Contents | Chapter I | Chapter II | Chapter III | Chapter IV | Chapter V

CHAPTER V

SENTENCE

1.         Applicable Provisions and General Principles of Sentencing

481.  The provisions of the Statute and the Rules relevant to the Chamber’s consideration of an appropriate sentence for the Accused are Articles 22, 23 and 26 of the Statute and Rules 101 to 104 of the Rules.

482.  Pursuant to Article 23 of the Statute and Rule 101(A) of the Rules, the Tribunal may impose a term of imprisonment upon the person convicted up to and including imprisonment for the remainder of that person’s life.

483.  In the case of an accused convicted of multiple crimes, as in the present case, the Chamber may, in its discretion, impose a single sentence or one sentence for each of the crimes. The imposition of a single sentence will usually be appropriate in cases in which the offences may be recognized as belonging to a single criminal transaction. [390] In the case of multiple sentences, the Chamber will determine whether the sentences shall be served consecutively or concurrently.

484.  In reaching its decision on an appropriate sentence to be imposed on the Accused, the Chamber has taken due consideration of the well-established principles of retribution, deterrence, and protection of society. [391] Specific emphasis is placed on general deterrence, so as to demonstrate “that the international community [is] not ready to tolerate serious violations of international humanitarian law and human rights”. [392] The Chamber has also considered the likelihood of the Accused’s rehabilitation. [393]

485.  The Chamber has taken due notice of the intrinsic gravity of the crimes in consideration; genocide and crimes against humanity being offences which are particularly shocking to the conscience of mankind.

486.  On the other hand, the Chamber has considered the principle of gradation in sentencing, according to which the highest penalties are to be imposed upon those at the upper end of the sentencing scale, such as those who planned or ordered atrocities, or those who committed crimes with especial zeal or sadism. Whether an accused is found guilty of genocide, of crimes against humanity or of violations of the Geneva Conventions or Additional Protocol II thereto, the principle of gradation enables the Chamber to punish, deter, and consequently stigmatize the crimes considered at a level that corresponds to their overall magnitude and reflects the extent of the suffering inflicted upon the victims. [394]

487.  The Chamber has also found guidance in the practice of sentencing in Rwanda, as referred to in previous judgements of the Tribunal. [395]

488.  Finally, the Chamber has taken into consideration the totality of the circumstances of the case and the individual circumstances of the Accused, in mitigation as well as in aggravation. It has borne in mind that the principle according to which only matters proved beyond a reasonable doubt are to be considered at the sentencing stage extends to the assessment of any aggravating factors, while mitigating factors are to be taken into consideration if established on a balance of probabilities. This Chamber reiterates that a particular circumstance shall not be retained as aggravating if it is included as an element of the crime in consideration. [396]

2.         Submissions

Prosecution

489.  Relying on the gravity of the crimes committed, the Prosecution requests the Chamber to impose the most severe sentence upon the Accused, that is, imprisonment for the remainder of his life. The Prosecution contends that particularly aggravating circumstances exist in the present case. Particularly, the Prosecution emphasizes that the Accused was a well-known personality in the Kibuye Prefecture, his home prefecture, and that, at the time of the events, he was Minister of Information in the Interim Government. In such public office, claims the Prosecutor, the Accused was under an obligation to espouse the principles laid down in the Rwandan Constitution and to uphold a degree of morality. Instead, he supported the Abatabazi campaign against the Tutsi while actively engaging himself in the killings of the Tutsi and inciting others to kill. Finally, the Prosecution stresses the absence of mitigating evidence and the Accused’s lack of remorse for the events in Rwanda from April to July 1994. [397]

Defence

490.  The Defence prays the Chamber, in the event the Accused is found guilty, to consider the length of time the Accused has spent on remand with little or no prospect of being released on bail while awaiting trial. The Defence submits as a mitigating factor the fact that the trial was completed in record time due to the Accused’s cooperation in the proceedings. The Defence emphasizes that at all times the Accused conducted a respectful defence and that the instructions given by the Accused to his legal representatives took into account a desire to expedite his trial and to avoid where possible, the expenditure of court time and resources, including financial resources. Also in this respect, the Defence emphasizes that the Chamber commended the parties for their professionalism. The Defence finds support in the Krnojelac Judgement at para. 520, wherein the ICTY Trial Chamber gave credit to the Accused for the extent to which his Counsel co-operated with it and the Prosecution.

491.  The Defence further prays that the Chamber consider that the Accused has a wife, children and grandchildren, and that he is unlikely to be afforded any real opportunity to have regular contact with them and to maintain and develop any meaningful relationship with them. The Defence submits that, if found guilty, the Accused should be held as capable of being reformed. According to the Defence, excessively long sentences can amount to cruel and inhumane punishment. The heavier the sentence imposed upon him, the more difficult his reintegration into society will be, especially considering that there is little or no prospect that the Accused will be able to return to his home and country of birth. [398]

492.  The Defence also submits that the Accused exercised his right not to testify and that, in this respect, he has not aggravated any alleged wrongdoing by, for example, undertaking to tell the truth and then not doing so. [399]

3.         Deliberations

Individual, Mitigating and Aggravating Circumstances

493.  Eli�zer Niyitegeka was born on 12 March 1952 in Gitabura Secteur, Gisovu Commune, Kibuye Prefecture, Rwanda. At the date of sentencing, the Accused was 51 years old. A married man, he has five children, and grandchildren. The Accused is a former newscaster and journalist at Radio Rwanda. In 1991, at the time when multi-party politics were inaugurated in Rwanda, the Accused was among the founding members of the opposition MDR Party. He assumed Chairmanship of the MDR for the Kibuye Prefecture, from 1991 to 1994. On 9 April 1994, the Accused became Minister of Information within the Interim Government. He remained in that position until the second half of July 1994 and his exile from Rwanda.

494.  In mitigation of the Accused’s sentence, the Chamber has considered evidence that the Accused intervened and saved a group of refugees from Interahamwe who accused them of being Inkotanyi. It is reasonable to infer from the circumstances of this episode that the Accused thus saved these refugees’ lives.

495.  However, the Accused also took the lives of others, and deliberately committed crimes of a heinous nature against civilians prior to and after this episode. The fact that he helped save some persons therefore carries limited weight.

496.  The Chamber has also considered in mitigation the fact that the Accused was a person of good character prior to the events. As a public figure and a member of the MDR, he advocated democracy and opposed ethnic discrimination. As such, he proved courageous, despite threats to his life and property.

497.  However, after 6 April 1994, when faced with the choice between participating in massacres of civilians or holding fast to his principles, he chose the path of ethnic bias and participated in the massacres committed in Rwanda at the time. The fact that he was formerly a good man is accordingly of little weight.

498.  Finally, the Chamber has given credit to the Accused for the extent to which his Counsel co-operated with it and with the Prosecution in the efficient conduct of the trial.

499.  The Chamber considers as aggravating, in the Accused’s case, the following circumstances:

500.  Having reviewed both mitigating and aggravating circumstances, the Chamber finds that the aggravating circumstances outweigh the mitigating circumstances in the Accused’s case.

4.         Imposition of Sentence

501.  FOR THE FOREGOING REASONS, having considered all of the evidence and the arguments of the Parties, the Statute, and the Rules, the Chamber imposes sentence as follows, delivering its decision in public, inter partes and in the first instance, and noting the general practice regarding sentencing in Rwanda.

502.  For the crimes of which the Accused was found guilty, the Chamber SENTENCES Eli�zer Niyitegeka to:

Imprisonment for the remainder of his life

503.  The above sentence shall be served in a State designated by the President of the Tribunal, in consultation with the Chamber. The Government of Rwanda and the designated State shall be notified of such designation by the Registrar.

504.  Until his transfer to his designated place of imprisonment, Eli�zer Niyitegeka shall be kept in detention under the present conditions.

505.  Pursuant to Rule 102(B) of the Rules, on notice of appeal, if any, enforcement of the above sentences shall be stayed until a decision has been rendered on the appeal, with the convicted person nevertheless remaining in detention.

Arusha, 16 May 2003

(Seal of the Tribunal)