Arusha, February 22, 2000 (FH) - Defence lawyers for genocide suspect Jean-Bosco Barayagwiza on Tuesday told the Appeals Court of the International Criminal Tribunal for Rwanda (ICTR) it had no grounds on which to review its release order on their client, the independent news agency Hirondelle reports. "The Appeals Chamber has no statutory authority to revise its November 3rd decision," argued lead counsel Carmelle Marchessault of Canada.

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She said that her client was technically a free man already and that he should be released. Marchessault was responding to prosecution arguments earlier in the day. UN Prosecutor Carla Del Ponte is seeking a review of the Appeals Court decision ordering Barayagwiza's release on procedural grounds. On November 3rd, the Court found that there had been repeated violations of the accused's rights during his initial detention in Cameroon and after his transfer to the UN prison in Arusha. It ordered that he be released "with prejudice to the Prosecutor", meaning that the ICTR cannot re-arrest him, and returned to Cameroon where he was originally detained. ICTR rules provide that a request for review of an Appeals Court decision is only admissible "where a new fact has been discovered which was not known to the moving party at the time of the proceedings before a Chamber, and could not have been discovered through the exercise of due diligence". Prosecutor Norman Farwell referred to documents and letters showing that the prosecution had made all possible efforts to speed up Barayagwiza's transfer from Cameroon and had not just forgotten him. He admitted that some of these facts were not really new but said that the issues raised in the Appeals Court's November 3rd decision had not been signalled in its original scheduling brief and the Prosecution could therefore not have anticipated them or produced the relevant evidence at the time. Farwell said the question originally posed was the reasons for the delay in transferring Barayagwiza, indicting him and bringing him before the ICTR, not what steps the Prosecution had taken to speed up the procedures. He said this problem had been compounded by the absence of an oral hearing for the November Appeals Court ruling. But Barayagwiza's co-counsel David Danielson of the United States said the Prosecutor had neither produced new facts nor shown due diligence in accordance with the requirement of ICTR rules. "The prosecution concedes it does not have any new facts," he said, adding that "the prosecution is creating a new category of new facts which it is inviting the court to adopt". This category, he said was based on "a special definition of new facts which by the Prosecutor's own admission are old facts". Therefore, he said, it was beyond the statutory powers of the Appeals Chamber to review its decision in this case. Chief Prosecutor Carla del Ponte had earlier argued that the court had been wrong to remove her power to prosecute an accused genocide suspect and that this was a violation of the rights of victims. She said that if the court had had all the facts available at the time, it would not have made its decision to release Barayagwiza. She also reminded the court of the Rwandan government's reaction. Kigali suspended co-operation with the ICTR in the wake of the Appeals Court decision, although that co-operation was recently resumed. "Justice as dispensed by this Tribunal was paralysed," she said. "Due account has to be taken of the fact that, whether we like it or not, our ability to continue proceedings and investigations depends on the goodwill of the government of Rwanda. "Deputy Prosecutor Bernard Muna argued that it was unfair of the Court to have sanctioned only the prosecution for violations of the rights of the accused. He said the Appeals Court decision itself had found that all organs of the Tribunal were to blame. Farwell argued that the Appeals Court finding was based on "the cumulative effect of all violations" and not one violation which had a determining effect. "With respect, if you remove even one of these, you do not have the same effect, Farwell told the Appeals Court judges. JC/FH (BR%0222f)