ,-/) \!--- its particular past history and apply the principles of margin of appreciation and subsidiarity. 146. For its part, the Applicant insists that the laws of Rwanda which criminalise the negation and minimisation of genocide do not comply with the requirement that restrictions on the rights of individuals must be necessary. The Applicant also contends that her conviction for spreading rumours likely or seeking to cause a revolt among the population against established authority was not substantiated in the domestic courts through specific and corroborative evidence showing that her positions were likely to establish her crimrnal liability. 147. The Court wishes to underscore.that it is fully aware and cognisant of the fact that Rwanda suffered from the most atrocious genocide in the recent history of mankind and this is recognised as such internationally. This grim fact of its past evidently wanants that the government should adopt atl measures to promote social eohesion and csncordance among the people and prevent similar incidents from happening in the future. The State has the responsibility to ensure that the laws in this respect are respected and that every offender answers before the law. lt goes without saying that it is entirely legitimate for the state to have introduced laws on the "minimisation", ',propagatioR, or "negation" of genocide. 148. Nevertheless, the laws in question should not be applied at any cost to the rights and freedoms of individuals or in a manner which disregards international human rights standards. The legitimate exercise of rights and freedoms by individuals is as important as the existence and proper application of such laws and is of paramount significance to achieve the purposes of maintaining national security and public order. ln all circumstances, it is important that restriotions made on the fundamental rights and freedoms of citizens are warranted by the particular contexts of each case and the nature of the acts that are alleged to have necessitated such restrictions. 149. lt is thus incumbent upon this Court to examine the nature of the opinion alleged to have been expressed by the Applicant and determine wheflrer such expression warranted her conviction a'nd imprisonment, and whether such measure was proportlonal under the circumstances. 37 )\lb () \ U @- L/ 150, ln this regard, the Court notes from the records of the file that the Applicant's statements that were alleged to have been made on different occasions were of two natures: those remarks made in relation to the Genocide, particularly, at the Kigali Genocide Memorial and those directed against the government, including the President of the Republic, and the Judiciary (compr:ising the Gacaca Courts). 15'1. At the Kigalt Genocide Memorial, the Applicant claims to have made the following statement in Kinyarwanda: "...if we look at this memorial, it only refers to the people who died during the genocide against the Tutsis. There is another untold story with regard to the crimes against humanity commifted against the Hutus. The Hutus who lost their loved ones are also suffering; they think about the loved ones wlro perished and are wondering "When will our dead ones also be remembered?-'1s 152, ln its submissions, the Respondent has not made any comments on the authenticity of this statement. 153. However, the Coutt notes from the records that the Applicant's statement at the Memorial, as indicated in the High court's judgment of 30 october, 2012, reads as follows: "...For example, we are honouring at this Memorial the Tutsis victims of Genocide, there are also Hutus who were victims of crimes against humanity and war crimes, not remembered or honoured here. Hutus are also suffering. They are wonderirrg when their time will come to remember their people ( ..)'20 154. On the other hand, the Court further notes from the files that the statements of the Applicant at the Memorial, as recounted by the Supreme Court reads as: ".,.For instance, this memory has been dedicated to people who were killed during the gerrocide against the Tutsi, however there is another side of le See submission of the Applicant (Annex 3). 20 See the Judgment of the High Courl of Kigali of 30 October ZO12 PARA. 404 38 l, /r- L @- '-- --\ genocide: the one committed against the Hutu. They have also sufferedl they lost their relatives and they are also asking, "When is our time?" (..,),,21 155, The key issue at stake is whether in that speech which the Applicant made at the Genocide Memorial she propagated the 'theory of double genocide,, According to article 5 of Law No. 84/2013 of the 2013 "supporting a double genocide theory for Rwanda" is part of the offence of "negation of genocide". Pursuant to article 6 of the said law, "Minimization of genocide shall be any deliberate act, committed in public, aiming at: a. downplaying the gravity or consequences of genocide b. Downplaying the methods through which genocide was committed." 156. From the above, the Court takes note that the versions of the Applicant's speech made at the Memorial, as recited by the High Court and the Supreme Court, are at variance with each other and with the Applicant's version. While the version of the speech as indicated by the Supreme Court talks about 'another side of genocide: the one committed against the Hutu", the version of the speech, as recounted by the High Court talks about Hutus being "...,victims of crimes against humanity and war crimes". 157. ln the face of these conflictinE versions of the said speech as quoted by the domestic courts of the Respondent State, the Court is of the view that the doubt should benefit the Applicant. ln its assessrnent, the Court therefore will rely on the speech of the Applieant at the Memorial, as reoounted by the High Couft. ln fact, the High Court's version is similar to what the Applicant herself claims to have said and which was tendered before this Court as evidence, which was not challenged by the Respondent State, 158. The Court acknowledges that, as in any country where there is a history of genocide, the issue is very sensitive and opinions or comments made in relation to the genocide may not be treated in a similar manner as opinions expressed on other matters. Statements that deny or minimize the magnitude or effects of the genocide or that unequivocally insinuate the same fall outside the domain 2I see the Judgment of the supreme court of Rwanda of 13 December 20,,l3 para. 371 39 \PL/)t Vr- ,-) of the legitimate exercise of the right to freedom of expression and should be prohibited by law. In the present Application, the Court is however of the opinion that there is nothing in the statements made by the Applicant, which denies or belittles, the genocide committed against the Tutsi or implies tlre same, 159. Concerning the allegation that the same remarks at the Genocide Memorial propagated the theory of 'double genocide', the Court is also of the opinion that nothing in her remarks suggests that she advanced this view. The relevant paragraph whioh the High Court used as evidence for the same (quoted above under paragraph 153) are clear that the Applicant admits "the genocide against the Tutsis" but has never claimed that a genocide was committed against the Hutus. The judgment of the High Court of Kigali itself acknowledges that her statements do not refer to genocide against the Hutu but rather reached a different conclusion relying on the context in which they were made. ln this connection, the Court understands that the contexts in which statements are expressed may imply a different meaning than the ordinary message that they convey. Nevertheless, in circumstances where statements are unequivocally clear. as is in the present case, putting severe restrictions such as criminal punishments, on the rights of individuals merely on the basis of contexts would create an atmosphere where citizens cannot freely enjoy basic rights and freedoms, including the right to freedom of expression. 160. The second group of statements made by the Applicant contain severe criticisms against the government and public otficials, that includes statements which allege that political power is "dominated by a small clique" that has "a secret parallel power structure around President Kagame, DMI [Directorate of Military lntelligencel, the local defence force, ... the judiciary and the executive branches of the government"22' and stating that she is ready to fight against "the yoke [of fear], poverty, hunger, tyranny, servitudes, corruption, unfair Gacaca court system, repression, prison term for worl<s of general interests (TlG), reasons that lead people to flee the country, inequality, expropriation, homelessness, lack of self-esteem and killing through torture".23 ?? See lngabire Victiore and others v. the Prosecution, Judgment of the High Court of Kigali, para. 288 23 lbid, para. 306 40 t\ +; q, @-- 161. The Court notes that some of these remarks may be offensive and could have the potential to discredit the integrity of public officials and institutions of the State in the eyes of citizens. However, these statements are of the kind that is expected in a democratic society and should thus be tolerated, especially when they originate from a public figure as the Applicant is.24 By virtue of their nature and positions, government institutions and public officials cannot be immune from criticisms, however offensive they are; and a high degree of tolerance is expected when such criticisms are made against them by opposition political figures. An examination of these statements cannot reasonably be considered as capable of inciting shifel; creating 'divisions among people' or'threatening the security of the State'. ln fact, even though these statements were made at differenttimes before theApplicantwas jailed forthe same, there is no evidence showing that the statements caused strife, public outrage or any other particular threat to the security of the State or public order. 162. ln light of the foregoing, the Court finds that the Applicant's conviction ahd sentence for making the above statements both at the Kigali Genocide Memorial and on other occasions, was not necessary in a democratic society. Even if this Court were to accept that there was a need to put restrictions on such statements, the Applicant's punishment was not proportionate to the legitimate purposes which the conviction and sentence seek to achieve. ln this regard, the Court not€S that the Respondent State could have adopted other less restrictive measures to attain the same objectives. 163. The Court therefore finds that there was a violation of Article I (2) of the Charter and Article 19 of the ICCPR. VIII. REMEDIES SOUGHT 164. [n the Application, as stated earlier, the Court is requested to: (a). Repeal, with retroactive effect, sections 1 16 and 463 of Organie Law N' 0112012 of 2 May, 2012, relating to the Penal Code as well as that of Law N" 84/2013 of 28 October, 2013, relating to the punishment of the crime of the ideology of the Genocide, (b) Order the review of the Case (c) Annulment of all the decisions a4 lssa Konate Judgment, para 155 41 l^Ntrq |{-'o- ,---' @- that had been taken since the preliminary investlgation up till the pronouncement of the last judgment, (d) Order the Applicant's release on parole; and (e) Payment of costs and reparations. 165. Article 27(1) of the Protocol provides that 'if the Court finds that there hao been violation of a human or peoples' rights it shatl make appropriate orders to remedy the violation, inoluding the payment of fair compensation or reparation'' 166. ln this respect, Rule 63 of the Rules provides that 'the Court shall rule on the request for: reparation by the same dmision establishing the violation of a human and people's rights, or if the circumstanoes so require, by a separate decision". 167. As regards the Applicant's prayers (a), (b) and (c), the Colnt reiterates its decision in Ernesf Francis Mtingwiv. Repubtic of Malawi, that it is not an appeal court with tespeot to the decisions and does nst have the power to repeal national legislation. lt therefore does not grant the requests 168 Regarding the Applicant's prayer to be set free, the Court has established that such a measure could be directly ordered by the Courl only in exceptionaland compelling circumstanceszs. ln the instant case, the Applicant has not provided proof of suoh circumstances. Conseeuently, the Csurt does nol grant this prayer. 169. The Court however notes that such finding does not preclude the Respondent State from consldering sueh measure on its own. 170. The Court finally notes that none of the parties filed submissions on other forms of reparations, It will therefore make a ruling on this question at a later stage of the procedure after having heard the parties. x. cosTs of Tanzania, Judgment of 20 November 2015, paragraph 157; 25 Alex Thomas v. The United Republic Mohamed Abubakariv, The United Republie of Tanzania, Judlment of 3 June 2016, paragrqph 2M. 42 t^ )/-b-"Ntr e /) @- 171, ln tenr-rs of Rule 30 Of the Rules "unless otherwise decided by the Court, each party shall bear its own costs." 172. Having considered the circurnstances of this mafier, the Court decides that the question of eost will be addressed when considering reparations. 173, For these reasons THE COURT, Unanimous[y On jurisdiction (i) Dismr'sses the objection to the Court's jurlsdiction raised by the Respondent State; (ii) Holds that it has jurisdiction to hear the instant Application; On admisslbility (iii) Dfsmisses the objection to admissibility of the Application ralsed by the Respondent State; (iv) Holds that the Application is admissible; On the Merits (v) Holds that the Respondent state has not violated Artiele 7 (1) b and d of the Charter as regards the right to presumption of innocence ,and the right to be tried by a neutral and impartial tribunalt (vi) Holds that the Respondent State has not violated Article 7 (2) of the Charler as regards the night to the application of the principle of equality of crime and punishment; 43 l^ )JE | {-- uz) @-- (vii) Holds that the Respondent State has not viotate Article 7 (1) (c) of the Charter relating to the searches conducted on the Counsel and on the defence witness; (viii) Holds that the Respondent State has viotated Articte Z (1) (c) of the African Charter on Human and Peoples' Rights as regards the procedural irregularities which affected the rights of the defenoe listed in paragraph g7 of this Judgment (ix) Holds that the Respondent State has viotated ArtictE 9 (2) of the African Charter on Human and Peoples' Rights and Article 19 of the lnternational Covenant on Civit and Political Rights on freedom of expression and opinion; (x) Orders the Respondent State to take all necessary measures to restore the rights of the Applicant and to submit to the Court a report on the measures taken within six (6) months; (xi) Dismr'sses the Applicant's prayer for the Csurt to order her direot release, without prejudice to the Respondent State,s power to take this measure itself; (xi| Defers its decision on other forms of reparation; (xiii) Gmnfs the Applicant, pursuant to Rule 63 of its Rules. a period of thirty (30) day-s from the date of this Judgment to file her observations on the Application for reparation and the Respondent State to file its Response within thirty (30) days from the date of receipt of the Anplicant's observations. Done at Arusha, this 24th day of the month of November, in the year Two Thoueand and seventeen,, in English and French, the French text being authoritative, 44 l^ NF" | 4-- bl) :"1 @_-- Signed; Sylvain ORE, President Ben Kioko, Vice President G6rard NIYUNGEKO, Judge ) Augustino S.L. RAMADHANI, Judge fi*ttt 4>,-- Duncan TAMBALA, Judge bhr,,-ut EL Hadji GUISSE, Judge f Rafda Ben ACHOUR, Solomy S. BOSSA, Judge; and r'(i:\ I--ir'-'t-'t -t r.1frr. J '-\ Ar),lIl ,:l Robert ENO, Registrar ;tI aF lirr Done at Arusha, this 24rh day of the month of e year Two t{' Thousand and Seventeen, in English and French, thd,r French text being authoritative. 45