The ICTR Appeals Chamber has granted an appeal by detainee Jean-Bosco Barayagwiza for his unconditional immediate release from the Tribunal's custody because his fundamental rights were violated by his prolonged detention without trial mainly as a result of actions by the Prosecutor. In a decision dated 3 November 1999, the Chamber, sitting at The Hague and comprising Judges Gabrielle Kirk McDonald, presiding, Mohammed Shahabuddeen, Lal Chand Vohrah, Wang Tieya, and Rafael Nieto-Navia, unanimously dismissed the indictment "with prejudice to the Prosecutor", directed the immediate release of Barayagwiza, and, by a vote of four to one (Judge Shahabuddeen dissenting), directed the Registrar "to make the necessary arrangements for the delivery of the Appellant to the Authorities of Cameroon", from where Barayagwiza was transferred to the Tribunal on 19 November 1997.
The delays in the judicial process against Barayagwiza were found by the Appeals Chamber to have occured in the course of his detention in Cameroon, and also after his transfer to the Tribunal. Barayagwiza, formerly Director of Political Affairs in the Ministry of Foreign Affairs of Rwanda at the time of the genocide and a founding member of the Radio Télévision Libre des Milles Collines, was charged with six counts of genocide, complicity in genocide, conspiracy to commit genocide, direct and public incitement to genocide, and crimes against humanity. He pleaded not guilty to these charges on 23 February 1998. The next day he filed a motion seeking to nullify his arrest. Trial Chamber II heard the motion in September 1998 and, on 17 November 1998, dismissed it. On 27 November 1998, Barayagwiza appealed against the decision.
The Decision: Barayagwiza's rights violated
In its decision, the Appeals Chamber, after examining the rights guaranteed accused persons by the Statute of the Tribunal and various international human rights laws, concluded that the Tribunal's Prosecutor failed in her duty to take the steps necessary to have the Appellant transferred to the Tribunal's custody in a timely fashion. It also found that Barayagwiza's right to be promptly informed of the charges against him was violated by the Prosecution during the first period of the Appellant's detention in Cameroon. Furthermore, the Chamber found that Barayagwiza's initial appearance, 96 days after his transfer, violated his right to be brought before a Trial Chamber without delay.
The Appeals Chamber also found that the failure [of the Trial Chamber] to resolve the Appelant's writ of habeas corpus (a writ used to challenge the validity of a person's detention) in a timely manner violated his right to challenge the legality of his continued detention.
Two Judges Disagree with Chamber's Directions to Registrar
In a Declaration appended to the decision, Judge Nieto-Navia clarified his position with respect to the decision's direction to the Registrar to make necessary arrangements for the delivery of the Appellant to the Cameroon authorities. "I am not convinced that it is appropriate to direct the Registrar to make the necessary arrangements to deliver the Appellant to the Cameroon authorities", he stated. Judge Nieto-Navia was of the view that, as the Cameroon Court of Appeal denied the Rwandan extradition request and ordered the immediate release of the Appellant, "Cameroon is under no legal obligation to accept the Appellant unless they wish to proceed with his prosecution. "Under these circumstances, the Registrar should obtain the views of the Cameroonian authorities, and deliver the Appellant to them only if appropriate". In his separate opinion, Judge Shahabuddeen disagreed with the same direction to the Registrar in the decision by his fellow Appeals judges. "The Appellant should be simply set at liberty and provided with reasonable facilities to leave Tanzania if he so wishes". Subject to this and other qualifications, Judge Shahabuddeen allowed the appeal.
As directed by the Appeal's Chamber decision, the Tribunal's Registry has initiated action to implement the Chamber's instructions on Barayagwiza's release.