By The Rwandan Lawyer
As par article 119 of law no 15/2004 0f 12/06/2004 relating to evidence and its production, evidences is based on all grounds, factual or legal provided that parties have been given a chance to be presented for cross-examination. In criminal matters, evidences may be established by any means de facto or de jure provided that they are submitted to the contradictory debates. Yet freedom of the evidence cannot permit the use of all kinds of practices and excesses. Indeed, certain modes of evidence have long been outlawed because they are prejudicial to individual liberties such as; Listening phone call, the constraint, the trickery, false promises and lies. The question of evidence is necessarily subject to the principle of legality and respect for the fundamental rights of every individual. The administration of the evidence, that is to say, its research and collection, must be done respecting both procedural and material legality. So, the law no 15/2004 of 12/06/2004 This law governs evidence used in litigation, determine certain prohibits in investigation and process of collection evidences, in article 5, 6 of this law it is prohibited to produce evidence based on mixture, ordeal, divination, witchcraft or any other magical, mythical, esoteric or superstitious means. And it is prohibited to resort to torture or brain washing to extort an admission from the parties or the testimony of witnesses. But this law doesn’t determine specified other prohibits action in collecting evidence.
There is a problem of violation individual suspect rights when the investigator are collecting evidence because of no respect the rules and condition regulating collecting evidence, When investigator collecting evidences sometimes he/she violated the individual human rights, like to hearing you in the telephone, to record talking voice, ambush or secret hold Suspect day or night time without Authorization of general public prosecutor, sometime investigator was interring into the family house to collecting evidence without authorization so directly the right of Suspect person is not respected.
Consequently, the evidences come from unfair collection or the evidences collected in illegal ways can Couse bad effect to the Suspect person . The presentation of the evidence prohibited in art, 5 and 6, its admission or reception are void in determining the issues of a case, without prejudice to any sanctions provided for by the penal code.Also, in the trial prosecutor can show evidence in order to convince judge, somehow he/she doesn’t go to collect those evidence, it means that all he/she was tell the court is not true or real % because it’s based to the report of investigator he didn’t go on the site (terre). How can that evidences may have the value in trial or may be are unbelievable? how can the prosecutor give evidences in trial and agree its real true but he/she didn’t go to collect that evidences only based on investigator report, as we know errer humanum est (latin word means every human may make error)
Its means investigator may make error when they collect evidences, prosecutor, what he/she say it may make heavy consequence to the accused person unless it may not true.
The latter is constituted by certain essential general principles which must be respected by the investigator, in addition, the principle of loyalty of evidence. This principle imposes on the actors of the criminal procedure, namely investigators and prosecutor. this principle requires the actors of the criminal procedure to act honestly, without resorting to tricks or stratagems. Indeed, it is considered that the obtaining of evidence must not be done at the cost of violation of individual freedoms.
The Rwanda law sticks on the principle “actori incumbit probatio” which is set out in a provision of the civil code; the plaintiff always has the burden of proof.
For many suspects, they do not have adequate and sufficient means and rights to collect and present their evidences during criminal trials as a principle of ‘Reus in excipiendo fit actor’ which means (the defendant, by excepting becomes a plaintiff, that is where instead of simply denying the plaintiff’s action, he sets up some new matter in defense, he is bound to establish it by proof, just as a plaintiff is bound to prove his bound to prove his cause of action. This was for me an opportunity to think on these procedural loopholes and to reflect on ways to collect them within the Rwanda legal framework.
Certainly, the prosecution has the immeasurable means to gather evidence against the accused. For sure the arrested or suspected persons have no possibility to gather sufficient evidences that discharge to prepare their defense because of the preventive or definitive detention. The practice of the collecting evidence shows many cases of unfair as we will see along the search. How unfair collecting evidences can be effect to the fairness of justice or to the judgement in Rwandan Criminal matters? There is any violation of accused right when investigator collecting evidences? the right of the defendant to access on evidences collected is respected? This study is divided into two parts namely: the first focuses on the critical analysis of effect of non-fair collection evidences in criminal procedure, and its consequences on the suspect person who finally is declared innocent. The second part deals with institutional and normative mechanisms for fair collection evidence and respectful the suspect right.
Respect for the duty of fair and neutrality by Rwandan prosecution and investigation bodies
The problem here is to know which practices constitute a violation of the principle of Fair in collection evidence and critical analysis of the respect of the right of the suspect in time of collecting evidence. Along this part conducting a critical analysis of the rights of suspect person and respect the rules governing evidences in criminal matter, there will be concentrated on the position of the problem while raising the different cases of violation of suspect person.
Ignorance and weak enforcement of law regarding collection of evidence
Actually, there is a principle of ignorance of the law which is a Latin law “ignorantia juris non excusat or ignorantia legis neminem excusat. no one is presumed to be ignorant of the law i.e.This is a legal principle holding that a person who is unaware of a law may not escape liability for violating that law merely because he or she was unaware of its content.
Unfortunately, due to the absence of law investigator (Judicial police or RIB) may ignore the sense or the aim of rules of evidences and the principle of presumption of innocence under criminal procedure. The way to fix this problem is to require the government to identify all of the prohibition in collecting evidences in criminal matters. Regarding weak enforcement of laws, when a law does not clearly explain a certain discipline or a field, the might be confusion which causes weaker enforcement and interpretation of legal text. Strong legislation includes not only prohibited to produce evidence based on mixture “igihango”, ordeal, divination, witchcraft, but also substantive provisions such as hearing suspect Phonecall, interference his/her privacy or home family. And helping accused to have an access to the principle “Reus inexcipiendo fit actor”
Illegalities committed in the collecting evidence
In the file RP 0445/12/TGI/NYGE, TURATSINZE Cyrille, permanent secretary of MINALOC was prosecuted for corruption in the public markets that he had to grant to a certain NSHIMIYIMANA Jerome. As proof of this telephonic offense that he would have exchanged with him to arrange the transaction.
In his defense the Accused replicated on the basis of documents that there was no market in sight, that he played no part in the awarding of the marches apart from their approval and especially that he did not recognize the voice that was attributed to him.
The High Court, after having accepted the prosecution’s evidence and the defendant’s defense, granted him compensation and released him.
What about telephone listening?
How to define the telephone listening? Our legislation is silent, but the doctrine decides that there is telephone listening in accessing private conversations not only by using a derivation, but also by using any procedure such as approaching a radio cassette. It is the interception, the recording and the transcription of correspondences made by telecommunications.
One wonders whether in penal law of form, in the name of principle of the freedom of the proof, any mode of proof based on a technique is admissible? The solution brought by the jurisprudenceand the doctrine in this matter is negative. Thus, the investigator or prosecutor who provoke and intercepts a telephonic communication to be a witness and a suspect to induce the latter to make confessions undermines the rights of the defense. In practice, the listening is illicit when the investigator plays an active role, either by speaking himself while dictating his remarks.
This assumption was found in the Wilson case. The judge of instruction Vigneau, who pushed very far the professional zele, had gone as far as to engage with a witness a telephone conversation, concealing his quality and making believe to him that he spoke to the accused himself. The Court of Cassation, all the chambers ruled in superior council of the judiciary, stigmatized this process as not in accordance with the frankness which must guide any judge of instructor. On the other hand, Rwandan legislation provides that, in the alternative, when the other procedures have failed to obtain the truth, the investigators and Prosecutors, responsible for examining the case may, under the written authorization of the Public Prosecutor General, telephone and recording intercepts. However, the telephone listening and recording does without mandate of the General Prosecutor is illegal.
Investigator’s interference privacy of suspect
When can a person’s privacy rights be violated?
The first of all Invasion of privacy is a legal concept dealing with intrusion into an individual’s private life. Invasion of privacy occurs when a person or entity intrudes upon the personal life of another person. Many actions may be considered invasion of privacy, including interference in privacy family home in collection evidences and other methods of obtaining private information. While most people think they have a right to privacy at all times, the fact is that this right does not respected well. Generally speaking, a person has the most privacy rights when they are at home or while on their own property. It is important to remember that your rights can be limited depending on the situation. As noted above, while it is not explicitly stated in the text, the constitution has been found to imply that each person has a basic right to privacy. In addition, the constitution grants citizens the right to be secure against unreasonable searches and seizures. you may also be able to sue someone under tort law for invasion of privacy. While this may vary between the states, it will be better when the law determining that violation is valid to only serious crimes.
Consequences of Interference privacy of suspect.
The consequences to the suspect as I noted above his/her rights violated, some consequences are damages for losses caused by the privacy violation, changes in security policies in society (especially at work or school) and sometimes effect to family because person information violated. in the field of privacy, the notion of harm has always been problematic as it is often difficult to substantiate the harm a particular violation has caused, e.g. what harm follows from entering a home or eavesdropping on a telephone conversation as such when neither objects are stolen nor private information disclosed to third parties? Even so, the traditional privacy violations (house search, telephone taps, etc.) were often clearly demarcated in time, place and person, and the effects are therefore relatively easy to define.
Jurisprudence: Case of Interference privacy of suspect
From 10thApril to 24th April 2019, at the end of my law studies I conducted an academic internship in High Court Detached Chamber of Musanze we noted some cases where accused said that investigators was violating their liberty when they interference his privacy for example: On 11Apr,2019 I was attending the court hearing this case comes from Intermediate court of Rubavu, here the accused lodged an appeal in high court asking to verify what he call violation made by investigators and reduce the penalty given by the primary court and confirmed by Intermediate court of Rubavu, on crime of intentional assault and battery. he gave the reasons that the Intermediate court did not take consideration his explanation. On the side of prosecution said that the accused did not shows the court evidence of what he said and the reasons which permit him to make the second appeal according to the article 41 of law determining the organization, functioning and jurisdiction of courts, and he did not demonstrate how he committed that crime so he asked the court to confirm the sentences of the Intermediate court.
Also, case no 00071/2018/TGI/MUS of 28/06/2018 for appeal of case no RP 00382/2017/TB/CYE of 28/12/2017 by primary Court of Cyeru, Where the accused showed that his privacy are violated and his right are note respected well. But, According to the Universal Declaration on Human Rights (UDHR) of 1948. provides that everyone charged with a penal offence has the right to be innocent until proved guilty. The declaration states again that no one shall be subjected to arbitrary interference with his privacy, family, home or correspondence.
Respect for privacy of a person and of family The privacy of a person, his or her family, home or correspondence shall not be subjected to interference in a manner inconsistent with the law; the person’s honour and dignity shall be respected. A person’s home is inviolable. No search or entry into a home shall be carried out without the consent of the owner, except in circumstances and in accordance with procedures determined by the law.
Seized cell phone without a warrant
Seized cell phones are safe from a warrantless search by investigators, for example in America and other state the court ruled that a police cell phone search for data is not constitutional when a person is arrested unless officers get a warrant first. For Brima Wurie, his phone was the one important item that was searched by police officers the evening he was arrested for possessing crack cocaine. Wurie claims was violated in his case, the law protects people’s right to feel secure in their persons, homes, papers, and effects, against unreasonable search and seizures. In Wurie’s case, police could have just waited to get a warrant to search Wuries’s seized cell phone, the court held. The privacy concerns far outweigh the need for police to search a seized cell phone without a warrant. Cell phones are more like our papers and effects protected under the Fourth amendment. They carry a lot of personal information that most of us wouldn’t even want our family members looking at, Police search of seized cell phone is an issue that affects most people. The Florida supreme court found that warrantless cell phone search is unconstitutional just a few years ago. So, when investigator collected evidences without respecting the rules of evidence it is not only violates the Suspect’s Rights, also violates the Constitution law and principle of Presumption Innocent.
A human being is sacred and inviolable. The State has an obligation to respect, protect and defend the human being. Art 13 of Rwandan Constitutional law and also Article 41 of this law determine Limitation of rights and freedoms, in exercising rights and freedoms, everyone is subject only to limitations provided for by the law aimed at ensuring recognition and respect of other people’s rights and freedoms, as well as public morals, public order and social welfare which generally characterize a democratic society.
A public prosecutor or investigator officers who have been entrusted with the duty to search and visit suspected scenes of crimes should prove their authority and show warrants which have been signed by competent people, authorizing them to carry out such activities. A copy of the warrant is given to the suspect. But this rules are not respected well. Confidentiality of correspondence and communication shall not be waived except in circumstances and in accordance with procedures determined by the law. Right to liberty and security of person, A person’s liberty and security are guaranteed by the State.
Case of provocation to crime
No Rwandan legal provision speaks of provocation. In order for a jurisdiction to consider the excuse of a provocative offender, the police officer must: 1. Have incited the accused to consume his indictable offense, without relying on outside evidence to suggest that the suspect was in the habit of committing the same offenses as that provoked; 2. To have carried out unlawful and irregular prosecutions consisting of giving rise to the execution of the offense (physical or moral coercion, trickery, etc.) even if there were serious indications of suspicion of the person being prosecuted. The provocation to commit an offense consists either in bringing about the criminal resolution or in reinforcing it in the person who will materially execute the offense. This definition, adopted by the doctrine, is inspired by that of the Court of Cassation of France, that it does not intend to submit a question. Thus, the Court has repeatedly held that “the provocation to commit an offense consists either in causing the criminal resolution to be committed or in reinforcing it in the person who will materially execute the offense”. This is, it seems, the reasoning held by Criminal Court of the Seine in a moped case. Consequently, there will be no provocation if the intention to commit an offense is without any intervention by the investigator or the latter has merely created an opportunity to freely commit an act punishable under such conditions. That the police were able to see the execution thereof.
The prohibition of provocation is unanimously accepted by jurisprudence and doctrine. For the European Court of Human Rights, there is a violation of the right to a fair trial where there is no indication that, when the police intervened, the offense was committed. In our opinion, does it agree that immorality is the result of disproportion to be means and ends. The argument from this theory of provocation to delinquency is a police demonstration.
The characters of the provocation
The provocation is characterized by a certain anteriority, immediate, abstention and the quality or function of who is the author.
Anteriority: Police entrapment will render the proceedings inadmissible as long as it precedes the commission of the offense. It is necessary that the maneuvers of the agents intervene before the commission of the facts. This condition has been affirmed several times in the case law. Thus, the Court of Cassation ruled that “Noting not only that the defendant had already occupied for some time to offer a stolen goods by other defendants, but having also decided that the intention to commit the offence of stolen prior to any police intervention, police intervention did not create an intention to commit the offense, but merely opportunity to find the act punishable, and that the accused has always had the opportunity to freely terminate the execution of his criminal intent, the criminal judge may decide that there is no question of entrapment. The Criminal judge can decide that there is no question of provocation.
The quality of the author of the maneuvers inducing provocation
The question here is whether a defendant could invoke provocation if the maneuver that led to the acting of a third party acting at the request of the police services or representatives of the authority not having the status of a police officer (intelligence services, competent authorities to find violations of particular laws)? Admittedly, the doctrine seems to admit this, pointing out that provocation may also be involved when the offense is provoked by an intermediary or by a third person in collaboration with the police. According to the case law, it is irrelevant that the provocation arises from an agent of the authority or a person acting on his behalf
Proof of the provocation.
Doctrine and jurisprudence have extended to provocation the rules concerning the burden of proof when a cause of justification or excuse is invoked. Therefore, proof of the absence of provocation lies with the prosecutor (MP), Provided that the allegations of the defendant are not unreasonable. It should be noted that the Rwandan jurisprudence seems, like the Belgian and Dutch case-law, to apply the principle of the reversal of the burden of proof when the accused alleges elements of a nature to make presume that it would have been provoked. In accordance with the general principles of criminal evidence, where it appears that the accused’s allegation that they may have been provoked to commit the offense with which they are charged is not plausible, it belongs to the prosecuting party to establish the inaccuracy of that allegation. Therefore, if the public prosecutor fails to prove the contrary, it is for the trial judge, given his active role in the search for the green, to examine the facts of the case or to take the measures necessary for the manifestation of the truth to determine whether there has been provocation or not.
The Consequences of provocation
If the offense was provoked, the proceedings are inadmissible. There is unanimity of doctrine and jurisprudence in this respect. The Liege Criminal Court has examined this situation by considering that the provocation vitiates the prosecution and is rigorously proscribed. It can have no direct or indirect consequences for the one who is the object. In case of police provocation, prosecutions lack a legal basis. By placing the problem of provocation at the level of inadmissibility of prosecution, it is excluded that the offense found in this way can be proved by other means. The findings of police officers who did not participate in the undercover operation or the accused’s confessions would also be rejected. The doctrine used the notion of provocation to the evidence to design the stratagems intervening after the commission of the offense. There is, however, a fundamental difference in the level of sanctions. If the procedure used to establish the infringement is found to be inadmissible, only the evidence obtained in this way will be rejected and, where applicable, the infringement can always be proved by other means.
Jurisprudential illustration of the provocation of the offense
To be able to incriminate official or magistrates, the police offer a sum of which it keeps the copy to users or parts or processes which will try to offer them to these first ones. Here, the actor of the condemnable corruption remains the only one corrupted because the corrupter is the provocateur or the accomplice of the pursuing party.
In the case registered in RP 0298/11/TGI/NYGE, the prosecutor’s office prosecuted the judge base MAOMBI L to have received 100.000 Rwandan francs to be able to mitigate the sentences of a certain NYIRABIHOGO, then prevented, free or pay it. In the allegations of the prosecution, the telephone communications which she had exchanged with the corruptor and the copies of the notes totaling the sum of 95,000 francs were noted. The accused objected that she had spoken with the accused but that there was nothing in connection with the bribery and that she never received the money alleged to have been given to her. The prosecution reported that the accused had thrown the sum collected in the pipes of the road the NYARUGUNGA Court house and the MULINDI Espinde Road (in KICUKIRO District). The court innocent the judge because the prosecution failed to reconcile the money with the accused and the witness who claimed to have seen the money thrown away could not materially locate it to the height of the wall from the fence to the where he was unless there was a conspiracy between him and the police to prepare him. The case RP 0635/11/TGI/NYGE which opposed the prosecution and the judge of high court NIYONIZERA C had for object the corruption of 100,000 Rwandan francs received from a certain NKINZEHWIKI Fr to be able to give him a chance by allocating him the damages and interests of 700,000,000 Rwandan francs to receive in return 70,000,000. Rwandan francs. The prosecution alleged that the police grabbed their hand in the bag and could compare the Rwandan 50-francs notes held by the judge with their copies. The defense claimed that it was a debt.
Repayment without presenting a written document ad hoc. The TGI NYARUGENGE declared the accused guilty because of the existence of the said judgment and the coincidence between him and the party to trial especially that already mutated to the spare room of RWAMAGANA, he always clung to the trial of which he had several times postponed pronounced it.
Other illegalities committed in the collecting evidence
The search may be defined as a visit to a private address for the purpose of collecting or searching for evidence of a crime or delict or as a means of coercion by which the competent authority enters into the search. a residence or dependency thereof in accordance with the conditions and form provided for by law, in order to establish a crime, to resemble the evidence relating to an offense or to arrest the alleged perpetrators or accomplices of the crime.
However, the case law decides that the findings made during an unlawful search are null, and the illegality of the original findings lead to the nullity of the evidence gathered as result of these findings including the confessions: are thus null, all the acts prosecution and investigation which are the direct and immediate consequence of the findings of the unlawful searches.
In addition, the same are null and void, all the hearings and judicial acts carried out at the beginning of intelligence obtained by or during these searches, the arrest warrants issued and the ordinances of the council chamber; finding that all the documents constituting the file submitted to the Court are vitiated by this nullity, annul the proceedings; and, in the absence of a regular arrest warrant, orders the release of Q and Z if he is not detained for other reasons. On the other hand, it has been held that the unlawful domiciliary visit does not vitiate the conviction if the evidence of the offense is deduced from the subsequent statements of an accused who are unrelated to that visit and who are not the result of the findings made illegally without a warrant .
A search warrant (is a document which is issued by the Public Prosecution upon authorization from the Prosecutor General or the Military Prosecutor General in case of members of the military or co-offender, or the Chief Prosecutor at Intermediate level or a Prosecutor at Primary level) Empowers the person in charge of its enforcement to enter any premises to uncover evidence or items necessary to establish the truth in relation to the offence and the suspect. In short, any search or domiciliary visit carried out during the night or without a warrant is illegal.
The Constraint of Accused or Suspect
The constraint is among the acts prohibited by the law, to force physically by strong to someone with the intention changing their mind or convincing them of a certain point of view, used to obtain the confession. Coercion, like torture, can be defined as any inhuman treatment by which severe mental or physical suffering is intentionally inflicted on a person, including for the purpose of obtaining information or confessions, punishing pressure on her or intimidate that person or third parties. In this definition, the circumstances in which an interrogation has taken place may influence the validity of an admission. Thus, its duration, serenity and the context in which it took place were taken into consideration.
Thus, in a judgment of the Court of Appeal of Brussels under which: “confessions collected by the judicial Police at the end of an interrogation of more than fourteen hours interspersed with a traumatic search of clothing have no probative value when it is not unlikely that the defendant, who has no judicial precedent and had never been confronted with the reality of a police interrogation, was exhausted by the length of an audition to which nothing had prepared it and which did not fit either with his personality or with his irreproachable professional record”. Or the judgment of the Criminal Court of Namur where it was decided that: “a confession obtained following a police interrogation during which the verbalizers admitted to be nerves, to cover the tone and acquired the conviction of the beginning of the accused’s guilt must be dismissed “ In the same sense, in its judgment of 24/02/2004, the Supreme Court of Rwandan, acquitted an accused Y; accused of poisoning by the MP (Military Prosecution), on the grounds that the confession in which the MP relies as evidence to support, had been brought down by physical torture suffered by the defendant. While the accused in her argument insisted that she confessed by threat, the MP in its replicas, could not prove the contrary evidence; which is likely to neutralize those of the prevented, and thus likely to convince the judge that the prevent had not undergone these constraints.
The trickery Jurisprudence has ruled on several occasions on the admissibility of confessions obtained through practices which were accused of being tainted by deception. The incriminated practices fell essentially into two great categories: false promises and deceptions, staging’s.There are, again in the Belgian case law, some cases of stratagems which can be assimilated to staging. Like false promises and lies, it is particularly uncomfortable to identify certain lessons.
In this sense the Tribunal correctionnel of Nivelles, thus, rejected the evidence gathered after finding that the civil party had alerted the police in order to ascertain his flagrant violation of the home of her husband, committed in order to allow the adultery of the latter.
Some decisions, which we will illustrate below, have declared inadmissible the findings made during a home visit when the consent to enter the premises was obtained by trickery.
Thus, the Court of Cassation considered that the tax agent who, posing as the consumer, has entered the private apartments of a spirit drink, cannot be considered as having obtained the tacit permission to visit the dispensation from being authorized by the justice of the peace.
Similarly, the Grand Criminal Court held that if the use of staging’s or stratagems was permissible, it become at fault when the statements were withdrawn under certain pretexts, even if the staging is not organized by the police.
Indeed, it is quite contradictory to admit the use of stratagems, but to reject them they have influenced the administration of the proof.
Finally, the District Court of Luxembourg considered that the findings made during a home visit which was only made possible by the lie of the plaintiffs of the civil party are inadmissible, because made with the help of trickery or cunning.
To summarize, most judicial decisions condemn the use of unreasonable methods of obtaining confession. Thus, to serve as a basis for a repressive decision, the evidence retained by the judge must, in particular, be consistent with the general principles of law, respect for human personality and the rights of the defense; it is by virtue of this conception that all methods of violence, tricks or ruses are rejected.
False promises and lies
The Belgian Court of Cassation considered that the evidence obtained as a result of false promises was unlawful because it was acquired in violation of the rights of the defense. In this case, agents of the special tax inspectorate had given rise to statements by the defendants, guaranteeing that there would be no repressive pursuit, even though they were not entitled to make such commitments. As a result, the Court ruled the proceedings inadmissible.
Similarly, a judgment of the Antwerp Court of Appeal implicitly prohibits confessions obtained in exchange for the promise of abandonment of prosecution or of any immunity.
In this case, the accused had collaborated spontaneously in a murder investigation and, on that occasion, had uncovered facts of tax evasion, believing that in exchange for the assistance they provided, they would not do so. Subject to criminal prosecution.
Whereas the court can understand this conception and especially the surprise of the accused when they learned that a tax instruction had been opened against them for facts could come to light only in the context of an instruction for murder, but the Police cannot be criticized for having used unreasonable means to obtain this confession or for promising a possible tax immunity. In the same sense, the TGI Gicumbi acquitted an accused X, accused of negationist of the genocide, is planned and punished by the provision of article 4 of the law no 33 / 2003 of the 06/09/2003 repriming the crime against humanity and war crime; on the ground of the ground of the irregularity of the confession, obtained by trick or false promise. In this case, the confession of the accused is made in a written address to the police asking forgiveness for the mistakes he has committed. The defendant confessed by trick of a policeman who had promised him that if he manifests the will to confess, he will not be arrested. The judge ruled that the admission from trickery, deception or coercion must be inadmissible and should not be used as a basis of evidence.
The only instruction to charge
In fulfilling its search for evidence task, the OPP (Office of Public Prosecution) must look for both evidence against him and his evidence. It is also one of the requirements of the duty of fair or loyalty and impartiality in the time of collection evidence. In this case, the rule means that the investigative bodies do not have the task of proving the culpability of the person under investigation, but only to inquire whether there are any charges against him to justify his removal to the court of Appeal, judgment.
Also, the OPP must spontaneously look for any evidence to support and discharge. On this account, to instruct the charge and the discharge, it is to deepen all the circumstances of the fact, it is to bring the light on every corner of the ground where the debate will be held; it is sounding all the circumstances of the cause, all the probabilities it raises; it is to overcome the degenerations of the long researches, the fatigue of the sterile investigations. In short, the obligation to instruct a charge and discharge is incarnated in the doctrine of doubt already mentioned at the beginning of this study. Our ambition is to examine whether the investigators obey this rule. So, with the interview we did with different people; especially the actors of the justice: Judges, Lawyers and prosecutors, it has been noted that the OPP are satisfied only on the instruction to load, which is without consequence on the trial. That being said, the number of criminal cases according to which the ONPP (Office of National Public Prosecution) does not succeed, whereas it was necessary not to seize the jurisdiction, once the rule of the instruction to load and discharge was respected.
Precisely, what could we think of our case law for the hypothesis of incomplete instruction? Admittedly, the Supreme Court, after compelling the MP to carry out further investigations, in order to know the identity of the accused who was prosecuted for the murder charge; is foreseen and punished by art. 312 CP LII, had invalidated the judgment of the ICTY of Kigali, delivered on 22/06/2000 in case RP 38654/KIG. Starting from the further investigation of the MP and reference made to the birth certificate issued by civil status officer of the home of the accused, the Supreme Court notes that the person prosecuted and sentenced by the first degree judge for a sentence, is not U but rather M, orders that, the accused M had committed the offense being still under 12, therefore is irresponsible penalty; that Judgment No. RP 38654/KIG of 22/06/2000 delivered by TPI Kigali be invalid and that the accused M be released after pronouncement.
Despite the use of the offence or even sufficient evidence to support the MP does not succeed after the non-trial discharge, because it continues the prevention for the identity that does not corroborate the reality (Because he pursues the advance for the identity that does not corroborate the reality)
Jurisprudence: Case of breaches to Rights of Suspects to Collect Evidence
For many suspects, they do not have adequate and sufficient means and rights to collect and present their evidences during criminal trials as a principle of ‘Reus in excipiendo fit actor’ As stated at the beginning on the research example in cases: RPA 0096/15/TGI/MUS: TWAMBAZIMANA Alphonse and NDUNGUTSE James vs. Prosecution, Appeal against the RP 0301/014/TB/MUH pronounced on 9th April, 2015 (art. 148 of the Penal Code on aggravated assault and battery)
RP 0057/15/TGI/MUS: MUNYANEZA Prosper Alias GACINYA vs. Prosecution pronounced on 23rd April, 2015. (art. 140 of the penal code on murder).
In all of these cases, the suspect right to gather the evidence have been harmed as it was not so easy to collect evidence while in Provisional detention. The issue is not to discuss on the innocence or guiltiness of accused persons, but the guaranty of their fundamental human rights.
Uzayisenga O. and Hakizimana S. reported to be arrested by a Police later to be fund as the victim of the offence and they have been forced to confess during the interrogation. They showed external signs and visible physical violence. They have no legal aid and seem to be ignorant towards the law and the court practices. They have no means and ways to collect evidences for his defense, no way to check the prosecutor’s submissions.
The freedom of confession
The confession can be defined as any statement emanating from an accused of a nature to establish the charges against him. It can be judicial or extrajudicial, depending on whether it is done before a judge or in any other way (in front of a prosecution officer or investigation officer).
Normative mechanisms for a fair collection evidence and respectful of the rights of suspect.
Rwandan legislation already prohibits the unfair in the collection of evidence but it shows gaps that should be filled. At most, there is reason to be inspired by the more advanced foreign legislation in this matter.
Redevelopment of the Law Relating to Evidence and its Production
Despite Law No 15/2004 of 12/06/2004 relating to evidence and its production prohibiting certain investigation procedures and evidences in its Articles 5 and 6, certain agents of the Rwandan Prosecution institutions engage in acts that are qualified as unfair. Indeed, this law prohibits only torture and divination and ordeal, while there are other unfounded and unfounded maneuvers that are common in our environment. It is therefore appropriate to review it to add these other unfair stratagems.
As an illustration, in the absence of previous elements allowing to suspect the offense intention, the pursuit provokes the possible crimes of corruption by manufacturing the corruptors who appear in front of their targets “corrupted” with notes already complicit mimeographs with these agents of prosecution or the employers (Supreme Court, national organ of Prosecution, Rwanda investigation Bureau, etc. ) who want to get rid of a subordinate in whose hands there is a file during; she uses the secret telephone intercepts to detect private conversations, searches the accommodation to be able to find the occupants who would have accompanied minor girl, they proceed to the domiciliary visits without warrant, and worse yet nightly, staging, lies and false promises to get an admission, etc.
Inspiration of advanced legislation in the area of fairness of evidence
In order to protect the investigators and combat the abuses they may commit in the collection of evidence, the French legislation has established two systems: the regime of truth and the system of fair or loyalty as we will see below so that our legislator can be inspired.
A distinction depending on the subject and the person
In civil matters, fair or loyalty must prevail over the truth: thus, evidence that has been unlawfully acquired must be declared inadmissible by the judge. One can speak of “regime of Fair of the loyalty”. In criminal matters, it is the opposite: the truth prevails over the loyalty but only for persons not under the public authority: for these persons, if they produce an illegally or deliciously acquired evidence, the evidence should be admitted. We can then speak of the “regime of truth”. In addition, for people who come from public authorities (Judges, investigators, etc.) they are subject to the “Fair or loyalty regime”
Criminal proceedings with civil parties
One can question the legal regime to apply to the validity of the evidence in the context of a criminal trial takes precedence over the civil trial, but that amounts to accepting that illegally acquired evidence may be used in a civil trial (or rather on the criminal trial, which is almost the same). This would be in contradiction with the principle of loyalty so often recalled in the case law.
The European Convention on Human Rights
If we can possibly understand the difference in the validity of the evidence regime when we are complying with the French codes (code of civil and criminal procedure), it is difficult to understand it when we look at the European Convention on Human Rights. Indeed, its article 6 makes no distinction between criminal and civil matters. Thus, when a judge cites it for the approval of one of its decisions, it would be anomalous that this article does not apply systematically to all decisions, whether criminal or civil. However, as this article rightly states that the principle of loyalty must prevail, should the regime of truth in criminal matters disappear?
The uncertainties that remain
In this case, the difficulty is in determining when to consider how the offense of discrimination is. As long as no customer comes to the door of the establishment consider that it is established when a customer presents himself at the door before he has shown his intention to enter, either by entering the establishment if the door is opened, or ringing when, most often, the door is closed to allow the porter to select the clientele? It is difficult to provide a precise answer to this question, as it is obvious that, in this configuration, the material element of the offense can only be realized from a positive act of the client, an event triggering, in a way, which client becomes, at the same time triggering, in a way, which client becomes, at the same time. But it is also true that at no time did the participants in the testing operation resort, to any artifice or scheme and, only in the spirit of the association which was at the origin of this, it was an initiative which was both mediately effective and procedurally efficient to fight against one of the detestable forms of harm to the dignity of the human person. Can we adopt the same position when the recipient of the evidence is aware of his or her unlawful origin?
To conclude the research, it must be said, firstly, that we have not exhausted all the aspects relating to the subject, but we claim to have done something necessary in the field of the professional ethics of the investigators and prosecutors, especially about the duty of Fair collection of Evidence in Criminal matters. Nevertheless, at the end of this study, we have introduced, by exposing the problem, the stratagems that constitute the violation of the rule of Fairness of the evidence. Our goal has been above all to show how Fair Evidence (loyal proof) is a fundamental rule in a state of law, to guarantee suspect and accused a fair trial and an assessment was made on its application in Rwanda. At the end of the day, it should be noted that despite the existence of the well-constructed theories. The practice is far from marrying him. This implies that the deontological rules to which the investigators must comply in the collection of evidence are not fully respected. That is why safe and considered measures must be adopted in the immediate future to correct this situation. The Rwandan lawmaker should have been inspired by like the others: French, Belgian, Dutch and USA to name a few, put in place a law on the code of ethics of Prosecution, which law should contain the provisions on Fair or loyalty in the collection of Evidence. The adoption of other prohibits and adoption rules on the law relating to evidence which determines the manner in which collection of evidence must be made, which regulates the inadmissibility of unfair evidence and specify all prohibits in time of collecting evidence, seems necessary.
The Constitution of the Republic of Rwanda of 2003 revised in 2015. O.G. no Special of 24/12/2015
Law no 15/2004 of 12/06/2004 relating to evidence and its production. O.G. no Special of 19/07/2004.
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