|Posted by Chief Moderator on May 26, 2013 at 3:55 PM|
Original : FRENCH
Claude Jorda, Presiding
Lal Chand Vohrah
Registry: Agwu U. Okali
Decision of: 31 May 2000
Case No. ICTR-97-20-A
Counsel for theAppellant :
Mr. Charles Taku
Counsel for theProsecution :
Ms Carla Del Ponte
Ms Holo Makwaia
Mr. Bernard Muna
Mr. Frédéric Ossogo
Mr. David Spencer
Mr. Mohamed Othman
1. The Appeals Chamber of theInternational Criminal Tribunal for the Prosecution of Persons Responsible forGenocide and Other Serious Violations of International Humanitarian LawCommitted in the Territory of Rwanda and Rwandan Citizens Responsible forGenocide and Other Such Violations Committed in the Territory of NeighbouringStates between 1 January 1994 and 31 December 1994 (respectively, "theAppeals Chamber" and "the Tribunal") has before it aninterlocutory Appeal lodged on 12 October 1999 (the "Appeal") by LaurentSemanza (the "Appellant") against the "Decision on the ‘Motionto Set Aside the Arrest and Detention of Laurent Semanza as Unlawful’"(the "impugned Decision"). The AppealsChamber must also rule on the "Prosecutor’s Request to Supplement theRecord on Appeal" (the "Prosecutor’s Request").
2. The impugned Decision wasdelivered by Trial Chamber III on 6 October 1999. In that Decision, the TrialChamber denied the "Motion to Set Aside the Arrest and Detention ofLaurent Semanza as Unlawful" (the "Motion to Set Aside asUnlawful"). Citing thesimilarity between the instant case and the interlocutory Appeal as well as theApplication for Review in Jean-Bosco Barayagwiza v. The Prosecutor, theProsecutor’s Request seeks leave to present additional evidence before theAppeals Chamber.
3. Both Parties have adduced thesimilarity between Semanza and Barayagwiza. The Chamberrecognizes that the two cases are indeed similar in terms of both fact andprocedure. However, the similarity between the two cases does not necessarilyimply that the legal findings will be the same. The Appeals Chamber would liketo recall the specific features of the instant case relative to the Barayagwizacase and states that it has considered the issues raised in the instant case onthe basis of the specific arguments and grounds submitted to it by the Parties.
II. PROCEDURAL BACKGROUND
4. On or about 26 March 1996, theauthorities in Cameroon arrested the Appellant pursuant to an internationalarrest warrant issued by the Parquet général (Office of the Public Prosecutor)of the Republic of Rwanda.
5. On 15 April 1996, the Prosecutorsubmitted a request for provisional measures in respect of the Appellant and 11others under Rule 40 of the Tribunal’s Rules of Procedure and Evidence (the"Rules").
6. On 6 May 1996, the Prosecutormade a request based on Rule 40 of the Rules for the authorities in Cameroon toextend detention by three weeks for all the suspects, including the Appellant.
7. On 17 May 1996, the Prosecutorinformed the authorities in Cameroon of its intention to proceed against onlyfour suspects, not including the Appellant.
8. On 21 February 1997, the Court ofAppeal for the Centre Province in Yaounde, Cameroon (the "Yaounde Court ofAppeal") dismissed the extradition request by Rwanda as inadmissible andordered the Appellant’s release. That same day, the Prosecutor filed a furtherrequest for the Appellant to be arrested and placed in provisional detention,pursuant to a second motion based on Rule 40.
9. On 24 February 1997, theProsecutor applied to the Tribunal for a Transfer and Provisional DetentionOrder under Rule 40 bis. The application was heard on 3 March 1997 at anex parte hearing before Judge Aspegren, who issued an Order that sameday, which order was filed on 4 March 1997. The documents were served on theauthorities in Cameroon on 6 March 1997 and the Appellant received a copythereof on 10 March 1997.
10. While awaiting transfer to theTribunal, on 29 September 1997 the Appellant filed a writ of habeas corpuswith the Trial Chamber challenging the lawfulness of his detention in Cameroon.
11. On 16 October 1997, theProsecutor submitted an indictment against the Appellant. The review hearingwas held on 17 October 1997 and on 23 October 1997 the indictment was confirmedby Judge Aspegren.
12. The Appellant was transferred tothe Tribunal’s Detention Facility on 19 November 1997.
13. On 16 February 1998, theAppellant made his initial appearance before the Tribunal and pleaded notguilty to the seven counts in the 23 October 1997 indictment against him.
14. On 31 May 1998, the Prosecutorfiled a motion under Rule 50 seeking leave to amend the indictment in order toadd a new count. By oral Decision of 18 June 1999, Trial Chamber II granted theProsecutor’s motion. A written Decision was subsequently filed, on 2 September1999.
15. On 24 June 1999, pursuant toRule 50 (B), the Appellant made a second initial appearance on the basis of theamended indictment and pleaded not guilty to all counts.
16. The same day, after theAppellant had made his plea, the Prosecutor sought leave to correct errors inthe English and French translations of the amended indictment. The Trial Chambergranted the Prosecutor’s motion and the Prosecutor filed a second amendedindictment on 2 July 1999.
17. On 16 August 1999, Counsel forthe Appellant filed the Motion to Set Aside the Arrest and Detention of LaurentSemanza as Unlawful.
18. Trial Chamber III heard bothParties on 23 September 1999 and on 6 October 1999 delivered its Decisiondismissing the said Motion.
19. On 12 October 1999, theAppellant appealed against the Decision of 6 October 1999.
20. On 9 November 1999, theProsecutor filed the "Prosecutor’s Request to Supplement the Record onAppeal".
III. APPLICABLE PROVISIONS
Article9: Non bis in idem
[…]2. A person who has been triedbefore a national court for acts constituting serious violations ofinternational humanitarian law may be subsequently tried by the InternationalTribunal for Rwanda only if:
(a) The act for which he or she wastried was characterised as an ordinary crime; or
(b) The national court proceedingswere not impartial or independent, were designed to shield the accused frominternational criminal responsibility, or the case was not diligentlyprosecuted. […]
Article19: Commencement and conduct of trial proceedings
1. The Trial Chambers shall ensurethat a trial is fair and expeditious and that proceedings are conducted inaccordance with the Rules of Procedure and Evidence, with full respect for therights of the accused and due regard for the protection of victims andwitnesses.
2. A personagainst whom an indictment has been confirmed shall, pursuant to an order or anarrest warrant of the International Tribunal for Rwanda, be taken into custody,immediately informed of the charges against him or her and transferred to theInternational Tribunal for Rwanda. […]
Article20: Rights of the Accused
[…]4. In the determination of anycharge against the accused pursuant to the present Statute, the accused shallbe entitled to the following minimum guarantees, in full equality:
(a) To beinformed promptly and in detail in a language which he or she understands of thenature and cause of the charge against him or her;
(b) To haveadequate time and facilities for the preparation of his or her defence and tocommunicate with counsel of his or her own choosing;
(c) To betried without undue delay; […]
Rule 40 bis: Transfer andProvisional Detention of Suspects
[…](C) The provisional detention ofthe suspect may be ordered for a period not exceeding 30 days from the dayafter the transfer of the suspect to the detention unit of the Tribunal.
Rule 62: Initial Appearance ofAccused
Upon histransfer to the Tribunal, the accused shall be brought before a Trial Chamberwithout delay, and shall be formally charged. […]
(ii)Objections based on defects in the form of the indictment;
(iii)Applications for severance of crimes joined in one indictment under Rule 49, orfor separate trials under Rule 82 (B);
(iv)Objections based on the denial of request for assignment of counsel.
[…](D) Decisions on preliminarymotions are without interlocutory appeal, save in the case of dismissal of anobjection based on lack of jurisdiction, where an appeal will lie as of right.
(E) Noticeof appeal envisaged in Sub-Rule (D) shall be filed within seven days from theimpugned decision. […]
Rule 115: Additional Evidence
(A) A partymay apply by motion to present before the Appeals Chamber additional evidencewhich was not available to it at the trial. Such motion must be served on theother party and filed with the Registrar not less than fifteen days before thedate of the hearing.
(B) TheAppeals Chamber shall authorise the presentation of such evidence if itconsiders that the interests of justice so require.
IV. THE PROSECUTOR’S REQUEST TO SUPPLEMENT THE RECORD ON APPEAL
21. Before considering theinterlocutory Appeal, the Appeals Chamber must rule on the Prosecutor’s Requestto Supplement the Record on Appeal.
A. Procedural Background
22. On 9 November 1999, theProsecutor filed a Request seeking leavefor both Parties to present additional evidence in the light of the findings inthe Appeals Chamber Decision rendered on 3 November 1999 in the case ofJean-Bosco Barayagwiza v. The Prosecutor (the "BarayagwizaDecision"). On 11 November1999, the Appellant filed a responseto the Prosecutor’s Request.
23. In a Scheduling Orderdelivered on 8 December 1999, the Appeals Chamber ordered the Prosecutor tofile, within seven days, a brief specifying the additional evidence which itwished to present before the Appeals Chamber under Rule 115. The same Ordergranted the Appellant leave to respond to that brief within seven days ofreceipt. The Appeals Chamber stated that it would then rule on the question ofadditional evidence.
24. On 15 December 1999, theProsecutor filed a Briefcontaining the additional evidence, in accordance with the Scheduling Order.The Appellant responded,through his Lead Counsel, on 21 December 1999. On 22 December 1999, hisco-Counsel filed a separate Brief in response,which also addressed the issue of admissibility of the additional evidence.
25. On 14 January 2000, the AppealsChamber ruledon the Prosecutor’s Request, in accordance with the Scheduling Order. The Ordergranted the Prosecutor leave to proceed on the basis of the additional evidencecited in its Brief while allowing the Appellant to challenge that admissibilityand probative value of said evidence. At a hearing held in Arusha on 16February 2000, the Appeals Chamber heard the Parties on the issue ofadmissibility of the additional evidence.
B. Arguments of the Parties
26. On 15 December 1999, theProsecutor filed 14 documentswhich she viewed as components of the additional evidence needed for theAppeals Chamber to rule on the lawfulness of the Appellant’s arrest anddetention. On 21 January 2000, the Prosecutor completed the Record on Appeal byannexing thereto a further 7 documents.
27. The Prosecutor takes the viewthat the Semanza case, which is in many respects identical to the Barayagwizacase, "is not sufficiently ripe for a decision".The Barayagwiza Decision of 3 November 1999, in her view, set forth newjurisprudence which "was either undecided or unsettled"prior to that Decision and which the Parties could not have known at thehearing on the Motion to Set Aside as Unlawful. In her view, that situationtherefore created a need to supplement the Record on Appeal, which, shebelieved, would be enriched by fresh legal arguments based on and in the lightof the findings set forth in the Barayagwiza Decision.
28. On the basis of Rule 115 (A),the Prosecutor argues that the evidence in question was not available to TrialChamber III during the proceedings and "submits that the question ofwhether the evidence was available at the trial must be determined on acase-by-case basis, considering the circumstances that existed at the time ofthe trial at issue".
29. The Prosecutor submits that twofactors should be taken into consideration, the first of which is the relevanceof the evidence to the trial: thus, according to the Prosecutor, "onereason for evidence to be deemed not available is that it is not relevant tothe issues of fact raised in the motion presented to the Trial Chamber".In the instant case, the Prosecutor submits that the Prosecution could not havepresented evidence which it deemed irrelevant both to the Appellant’s Motionbefore the Trial Chamber and to the impugned Decision.
30. The second factor which must beconsidered, in the Prosecutor’s view, is the relevance of the evidence underthe applicable law: the Prosecutor argues that "No party can be expectedto offer evidence that is not relevant under the applicable law, and no partycan be expected to introduce evidence in anticipation of a new interpretationof the law that may change the applicable law in the future. Therefore, anotherreason for evidence to be deemed not available is that it is not relevant underthe law that is known to apply to the matter before the Trial Chamber at thetime of trial".In the instant case, the Prosecutor’s view is that the new evidence wasrendered unavailable inasmuch as it related to points of law which the Chamberhad not considered; those points of law were raised only after the BarayagwizaDecision had been delivered.
31. The Prosecutor submits that theinterests of justice also require the Appeals Chamber to take into account allthe evidence presented by the Prosecution. In the Prosecutor’s view,the interests of justice should be viewed principally in the light of thereasons for establishing the International Criminal Tribunal for Rwanda set outin the United Nations Security Council resolution 955 (1994).
32. The Appellant, on the otherhand, contends that the Prosecutor has failed to prove that the Prosecution didnot have the evidence presented in its Brief at its disposal at the time of thetrial. In the Appellant’s view, "this application is but a frantic attemptto anticipate issues and/or reopen the debate on the jurisprudence of Jean-BoscoBarayagwiza".The Appellant argues that the evidence was available as, in his view, itrelated to issues raised at the hearing before Trial Chamber III of hispreliminary motion challenging the lawfulness of his arrest. The Appellant addsthat some documents are in relation to unfounded argumentsand that he was not mentioned therein either by name or status.In addition, according to the Appellant, part of the evidence had not beendisclosed to him in spite of the Prosecutor’s obligations under the Rules.Consequently, the Appellant rejects the Prosecutor’s arguments in respect ofthe availability of the evidence. In his view, the Prosecutor did possess theevidence but simply failed to make use of it.The Prosecutor had never requested the Tribunal to extend the time-limit toenable her to obtain those items of evidence, nor did she make use of theopportunities available to her under the Statute and the Rules.
33. On a more fundamental level, theAppellant does not accept the Prosecutor’s arguments as to the interpretationof Rule 115, maintaining that "whereas the confusion between theunavailability of evidence and the need to adduce or not said evidence infulfilment of its mission by an organ of the Tribunal, cannot be considered assufficient explanation for the availability or not of said evidence, whoseproven unavailability would result in its admissibility at appeal".In the Appellant’s view, the interests of justice should therefore oblige theAppeals Chamber to refuse to admit the evidence presented by the Prosecutor,who, "just as for any other organ of the Tribunal, or any party, […] isbound by the rights and privileges stipulated in the Statute and Rules".
34. Rule 115 sets forth the basiccriteria for presenting additional evidence. Under the Rule, two criteria mustbe met: the additional evidence must not have been available at the trial, andsaid evidence would be presented if the interests of justice so require.
35. Just as the Appeals Chamber ofthe International Criminal Tribunal for the Former Yugoslavia held in its TadićDecisionof 15 October 1998, this Appeals Chamber holds that generally, admission ofadditional evidence must be restrictive and confined to narrowly definedlimits. In the Tadić Decision, ICTY Appeals Chamber held that"there is some limitation to any additional evidentiary material sought tobe presented to the Appeals Chamber; otherwise, the unrestricted admission ofsuch material would amount to a fresh trial. Further, additional evidenceshould not be admitted lightly at the appellate stage, considering that Rule119 [Request for Review] provides a remedy in circumstances in which new factsare discovered after the trial".
36. Any analysis of the criteriastipulated by Rule 115 for presentation of additional evidence must thereforebe rigorous. The Appeals Chamber will first discuss the two criteria, theirsignificance and the principles that underlie their application. It will thenapply those principles to the instant case.
1. Criteria for the admissibility ofadditional evidence
(a) Unavailability of evidence
37. To be admissible under Rule 115,evidence must not have been available to the moving Party at the time of thetrial. In the aforementioned Tadić Decision, ICTY Appeals Chamberconsidered the principles for interpreting the unavailability criterion. ThisAppeals Chamber will recall the substance of the general principles forinterpreting this criterion which were considered in the Tadić Decisionand will therefore also adopt the following conclusions:
- The reasons adduced to justify theunavailability of evidence are of capital importance in decisions on theadmissibility of additional evidence. If the moving Party does not put forwardvalid reasons as to why the evidence was not available, said evidence is deemedto have been available and is therefore not admitted.
- It is not possible to dissociateconsideration of the unavailability criterion from the criterion of diligenceof the Party filing a motion under Rule 115. The moving Party must show that itacted with due diligence,implying that it must prove that it used "all mechanisms of protection andcompulsion available under the Statute and the Rules of the InternationalTribunal to bring evidence […] before the Trial Chamber".Otherwise, the evidence will not be deemed unavailable.
(b) The interests of justice
38. Rule 115 states that "TheAppeals Chamber shall authorise the presentation of such evidence if itconsiders that the interests of justice so require". In the TadićDecision, ICTY Appeals Chamber took the opportunity to rule on the significanceof this criterion, holding that "[…] the interests of justice requireadmission only if: (a) the evidence is relevant to a material issue; (b) theevidence is credible; and (c) the evidence is such that it would probably showthat the conviction was unsafe".
(c) Principles for applying the twoadmissibility criteria
39. In the Tadić Decision,ICTY Appeals Chamber explains the general principles for applying the twocriteria discussed above.
40. Generally speaking, theunavailability criterion must be satisfied before the interests-of-justicecriterion is considered.In the view of ICTY Appeals Chamber, the primacy of the unavailabilitycriterion derives from the principle of finality: "if […] evidence isadmitted on appeal even though it was available at trial, the principle offinality would lose much of the value which it has in any sensible system ofadministering justice".
41. However, this principle mayexceptionally be rendered less absolute by the need to avoid a miscarriage ofjustice.In the Tadić Decision, ICTY Appeals Chamber held that "[…] theprinciple would not operate to prevent the admission of evidence that would assistin determining whether there could have been a miscarriage of justice".ICTY Appeals Chamber nevertheless emphasized the restrictive nature of thispossibility.ICTR Appeals Chamber reaffirms that easing the finality principle must remain amost exceptional act.
2. Application to the instant case ofthe criteria as outlined
42. The Appeals Chamber hasconsidered the 21 documents (Annexes A to T)presented by the Prosecutor. Some of those documents, namely Annexes O to T,which were attached to the Prosecutor’s Response of 21 January 2000,were not formally presented by the Prosecutor as additional evidence. TheAppeals Chamber will therefore not rule on their admissibility as additionalevidence under Rule 115.
43. The Appeals Chamber hasconsidered the 16 other documents presented by the Prosecutor in its 15December 1999 Briefin the light of the aforementioned Tadić Decision and using the evaluationcriteria for admitting evidence which are outlined above. The Chamber ruledthat the documents did not meet the first admissibility criterion foradditional evidence, namely the unavailability criterion: the Prosecutor hadfailed to prove in what respect they had not been available at trial. TheProsecutor argued that the Barayagwiza Decision was a reason forunavailability. The Appeals Chamber must reject that argument: developments incase-law can in no case be the cause or grounds for, or even a factor in theunavailability of evidence. The argument – which was actually made for all thedocuments presented – is not relevant. The unavailability of said evidence hastherefore not been proven.
44. In conformity with the TadićDecision, this finding should in principle imply that all the evidencesubmitted by the Prosecutor should be dismissed. However, as discussed above,admission of additional evidence which does not fulfil the first admissibilitycriterion stipulated by Rule 115 is possible on an exceptional basis if andonly if admission is necessary in order to prevent a miscarriage of justice.
45. That is certainly the case inthe instant matter: by admitting the new facts presented in the Barayagwizacase, ICTY Appeals Chamber, in reviewing the Decision, rectified themiscarriage of justice which had emerged in the light of those facts. TheAppeals Chamber is consequently aware that if henceforth it refuses to admitcertain items of evidence in the instant case a miscarriage of justice willresult. This exceptional situation consequently enables it to admit saidevidence, which ‑ as is discussed below ‑ is of particular relevance inanalyzing the arguments on the merits of the interlocutory Appeal.
46. The Appeals Chamber admitsAnnexes E, F, G, H, I, J, M, N, O bis and S.As will be shown in the second part of this Decision, Annexes E, F, G, and Hproved critical for the Chamber’s consideration of the suspect’s right to beinformed of the nature of the Prosecutor’s charges against him. The remainingdocuments (Annexes I, J, M, N, O bis and S) were similarly relevant inassessing the extent of the Prosecutor’s negligence, as alleged by theAppellant, in the course of the proceedings.
47. Turning to Annex K,neither Party disputed the existence or content of an application for a writ ofhabeas corpus. Indeed, the text of the writ had been filed by theAppellant in his preliminary Briefsubmitted to the Appeals Chamber in support of his Notice of Appeal and by theProsecutor in the "Prosecutor’s Request to Supplement the Record onAppeal".The Appeals Chamber consequently acknowledges that an Application for writ of habeascorpus exists without any need to admit the Application as additionalevidence under Rule 115.
48. Furthermore, the Appeals Chamberadmits Annex Fas additional evidence only insofar as it shows the course of proceedingsbefore the Yaoundé Court of Appeal in the case of Le Ministère public c.Ruzindana Augustin et autres. Moreover, it is apparent from other evidencewhose validity and probative value is not disputed by the Appellant that theAppellant was a subject of those proceedings.
49. The Appeals Chamber rules AnnexNadmissible solely insofar as the document enables the Chamber to appreciate thepolitical situation in Cameroon when the Appellant was detained. The AppealsChamber rejects the Appellant’s argument that the Annex has no probative valuein the instant case because Jean-Bosco Barayagwiza is the Party whose name andstatus are given. In the view of the Appeals Chamber, the document concerns theAppellant too, for two main reasons. Firstly, the Barayagwiza and the Semanzacases are similar in many respects, particularly in terms of procedure. TheAppellant was detained in Cameroon at the same time as Jean-Bosco Barayagwizaalong with other Rwandan citizens and was transferred to the Tribunal’sDetention Facility at the same time. The similarity between the two cases hasbeen repeatedly mentioned in the instant case by both Parties.Secondly, the substance of the general problem posed in Annex N, namely theoverall political picture in Cameroon when he was arrested, does concern theAppellant.
50. Unlike the evidence cited above,there is no connection between the other documents filed by the Prosecutor (AnnexesA, B, C, D and L)and the arguments on the merits of the interlocutory Appeal. Those documentsare inadmissible under Rule 115 as they are of no use to the Appeals Chamber inavoiding a miscarriage of justice.
V. THE APPEAL AGAINST THE DECISION REJECTING THE MOTION TO SET ASIDE ASUNLAWFUL
A. Procedural Background
51. On 12 October 1999, theAppellant filed a Notice of Appealagainst the impugned Decision and the Prosecutor filed a Responseon 28 October 1999. Although not required under Rule 117 (A),on 12 November 1999 the Appellant filed a Preliminary Appellate Briefin Support of the Notice of Appeal, and on 18 November 1999 he filed threeAnnexesthereto. On 14 January 2000, the Appeals Chamber issued an Orderfor the Prosecutor to file a Response to the Appellant’s Preliminary AppellateBrief by 21 January 2000 at the latest and for the Appellant to submit hisReply to the Prosecutor’s Response within seven days of his receipt of theResponse in its French version. In compliance with the Order, the Prosecutorfiled a Responseon 21 January 2000. This was subsequently amended on 9 February 2000.Both Counsel for the Appellant filed separate Replies, on 28 Januaryand 31 January 2000.The Parties’ oral arguments were heard in Arusha on 16 February 2000.
52. The principal arguments whichthe Parties put forward in their written submissions and at the hearing aresummarized and briefly discussed below.
B. The Arguments
1. The Appellant’s arguments
53. Firstly, the Appellant allegesthat Trial Chamber III (the "Chamber") made an error of fact byestablishing a chronology of events that was unsubstantiated and was wrong todistinguish between his periods in detention.In his view, such distinction is an arbitrary reading of the facts which is notbased on any obligation in law.
54. Secondly, the Appellant arguesthat the Chamber made several errors of fact by finding that he had failed todistinguish between the two periods of detention.The Appellant alleges also that the Chamber erred by placing on him the burdenof proving that his rights had been violated during those two periods.
55. Thirdly, the Appellant contendsthat the Chamber erred by restricting its jurisdiction to the period duringwhich he had been physically in the Tribunal’s custody.
56. Fourthly, the Appellant arguesthat the Chamber erred in law by holding that the belated filing of theindictment was "wrong", yet failing to find that the Appellant’srights and freedoms under Rule 40 bis had been violated.To that effect, he alleges that the Chamber erred in law, moreover, by findingthat the 30-day deadline in Judge Aspegren’s Order of 24 February 1997 was amere suggestion which was not legally binding on the Prosecutor.
57. Fifthly, the Appellant furtherargues that the Chamber wrongly ruled that the proceedings undertaken by theTribunal did not violate the principle of non bis in idem in light ofthe extradition proceedings undertaken in Cameroon.
58. Sixthly, the Appellant maintainsthat the Chamber erred in law by failing to respond, in the operative part ofits Decision, to all the arguments advanced by the Parties both in theirwritten submissions and at the hearing.
59. In conclusion, the Appellantrequests the Appeals Chamber to vacate the Trial Chamber III Decision; to findthat his fundamental rights were violated and that the principle of equality ofarms was not complied with; to vacate the arrest and detention proceedings asunlawful; to order his release; and to rule the Appeal suspensive ofproceedings before the Trial Chamber.
2. The Prosecutor’s arguments
60. The Prosecutor’s leadingargument is that the interlocutory appeal is inadmissible,and, alternatively, she rebuts the Appellant’s case with the followingarguments:
61. Firstly, that in the impugnedDecision, the Chamber did not err in its account of the facts; rather, shecontends that the Chamber rehearsed the chronology of events exactly.
62. Secondly, that in none of thenine paragraphs in the impugned Decision relating to the Trial Chamber’sfindings was there any finding whereby the Chamber imposed the burden of proofon the Appellant concerning violations of his rights during his two periods ofdetention in Cameroon;
63. Thirdly, that the Trial Chamberproperly held that no remedy was open to the Accused under the Statute or Rulesof the Tribunal for matters predating his transfer to the Tribunal. TheProsecutor takes the view that this is self-evident because the above-mentionedlegal instruments contain no provision for reviewing the domestic legislationof States in which arrest and detention take place;
64. Fourthly, that it is evidentfrom the Trial Chamber’s reasoning that neither Rule 40 nor Rule 40 bis wasbreached in the instant case;
65. Fifthly, that dismissal of theProsecution charges is not a remedy which is permitted under internationalhuman rights law,and furthermore, that even if such a remedy were compatible with internationallaw, the facts of the instant case would not justify it.
66. The Prosecutor concludes byrequesting the Appeals Chamber to dismiss the Appeal; or, failing that, to findit without merit;or, as a further alternative, to consider the proposals for remedy submitted inthe Prosecutor’s Response, specifically, compensation and release withsafeguards.
C. Admissibility of the Appeal
67. The Appeals Chamber will firstdiscuss the admissibility of the interlocutory Appealfiled on 12 October 1999 by Counsel for the Appellant under Article 24 of theStatute and Rules 72 (B), (D) and (E) and 108 of the Rules of Procedure andEvidence.
68. The Prosecutor argues that theAppeal is inadmissible on the principal ground that Rule 72 does not apply inthe instant case. According to the Prosecutor, "not only did the Defenceraise no objection based on lack of jurisdiction as a preliminarymotion before Trial Chamber III; moreover, there was no discussion beforeTrial Chamber III between the Parties based on any objection based on lackof jurisdiction stricto sensu".In the Prosecutor’s view, the Appellant had raised only questions of whethercertain legal acts had been irregular and "had intended to seek legalpenalties for what he believed were irregularities in those acts by demandingthat they should be voided".
69. According to the Appellant, thecause of the Appeal is "identical"to that of the Barayagwiza case and the provisions adduced in support ofBarayagwiza’s appeal are applicable in the instant case. More specifically, inrespect of Rule 72 the Appellant states that the substance of his objectionbased on lack of jurisdiction is identicalto that accepted by the Appeals Chamber in the Barayagwiza case. In hisview, the "Notice of Appeal raises the following serious questions of lawtouching on issues over which the International Tribunal would exercisejurisdiction and those over which it would not. It poses the question whetherunder the Statute and the Rules of Procedure and Evidence as well asinternational law the International Tribunal has jurisdiction to control andpunish prosecutorial misconduct. It poses the question whether the InternationalTribunal has jurisdiction to protect the rights of accused persons under itscustody and whether the Statute, the Rules of Procedure and Evidence conferssuch jurisdiction".In particular, the Appellant avers that "the objection is not to acts inlaw whose compliance with the Rules is the only point at issue, but morefundamentally to the actions and conduct of organs of the Tribunal grantedtheir powers by the Rules and obliged to observe those Rules in their exerciseof those powers", and "it is this kind of action and conduct that hasbeen denounced by the Appellant as failure to respect fundamental freedoms andas an abuse of law by arbitrarily prolonging detention, without Courtsupervision and in contempt of the rights of the Defence".
70. The Appeals Chamber notes thatthe Notice of Appeal was timely filed within the prescribed time-limits andrejects the Prosecutor’s arguments that the provisions it cites do not apply.The Chamber further holds that by challenging the lawfulness of his detention,the Appellant has effectively raised the issue of whether the Tribunal hasjurisdiction over him ratione personae and is thus appealing against aDecision dismissing an objection based on lack of jurisdiction under Rule 72.
71. Accordingly, the Appeals Chamberfinds the interlocutory Appeal admissible.
72. Before considering theviolations alleged by the Appellant, the Appeals Chamber wishes to comment onone of the grounds of appeal which he has adduced. The Appellant argues thatTrial Chamber III wrongly imposed on him the burden of proving that his rightswere indeed violated during his two periods of detention in Cameroon.Without pronouncing on the question of who bears the burden of proof, theAppeals Chamber simply notes that the relevant remarks by the Trial Chamber donot refer to the two periods of detention in Cameroon, as the Appellant claims,but to the period of detention after he was transferred to the custody of theTribunal. The penultimate paragraph of the 6 October 1999 Decision states that:
"The Trial Chamber consequentlyfinds that the Defence has failed to show any violation of the provisions ofthe Statute and the Rules with regard to Semanza’s detention after his transferto the custody of the Tribunal".
73. This ground of appeal istherefore without merit.
1. The principle of non bis in idem
74. Article 9 of the Statute of theTribunal sets forth the principle of non bis in idem. The AppealsChamber accepts the interpretation of this Article and Article 10 of theStatute of ICTYgiven by various Trial Chambers of the international criminal Tribunalswhereby:
- Article 9 (2) of the Statute setsa limit on the extent to which the Tribunal can prosecute persons who have beentried by a national Court for acts constituting serious violations of internationalhumanitarian law;
- The non bis in idemprinciple applies only where a person has effectively already been tried. Theterm "tried" implies that proceedings in the national Courtconstituted a trialfor the acts covered by the indictment brought against the Accused by theTribunaland at the end of which trial a final judgement is rendered.
75. The Appellant alleges that theproceedings before the Tribunal in The Prosecutor v. Laurent Semanzaviolate the principle of non bis in idem because proceedings had alreadybeen brought against him in Cameroon. The core question for the Appeals Chamberis whether in Cameroon the Appellant was the subject of a trial in the sense ofArticle 9 (2) of the Statute, that is, whether the trial was for actsconstituting serious violations of international humanitarian law and whether afinal judgement on those offences was delivered.
76. The Appeals Chamber finds thatproceedings were raised against the Appellant in Cameroon following theextradition request from the Parquet général (Public Prosecutor Office) of theRepublic of Rwanda. However, in view of the extradition law of Cameroonand the Decision by the Yaoundé Court of Appeal on the issue,it is apparent that those proceedings concerned only admissibility of theextradition request from the Rwandan Government and was in no wise a trial foracts constituting serious violations of international humanitarian law.It is therefore apparent that the Yaoundé Court of Appeal did not deliver anyfinal judgement on the charges brought against the Appellant before thisTribunal.
77. In view of these findings, theAppeals Chamber concludes that the action against the Appellant in Cameroon didnot constitute a trial in the sense of Article 9 (2) of the Statute. Therefore,the proceedings before the Tribunal do not violate the principle of non bisin idem.
2. The right of the suspectto be informed promptly of the nature of the charges against him
78. The Appeals Chamber holds that asuspect arrested by the Tribunal has the right to be informed promptly of thereasons for his or her arrest.In accordance with the norms of international human rights law,the Appeals Chamber has also accepted that this right comes into effect fromthe moment of arrest and detention.
79. In the instant case, theAppellant was detained in Cameroon at the Prosecutor’s request during twodistinct periods. The first period ran from 15 April 1996, the date of theProsecutor’s first request under Rule 40, to 17 May 1996, when the Prosecutorinformed the authorities in Cameroon that he was dropping his case against theAppellant. The second period of detention ran from 21 February 1997, the dateof the Prosecutor’s second Rule 40 request, to 19 November 1997, when theAppellant was transferred to the Tribunal’s Detention Facility.
80. The facts relating to these twoperiods of detention must be examined in order to determine whether theProsecutor respected the Appellant’s right to be informed promptly of thenature of the charges against him on those two occasions. For each of thoseperiods, the Appeals Chamber must first assess the length of time between thedate on which the Appellant’s right to be informed came into effect and thedate on which he was informed of the nature of the Prosecutor’s charges againsthim. Secondly, the Chamber must decide whether such length of time isconsistent with the norms of international human rights law.
(a) First period of detention
81. Regarding the first period ofdetention, the Appeals Chamber finds that the Appellant’s right to be informedpromptly of the nature of the International Tribunal’s charges against him cameinto effect on 15 April 1996,when he was remanded in custody by the Prosecutor pursuant to the first requestunder Rule 40. Based on the earliest available date, it is apparent that theAppellant had been informed of the nature of the crimes for which he was beingpursued by the Prosecutor on 3 May 1996, on which date the Yaoundé Court ofAppeal deferred judgement on the extradition requestagainst the Appellant from Rwanda. To support this last finding, certain factsrelating to the context of the Appellant’s detention in Cameroon should berehearsed.
82. Like 11 other Rwandan nationals,the Appellant was initially arrested and detained in Cameroon pursuant to aninternational arrest warrant issued by the Government of Rwanda.On 18 March 1996, Counsel for the Government of Rwanda referred a request tothe Minister of Justice of Cameroon (the "Office of the PublicProsecutor") for the extradition of 12 Rwandansdetained in Cameroon in implementation of warrants signed by the Procureurgénéral (Public Prosecutor) of the Kigali Court of Appeal.The Office of the Public Prosecutor in Cameroon had filed charges in the caseof Le Ministère public c. Ruzindana Augustin et autres.On 19 April 1996, inter partes proceedings involving the Office of thePublic Prosecutor of Cameroon and the Rwandan nationals sought by the PublicProsecutor of Rwanda opened before the Yaoundé Court of Appeal.At those hearings, a certain Mr. Ondigui acted as Counsel for eight of theRwandans, including the Appellant.On 3 May 1996, the Office of the Public Prosecutor of Cameroon requested theYaoundé Court of Appeal to defer judgement.On 31 May 1996, the Court suspended the extradition proceedings begun on behalfof the Government of Rwanda and adjourned the hearing until 17 January 1997.On 21 February 1997, the Yaoundé Court of Appeal delivered its decisionon the Rwandan extradition request.
83. The proceedings before theYaoundé Court of Appeal are not without interest. Indeed, one of thesubmissions by the Office of the Public Prosecutor refers to the Prosecutor’sapplication for the Appellant to be placed in provisional detention. TheAppeals Chamber deems it appropriate to cite the relevant excerpts from thatsubmissionby the Office of the Public Prosecutor in the case of Le Ministère public c.Ruzindana Augustin et autres with a view to obtaining a stay of judgement:
"[…]Whereas they all challenged the jurisdiction of the Rwandan courts andpreferred rather to appear before the International Criminal Tribunal forRwanda established in August 1994 with its seat in Arusha, Tanzania;
[…] Whereas by letter dated 15 April1996, the aforementioned Prosecutor [the Prosecutor of the Tribunal] hasrequested the judicial authorities of Cameroon to place the above-namedRwandans [including the Appellant], under provisional arrest on charges ofserious violations of international humanitarian law and other crimes withinthe jurisdiction of the aforementioned International Tribunal […]". (Emphasis added.)
84. The Appeals Chamber would liketo emphasize the similarity in the manner the Office of the Public Prosecutorframed the submission referred to above and the Prosecutor’s request of 15April 1996 brought under Rule 40. In this document, the Prosecutor requests:
"[…] that the CriminalAuthorities of Cameroon arrest the undernoted persons provisionally […] forserious violations of international humanitarian law and crimes within thejurisdiction of the Tribunal".  (Emphasis added.)
85. It is clear from the front pageof the 21 February 1997 Decision by the Yaoundé Court of Appeal ruling on theextradition request by Rwanda that the proceedings initiated by the Office ofthe Public Prosecutor against the Appellant were inter partes.Consequently, there is no doubt that Mr. Ondigui, who acted as Counsel for theAppellant, had received a copy of the submissions by the Office of the PublicProsecutor, including the one to which the Appeals Chamber has just referred.Considering the principles governing the counsel/client relationship, it isreasonable to infer that the Appellant had been informed in substance of thenature of the crimes for which he was being sought by the Prosecutor of theTribunal.
86. However, the Appeals Chambernotes that the date recorded on the aforesaid copy of the submission isillegible. In the absence of that information, the Chamber has decided to go bythe date on which the verbal request for a stay was granted, namely, 3 May1996, and concludes that the Appellant was informed on 3 May 1996 at the latestof the nature of the Prosecutor’s charges against him.
87. Consequently, 18 days elapsedbetween the time the Appellant was taken into custody, on 15 April 1996, andthe time he was informed of the nature of the charges brought against him bythe Prosecutor, on 3 May 1996. In the opinion of the Appeals Chamber, thisconstitutes a violation, in relation to his first period of detention, of theAppellant’s right to be informed promptly of the nature of the charges againsthim.A fitting remedy for this violation is justified.
(b) Second period of detention inCameroon
88. The Appeals Chamber holds thatwith respect to the Appellant’s second period of detention in Cameroon, hisright to be informed promptly of the nature of the charges against him by theProsecutor came into effect on 21 February 1997, when he was taken into custodypursuant to the Prosecutor’s second Rule 40 request. It is apparent from theevidence in the file that the Appellant was formally informed of the chargeslaid against him by the Tribunal when the Order issued under Rule 40 biswas served on him in Cameroon on 10 March 1997.
89. Nevertheless, the AppealsChamber has already established that the Appellant was informed in substance ofthe nature of the Tribunal’s charges against him during his first period ofdetention. There is no doubt, therefore, that from then on the Appellant wasaware of the nature of the Prosecutor’s charges against him. Consequently, whenthe Appellant was taken into custody at the Prosecutor’s request for the secondtime, he had known since his first period of detention what the nature of theProsecutor’s charges against him was.
90. The fact remains that the intervalwhich elapsed between the date on which the Appellant’s right to be informedcame into effect for his second period of detention and the date on which hewas informed of the nature of the Prosecutor’s charges against him was 18 days.This could be said to constitute a violation of the Appellant’s right. However,the Appeals Chamber considers that the violation is less serious since theAppellant had been informed in substance of the nature of the Prosecutor’scharges against him during his first period in detention.
3. Thesuspect’s right to be promptly charged
91. In the BarayagwizaDecision, the Appeals Chamber held that the suspect’s right to be promptlycharged, as set forth in Rule 40 bis, becomes effective as soon as aRule 40 bis Order is filed.
92. The Appeals Chamber adopts thefindings of ICTY Appeals Chamber in the Aleksovski caseand recalls that in the interests of legal certainty and predictability, theAppeals Chamber should follow its previous decisions, but should be free todepart from them for cogent reasons in the interests of justice. Applying thisprinciple, the Appeals Chamber has altered the interpretation it gave Rule 40 bisin its Barayagwiza Decision for the reasons hereinafter given.
93. In the instant case, theProsecutor called the Appeals Chamber’s attention to the legislative history ofRule 40 bis.The Appeals Chamber has consequently decided to reconsider the interpretationof Rule 40 bis in the light of the Prosecutor’s argument, firstly, toidentify the starting point for calculating the time-limit for a suspect’sprovisional detention before the indictment is confirmed and, secondly, toconsider the alleged violation of the Appellant’s right to be promptly charged.
94. On 15 May 1996, Rule 40 biswas adopted under the procedure provided for in Rule 6 (b), to read as follows:
"[…]The provisional detention of the suspect may be ordered for a period not exceeding30 days from the signing of the provisional detention order".(Emphasis added.)
95. Rule 40 bis wassubsequently amended, on 4 July 1996, to read as follows:
"[…]The provisional detention of the suspect may be ordered for a period notexceeding 30 days from the day after the transfer of the suspect to thedetention unit of the Tribunal". (Emphasis added.)
96. In the light of the latter text,it is clearly apparent that the clock for the Rule 40 bis time-limitstarts running only from the day the suspect is transferred to the Tribunal’sDetention Facility. Although the interpretation whereby the time-limit is to becalculated from the day the Order is filed is of course in keeping with thespirit and letter of the Rule adopted on 15 May 1996, the Appeals Chamber musttake into account the abrogative effect of any legislative amendment. Theprincipal effect of the 4 July 1996 amendment was to break with the interpretationof Rule 40 bis in the form in which it emerged from the 15 May 1996text.
97. It is thus unambiguously clearthat the Rule 40 bis time-limit runs not from the day the Order is filedbut rather from the day the suspect is transferred to the Tribunal’s DetentionFacility. The 4 July 1996 amendment confirms that interpretation. Furthermore,the Appeals Chamber notes that the first sentence of the current paragraph (A)of Rule 40 bis is in keeping with this finding.Therefore, the Rule 40 bis time-limit for confirming the indictmentconsequently runs from the day the suspect is transferred to the Tribunal’sDetention Facility.
98. The Appeals Chamber will nowturn its attention to the alleged violation of the Appellant’s right to bepromptly charged.
99. In the instant case, theAppellant was transferred to the Tribunal’s Detention Facility on 19 November1997.Interestingly, the Prosecutor’s first indictmentwas confirmed by Judge Aspegren on 23 October 1997, before the Appellant hadeven been transferred to the Tribunal’s Detention Facility.
100. The Appeals Chamber concluded suprathat the time-limit provided for under Rule 40 for confirming the indictmentruns from the day the suspect is transferred to the Tribunal’s DetentionFacility. In the instant case, therefore, it is clear that on 19 November 1997,the starting date for the time-limit computation, the first indictment againstthe Appellant had already been confirmed. Consequently, the Appellant’s rightto be promptly charged, in accordance with the true meaning of Rule 40 bis,could not have been violated.
101. Moreover, the Appeals Chamberemphasizes that in any event, the Tribunal is not responsible for the time thatelapsed before the Appellant was transferred to the Tribunal’s DetentionFacility. The evidence before the Appeals Chamber shows that Cameroon was notinclined to transfer the Appellant before 21 October 1997. The written reportby Judge Mballe of the Supreme Court of Cameroon explains that Rule 40 biswas transmitted to the President of the Republic immediately it was received bythe authorities in Cameroon on 6 March 1997.As of that date, under the extradition laws of Cameroonthe proceedings for transferring the Appellant to the Tribunal became subjectto the President’s signing a decree. Judge Mballe’s report confirms that, oncethe request had been submitted to the Executive branch, "nothing elsecould be done than to wait for the Head of State to sign the PresidentialDecree".
102. The decree granting leave forthe Appellant to be transferred to the Tribunal’s Detention Facility was signedon 21 October 1997.A letter from the Registry of the Tribunal shows that the steps taken totransfer the Appellant postdated the signing of the Decree.
103. Judge Mballe explains in hisreportthat the time which elapsed between 6 March 1997 and 21 October 1997 wasattributable to political and judicial factors. The Rule 40 bis Orderwas wrongly subjected to Cameroon’s extradition procedure.Also, at that time Rwanda was putting pressure on the authorities in Cameroonfor the detainees arrested in Cameroon, including the Appellant, to beextradited to Kigali rather than Arusha. Moreover, David Scheffer, UnitedStates Ambassador-at-Large for War Crimes Issues, indicates in his affidavitthat the pending elections in Cameroon at that time were an additional factorcontributing to the delay in signing the decree.
104. In the light of the aboveevidentiary material, the Appeals Chamber finds, firstly, that Cameroon was notprepared to transfer the Appellant before the 21 October 1997 decree had beensigned and, secondly, that the time which elapsed before the said decree wassigned was the result of factors unrelated to lack of diligence on the part ofthe Prosecutor as alleged by the Appellant. The Appeals Chamber finds that thetime which elapsed was not attributable to the Prosecutor and consequently thatthe Tribunal did not violate Rule 40 bis.
4. The right of the accused to bebrought before a Trial Chamber without delay and to be formally charged
105. Rule 62, which is rooted inArticles 19 and 20 of the Statute, states that the accused shall be broughtbefore a Trial Chamber without delay to be formally charged. However, neitherRule 62 nor the relevant treaties relating to international human rights lawprovide for a specific period beyond which the time which elapsed before theaccused’s initial appearance becomes excessive.
106. In the instant case, the firstindictment against the Appellant was confirmed on 23 October 1997, when theAppellant became an accused within the meaning of Rule 2.The Appellant was then transferred to the Tribunal’s Detention Facility on 19November 1997 and appeared before Trial Chamber III on 16 February 1998.
107. Under Rule 62, the Appellant’sright to be brought before a Trial Chamber without delay and be formallycharged came into effect on the date of his transfer to the Tribunal.The Appeals Chamber notes that 89 days elapsed between 19 November 1997, whenthe accused’s right came into effect, and 16 February 1998, when the Appellantmade his appearance and was formally charged. A delay of that kind could leadthe Appeals Chamber to find that the Appellant’s right had been violated.However, it is clear from the evidence before the Appeals Chamber that othercircumstances must also be considered in the instant case.
108. The first date set for theAppellant’s initial appearance was 3 February 1998.The transcript of the initial appearance hearing on 16 February 1998 shows thatit was Counsel for the Appellant who requested postponement of the initialappearance scheduled for 3 February 1998.It is clear that the postponement of the Appellant’s initial hearing to 16February 1998 was at the express request of his Counsel.
109. Furthermore, although theAppellant alleged in his Motion of 16 August 1999that his right to be brought before a Trial Chamber and be formally charged hadbeen violated, on no other occasion than in that Motion has he amplified onthis grievance as an independent ground for complaint. At no time before TrialChamber III did the Appellant allege that there had been a violation arisingout of the 89 days which elapsed between his transfer and his initialappearance,nor was it used as a separate ground of appeal in the written submissions inthe instant case.Lastly, Counsel for the Appellant did not draw the Appeals Chamber’s attentionto this particular violation in setting forth his grounds of appeal during hisopening statement at the 16 February 2000 hearing.
110. The Parties to a case areresponsible for the strategies they use in conducting it. In the instantmatter, the Appeals Chamber recalls that Counsel for the Appellant explicitlyrequested that the date which the Registry of the Tribunal had set for theAppellant’s initial appearance should be postponed to 16 February 1998. By sodoing, Counsel for the Appellant consented to having the Appellant’s initialappearance not take place within the shortest possible lapse of time andhimself contributed to prolonging it.
111. The Appeals Chamber finds thatCounsel’s request has the import of waiving the Appellant’s right to claimviolation of his right to be brought before a Trial Chamber without delay andbe formally charged.
5. The right to challenge thelawfulness of detention (habeas corpus)
112. Neither the Statute nor theRules of the Tribunal specifically address writs of habeas corpus.However, the Appeals Chamber has already pointed out that the possibility for adetained individual to have recourse to an independent judicial authority forreview of the lawfulness of his detention is "well established by theStatute and Rules".This is a fundamental right and is enshrined in international human rights law,which also provides that the right of an individual to challenge the lawfulnessof his detention implies that "a writ of habeas corpus must beheard".
113. The Appeals Chamber wishes toconfirm the principle which it laid down in the Barayagwiza case: if anaccused files a writ of habeas corpus, the Tribunal must hear it andrule upon it without delay, as principal instruments of international humanrights law prescribe.If such a writ is filed but not heard, the Chamber will find that a fundamentalright of the accused has been violated.
114. In the instant case, Counselfor the Appellant filed a writ of habeas corpus on 29 September 1997challenging the lawfulness of the Appellant’s detention; the Appellant havingbeen taken into custody in Cameroon pursuant to the Prosecutor’s Rule 40 bisrequest. It is clear from the evidence before the Appeals Chamber that this writ of habeascorpus was not placed on the cause list by the Registry and was not heardby a Trial Chamber. The Appeals Chamber therefore finds that the Appellant’sright to challenge the lawfulness of his detention was violated.
115. To assess the extent of theviolation and its consequences in terms of remedy, the Chamber deems itpertinent to take into account all the circumstances surrounding the matter.
116. His 29 September 1997 writ of habeascorpus aside, the Appellant challenged the lawfulness of his arrest anddetention in Cameroon for a second time in his Motion to Set Aside as Unlawful,which he filed on 16 August 1997 before Trial Chamber III. Interestingly, thatMotion contains no reference to the 29 September 1997 writ. The Appeals Chamberalso notes that neither did the Appellant refer to the 29 September 1997 writin his Notice of Appealof 12 October 1999.
117. It is apparent that the firstallegation which the Appellant raised before the Tribunal concerning the writof habeas corpus is to be found in his 11 November 1999"Defendant’s Reply in Opposition to the Prosecutor’s Request to Supplementthe Record on Appeal".A second allegation is to be found in the "Preliminary Appellate Brief inSupport of the Notice of Appeal of 12 October 1999 from the Order of 6 October1999 rendered by Trial Chamber III on the Defence Motion to Set Aside theArrest and Detention of Laurent Semanza as Unlawful"of 12 November 1999. In the latter document, the Appellant refers to the writof habeas corpus in the following terms:
"‘[…] ‘While awaiting transfer,the Appellant filed a writ of habeas corpus on 29 September 1997. TheTrial Chamber never considered this application’ (this quotation taken from thedecision in the matter of the Prosecutor vs. Jean- Bosco Barayagwiza, Case No.ICTR 97-19-AR72, para. 8, concerning the writ of habeas corpus,perfectly suits the Appellant […]"
118. It is therefore apparent thatthe Appellant became interested in the fate of his writ of habeas corpusonly after the Appeals Chamber’s 3 November 1999 Decision in the Barayagwizacase.
119. Also, Counsel for the Appellantmade no representations to the Registry or the Prosecutor to carry the matterhe had taken up on the Appellant’s behalf through to conclusion. Veryevidently, Counsel for the Appellant neglected to follow up the 29 September1997 writ of habeas corpus until the Barayagwiza Decision had beendelivered. The fact that Counsel for the Appellant elected to challenge thelawfulness of the Appellant’s arrest and detention in August 1999 in a secondmotion confirms this finding.
120. The Appeals Chamber wouldemphasise that Defence Counsel appearing before the Tribunal have a duty ofdiligence. This duty is expressly set forth in the Code of Professional Conductfor Defence Counsel (the "Code of Conduct") adopted by the Judges ofthe Tribunal under Article 14 of the Statute. Article 6 of the Code of Conductstates that:
"Counselmust represent a client diligently in order to protect the client’s bestinterests. Unless the representation is terminated, Counsel must carrythrough to conclusion all matters undertaken for a client within the scope of hislegal representation." (Emphasis added.)
121. In the instant case, theAppeals Chamber finds that Counsel for the Appellant failed in his duty ofdiligence by not carrying through to conclusion the matter he had undertaken onthe Appellant’s behalf in his writ of habeas corpus. Such failure whichhas been established by the Appeals Chamber derives also from the fact thatCounsel for the Appellant failed to bring the alleged violation to theTribunal’s attention before the Barayagwiza Decision was delivered.
122. The Appeals Chamber, havingestablished that the Appellant’s right was violated and having clarified thecircumstances surrounding that violation, must consider the consequences ofsuch violation in terms of appropriate remedy. The Appellant claims that aremedy for the violation of his right to challenge the lawfulness of hisdetention should be given under Rule 5.Paragraph (A) of Rule 5 states that:
"Wherean objection on the ground of non-compliance with the Rule or Regulations israised by a party at the earliest opportunity, the Trial Chamber shall grantrelief, if it finds that the alleged non-compliance is proved and that ithas caused material prejudice to that party." (Emphasis added.)
123. The Appeals Chamber is of theopinion that the material prejudice to which Rule 5 refers must be assessed, asmust all prejudice, in the light of the circumstances of the case.
124. The Appellant adduced twoprincipal grounds in his 29 September 1997 writ of habeas corpus.Firstly, he contends that the Prosecutor was responsible for the continuingincrease in the lapse of time before he was transferred to the Tribunal’sDetention Facility and, secondly, that he was detained with no formal legaljustification.The Appeals Chamber recalls that an indictment was confirmed against theAppellant on 23 October 1997 and that he was transferred to the Tribunal’sDetention Facility on 19 November 1997. The results sought by filing the writof habeas corpus were therefore achieved relatively soon after the writwas filed. In such circumstances, the Appeals Chamber finds that while indeedthere was prejudice caused, it must be seen in perspective and thus does nottake the form of material prejudice alleged by the Appellant.
125. The Appeals Chambernevertheless finds that any violation, even if it entails only a