"This is an important case: it is not every day that a court overturns its previous decision to liberate an indicted person," says one of the Appeals Court judges, Mohamed Shahabudeen, in a lengthy Separate Opinion. "This is what happens now. New facts justify and require that result. "It is the first time that the ICTR Appeals Court has agreed to revise a decision, normally considered to be final. ICTR rules allow this only if one of the concerned parties presents new facts, which could not have been known at the time with the application of due diligence, and which would have had a decisive effect on the Court ruling. The original decision was reached on the basis that there had been an accumulation of violations of the accused's rights, during his initial detention in Cameroon and after his transfer to the ICTR prison in Arusha, Tanzania. The Court concluded that these were due to negligence on the part of the Prosecution. It ordered Barayagwiza's release "with prejudice to the Prosecutor", meaning that the ICTR could not rearrest him. Barayagwiza was arrested in March 1996. According to the November decision, he was held for 19 months in Cameroon without being informed of the charges against him. Provisional detention is not supposed to exceed 90 days. "In its previous decision," says another of the judges, Lal Chand Vohrah, " the Appeals Chamber proceeded on the basis of, inter alia, its finding that the Prosecutor was responsible for the delays of which the Appellant complained. In this review, a different picture has been shown by the disclosure of new facts which now diminish substantially the blameworthiness attributed to the Prosecutor [. . . ] and the seriousness of the violations suffered by the Appellant. Had the Appeals Chamber been apprised of these facts on appeal, the original decision would have been different [. . . ]. "So what are the new facts? The Court divides the period in question into three sections:- 15th April, 1996, to 21st February, 1997During this period, Barayagwiza was being held in Cameroon, initially at the request of the ICTR but also subject to proceedings for his extradition to Rwanda, which was eventually rejected. The new facts presented consist of reports from his appearances before Cameroonian courts, and notably a declaration Barayagwiza made on May 3rd,1996, that "it is the international tribunal which is competent". The ICTR Appeals Court says "this shows that the Appellant was informed of the nature of the crimes for which the Prosecutor was pursuing him" by that date. Under its original decision, it had considered that Barayagwiza was kept in detention for 11 months without being informed of the charges against him. It now considers that the period was no more than 18 days. "The Chamber considers that such a delay violates the right of the Appellant to be informed without delay of the charges against him. However, this violation is of a different order", says th Appeals Court. - 21st February, 1997, to 19th November 1997This is the period between the rejection of the Rwandan extradition request by the Cameroon Supreme Court and Barayagwiza's transfer to the ICTR prison in Arusha. New documents submitted to the Appeals Court include a report by Judge Mballe of the Cameroonian Supreme Court, who says the Prosecutor's request for Barayagwiza's transfer was sent immediately to President Paul Biya, for the Cameroon president to sign the necessary decree. Judge Mballe suggests that if the decree was not signed until 21st October, 1997, it was because of pressure from the Rwandan authorities for Cameroon to send Barayagwiza to Kigali. The documents also included a statement from the United States roving ambasador for war crimes David Sheffer, who was asked by the ICTR Deputy Prosecutor Bernard Muna to help put pressure on the Cameroonian authorities. Sheffer says the signing of the presidential decree authorizing the transfer was delayed by elections in Cameroon, and that he contacted the Cameroonian authorities several times on the matter. "The Appeals Chamber considers that there is a pertinent new fact emerging from these documents," says the decision of the Appeals judges. "In its Order [of November 3rd], the Chamber considered that 'Cameroon was disposed to transfer the Appellant', nothing indicating the contrary. However, the elements now presented show that, on the contrary, Cameroon was not ready to transfer him before 24th October, 1997. This fact is new. "And the Chamber concludes that "the new facts demonstrate that during this second period, the violations cannot be imputed to the Prosecutor. "- 19th November, 1997 to 23rd February, 1998This is the period between Barayagwiza's arrival in the UN prison in Arusha and his initial appearance before the ICTR. The new element taken into consideration is a letter from the ICTR Registry which shows that the accused's defence counsel at the time, Justry Nyaberi of Kenya, was in discussions with the Registry on a date for the initial appearance and that there were problems arising from the availability of the judges and the defence team. Nyaberi had agreed to an initial appearance on February 3rd, 1997, a fact that has not been contested by the defence. "The agreement of the defence that the initial appearance be postponed to February 3rd is a new fact for the Appeals Chamber," says the decision. It says the original decision of November 3rd was based on a period of 96 days between Barayagwiza's transfer and his initial appearance, whereas the agreement of the defence now makes it only 20 days (from 3rd to 23rd February) during which the defendant's rights were violated. So could the new facts have been known to the Prosecutor with the exercise of due diligence? The Appeals Chamber admits that most of them could. This, under a restrictive interpretation of the Tribunal Rules would exclude a review of the original decision. But the Chamber says it has given a flexible interpretation to the relevant Rule "in the totally exceptional circumstances of this case, and in the face of a possible judicial error". In its revised decision, the Court still found that there were failures on the part of the Prosecutor and that the accused's rights had been violated, but on a considerably smaller scale than it had deemed in the November 3rd decision. It said Barayagwiza should be tried by the ICTR, but that the violation of his rights would be taken into account at the time of his judgement by the Trial Chamber. The judges said that if the Court found the accused innocent, he would be entitled to financial compensation for the violations. If the court were to find him guilty, they should be taken into account in the determination of his sentence. Barayagwiza was a founder member of the hate radio Radio Télévision des Mille Collines, which incited Hutus to kill Tutsis, and of the hardline Hutu party CDR. He was also foreign policy advisor to the Rwandan interim government which presided over the 1994 genocide in Rwanda. Prior to the November 3rd decision, ICTR prosecutors were planning to try him with two other suspects linked to the "hate media" that incited the 1994 genocide. He is still likely to be part of this joint trial, but the recent developments could set its date back once again. The date had, after various postponements, been set for June 5th. JC/FH (BR%0401e)