In accordance with the verdict rendered by the Appeals Chamber last month, the first judges requested this report not only from the head doctor of the Tribunal but also from an independent medical expert "without past links to the case".
The Appeals Chamber had cancelled the decision of the First Instance Chamber for a disjoinderof proceedings of Ngirumpatse'scase from the other MRND leaders, for the reason that it had not taken sufficient elements into account before deciding.
The appeal judges found the only opinion of the head doctor of the Tribunal on the defendant's recovery dates as "speculative".
They, however, did not deliver any opinion on the rights which the first judges intended to protect by taking this decision, namely: the right to a fair trial and more precisely the one to be tried without excessive delay; and judicial economy.
In March 2009, the first instance judges had asserted themselves to make a decision on the continuation, or not, of the MRND trial, which had been suspended since August 2008.
They considered, although EdouardKaremeraand Joseph Nzirorerathink the opposite, that the two defendants suffered a prejudice because of the time that had already lapsed since the beginning of the trial (September 2005), which violated their right to be tried without an excessive delay.
The notion of excessive delay is calculated, according to the Chamber, by taking into account "the length of the delay; the complexity of the proceedings such as the number of charges, the number of accused, the number of witnesses, the volume of evidence, and the complexity of facts and law; the conduct of the parties; the conduct of the relevant authorities; and the prejudice of the accused, if any" (Bizimungucase, ICTR, 14 June 2007).
The difficulties which arose from the suspension of the trial, notably the comings and goings of the witnesses without being able to testify, the fact that they must wait on location and the time of detention of the defendants which is accumulating, led to, on this point, "the rights of the accused to be tried without undue delay have been violated", stated the judges.
They had, thus, concluded that they could impose the continuation of the trial in Ngirumpatse'sabsence because of his right, recognized in this same case, to be "physically present at his trial", the disjoinderof proceedings constituted the less intrusive solution for him.
The disjoinderof proceedings is only possible in two cases according to Article (82 B) of the ICTR Rules of Procedure and Evidence: to avoid a conflict of interests that might cause serious prejudice to an accused, (which would be the previously mentioned argument of the Chamber) or to protect the interests of justice(the end of the ICTR mandate is approaching at a rapid pace).
According to jurisprudence, it is the interest of justice which is "the overriding principle" (Delaliccase, ICTY, 1 July 1998). Judicial economy and the opportunity of the trials are of the pre-requisite conditions to the investigation (Brdjaninand Taliccase, ICTR, 9 March 2000). Lastly, only the prejudice deriving from the joint trial, appearing during the course of the trial, can justify an order for a disjoinderof proceedings (Brdjaninand Taliccase).
Ngirumpatsewas, essentially, opposed that the ICTR completion strategy would play any part in the decision making process. Of the same opinion, the First Instance Chamber III affirmed that if various principles are in conflict, the right of the defendant to a fair trial takes precedence over judicial economy and the speed of the trials.
But finally, the First Instance Chamber revised itself by deciding, a few days later, not to give effect to the disjoinderof proceedings, after Ngirumpatsehad accepted that the proceedings continue in his absence, while waiting for the decision of the Appeal Chamber.
The judges of First Instance Chamber III are today in a difficult situation as Ngirumpatsehas requested once again an adjournment until October as well as a provisional release to go get treatment in Europe.
The three former MRND officials were gathered in a joint case because the prosecutor intended to focus on the infringement of an agreement in order to commit genocide within the framework of the presidential party.
AV/ER/MM/SC/GF
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