The Appeals Chamber of the International Criminal Tribunal for Rwanda (ICTR), sitting in the Hague, today held that new facts presented to it diminished the impact of certain failings of the Prosecutor and the gravity of the resulting infringements of Barayagwiza's rights as an accused person. Consequently the remedy ordered by the Appeal Chamber in its judgement of 3 November 1999, namely dismissal of the indictment against Jean Bosco Barayagwiza and his immediate release, now appeared disproportionate in relation to the circumstances and had to be revised.
In the revised judgment the Appeals Chamber, while confirming that his rights had indeed been infringed, dismissed Barayagwiza’s claim to be released. It further ordered that, should he subsequently be found not guilty, he should receive financial compensation. In the event that he is found guilty his eventual sentence is to be reduced to take account of the infringements of his rights.
The new facts found by the Appeals Chamber included a finding that Barayagwiza had been aware of the general nature of the allegations against him at the time of hearings in the courts of Cameroon, only 18 days after he was detained there. It also emerged that, following the Tribunal's request for Barayagwiza to be transferred to its custody, the Cameroonian authorities had not in fact been ready to transfer him until 24 October 1997. The Appeals Chamber therefore held that delays at that stage were not the responsibility of the Prosecutor.
Finally, with regard to the delay between Barayagwiza's transfer to the UN Detention Facility in Arusha and his initial appearance before the Tribunal on 23 February 1998, it had emerged that Barayagwiza's lawyer had agreed to an initial hearing on 3 February. The delay therefore amounted to only 20 days and not the 69 days upon which the Appeals Chamber had based its original judgement. Those facts would have had a decisive effect on the judgment of 3 November 1999, had they been known at that time.
The Prosecutor of the ICTR, Ms Carla Del Ponte, had asked the Chamber, composed of Judge Claude Jorda, President and Judges Lal Chand Vohrah, Mohamed Shahabuddeen, Rafael Nieto-Navia and Fausto Pocar to review its judgment of 3 November 1999, a procedure provided for by the Statute and the Rules of Procedure of the Tribunal.
The decision of the five judges was unanimous, however Judges Vohrah and Nieto-Navia each added separate declarations and Judge Shahabuddeen gave a separate concurring opinion. In his declaration, responding to remarks made by the Prosecutor at the hearing, Judge Nieto-Navia firmly emphasised the independence of the Tribunal as an international judicial body. He said "I refute most strenuously the suggestion that in reaching decisions, political considerations should play a persuasive or governing role, in order to assuage States and ensure cooperation to achieve the long-term goals of the Tribunal. On the contrary, in no circumstances would such considerations cause the Tribunal to compromise its judicial independence and integrity".