Rwanda Criminal Defense Manual - Fundamental Principles
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There are certain fundamental principles, taken from the Rwandan Constitution and from international treaties, that establish fundamental rights and, thus, have direct daily implications. If kept in mind, these principles will allow the lawyer to perform his job more fully, effectively, and thus more successfully.
The Right To A Fair Trial
Articles 17, 18 and 19 of the Constitution of Rwanda guarantee that everyone shall be judged:
- Within a reasonable time
- With all necessary evidence and freedoms to establish and mount a full defense
Criminal lawyers regularly refer to and work with both the Criminal Code and the Criminal Procedure Code. Both codified criminal statutes reflect the constitutional law and comply with its fundamental basis. In practice, however, these codes may be silent on certain issues. This is true of Rwanda, as everywhere. The entire court, including the presiding judge is subject to the law and the Constitution, and, due to the fundamental principles of law, may also be the subject of legal proceedings.
Implicit in Rwandan law, though it is not explicitly stated in the Constitution, criminal code, or criminal procedure cord, lawyers have the right to demand:
- Unrestricted access to the file under the principle of absolute respect the proceedings: This principle, logically, extends to a copy of the provision under which the accused has been charged. In order to ensure equal protection under the law, this copy of the provision should be free. Practically, this is a manifestation of the right to a free and equal trial, and the right to defense, as provided in Article 18 of the Constitution.
All parties to the case must respect the adversarial proceedings. Under this principle, the defense counsel may not produce any evidence at the Tribunal without having previously shared it with all relevant parties.
Lawyers must also, through the application of the aforementioned principles and articles 38 and 39 of the criminal procedure code (CPC), have confidential, permanent and unrestricted access to the defendant.
- The right to contest the detention of the client under the reasonable deadline clause of article 19 of the Constitution: The CPC allows for the renewal of temporary detention, however, the idea of a reasonable deadline, as found in the Constitution and under international conventions, is quantifiable. Thus, after a number of detention renewals without judgement, the defense may invoke the Constitution to obtain the un-judged detainee's immediate release.
- Public trial: Equality favors public debate. Free defense implies that lawyers will not be prosecuted for what is said while they truthfully and vigorously defend their client, nor will they be censured during proceedings.
This principle of attorney candor is subject to restrictions: outrage and insult remain both criminally and ethically reprehensible, and the lawyer's freedom of speech does not extend beyond the doors of the judicial chamber nor do lawyers enjoy complete freedom, nor do lawyers enjoy complete freedom of speech before the press.
The Presumption Of Innocence:
As stated in Article 19 of the Constitution, "every person accused of a crime shall be presumed innocent until his or her guilt has been conclusively proven in accordance with the law in a public and fair hearing, in which all the necessary gauantees for defense have been made available."
The two provisions stated in Article 19 should be the cornerstones of the defense.
Similarly, article 44 of the Criminal Procedure Code posits the principle of the presumption of innocence.
- The presumption of innocence is in direct opposition with the idea of pre-trial detention. In cases where a person facing criminal charges has few guarantees of representation, a presumption of innocence argument should be emphasised to examining magistrates who may be tempted to use and overuse pre-trial detention without measuring its implications beforehand.
- Under the presumption of innocence, the burden of proof lies upon the prosecution. This heavily influences the defense methodology. (See Defense Strategies)