How Judge Bruguière built his flawed case

Part I 1. Historical background of the case Judge Bruguière began his investigation on 27th March 1998, following a complaint submitted on 31st August 1997 by the daughter of the co-pilot of President Habyarimana’s plane, Jean-Pierre Minaberry, who died in the crash. Subsequently, the families of the other members of the crew associated themselves in the court action with the public prosecutor. Although the complaint was lodged in 1997, more than three years after the crash, Judge Bruguière waited until March 1998 to commence a judicial investigation. The choice of this date is not entirely coincidental. It will in fact be recalled that it was in March 1998 that the journalist of Le Figaro, Patrick de Saint-Exupéry, published a series of very compromising articles on the role of France in the genocide of the Tutsi. On the 3rd of the same month, a group of French intellectuals published in the daily newspaper Libération an appeal for setting up a commission of inquiry in France with a view of establishing the responsibilities. With great haste, Paul Quilès, chairman of the Foreign Affairs Commission of the French National Assembly, announced on the same day the establishment of a fact-finding mission, but which was given very limited powers compared to a Commission of Inquiry. Some observers feel that this coincidence between the commencement of the investigation by Bruguière and the establishment of a fact-finding mission instead of a Commission of Inquiry was motivated by political intentions to conceal the truth. Indeed, under French law, when a judicial investigation is under way, it takes precedence over inquiries which may be carried out by a commission. This means that to the extent that Bruguière was investigating the crash of the aeroplane of the President of Rwanda, the Parliamentarians of the Quilès Mission could not go further in their investigations and findings in this case. Hence the question which continues to be asked but without an answer, namely; why did the victims wait for a period of four years before lodging their complaint, and why the investigation and the establishment of a fact-finding mission occurred so hurriedly at the same time and at a time when the criticisms on the controversial role of France in Rwanda were resurfacing with virulence in the press? These questions– even without answers – makes it possible to realise right away the predominance of politics in the case raised by Bruguière. Another sign of the political aspect of this case came to light from March 2004 with an article in the newspaper Le Monde, which revealed that it had obtained the whole investigation report by judge Bruguière and announced that this investigation named the President of the Republic of Rwanda, Paul Kagame, as the culprit number one in the assassination. Le Monde added that the findings would be published soon. But it took two years for these to be published. Analysts agree that the aim of this article by Le Monde was in reality to sabotage the tenth commemoration of the genocide of the Tutsi which the International Community was about to mark in a special manner. The final date chosen for the official publication of the order raises amother question. In fact, judge Bruguière’s order was published on 23rd November 2006 at a time when at ICTR, the trial of the alleged mastermind of the genocide of the Tutsi and an ally of France, Col. Bagosora, had reached a delicate phase. High ranking French officers who had worked hand-in-hand with the ex-FAR were about to give evidence in his defence. A few days after judge Bruguière’s order was out, Bagosora’s lawyers filed an application to ICTR asking that this order be submitted as a piece of evidence in his defence. All this goes to show straight away to what extent Bruguière’s investigations were tainted with bad faith right from its beginning. It is for this reason that his findings contain serious legal defects which could have been avoided if the investigation had sought to achieve a purely judicial objective. 2. Violation of the impartiality of investigation Under French law, the mission of the investigating magistrate is to find out the objective truth. This requires him to conduct investigation on incriminating facts and exonerating evidence, by accepting both the facts which establish the culpability of the accused and those in his favour to prove his innocence. With regard to Bruguière’s report, it is clear that this requirement of objectivity was the least of his concerns. In fact, a careful reading of his order shows very clearly that he investigated one side, the side of the prosecution, very certainly motivated by the keen desire of proving the guilt of the mentioned Rwandan personalities. There is nowhere in his report any element indicating that during his investigations, he tried to gather pieces of evidence exculpating these personalities. He never tried to interview the suspects. He never tried to visit the scene of the crime to check on the truthfulness or the authenticity of the information he had received. Let us even suppose that he did not want to visit Rwanda himself, why did he not dispatch a rogatory commission to this end? He carried out investigation where he wanted, he interviewed those who had the version he wanted to hear. This is a serious defect in the conduct of a criminal procedure. 3. Violation of the secrecy of investigation and respect of the presumption of innocence The French law provides: (...) “without prejudice to the rights of the defence, the procedure during the inquiry and investigation is secret ”. This text cannot be clearer with regard to the obligation of discretion required of the investigating magistrate. Yet, judge Bruguière was an exception in this matter since not only was the conduct of his inquiry made public knowledge everywhere, but its findings were also published in the press, without any respect of the normal procedure of communicating discreetly the case file to the prosecution. The articles which appeared in the authoritative newspaper in France, Le Monde, as the tenth commemoration of the genocide drew near, implicated some important persons in Rwanda in the assassination attempt, stating that it was basing its disclosures on the case file of judge Bruguière. This means that judge Bruguière had communicated illegally the findings of his investigation to the press. In fact, in its issue of 10th March 2004, Le Monde published a long article entitled “Revelations on the assassination attempt which sparked off the Rwandan genocide”. In this article, it was stated that: “the anti-terrorist judge Jean-Louis Bruguière has completed his investigation on the crash of the aeroplane of President Habyarimana on 6th April 1994”. The author of the article, Stephen SMITH, wrote “Le Monde has read the final report which puts the responsibility on the Rwandese Patriotic Front (RPF) of General Kagame, the current ruling party in Kigali ”. Smith explained that the final report of Bruguière dated 30th January 2004 and had 220 pages. The order that was published has only 64 pages, which means that a very big part of the real contents of the charges against the Rwandans accused by Bruguière is known only to a few French Secret Service insiders, including journalists. We should add that during the whole of March to May 2004, Le Monde continued to regularly attack the Rwandan Head of State, Paul Kagame, by repeating the still vague findings of judge Brugière. These recurrent attacks, which were based on leaks organised by Bruguiere in breach of the requirement of discretion, had effects on the press and caused moral damage to those Rwandans who were openly accused of a crime, without any respect of the legality applicable in such a case. This is a serious wrong to their presumption of innocence; another no less serious defect. 4. Indictment based on non credible witnesses Judge Bruguière confined himself on quite an original approach which consisted of using only the witnesses who supported his arguments and convictions, without trying to know whether those witnesses could not be manipulators and liars. And yet, some of them confess to be criminals; others have defects which would disqualify their evidence such as the fact that they fled Rwanda after being tried and convicted for various offences or in order to escape legal action brought against them. The minimum judicial logic would require that these witnesses be indicted for the serious acts they recognise having committed. The admission of guilt does not exempt the perpetrator from legal action and trial. Moreover, the French law prohibits expressly such persons from being witnesses. Thus, witnesses such as Ruzibiza and others who admit having participated in the shooting down of Habyarimana’s aeroplane should not have been allowed to testify. The law provides: “Persons against whom there are serious and corroborating indications that they have participated in the facts brought before the investigating magistrate cannot be heard as witnesses ”. Other witnesses used by judge Bruguière are defectors and dissidents from RPF or declared opponents of the Government of Rwanda who today live in exile, often after having been spirited away from Africa by the French secret service, which meets their daily subsistence allowances. We are referring here to asylum seekers who are granted settlement authorisations as a result of false evidence which they sell against RPF and the Government of Rwanda. Bruguière’s report is almost exclusively based on such pieces of evidence. Worse still, another category of Bruguière’s witnesses consists of those who committed genocide and who are detained and under trial by ICTR (Bagosora, Renzaho, Ntabakuze....), or who are roaming the forests in DRC where they commit atrocities on the Congolese civilian population, while carrying out military acts and genocide ideologies against Rwanda (Aloys Ntiwiragaba,...). Such witnesses have no reliability when they intend to bring evidence against their opponents. To be continued...