Uitspraak
Rechtbank den haag
1.De procedure
2.De feiten
14. In spite of these positive findings, I have a deep concern on the status and quality of the defence attorneys acting for their clients in the genocide transfer cases. In the cases I witnessed, none of the defence attorneys performed at a level that meets any international standard. In summary: in some cases there is currently no defence, either officially or materially, in other cases the defence attorneys act or acted substandard and even irresponsible.
16. My observations and opinions on the defence attorneys, expressed in this report, are based on my observations during trial in the cases of [A] , [B] , [C] , [D] and [E] (...), my personal encouters and discussion with the defence attorneys(...) as well as discussions within the NPPA and with other actors.
17. As noted earlier, I have attended a limited number of trial sessions. However, a legal officer of the Embassy of the Kingdom of the Netherlands has attended almost all of the trial sessions during the period September to December 2014. She was accompanied by a local staff member of the embassy who translated for her and me and typed the translation on his computer. Most, but not all, of these notes have been preserved and I have received them and included them in my analyses fort he purpose of this additional report.
18. Lastly, I have read all reports drafted and submitted by the monitors of the ICTR in the cases of [A] and [B] . They are published on the website of the ICTR and the MICT. I have spoken occasionally to the monitors about their monitor work(...). I have additionally spoken to the monitor(...) of the Office of the Prosecutor, OTP, of the ICTR, who has regularly attended court sessions in the cases against [A] and [B] . The reports of this monitor have not been made public.
49. (...) I simply want to opine that in the transfer cases there is either no defence, formally or materially, or largely insufficient and/or unqualified defence.
61. I make all these notions and put them together in this context, not to assert that establishing the truth in Rwanda genocide cases is not possible. In fact, based on my years of experience in criminal cases of mass atrocities in Africa and elsewhere, including Rwanda genocide cases, I am certain and convinced that the facts can be established but only under the condition of high quality and professional investigations, applying internationally accepted standards. Part of this professionalism and these standards is the necessity to have defence attorneys who possess the knowledge, experience and the resources to conduct investigations for the defence, including the capabilities to conduct investigations abroad.
62. Based on my observations in the last year in Rwanda, I have profound doubts whether the Rwandan defence attorneys, currently assigned to the transfer cases, can do that. It is a fact that, so far, only one defence attorney has presented some local witnesses to the court. None of the defence attorneys has conducted any investigation abroad and it is highly doubtful if any of them has both the knowledge, experience or is in the position to conduct such an investigation. What the consequences for the outcomes of the cases are, is stil to be assessed. Until today only in the case against [C] the High Court has given its verdict(...).
63. It is for all these reasons that I recommend the jurisdictions that extradite or transfer defendants to Rwanda for trial, to provide the defendant with a defence attorney who has proven to be capable of what I have described here. When this defence attorney is then coupled to a Rwandan defence attorney, funded by the Minister of Justice in Rwanda and provided funds for conducting investigations, which is on offer by that same Minister, it seems to me that it ensures the necessary and adequate defence capabilities for the defendant that meet the required standard and guarantees not only a procedural fair trial but also a fairness to the trial.”
3.Het geschil
- dat aan eiser een gekwalificeerde (buitenlandse) advocaat ter beschikking zal worden gesteld op kosten van de Staat, die toegang krijgt tot alle noodzakelijk geachte bewijsmiddelen en getuigen;
- dat de op te roepen getuigen een effectieve, niet door Rwanda beïnvloedbare getuigenbescherming aangeboden kan worden;
- dat de kosten van rechtsbescherming niet anders gelimiteerd worden dan zoals gebruikelijk in het Nederlandse stelsel van toegevoegde rechtsbijstand;
- dat indien obstructie wordt gepleegd in de rechtsbescherming of indien vrijspraak volgt, eiser wederom door Nederland zal worden toegelaten;
- dat Nederland zich medeaansprakelijk stelt voor de door eiser als gevolg van de procedure geleden schade indien hij niet wordt veroordeeld.
4.De beoordeling van het geschil
andere feiten, omstandigheden of bewijsmateriaalheeft het gerechtshof Den Haag nader genuanceerd, in die zin dat het moet gaan om
nadienvoorgevallen nieuwe feiten en/of omstandigheden (ECLI:NL:GHDHA:2014:3750).