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LJN: BK0520, Rechtbank 's-Gravenhage , 09/750009-06 09/750007-07 Englishtranslation
Datum uitspraak:23-03-2009Datum publicatie:16-10-2009Rechtsgebied:Straf Soort procedure:Eerste aanleg - meervoudigInhoudsindicatie:[Translation from Dutch] 40 year old Rwandese Joseph M. sentenced to a term of 20 yearsimprisonment on charges of torture (committed multiple times and resulting in death) duringthe genocide in Rwanda in 1994. Chapter 1: Brief description of the seven criminal offencescharges, principally charged as war crimes, alternatively as acts of torture. Chapter 2: TheDutch Court has jurisdiction based on Article 3 (old) of the Criminal Law in Wartime Actand Article 5 of the Convention against Torture Implementation Act respectively. In thiscontext, it is important to observe that the Defendant was in the Netherlands at the time of the start of the investigation against him. Chapter 3: Explanation of (the historicalbackground of) the genocide in Rwanda in 1994. Chapter 4: The Defendant as a person. Inthe publication of the judgement, the Defendant is referred to as Joseph M. As many otherpersons in Rwanda, he has a different family name than his father; the last name of his fatherwas Murakaza. Chapter 5: Report of and account for the criminal investigation. The Courtrejects the Defence’s criticism regarding the quality of the investigation. Chapter 6:Explanation of the evaluation of the evidence rendered by witnesses. In this respect, theCourt formulated a framework for the assessment of the credibility of the witnesses and thereliability of their statements, with reference to the ruling of the Appeals Court in The Haguein the case against K. (LJN BC 6068). Chapters 7 - 9: Proven facts regarding charges (i) aGerman doctor and his Tutsi wife together with their few months old baby who were on therun from the genocide and (ii) the passengers of an ambulance (a Hutu driver, two Tutsiwomen with their (at least four) young children and a 12 year old Tutsi girl), who were onthe run from the genocide. In this incident, the two Tutsi women and their children werekilled with machetes and clubs. Chapters 10 - 14: Acquittal of Defendant for being involvedin the other crimes charged against him for lack of (reliable) evidence. Chapter 15: The Courtconcludes that the crimes committed by the Defendant do not qualify as war crimes. Therequirement of the existence of a close relation between the indictable offence and the armedconflict (nexus) in Rwanda between the Rwandese government army (the RAF) and therebel army of the Rwandan Patriotic Front (the RPF, which mainly consisted of Tutsi), hasnot been fulfilled. The Court puts first that the penalization of war crimes intends to protectcivilians from the consequences of war between combating armed forces. It establishes thatin the prefecture where the Defendant committed his crimes no fighting took place betweenthe RAF and the RPF, that the Defendant did not hold a military position, that Defendantdid not have any control over the progress of the armed conflict, nor had a special relationwith the government army and finally, that his crimes did not serve any military purpose anddid not contribute to the ultimate objective of the RAF in its fight against the RPF. TheCourt admits that the armed conflict against the RPF offered the Rwandese regime theexcuse for ethnic violence against the Tutsi population and that the regime’s propaganda,that equated all Tutsis with the RPF, provided the Defendant with a motive and a licence tocommit his crimes. However, the Court is of the opinion that this mere circumstance is notsufficient to assume a nexus. Chapter 16: The Court concludes that the Defendant, a civilian,is guilty of committing acts of torture, which had been solicited and deliberately allowed bypublic officials. In this chapter each individual element (maltreatment, the qualification of theDefendant as a public official, deprivation of liberty of the victim, the requirement that themaltreatment took place with a special intent) is described and subsequently the availableevidence is evaluated accordingly, also in relation to the requirements for the forms of participation ‘incitement’ and ‘deliberately permitting’. Chapter 18: The claims of the threeplaintiffs. Concerning the admissibility of these claims, the Court establishes that the lawwhich was in force before the introduction of the Terwee Act is applicable. According to theold law, a plaintiff’s claim is not required to be of simple nature in order to be heard in acriminal case. The claims of the German doctor and his wife are admitted, each for thecurrent amount of 680,67 euro , which is the equivalent of the maximum amount in guilderslaid down at the time. The claim of another victim/survivor is not admitted, because the
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 Defendant was acquitted of the charge concerning this plaintiff. Chapter 19: Sentencing.The Court considers that the qualification of the Defendant’s conduct as torture, committedmultiple times and resulting in death, does not make his acts less serious than in the casethat his crimes could have been tried on charges of genocide and/or if the criminal offencescould have been qualified as war crimes. In determining the appropriate sentence, the Courtalso takes into consideration the sentencing regime applied by the ICTR and the presentform of enforcing life imprisonment sentences, whereby in practice ‘for life’ really meansbeing in prison for life (see also the advice given by the RSJ dated 1 December 2006 and therelevant additions made on 20 April 2008, as well as the conclusion drawn by AdvocateGeneral mr. Knigge, dated 30 September 2008 (LJN BF41)). The Court considers that a risk of reoffending has not become apparent and imposes on the Defendant a term of 20 yearsimprisonment, although the Court considers that the imposition of this sentence does notsufficiently do justice to the gravity of the crimes committed by the Defendant. [End of translation]
Uitspraak
[Translation from Dutch]DISTRICT COURT IN THE HAGUECriminal Law SectionThree-judge Division for Criminal MattersCase numbers 09/750009-06 and 09/750007-07Date of Judgement: 23 March 2009JudgementBased on the charges and further to the investigation during the court hearing, the District Court in The Haguehas rendered the following judgement in the criminal case of the Prosecution against the Defendant:Joseph [M.],born in [place of birth] (Rwanda) on [date of birth] 1968,address: [address],presently detained at the Penitentiary Institution Haaglanden, Penitentiary Complex Scheveningen, Remand PrisonUnit 2.The investigation was held during the court hearings on 13, 14, 16, 17, 20, 21, 23, 24, 27, 28 October, 3, 10, 11, 17, 18,19, 24 November, 1 and 4 December 2008, 2 February and 9 March 2009.The Court has taken cognizance of the requests of the Public Prosecutors Mrs. H.C.M. van Bruggen and Mr. W.N.Ferdinandusse and of the submissions by the Counsel for the Defendant Mr. A.B.G.T. von Bóné, Lawyer inRotterdam, and by the Defendant himself.Chapter 1: The charges and the requests.1. The Defendant stands trial for his involvement in serious criminal offences, allegedly committed in Rwanda inthe period between April through July 1994. These facts are described in the Indictment with case numbers09/750009-06 (Indictment I)(1) and 09/750007-07 (Indictment II)(2). Both Indictments were handled in a joint action.2. In brief, the charges of Indictment I imply the following:I: On or around 13 April 1994, the Defendant, together with others, stopped an ambulance in Birogo (prefectureKibuye). This ambulance was driven by [witness 1] and carried two Tutsi-women. (Dativa and Brigitte) with theirchildren and a girl named [witness 2]. After the ambulance had been stopped, the Defendant, together with others,forced it to drive to nearby Mugonero. During this drive, the ambulance was surrounded by attackers while arms
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were shown and the ambulance was hit by the attackers. The people surrounding the ambulance also yelled wordssuch as 'Inkotanyi'. In Mugonero the passengers were forced to leave the ambulance. Threats were uttered such as“Before the cockroaches are going to be killed, the driver must be killed first”. Subsequently, the two Tutsi-womenand their children were hit/hacked with machetes, clubs and/or other weapons. As a consequence, all passengershad to fear for their lives for a considerable time, the two Tutsi-women and their children died (after which anumber of the children were thrown into Kivu Lake) and [witness 1] and [witness 2] suffered (serious) bodily harm.II: On 16 April 1994, the Defendant, together with others and using all kinds of weaponry, attacked Tutsi civilianswho stayed at the Seventh Day Adventists Complex in Mugonero. The Defendant and others shot at thesecivilians, hit and hacked them with machetes and other weapons and threw teargas into the buildings in which partof the Tutsis were hiding. Consequently, these persons were forced in a situation in which they had to fear fortheir lives and the lives of their family and friends. As a consequence of this attack, a large number of these peopledied and one or more of them suffered (serious) bodily harm.III: On 27 April 1994, the Defendant, together with others, refused passage to [witness 3], her partner [witness 4]and their baby [B1] at a road block in Mugonero. Weapons were shown openly to the victims and they were ableto hear remarks such as “cockroach(es)”, “Look well at that Tutsi woman, these are the people who murdered thepresident”, “Would you like to be treated as a Tutsi?”, “You can choose whether you are going to be killed inKibingo, in Mugonero or in Gishyita”, “Look how bad these Tutsis are, they even laugh when we are going to killthem” and “Hutu-power”. As a consequence of this, [witness 3] found herself in a situation in which she had tofear for her life and that of her son for a prolonged time, while she was seriously humiliated in public by theseactions. [Witness 4] was put in a situation in which he had to fear for his life and that of his partner for a prolongedtime, while he was seriously humiliated in public by these actions.3. In brief, the charges of Indictment II imply the following:Ia: On 13 May 1994, the Defendant, together with others, at Muyira Hill, in the Bisesero area, grabbed a womannamed Consolata Mukamurenzi, pushed her to the ground and said to her: “If you do not tell me where they are,we will kill you. If you tell me, we will leave you alone.” Subsequently, the Defendant told his co-perpetrators thatthey could rape her and that he would guarantee their safety. Upon this, his co-perpetrators raped her repeatedly,after which the Defendant stabbed a bayonet into her vagina and shot bullets in her back and head, as aconsequence of which she died.Ib: On 16 April 1994, the Defendant, together with others, threatened Marie Mukagatare and Gertrude Mukamana,who, while being on the run for the large scale violence towards Tutsi civilians, had taken refuge in a hospital roomat the Adventists complex in Mugonero, by pointing a fire arm at them. Subsequently, he said to them: “For a longtime we asked you to have sex with us. Then you refused. Now you cannot refuse anymore”, after which he rapedboth women and cut their throats as a consequence of which they died.Ic: On or around 14 April 1994, at the Adventists Complex in Mugonero, the Defendant, together with others,grabbed, hit and raped a woman named Kayitesi.II: In the period between 6 April through 1 July 1994, in Kibuye prefecture, the Defendant, together with others,took three grand children of [witness 5] and [witness 6] from the home of the grandparents, after which they werenever heard of again.4. In brief, all these facts have been charged principally as war crimes (article 8 Criminal Law in Wartime Act (3),and alternatively as torture (article 1 and 2 The Convention against Torture Implementation Act(4).5. The Public Prosecution Service has demanded the Court to acquit the Defendant of the charges in theIndictment II under 1b, and shall deem legally and convincingly proven that the Defendant has committed theother charges in both Indictments, as principally charged. Furthermore, the Prosecution has demanded the Courtto convict the Defendant to life imprisonment.Chapter 2: Jurisdiction1. Originally, all these facts were also charged to the Defendant as genocide. On 24 July 2007, the District Court of The Hague decided the Netherlands had no jurisdiction to bring the Defendant to trial for this charge.(5) On 17December 2007, the Court of Appeal in The Hague came to the same decision.(6) The appeal in cassation, broughtby the Prosecution, was dismissed by the Supreme Court.(7)2. Although this subject did not lead to a discussion during the hearing of the case, the Court will, however,
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