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Public Prosecutor v. Joseph Mpambara

Court Hoge Raad (Supreme Court), The Netherlands
Case number 12/04592 (ECLI:NL:HR:2013:1420)
Decision title Judgment
Decision date 26 November 2013
  • The Public Prosecutor
  • Joseph Mpambara
Categories War crimes
Keywords child, hostage, murder, Non-international armed conflict, rape, torture, war crimes
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Between April and July 1994, as much as 10% of the entire Rwandan civilian population was murdered in an ethnic conflict in which the Hutus sought to eliminate the Tutsis. At the same time, an armed conflict was fought between the Rwandan government army (FAR) and the armed forces of the Rwandan Patriotic Front (RPF). The RPF were a rebel army primarily composed of descendants of Rwandan Tutsi who fled from Rwanda in preceding years.

The accused, Joseph Mpambara, fled Rwanda for The Netherlands. He was arrested and brought before the Dutch courts on charges of war crimes, torture and genocide. Although the Dutch courts deemed themselves without jurisdiction for genocide, Mpambara was initially convicted for torture. The Court of Appeal also found him guilty of war crimes and increased his 20 years' prison sentence to life imprisonment. Mpambara appealed at the Supreme Court, arguing that the previous judgment - especially the use of evidence from witnesses he could not examine and the issuance of a life sentence - was in violation of his fundamental rights (as found in the European Convention on Human Rights, ECHR), namely his rights to a fair trial and to protection against inhumane treatment.

The Supreme Court found the grounds of appeal unfounded, dismissed Mpambara's appeal, and confirmed the Court of Appeals' judgment and sentence. 

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Procedural history

The Accused, Joseph Mpambara, was a member of the interahamwe militia in Rwanda in 1994. He subsequently fled to Kenya and in November 1998, he sought asylum in The Netherlands.

In June/July 2006, the Public Prosecutor of the Netherlands contacted the Prosecutor of the International Criminal Tribunal for Rwanda as to the possibility of investigating the criminal offences allegedly committed by the Accused in Rwanda.

Following the arrest of the Accused in Amsterdam on 7 August 2006, on 3 October 2006, the Prosecutor of the ICTR requested the Dutch government to accept the transfer of the case of the Accused for national prosecution. This request was accepted on 27 November 2006.

In pro forma hearings on 11, 16 and 17 May 2007, the Public Prosecutor requested the District Court of The Hague to determine whether the Public Prosecutor may institute proceedings for genocide.

On 24 July 2007, in an interlocutory decision, the District Court of The Hague determined that Dutch courts do not have jurisdiction over the crime of genocide allegedly committed by the Accused.

On 17 December 2007, the Court of Appeal of The Hague upheld the decision of the District Court and found that the Public Prosecutor was barred from proceeding against the Accused for charges of genocide due to a lack of jurisdiction.

On 21 October 2008, the Supreme Court of The Netherlands upheld the decision of the Court of Appeal.

On 23 March 2009, the District Court of The Hague convicted the Accused of complicity in torture, but dismissed charges of war crimes (no sufficient link between acts and armed conflict) and genocide (lack of jurisdiction). Mpambara was sentenced to 20 years’ imprisonment.

On 7 July 2011, the Court of Appeal of The Hague upheld the conviction for torture. Additionally, it found that the count of hostage taking was also proven. It requalified the basis for the Accused’s conviction as co-participation in violating the laws and customs and war, a war crime. The Accused was sentenced to life imprisonment (in Dutch only).

M. appealed against this decision.

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Related developments

The current decision was in last instance; the Joseph Mpambara-case has therefore come to an end.

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Legally relevant facts

For the exact facts of the case and the acts, constituting  torture and war crimes, Mpambara has committed, please see the "legally relevant facts" in the case in first instance.

In the current case, Mpambara has brought three grounds of appeal against the appeals judgment:

  1. Since Mpambara has had no opportunity to hear two witnesses ("Witness 1" and "Witness 2"), their statements should be excluded as evidence.
  2. For the war crimes conviction, the Court has relied on these witness statements to prove the nexus (the link) between the acts and the armed conflict; this conviction should therefore be quashed.
  3. The life sentence is prohibited under the European Convention on Human Rights because it constitutes a form of inhumane treatment.
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Core legal questions

The case comes down to three major issues: has the Court wrongly relied on the witness statements of the two witnesses Mpambara could not examine; what are the consequences of this reliance (if any); and is a life sentence lawful?

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Specific legal rules and provisions

  • Articles 3 and 6 ECHR.
  • Article 81 Judiciary Act (Wet op de Rechterlijke Organisatie).

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Court's holding and analysis

Concerning the first ground of appeal, the Court noted that the use of (witness) statements , for example as included in a police report, is not per se excluded from being used as evidence if the accused has been unable to hear or examine the witness. Moreover, since the war crimes charges have been confirmed by evidence from other witnesses whom Mpambara had been able to question ("Witnesses 3, 5 and 6"), the statements by Witnesses 1 and 2 were only supporting evidence; as such, the appeal against the war crimes conviction was rejected.

With regard to the life sentence, the Court first established that it is not inherently unlawful or in violation of Art. 3 ECHR. Referring to the ECtHR's judgment in Kafkaris v. Cyprus, the Court noted that all Art. 3 ECHR requires, is that he who receives a life sentence should have the possibility to reduce the sentence de iure and de facto. And since Dutch law offers the possibility of a pardon, as well as the possibility to appeal to the civil judge about a supposed unlawfulness of further execution of the sentence, M.'s sentence was not found to be violation of the ECHR.

M.'s grounds of appeals were dismissed, and the previous judgment by the Appeals Court was affirmed.

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Instruments cited

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Additional materials