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AHORUGEZE v. SWEDEN - 37075/09 [2011] ECHR 1829 (27 October 2011)
URL: http://www.bailii.org/eu/cases/ECHR/2011/1829.html
Cite as:
[2011] ECHR 1829,
(2012) 55 EHRR 2,
55 EHRR 2
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FIFTH
SECTION
CASE OF AHORUGEZE v. SWEDEN
(Application
no. 37075/09)
JUDGMENT
STRASBOURG
27 October
2011
This
judgment will become final in the circumstances set out in Article 44
§ 2 of the Convention. It may be subject to editorial revision.
In the case of Ahorugeze v.
Sweden,
The
European Court of Human Rights (Fifth Section), sitting as a Chamber
composed of:
Dean Spielmann,
President,
Elisabet Fura,
Karel
Jungwiert,
Boštjan M. Zupančič,
Isabelle
Berro-Lefèvre,
Ganna Yudkivska,
Angelika
Nußberger, judges,
and Claudia Westerdiek,
Section
Registrar,
Having
deliberated in private on 4 October 2011,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
The
case originated in an application (no. 37075/09) against the Kingdom
of Sweden lodged with the Court under Article 34 of the Convention
for the Protection of Human Rights and Fundamental Freedoms (“the
Convention”) by a Rwandan national, Mr Sylvère Ahorugeze
(“the applicant”), on 15 July 2009.
The
applicant was represented by Mr H. Bredberg, a lawyer practising in
Stockholm. The Swedish Government (“the Government”) were
represented by their Agent, Mr C.-H. Ehrenkrona, of the Ministry for
Foreign Affairs.
The
applicant alleged that his extradition to Rwanda to stand trial on
charges of genocide would violate Articles 3 and 6 of the Convention.
On
15 July 2009 the President of the Third Section decided to apply Rule
39 of the Rules of Court, indicating to the Government that it was
desirable in the interests of the parties and the proper conduct of
the proceedings not to deport the applicant until further notice. The
Government were also requested to submit certain factual information.
The case was further granted priority under Rule 41 of the Rules of
Court.
On
21 January 2010 the President of the Third Section decided to give
notice of the application to the Government.
The
Government and the applicant each filed written observations on the
admissibility and merits of the case.
The
Netherlands Government, which had been given leave by the President
to intervene in the written procedure (Article 36 § 2 of the
Convention and Rule 44 § 2 of the Rules of Court), submitted
third-party comments.
On
1 February 2011 the Court changed the composition of its Sections
(Rule 25 § 1 of the Rules of Court) and the present application
was assigned to the newly composed Fifth Section.
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
A. Background
The
applicant is a Rwandan citizen of Hutu ethnicity, who was born in
1956. He used to be the head of the Rwandan Civil Aviation Authority.
He has claimed that he left Rwanda on 14 April 1994. In 2001 he took
up residence in Denmark, where he was granted refugee status.
Resident in Denmark are also his wife, his former wife and his three
children.
In
January 2006, a Danish public prosecutor opened a preliminary
investigation in regard to a suspicion that the applicant had
committed genocide and crimes against humanity in Rwanda in 1994. In
particular, the preliminary investigation concerned one of the crimes
allegedly committed by the applicant, a massacre of Tutsis on 7 April
1994. The Danish police made several visits to Rwanda and other
countries and questioned numerous witnesses but finally, in September
2007, the preliminary investigation was discontinued because the
prosecutor found that the evidence against the applicant was not
sufficient for a conviction.
Subsequently,
the Danish Ministry of Foreign Affairs received a request from the
Rwandan authorities to have the applicant extradited to Rwanda to
stand trial on charges including genocide and crimes against
humanity. The Danish public prosecutor made a preliminary examination
of the matter and presented his comments to the Danish Ministry of
Justice. On this basis, the Ministry of Justice asked the Rwandan
authorities to provide it with further information about the alleged
crimes of which the applicant was suspected and, in particular,
supporting material (such as forensic evidence and depositions). The
reason for this was that, according to Section 3 of the Danish
Extradition Act, a request for extradition may be denied if the
evidence in support of the request is deemed insufficient. The
Rwandan authorities did not respond and no decision has been taken by
the Danish authorities on the request for extradition.
B. Extradition proceedings in Sweden
On
16 July 2008, after the Swedish police had been informed by the
Rwandan Embassy in Stockholm that the applicant had visited them and
that he was sought by the Rwandan authorities, the applicant was
arrested in Stockholm in compliance with an international alert and
warrant of arrest. The arrest order was confirmed by the District
Court (tingsrätten) of Solna on 18 July and, on 21 July,
the Ministry of Justice decided, pursuant to Section 23 of the
Criminal Offences Extradition Act (Lag om utlämning för
brott, 1957:668; “the 1957 Act”), to invite the
Rwandan authorities to present a request for extradition by 22
August.
On
4 August 2008 the National Public Prosecution Authority in Rwanda
made a formal request for the extradition of the applicant to Rwanda
for purposes of prosecution. It invoked an international arrest
warrant issued by the Rwandan Prosecutor-General on 17 July 2008 as
well as an indictment according to which the applicant was charged
with the following crimes, allegedly committed between 6 April and 4
July 1994: (1) genocide, (2) complicity in genocide, (3)
conspiracy to commit genocide, (4) murder, (5) extermination, and (6)
formation, membership, leadership and participation in an association
of a criminal gang, whose purpose and existence were to do harm to
people or their property. Allegedly, during the relevant period, the
applicant had acted as a leader for the Interahamwe militia.
He had trained and encouraged other government-connected civilian
militias to kill Tutsis, to cause them serious bodily harm and to
plunder their homes. He had also transported and distributed weapons
to members of the Interahamwe and other militias. He had met
with local officials to plan and organise the distribution of weapons
and had incited civilians to kill and rape Tutsis. He had prepared,
trained, equipped and organised militias in his home town.
Furthermore, together with about 50 members of the Interahamwe,
he had been actively involved in the murder of 28 Tutsis on 7 April
1994.
In
the arrest warrant of 17 July 2008 and the extradition request of
4 August 2008, the Rwandan authorities referred to recent
legislative changes concerning the criminal procedure and possible
punishment in regard to transferred genocide suspects (which are
further described below). They affirmed their “satisfactory
assurances on human rights issues”, claiming that, should the
applicant be transferred to Rwanda, he would receive a fair trial in
accordance with national legislation and in conformity with
fair-trial guarantees contained in international instruments ratified
by Rwanda. He would be tried, at first instance, by the High Court
and, upon appeal, the Supreme Court. In regard to detention, the
extradition request contained the following information:
“If arrested, detained or imprisoned following
[his] arrest and subsequent to the Rwandan jurisdictions, [the
applicant] will be accorded adequate accommodation, at a prison which
has been deemed by international observers to meet international
standards. Transferred persons will be afforded nourishment and
medical treatment, and will be treated in a humane and proper manner,
in accordance with international accepted standards.”
In a
footnote, the detention facility was described in greater detail:
“MPANGA Prison in the Southern Province has been
designated as the primary detention centre. The ICTR [the
International Criminal Tribunal for Rwanda] has acknowledged, after
visiting the Prison, that it meets international standards. A
transfer facility has also been established at Kigali central prison,
and this facility will serve as a temporary detention centre for
suspects appearing before the High Court of the Republic. ...”
In
accordance with Section 15 of the 1957 Act, the Government referred
the request to the Office of the Prosecutor-General. Since the
applicant opposed the extradition, he was granted public defence
counsel. Moreover, on 29 September 2008, the District Court decided
to remand the applicant in custody on suspicion of genocide.
On
9 March 2009 the Prosecutor-General finished his investigation and
referred the case to the Supreme Court (Högsta domstolen)
for examination in accordance with Section 17 of the 1957 Act. He
attached his opinion, according to which there was probable cause for
believing that the applicant was guilty of the crimes referred to in
the extradition request and, as – with the exception of the
last charge (6 above) – they corresponded to crimes under
Swedish law, the extradition request could be granted. The
Prosecutor-General further submitted that, although the investigation
could give cause for some doubt, there were no impediments to the
extradition as the situation in Rwanda was not so serious that the
applicant’s rights under Articles 3 and 6 of the Convention
would be violated.
Before
the Supreme Court the applicant opposed the extradition and denied
all of the charges against him. He alleged that the witness accounts
which formed the basis of the charges were false and that there was a
conspiracy against him. As concerned the alleged massacre on 7 April
1994, it had been investigated by the Danish police but the
investigation had been discontinued as there was insufficient
evidence against him. This lack of evidence applied to all the crimes
of which he was accused. Moreover, in his view, the accusations were
of a political nature as he was a Hutu and he was convinced that he
would be seriously persecuted if returned. The applicant further
claimed that the Rwandan justice system was corrupt and dysfunctional
and lacking in independence and impartiality. In particular, it would
be very difficult for him to call and question witnesses in his
defence on an equal basis with witnesses called by the prosecution.
Thus, he would suffer a flagrant denial of justice in violation of
Article 6 of the Convention. He also referred to several decisions in
which the ICTR had found that there were impediments to transferring
genocide suspects to Rwanda and noted that no other country had
accepted such requests from Rwanda. Lastly, he invoked his poor
health, stating that he had undergone a heart bypass operation and
would be in need of another such operation within a few years.
On
26 May 2009, after having held an oral hearing, the Supreme Court
took its decision. It first stressed that the examination was limited
to the question of whether there were any impediments to the
applicant’s extradition. In carrying out this examination, the
Supreme Court had to consider the 1957 Act as well as Articles 3 and
6 of the Convention. Turning to the circumstances of the case, the
court first agreed with the Prosecutor-General’s assessment
that there was probable cause to believe that the applicant was
guilty of the charges against him and that, since these crimes were
also crimes under Swedish law, it was permissible to extradite him
(exception was again made for the sixth charge for the same reason as
above). The court further found that the crimes were not of a
political nature and that, hence, this did not constitute an
impediment. Furthermore, in regard to the applicant’s Hutu
ethnicity, which had been of great importance when the Danish
authorities granted him asylum, the court noted that the definition
of refugee status had been expanded in many countries. The court then
noted that neither the Danish decision nor the investigation on which
it was based had been adduced in the extradition matter. The court
however found that the Danish decision was several years old and that
the evidence at the court’s disposal did not support the
assessment that the applicant was at a real risk of persecution due
to his ethnicity. The court also considered that the applicant’s
state of health did not pose any problem for the extradition. Thus,
there were no impediments under the 1957 Act to the extradition of
the applicant.
Turning
to the examination under the Convention, the Supreme Court first
found that the evidence at hand did not give reason to believe that
the applicant would be subjected to torture or inhuman or degrading
treatment contrary to Article 3 of the Convention upon return to
Rwanda. As concerned Article 6, the court noted that, according to
Strasbourg case-law, only a “flagrant denial of justice”
in the receiving country could lead to a finding of a violation
against the extraditing country. Hence there was no requirement to
ensure that the person would be guaranteed a fair trial in all
aspects. Moreover, it was for the applicant to show that there were
substantial grounds for believing that he would suffer a flagrant
denial of justice. In the instant case, the applicant had given
information about Rwanda and had submitted a letter of 16 October
2008 from Amnesty International (see further below at §§
41-43) and decisions by the ICTR of 28 May and 6 June 2008. He
had also presented a decision by the Ministry of Justice of Finland
of 20 February 2009 and a decision by the High Court in London of 8
April 2009, both of which declined to extradite some persons to
Rwanda to stand trial. In this respect, the court noted that the
Finnish decision was based on ICTR’s decisions. However, these
decisions concerned transfer of suspects from the ICTR to the Rwandan
national courts. According to Article 11 bis of the ICTR’s
Rules of Procedure and Evidence, extradition was possible if the
tribunal was satisfied that the accused would receive a fair trial in
the courts of the State concerned. This, in the Swedish Supreme
Court’s opinion, was clearly a much more rigorous demand than
that under Article 6 of the Convention. ICTR’s decisions could
therefore not lead to the conclusion that the extradition of the
applicant in the present case would be in violation of Article 6 of
the Convention. In regard to the decision of the UK High Court, the
Supreme Court noted that, contrary to the lower court, the High Court
had found that the extradition of the persons in question would put
them at real risk of suffering a flagrant denial of justice, with
respect to both the difficulty of adducing evidence and the doubts
pertaining to the independence and impartiality of the Rwandan
judiciary. While this gave reason to doubt whether the extradition of
the applicant would be possible, the Supreme Court observed
nevertheless that, according to international sources and reports
from the Swedish Ministry for Foreign Affairs and the Swedish Embassy
in Kigali, the judicial system in Rwanda had made clear improvements
after the above-mentioned decisions, although much remained to be
done. For instance, a new witness protection programme had been
launched and the punishment of life-time imprisonment in isolation
had been abolished.
Having
regard to all of the above, the Supreme Court found that there
existed certain reasons to doubt that the applicant would be afforded
a trial in Rwanda which fulfilled all requirements under Article 6 of
the Convention, in particular whether his right to call witnesses
would be equal to that of the prosecution. However, the circumstances
of the case did not constitute a general legal impediment to the
extradition of the applicant to Rwanda to stand trial on charges of
genocide and crimes against humanity. The court then expressed that
it assumed that consideration would be given to the need for further
information before the Government made a final decision in the case.
On
7 July 2009 the Swedish Government decided that the applicant should
be extradited to Rwanda to stand trial for genocide and crimes
against humanity. However, it rejected the request in relation to the
sixth charge. The Government first agreed with the Supreme Court that
there were no impediments to the extradition under Swedish law. As
concerned the examination under the Convention, the Government noted
that the death penalty had been abolished in 2007 and that life
imprisonment with special conditions (such as isolation) had been
abolished in November 2008. A new prison had been built which was
considered to reach an acceptable international standard and which,
inter alia, was meant for persons convicted of genocide. There
was also nothing to suggest that the Rwandan State sanctioned torture
or inhuman treatment of convicted persons or persons suspected of
serious crimes. Thus, extradition would not be contrary to Article 3
of the Convention. In regard to Article 6, the Government observed
that the standards set by the ICTR were more rigorous than the
standard set by the Convention and the European Court’s
case-law. It noted that the judicial system in Rwanda had improved
over the last couple of years and that new laws had been promulgated
during the spring of 2009 to improve the witness protection programme
and the possibility to hear witnesses who were not present in Rwanda.
Hence, the Government concluded that the extradition would not
violate Article 6 of the Convention and therefore approved it.
C. Events during the proceedings before the Court
On
13 July 2009 the applicant requested the Court to indicate to the
Swedish Government under Rule 39 of the Rules of Court a suspension
of his extradition to Rwanda. On 15 July the President of the Section
to which the case had been allocated decided to apply Rule 39 and, on
20 July, the Swedish Government decided not to enforce the
extradition until further notice.
Subsequently,
on 21 July 2009, the President of the Section requested the
Government to reply to certain factual questions in accordance with
Rule 54 § 2 (a) of the Rules of Court. Specifically, the
President wanted to know if the Government had obtained any
guarantees from the Rwandan authorities that the applicant would
receive a fair trial and be treated in a correct manner, if they knew
where he would be detained and whether they intended to adopt
measures to monitor and follow the future detention and trial of the
applicant in Rwanda.
In
a letter of 12 August 2009, sent following a request for information
from the Swedish Ministry of Justice, Mr Tharcisse Karugarama, the
Rwandan Minister of Justice confirmed the following:
“1. If transferred to Rwanda, [the
applicant] will primarily be placed in the Mpanga [Prison] during his
pre-trial and detention during trial. The Kigali Central Prison,
however, may serve as a temporary detention center for him while
appearing before the High Court of the Republic.
If
convicted in Rwanda, [the applicant] will be placed in the Mpanga
Prison while serving the sentence.
Swedish
authorities will be able to monitor and evaluate [the applicant’s]
conditions in Rwanda, in relation to his detention/imprisonment
facilities, as well as in relation to his trial and proceedings
conducted in Rwanda.”
Mr
Karugarama also assured that the applicant would not be subjected to
solitary confinement once returned to Rwanda. The Death Penalty
Abolition Law (see further below at § 35) excluded life
imprisonment with special provisions (i.e. isolation) for those
extradited from other states.
By
a decision of 27 July 2011, the Supreme Court released the applicant
from detention.
II. RELEVANT LAW AND PRACTICE
A. Swedish law
According
to sections 1 and 4 of the 1957 Act, a person who in a foreign state
is suspected or accused of or sentenced for an act that is punishable
there may be extradited to that state following a decision by the
Government. Such extradition may be granted only if the act for which
it is requested corresponds to an offence for which imprisonment for
one year or more is prescribed by Swedish law.
Sections
5-8 lay down certain limitations. Thus, an extradition request may
not be granted for certain offences committed by members of the armed
forces or for political offences. Furthermore, a person may not be
extradited if, on account of his origin, belonging to a particular
social group, religious or political views, or otherwise on account
of political circumstances, he would run the risk, in the foreign
state, of being subjected to persecution directed against his life or
liberty or otherwise of a harsh nature. Also, the extradition cannot
take place if the person in question is not protected against being
sent to a state where he would run such a risk. Finally, a request
may be refused if, having regard to the person’s young age,
state of health or other personal circumstances, the extradition
would run manifestly counter to the demands of humanity. In the
latter case, regard should be had also to the nature of the offence
in question and the interests of the requesting state.
Section
14 stipulates that an extradition request is submitted in writing to
the Ministry of Justice, accompanied by the documentation on which
the request is based.
According
to section 15, the Prosecutor-General gives his opinion in the
extradition matter before the Government takes a decision. If the
person concerned does not consent to being extradited, the case is
also examined by the Supreme Court.
Section
16 prescribes that the Prosecutor-General is to conduct the necessary
investigation in accordance with the rules applicable to preliminary
investigations in criminal cases. Coercive measures are subject to
the general rules prescribed for criminal cases. However, there are
also some more specific rules outlined in section 23 of the Act,
according to which a decision by a prosecutor to apply coercive
measures must instantly be reported to a district court. Appeal
against this court’s decision lies directly to the Supreme
Court.
According
to section 17 and 18, the Prosecutor-General submits the case and the
finished investigation, together with an opinion, to the Supreme
Court. The Supreme Court then decides whether the extradition request
may be lawfully granted. A hearing is held if it is considered
necessary.
Under
section 20, the matter is reported to the Government when the Supreme
Court has issued its decision. If the Supreme Court has found that
there is a legal impediment to the extradition, the request may not
be granted.
The
Swedish Supreme Court has examined several cases regarding
extradition of suspected criminals. According to leading Supreme
Court case-law (see NJA 2002 p 624, NJA 2007 not N36 and NJA 2007 s
574) the scope of the court’s examination is not limited to an
assessment of whether there are impediments to an extradition
prescribed in the 1957 Act, but also includes an evaluation of the
compliance of the extradition with the Convention.
B. Rwandan law
1. The Transfer Law
Organic
Law no. 11/2007 of 16/03/2007 concerning the Transfer of Cases to the
Republic of Rwanda from the International Criminal Tribunal for
Rwanda and from Other States (“the Transfer Law”) was
amended on 26 May 2009 (through Organic Law no. 03/2009 of
26/05/2009 Modifying and Complementing [the Transfer Law]), following
criticism against the taking of evidence from witnesses expressed by
the ICTR and by some countries and international organisations. The
amended Transfer Law contains, inter alia, the following
provisions (the 2009 amendments indicated in italics):
Article 2 – The competent Court
“Notwithstanding any other law to the contrary,
the High Court shall be the competent court to conduct at the first
instance the trial of cases transferred to Rwanda as provided by this
Organic Law.
At the first instance, the case shall be tried by a
single Judge.
However, the President of the Court may at his/her
absolute discretion designate a quorum of three (3) or more judges
assisted by a Court Registrar depending on his/her assessment of the
complexity and importance of the case.”
Article 13 – Guarantee of rights of an accused
person
“Without prejudice to other rights guaranteed
under the laws of Rwanda, including the Constitution of the Republic
of Rwanda of June 4, 2003 as amended to date or Laws relating to the
Code of Criminal Procedure of Rwanda and the International Covenant
on Civil and Political Rights, as ratified by the Decree Law no.
08/75 of February 12, 1975, the accused person in the case
transferred by ICTR to Rwanda shall be guaranteed the following
rights:
1. a fair and public hearing;
2. presumption of innocent until proved
guilty;
3. to be informed promptly and in detail in a
language which he/she understands, of the nature and the cause of the
charge against him;
4. adequate time and facilities to prepare
his/her defense;
5. a speedy trial without undue delay;
6. entitlement to counsel of his/her choice
in any examination. In case he/she has no means to pay, he/she shall
be entitled to legal representation;
7. the right to remain silent and not to be
compelled to incriminate him/herself;
8. the right to be tried in his/her presence;
9. to examine, or have a person to examine on
his/her behalf the witnesses against him/her;
10. to obtain the attendance and examination
of witnesses on his/her behalf under the same conditions as witnesses
against him/her.
Without prejudice to the relevant laws on contempt of
court and perjury, no person shall be criminally liable for anything
said or done in the course of a trial.”
Article 14 – Protection and assistance to
witnesses
“In the trial of cases transferred from the ICTR,
the High Court of the Republic shall provide appropriate protection
for witnesses and shall have the power to order protective measures
similar to those set forth in Articles 53, 69 and 75 of the ICTR
Rules of Procedure and Evidence.
In the trial of cases transferred from the ICTR, the
Prosecutor General of the Republic shall facilitate the witnesses in
giving testimony including those living abroad, by the provision of
appropriate immigration documents, personal security as well as
providing them with medical and psychological assistance.
All witnesses who travel from abroad to Rwanda to
testify in the trial of cases transferred from the ICTR shall have
immunity from search, seizure, arrest or detention during their
testimony and during their travel to and from the trials. The High
Court of the Republic may establish reasonable conditions towards a
witness’s right of safety in the country. As such there shall
be determination of limitations of movements in the country, duration
of stay and travel.”
Article 14 bis – Testimony of a witness
residing abroad
“Without prejudice to the generality of Article
14, where a witness is unable or, for good reason, unwilling to
physically appear before the High Court to give testimony, the judge
may upon request of a party order that the testimony of such witness
be taken in the following manner:
1. By deposition in Rwanda or in a foreign
jurisdiction, taken by a Presiding Officer, Magistrate or other
judicial officer appointed/commissioned by the Judge for that
purpose;
2. By video-link hearing
taken by the judge at trial;
3. By a judge sitting in a foreign
jurisdiction for the purpose of recording such viva voce testimony.
The request for the taking of testimony in any of the
modes described above shall indicate the names and whereabouts of the
witness whose testimony is sought, a statement of the matters on
which the witness is to be examined, and of the circumstances
justifying the taking of testimony in such manner.
The order granting the taking of testimony of a
witness in any of the modes prescribed above shall designate the
date, time and the place at which such testimony is to be taken,
requiring the parties to be present to examine and cross-examine the
witness.
Testimony taken under this Article shall be
transcribed and form part of the trial record and shall carry the
same weight as viva voce testimony heard at trial.”
Article 15 – Defence councel
“Without prejudice to the provisions of other laws
of Rwanda, defence councel and their support staff shall have the
right to enter into Rwanda and move freely within Rwanda to perform
their duties. They shall not be subject to search, seizure, arrest or
detention in the performance of their legal duties.
The defence councel and their support staff shall, at
their request, be provided with appropriate security and protection.”
Article 16 – Appeals
“Both the prosecution and the accused have the
right to appeal against any decision taken by the High Court of the
Republic upon one or all of the following grounds:
1. an error on a question of law invalidating
the decision, or
2. an error of fact which has occasioned a
miscarriage of justice.
The Supreme Court may uphold or invalidate some or all
of the decisions of the High Court of the Republic. Where necessary,
it may order the High Court of the Republic to review the case.”
Article 21 – The heaviest penalty
“Life imprisonment shall be the heaviest penalty
imposed upon a convicted person in a case transferred to Rwanda from
ICTR.”
Article 23 – Detention
“Any person who is transferred to Rwanda by the
ICTR for trial shall be detained in accordance with the minimum
standards of detention stipulated in the United Nations Body of
Principles for the Protection of all persons under any Form of
Detention or Imprisonment, adopted by General Assembly resolution
43/173 of 9 December, 1998.
The International Committee of the Red Cross or an
observer appointed by the President of the ICTR shall have the right
to inspect the conditions of detention of persons transferred to
Rwanda by the ICTR and held in detention. The International Committee
of the Red Cross or the observer appointed by the ICTR shall submit a
confidential report based on the findings of these inspections to the
Minister in charge of Justice of Rwanda and to the President of the
ICTR.
In case an accused person dies or escapes from
detention, the Prosecutor General of the Republic shall immediately
notify the President of the ICTR and the Minister of Justice in
Rwanda.
The Prosecutor General of the Republic shall conduct
investigations on the death or the escaping of the person who was in
detention and shall submit a report to the President of ICTR and the
Minister of Justice in Rwanda.”
Article 24 – Applicability of this Organic Law
to other matters of transfer of cases between Rwanda and other states
“This Organic Law applies mutatis mutandis in
other matters where there is transfer of cases to the Republic of
Rwanda from other States or where transfer of cases or extradition of
suspects is sought by the Republic of Rwanda from other states.”
2. Abolition of the death penalty
Rwanda
abolished the death penalty through Organic Law no. 31/2007 of
25/07/2007 relating to the Abolition of the Death Penalty (“the
Death Penalty Abolition Law”). This law was amended as of
1 December 2008 (through Organic Law no. 66/2008 of 21/11/2008
Modifying and Complementing [the Death Penalty Abolition Law]),
following which the relevant provisions read as follows (the 2008
amendment indicated in italics):
Article 2 – Abolition of the Death Penalty
“The death penalty is hereby abolished.”
Article 3 – Substitution of the Death Penalty
“In all the legislative texts in force before the
commencement of this Organic Law, the death penalty is hereby
substituted by life imprisonment or life imprisonment with special
provisions as provided for by this Organic Law.
However,
life imprisonment with special provisions as provided for by
paragraph one of this Article shall not be pronounced in respect of
cases transferred to Rwanda from the International Criminal Tribunal
for Rwanda and from other States in accordance with the provisions of
[the Transfer Law].”
Article 4 – Life imprisonment with special
provisions
“Life imprisonment with special provisions is
imprisonment with the following modalities:
1. A convicted person is not entitled to any
kind of mercy, conditional release or rehabilitation, unless he/she
has served at least twenty (20) years of imprisonment;
2. A convicted person is kept in isolation.”
The law provides for the specific mode of enforcement
and execution of life imprisonment with special provisions.”
3. The gacaca courts
A
traditional, community-based gacaca system of tribunals was
established in 2002 to try people suspected of crimes during the 1994
genocide, in order to resolve the enormous amount of such cases
(however, not the most serious, so-called “category I”
cases – to which the applicant’s case allegedly belongs
–, which are still tried in the ordinary courts). The
government’s stated goal for the gacaca system was to
ensure that those who had participated in the genocide were brought
to trial, furthering the ends of justice, ending impunity and
promoting national unity. The gacaca law provides for reduced
sentences, including community service, for co operation, and
credit for time served.
After
a pilot phase when approximately 700,000 individuals were identified
for prosecution for having participated in the genocide, the gacaca
courts began trials nationwide in July 2006. The trials have been
public but there have been concerns about their fairness, among other
things because of a perceived lack of impartiality and reports that
defendants have not been given the opportunity to defend themselves.
In addition, some courts have spent only a few hours hearing each
case and poorly qualified, ill-trained and corrupt gacaca
judges in certain districts have fuelled widespread distrust of the
system. There have been reports of local gacaca officials and
citizens abusing the process to pursue personal matters and settle
grudges unrelated to the genocide, including making false accusations
in order to acquire land. However, in some reported cases where
judges had acted inappropriately, gacaca officials have
intervened and held that the procedure had been illegal.
C. Information from the Swedish Embassy in Kigali
On
16 June 2009, at the request of the Government, the Swedish Embassy
in Kigali submitted, inter alia, the following.
In
addition to the amendments that had been made to the Transfer Law,
Rwanda was revising its 2005 witness protection scheme so that
witness protection would fall under the Supreme Court and not, as was
currently the case, under the National Public Prosecution Authority.
It would apply to witnesses for both the prosecution and the defence.
The
Embassy was of the opinion that the independence of the judiciary was
slowly improving and that there was no direct proof that judges
followed political orders. In this respect, it noted that Rwanda was
aware that it was being observed by the international community, in
particular in extradition cases concerning genocide. As concerned
detention conditions, the Embassy observed that persons suspected of
genocide and crimes against humanity were given priority by the
Rwandan Government and that their detention conditions were good.
Again, as the international community followed these cases, Rwanda
made an effort to ensure good standards. Furthermore, persons
convicted under this law would serve their sentences in the Mpanga
Prison which had been recently built in line with international
standards. The Embassy also noted that a Bar Association had been
created which had about 350 members, although two-thirds of these
were still in training.
D. Information from Amnesty International
In
two letters, sent to the Swedish Prosecutor-General and the Swedish
Government on 16 October 2008 and 30 June 2009, respectively, Amnesty
International submitted comments on Rwandan legislation and practice
in relation to international human rights law.
In
Amnesty International’s view, there was a serious risk that the
applicant would not receive a fair trial in Rwanda, in violation of
Article 6 of the Convention and Article 14 of the International
Covenant on Civil and Political Rights (“ICCPR”). Amnesty
International referred to one of its reports (Rwanda: Suspects
must not be transferred to Rwanda courts for trial until it is
demonstrated that trials will comply with international standards of
justice, November 2007) in which serious concern was expressed
that people who were extradited there faced a real risk of being
subjected to an unfair trial and to torture or inhuman treatment in
detention centres.
Amnesty
International referred also to the decisions of the ICTR, refusing to
transfer suspects to Rwandan national courts, and to the reasons
given in those decisions (see further below). It further stressed
that no other country had transferred suspects to Rwanda but, on the
contrary, had found it to be impermissible.
E. ICTR decisions on transfer to Rwanda
Pursuant
to Rule 11 bis of the Rules of Procedure and Evidence of the
ICTR and that court’s case-law, a designated Trial Chamber may
order referral to a State that has jurisdiction over the charged
crimes and is willing and prepared to accept the case. In assessing
whether a State is competent under Rule 11 bis, it has to be
established that it has a legal framework that criminalises the
alleged conduct of the accused and provides an adequate penal
structure. The penal structure must provide an appropriate punishment
for the offence and conditions of detention must comply with
internationally recognised standards. Prior to ordering referral, the
chamber must be satisfied that the accused will receive a fair trial
in the courts of the State and that the death penalty will not be
imposed or carried out.
As
regards the requirement of a fair trial, the accused must be accorded
by the State concerned the rights set out in Article 20 of the ICTR
Statute. Those rights in essence mirror the rights laid down in
Article 6 of the Convention and Article 14 of the ICCPR.
1. The transfer cases of Munyakazi, Kanyarukiga,
Hategekimana, Gatete and Kayishema
In
2008 the ICTR decided in five cases to refuse the transfer of
genocide suspects for trial in Rwanda. In the first case, Munyakazi,
the Trial Chamber found (on 28 May 2008) that there were three
obstacles to a transfer: the applicable sentence would be life
imprisonment in isolation without appropriate safeguards, the trial
court’s composition with a single judge involved a risk of its
being unable to withstand direct or indirect pressure from the
Rwandan Government, and the defendant would not be able to secure the
attendance of and examine witnesses on his own behalf under the same
conditions as the prosecutor’s witnesses. Following an appeal
by the ICTR Prosecutor, the Appeals Chamber upheld (on 8 October
2008) the Trial Chamber’s first and third rulings. However, it
granted the appeal in so far as the second ruling was concerned: it
found that the trial chamber had erred in concluding that Rwanda did
not respect the independence of the judiciary and that the
composition of the Rwandan courts did not comply with the right to a
fair trial. With respect to the issues relating to witness testimony,
the Appeals Chamber was satisfied – contrary to the trial
chamber – that video-link facilities were available and would
likely be authorised in cases where witnesses residing abroad
genuinely feared to testify in person. However, the Appeals Chamber
considered that such arrangements would not guarantee equality of
arms “if the majority of Defence witnesses would testify by
video-link while the majority of Prosecution witnesses would testify
in person” (paragraph 42 of the decision). It also shared the
concerns of the Trial Chamber in regard to the treatment of witnesses
in Rwanda and their fears of harassment, arrest and detention. There
were reports of murders of genocide survivors who had provided or
intended to provide testimony in genocide trials. Moreover, there
were justified fears among witnesses that their appearance would lead
to indictments being issued against them, for instance for promoting
“genocidal ideology”, a term laid down in the Rwandan
Constitution and given a wide interpretation by Government officials
to cover an extended range of ideas, expressions and conduct,
including those perceived to display opposition to Government
policies.
In
the second case, Kanyarukiga, the Appeals Chamber (on
30 October 2008) upheld the Trial Chamber’s decision (of 6
June 2008) on the same grounds as in Munyakazi. As regards
witnesses inside Rwanda, the Appeals Chamber stated the following (at
paragraph 26):
“The Appeals Chamber considers that there was
sufficient information before the Trial Chamber of harassment of
witnesses testifying in Rwanda and that witnesses who have given
evidence before the Tribunal experienced threats, torture, arrests
and detentions, and, in some instances, were killed. There was also
information before the Trial Chamber of persons who refused, out of
fear, to testify in defence of people they knew to be innocent. The
Trial Chamber further noted that some defence witnesses feared that,
if they testified, they would be indicted to face trial before the
Gacaca courts, or accused of adhering to ‘genocidal ideology’.
The Appeals Chamber observes that the information available to the
Trial Chamber demonstrates that regardless of whether their fears are
wellfounded, witnesses in Rwanda may be unwilling to testify for the
Defence as a result of the fear that they may face serious
consequences, including threats, harassment, torture, arrest, or even
murder. It therefore finds that the Trial Chamber did not err in
concluding that Kanyarukiga might face problems in obtaining
witnesses residing in Rwanda because they would be afraid to
testify.”
The
Appeals Chamber found that similar concerns applied to witnesses
residing abroad, concluding that, despite the witness protection
available under Rwandan law, the available information indicated that
the defendant would not “be able to call witnesses residing
outside Rwanda to the extent and in a manner which would ensure a
fair trial if the case were transferred to Rwanda” (paragraph
31).
The
next three cases – Hategekimana (Trial Chamber, 19 June
2008; Appeals Chamber, 4 December 2008), Gatete (Trial
Chamber, 17 November 2008) and Kayishema (Trial Chamber,
16 December 2008) – contained virtually identical reasoning. It
appears that no appeals were made against the Trial Chamber’s
decisions in Gatete and Kayishema.
2. Transfer of case files from the ICTR Prosecutor to
the Rwandan authorities
In
2010, the ICTR Prosecutor transferred several cases to Rwanda for
further investigation and possible action. An ICTR press release of
8 June 2010 stated as follows:
“Twenty-five cases of persons investigated but not
indicted by the Tribunal were transferred from the Office of the
Prosecutor (OTP) to Rwanda for further investigation and possible
future action on 8 June 2010. This action was undertaken in
accordance with UN Security Council Resolution 1503, which urges that
appropriate cases be prosecuted in competent national jurisdictions.
Justice Hassan Bubacar Jallow, Prosecutor of the ICTR, formally
handed over electronic and hard copies of the cases to
Prosecutor-General of Rwanda, Mr. Martin Ngoga. Justice Jallow said
that the transfer emphasizes the partnership between the OTP and
Rwanda’s national jurisdiction. He commended the Rwandese
government for the improvements it has made to Rwanda’s
judicial infrastructure and capacity. Justice Jallow also noted his
intentions to continue pursuing the transfer of further cases to
Rwanda, including a number of cases in which the subjects have
already been indicted, pursuant to Rule11bis. Mr. Ngoga said that the
transfer is ”a vote of confidence”, in Rwanda’s
past and present efforts at improvement. He noted that Rwanda remains
ready to receive any future cases from ICTR. He also noted that
though Rwanda, “did not succeed in the past,” the
government has now addressed the concerns raised by the Tribunal’s
Judges. Mr. Ngoga thanked the Office of the Prosecutor for its
partnership and pledged to keep the Tribunal apprised of Rwanda’s
handling of the cases. 30 case files have been transferred to Rwanda
previously, bringing the total number of dossiers transferred to 55.”
3. The transfer case of Uwinkindi
On
28 June 2011 the ICTR decided for the first time to transfer an
indicted genocide suspect for trial in Rwanda. In concluding that it
was satisfied that the Government of Rwanda was now prepared to
receive its first referral from the ICTR, a Referral Chamber took
into account the amendments that had been made to Rwandan legislation
since 2008 and found that the issues which had led to the earlier
refusals had been addressed to some degree in the intervening period.
As
regards the possible punishment imposed on a transferred suspect, the
Chamber stated the following (at paragraph 51):
“The Chamber finds that the current penalty
structure of Rwanda is adequate as required by the jurisprudence of
the Tribunal as it no longer allows for imposition of the death
penalty or life imprisonment with solitary confinement. The Chamber
is satisfied that the ambiguities which existed in previous Rule 11
bis applications regarding the nature and scope of the
sentence for accused persons in cases referred to Rwanda have been
adequately addressed by Rwanda.”
It
went on to draw the following conclusion as to the conditions of
detention in Rwanda (at paragraph 60):
“The Chamber notes that adequate detention
conditions are guaranteed by the Transfer Law and considers that the
Defence submissions that the conditions will be inadequate in
practice are speculative at this juncture. The Chamber expects that
the monitoring mechanism will conduct regular prison visits to ensure
that both the detention conditions and treatment of the Accused in
detention are satisfactory, and that it will immediately report any
concerns to both the Prosecutor and the President of the Tribunal.
Thus, the Chamber is convinced that the Accused will be detained in
appropriate conditions if his case is referred to Rwanda.”
With
respect to the main issue concerning the availability and protection
of witnesses, the Chamber first noted that it was not its role to
determine whether the fears held by witnesses were legitimate,
reasonable or well-founded but rather to assess the likelihood that
the accused would be able to “obtain the attendance and
examination of witnesses on his or her behalf under the same
conditions as witness against him or her” (as required by
Article 20, paragraph 4 (e) of the ICTR Statute) if the case were to
be transferred to Rwanda. As to witnesses residing in Rwanda, the
Chamber stated the following (at paragraphs 99-103):
“The Defence cites instances during the past two
years in which the Tribunal’s defence counsel have complained
that their witnesses were unwilling to testify because of fears of
intimidation or harassment. [Human Rights Watch] also refers to
incidents in which defence witnesses in Rwanda have been jailed or
victimised before or after testifying. Furthermore, many witnesses
fear their appearance will lead to an indictment against them.
Defence witnesses may fear being accused of “genocidal
ideology”, a crime referred to in the Rwandan Constitution but
undefined under Rwandan law. It is the Chamber’s view that the
concerns of witnesses within Rwanda regarding their safety have been
addressed by changes to the law over the past two years. The Chamber
expects that Rwanda will ensure the safety of both prosecution and
defence witnesses in a transfer case as has been stipulated in the
new and amended laws.
This Chamber notes the previous findings by the Appeals
Chamber in Rule 11 bis decisions that witnesses in Rwanda may
be unwilling to testify for the defence due to their fear that they
may face serious consequences, including prosecution, threats,
harassment, torture, arrest or even murder. The Chamber notes that in
the 36 genocide cases tried in the High Court of Rwanda, the defence
in most cases was able to secure the attendance of witnesses even
without the safeguards available to cases transferred from the
Tribunal. It is logical to assume that with the amendments made to
the laws regarding witness immunity, the creation of a new witness
protection programme, and the safeguards imposed by the Chamber on
Rwanda, the Appeals Chamber’s finding that witnesses may be
unwilling to testify is no longer a compelling reason for denying
referral.
Although the concerns expressed by the Defence are
materially the same as those expressed by defence teams in past
referral cases, Rwanda has shown the willingness and the capacity to
change by amending its relevant laws over the past two years. The
amendment to Article 13 of the Transfer Law to include immunity for
statements by witnesses at trial is a step towards allaying the fears
of witnesses. This is complemented by the improvements made to the
Rwandan Victims and Witnesses Support Unit (“VWSU” which
is sometimes also referred to as “WVSU”) and the creation
of the Witness Protection Unit (“WPU”) under the
Judiciary as discussed below.
The Chamber notes that in cases before the Tribunal some
witnesses are still afraid of testifying despite the provision of
multiple safeguards. The Chamber is therefore satisfied that Rwanda
has taken adequate steps to amend its laws in this regard. The full
implementation of these additional measures mandated by this Chamber
would likely guarantee a fair trial for the Accused.
The Chamber further notes that the subjective fear of
witnesses to testify cannot be addressed without implementing
adequate legal safeguards to allay such fears. Where laws can
neutralise the reasonable fears of individuals, the Chamber is of the
opinion that they must be implemented and revised as needed. It is
the considered opinion of this Chamber that it is impossible to
evaluate the effectiveness of a reasonable law in the abstract.
Accordingly, the relevant Rwandan laws must be given a chance to
operate before being held to be defective.”
The
Chamber then addressed the situation of witnesses residing abroad and
noted, inter alia, the following (at paragraphs 109-113):
“The Defence states that all of its 41 witnesses
living abroad have indicated that they were not prepared to travel to
Rwanda to testify or to appear before any Rwandan judge who might
travel to their countries of residence. The Chamber notes that
following the 2009 amendments to Article 14 of the Transfer Law,
witnesses may now testify in three more ways in addition to providing
viva voce testimony before the relevant High Court in Rwanda:
via deposition in Rwanda; via video-link taken before a judge at
trial, or in a foreign jurisdiction; or via a judge sitting in a
foreign jurisdiction.
At the outset, the Chamber observes the use of any of
these methods is not a right guaranteed to the Accused (or to any
other party). These procedures are intended as an exception to the
general rule of viva voce testimony before the court, and whether to
provide for any of these measures remains within the sole discretion
of the trial court. The law is silent as to whether or not the
adverse party can make submissions on such a request and does not
establish any criteria that may guide a judge in his or her decision
when facing such a request. The law also does not stipulate whether
the decision on such a request is subject to appeal, and if so, under
which conditions.
The Defence submits that in the present case the reasons
put forward by Defence witnesses in their affidavits may well be
rejected by a Rwandan judge. For instance, it doubts that a judge
would consider valid a witness’ fear for his or her security if
brought to Rwanda for testimony, the fact that his or testimony would
incriminate the Rwandan Patriotic Front (“RPF”), or that
he or she does not trust the Rwandan judiciary. Although the doubts
expressed by the Defence are relevant the Chamber concludes that they
are speculative at this juncture.
With respect to the prospect that witnesses living
abroad could testify by video-link, the Appeals Chamber has
previously held that “the availability of video-link facilities
is not a completely satisfactory solution with respect to the
testimony of witnesses residing outside Rwanda, given that it is
preferable to hear direct witness testimony, and that it would be a
violation of the principle of equality of arms if the majority of
defence witnesses would testify by video-link while the majority of
Prosecution witnesses would testify in person.” However, with
regards to the witnesses who live outside Rwanda, this Chamber notes
that, in addition to the possibility of hearing testimony via
video-link, Article 14 of the amended Transfer Law allows testimony
to be provided a) via deposition in Rwanda or in a foreign
jurisdiction, taken by a Presiding Officer, Magistrate, or other
judicial officer appointed for that purpose; or b) before a judge
sitting in a foreign jurisdiction for the purpose of recording such
testimony.
The Defence argues that for its 41 witnesses residing
abroad, a judge sitting on the case would have to travel to nine
different African countries to receive their testimonies meaning that
the Accused would be absent for almost the entirety of his Defence
case. The Defence recalls the right of the Accused to be “tried
in his presence,” as stipulated in Article 14 (3) (d) of [the
International Covenant on Civil and Political Rights]. The Chamber
notes the amendments to Article 14 of the Transfer Law which provide
the option of hearing evidence from witnesses located outside Rwanda
in order to ensure their protection. Even in an instance where the
Accused wishes to exercise his right to examine or cross-examine a
witness who is testifying in another location, he could avail himself
of the video-link facilities already in place. Thus, there is no
apparent impediment to the presence of the Accused during the
sections of the trial that would take place outside Rwanda. The
Chamber finds that the Defence argument that the Accused would be
absent for the majority of his Defence case untenable and that the
possibility that witnesses will testify outside Rwanda cannot be
regarded as prejudicial to the right to a fair trial.”
The
Chamber further noted with satisfaction that, in addition to the
witness protection programme administered by the Office of the
Prosecutor-General (“VWSU”), Rwanda had recently taken
steps towards the creation of a witness protection unit under the
auspices of the judiciary (“WPU”). However, the terms of
reference and effectiveness of the new unit could not be evaluated as
it had been established to assist witnesses in transferred cases
only, and there had not been such a case yet (paragraph 131).
As
to the availability of defence counsel, the Chamber noted that many
members of the Rwandan Bar had more than five years’
experience, that five lawyers were enrolled in the ICTR’s list
of potential counsel, that Rwandan lawyers were obliged to provide
pro bono services to indigent persons and that there was a
legal framework as well as a budgetary provision for legal aid.
Consequently, the Chamber was confident that defence counsel and
legal aid would be available to the accused if transferred
(paragraphs 139-140 and 144-146). While there were concerns about the
working conditions for defence counsel – there had been
instances of harassment, threats or even arrests of lawyers defending
genocide suspects – the Chamber noted that such incidents could
be brought to the attention of the Rwandan High Court or Supreme
Court and that Article 13 of the Transfer Law, as amended in 2009,
granted lawyers immunity from prosecution for statements linked to
their activities as defence counsel (paragraphs 154 and 159).
On
the issue of the independence and impartiality of the Rwandan
judiciary, the Chamber was of the view that Rwandan judges, as
professional judges, benefited from a presumption in their favour
that could not be lightly rebutted (paragraph 166). The judges of the
High Court and the Supreme Court were considered qualified and
experienced and in possession of the necessary skills to handle a
transferred case (paragraph 178). Furthermore, the Rwandan legal
framework guaranteed the independence and impartiality of the
judiciary (paragraph 186). The submissions made in the case by the
defence and by amici curiae in support of their contention
that the judiciary lacked those qualities in practice, in the
Chamber’s opinion, mainly concerned cases of a political nature
and did not reflect the conditions of the trial or the charges faced
by the accused (paragraph 196). In addition, the information
available to the Chamber did not give reason to conclude that the
judiciary was unduly corrupt (paragraph 185).
In
respect of most of the above issues, the Chamber noted that there
were additional safeguards in the monitoring and revocation
mechanisms available under Rule 11 bis. It requested the
African Commission on Human and Peoples’ Rights (“ACHPR”),
which had already agreed to the arrangement, to monitor Mr
Uwinkindi’s trial in Rwanda and declared that the Commission
should bring to the attention of the ICTR President any potential
issues that may arise throughout the course of the proceedings
(paragraph 213). The Chamber also emphasised that it was authorised
to revoke the case from Rwanda as a last resort if necessary
(paragraph 217).
The
Chamber ended its decision with the following conclusion (at
paragraphs 222-225):
“Upon assessment of the submissions of the parties
and the amici curiae, the Chamber has concluded that the case
of this Accused should be referred to the authorities of the Republic
of Rwanda for his prosecution before the competent national court for
charges brought against him by the Prosecutor in the Indictment. In
so deciding, the Chamber is cognizant that it is taking a view
contrary to the views taken about two years ago by Referral Chambers
of this Tribunal where upon assessment of the facts before them, they
concluded that those cases should not be referred to Rwanda.
This Chamber notes that, in the intervening period,
Rwanda has made material changes in its laws and has indicated its
capacity and willingness to prosecute cases referred by this
Tribunal. This gives the Referral Chamber confidence that the case of
the Accused, if referred, will be prosecuted consistent with
internationally recognised fair trial standards enshrined in the
Statute of this Tribunal and other human rights instruments. The
Referral Chamber is persuaded to refer this case after receiving
assurances that a robust monitoring mechanism provided by the ACHPR
will ensure that any material violation of the fair trial rights of
this Accused will be brought to the attention of the President of the
Tribunal forthwith so that remedial action, including revocation, can
be considered by this Tribunal, or if applicable, by the Residual
Mechanism.
The Referral Chamber is cognizant of the strong
opposition mounted by the Defence and certain amici curiae to
the proposed referral. The Chamber, however, considers that the
issues that concerned the previous Referral Chambers, in particular,
the availability of witnesses and their protection, have been
addressed to some satisfaction by Rwanda in the intervening period
and that any referral with robust monitoring would be able to address
concerns that the Defence and the amici have expressed.
Before parting with this Decision, the Chamber expresses
its solemn hope that the Republic of Rwanda, in accepting its first
referral from this Tribunal, will actualise in practice the
commitments it has made in its filings about its good faith, capacity
and willingness to enforce the highest standards of international
justice in the referred cases.”
The
Referral Chamber’s decision has been appealed against to the
ICTR Appeals Chamber.
F. Decisions on extradition to Rwanda from national
jurisdictions
1. France
Several
requests by the Government of Rwanda for the extradition of persons
suspected of various counts of genocide, crimes against humanity,
murder or rape have been refused by the French courts. On 23 October
2008 the Court of Appeal of Toulouse declined to order extradition in
the case of Bivugarabago. Following the ICTR’s approach
in Munyakasi and Kanyarukiga, the Toulouse court
considered that a Rwandan tribunal would be sufficiently independent
and impartial, but that it would not guarantee a fair trial, in
particular with regard to the appearance and protection of defence
witnesses. Similar concerns led to extradition requests being refused
by the Court of Appeal of Mamoudzou (in the French overseas
department of Mayotte) on 14 November 2008 in the case of
Senyamuhara, by the Court of Appeal of Paris on 10 December
2008 in Kamali and by the Court of Appeal of Lyons on 9
January 2009 in Kamana. The Lyons court reiterated the
problems concerning defence witnesses and also found that the
possible punishment of imprisonment for at least 20 years in
isolation contravened French public order as well as Article 3 of the
Convention.
More
recently, the appellate courts of Versailles and Bordeaux, on
15 September and 19 October 2010 respectively, refused
extradition to Rwanda in the cases of Rwamucyo and Munyemana.
The Versailles court found that the crimes of genocide with which Mr
Rwamucyo was charged were not punishable under Rwandan law at the
time when they were allegedly committed and that the “ordinary
crimes” listed in the extradition request fell under a ten-year
statute of limitations. The court further had regard to the May 2010
arrest and detention in Kigali of American attorney Peter Erlinder,
defence counsel for several Rwandan suspects, on charges of “genocide
denial” and concluded that Mr Rwamucyo, if extradited, would
not benefit from fundamental procedural guarantees and the protection
of the rights of defence.
2. Germany
Relying
on the reasons for the refusals of the ICTR to transfer cases to
Rwanda, an appellate court in Frankfurt/Main, on 3 November 2008,
dismissed the requests for extradition of two genocide suspects,
Callixte Mbarushimana and Onesphore Rwabukombe.
3. Finland
On 20 February 2009 the Finnish Ministry of Justice
refused to extradite François Bazaramba, a former Rwandan
pastor, to Rwanda to face prosecution for genocide and murder. The
Ministry referred to several ICTR decisions and their conclusion that
the right to a fair trial, in particular the right of the defence to
call and hear witnesses, could not be guaranteed in Rwanda. According
to the Ministry, it had neither any reason to question the
conclusions of the ICTR nor any grounds to assess the prevailing
circumstances in Rwanda any differently than the ICTR. As Finland, by
acceding to the European Convention, had committed itself to
guaranteeing a fair trial to persons within its jurisdiction, the
Ministry was of the view that Finnish authorities could not, through
their own actions, contribute to a trial in a foreign State which
raised justified concerns as to whether the trial would be conducted
in a fair manner.
Instead, on 1 June 2009, Mr Bazaramba was charged with
genocide and murder before the Finnish courts, on the basis of
universal jurisdiction laid down in Finnish law. The trial began in
September 2009 and, on 11 June 2010, after hearing witnesses in
Finland, Rwanda and Tanzania, the Porvoo District Court found Mr
Bazaramba guilty of genocide and of having murdered or incited others
to murder at least five persons. An appeal has been made against the
conviction.
4. United Kingdom
In
August 2006 the Government of Rwanda issued arrest warrants on
suspicion of genocide in respect of four men residing in the United
Kingdom. Following an extradition hearing before the City of
Westminster Magistrates Court, District Judge Evans, on 6 June 2008,
sent the matter to the Secretary of State who, on 1 August 2008,
signed orders that the four suspects be extradited to Rwanda for
genocide proceedings. Appeals were made to the High Court against the
judge’s decision and the Secretary of State’s orders.
On
8 April 2009 the High Court (Lord Justice Laws and Lord Justice
Sullivan) delivered its judgment (Brown and others v. the
Government of Rwanda and the Secretary of State for the Home
Department). While it did not contest that there was a prima
facie case against all four appellants, on the principal issue of
whether they would receive a fair trial in Rwanda its assessment of
the facts and evidence differed sharply from that of the District
Judge. The High Court stated (at paragraphs 24 and 33) that the legal
test for the fair trial issue – under Article 6 of the
Convention – was “whether the appellants would suffer a
real risk of a flagrant denial of justice if they were extradited for
trial in Rwanda”. While the District Judge had correctly stated
that the burden of proving that there was such a risk rested with the
defence, he had erred in concluding that the appellants had to prove
this on the balance of probabilities. According to the High Court,
this was not the accurate meaning of “real risk”; rather,
the term implied “a risk which is substantial and not merely
fanciful; and it may be established by something less than proof of a
51% probability”, thus the same approach as that taken in
refugee cases (paragraph 34).
As
to the merits of the issue of fair trial, the High Court referred
extensively to the conclusions drawn in the ICTR transfer decisions.
It noted that there was no specific provision in the procedural law
of Rwanda for witnesses to give evidence via video-link and that, in
the circumstances, there was at least a substantial risk that such
facilities would not be available. Thus, the High Court found it
likely that the appellants would be unable to call supporting
witnesses who declined to give evidence in person out of a professed
fear of reprisals (paragraphs 64-66). Furthermore, having regard,
inter alia, to a report by Human Rights Watch of July 2008 and
the testimony given by three expert witnesses, the High Court
concluded that there was evidence of judicial interference by the
Rwandan executive and that the appellants would suffer a flagrant
denial of justice also in regard to the judiciary’s
impartiality and independence (paragraphs 119-121). Accordingly, the
appeals of all four appellants were granted and their extradition
denied. They were released from detention and cannot be tried by the
UK courts.
5. Switzerland
By
a decision of 1 July 2009, the Swiss Government refused to extradite
Gaspard Ruhumuliza, a former Rwandan minister, to Rwanda.
6. United States
Following
the refused request for a stay of deportation by the United States
Supreme Court on 4 November 2010, the U.S. Immigration and Customs
Enforcement, on 26 January 2011, proceeded to deport
Jean Marie Vianney Mudahinyuka to Rwanda to face trial on
genocide charges.
7. Norway
On
11 July 2011 the Oslo District Court granted a request for
extradition to Rwanda of Charles Bandora, another genocide suspect.
It first noted that there were reasonable suspicions against Mr
Bandora for the crimes with which he was charged. It also considered
that there was no reason to assume that, if extradited to Rwanda, he
would be subjected to persecution that would threaten his life or
freedom or otherwise be of a serious character. The court noted that
the Norwegian police (as well as, apparently, Mr Bandora’s
counsel) had visited the Mpanga Prison (where, if convicted, Mr
Bandora would be incarcerated) and had found that the conditions
there, including medical care, corresponded to international
standards – a conclusion that had been shared by the ICTR. Mr
Bandora would also be able to receive regular visits from his family
in Rwanda. The court thus concluded that the extradition would not
run counter to humanitarian considerations or Article 3 of the
Convention.
As
to the main issue in the case – the fairness of the trial in
Rwanda – the Oslo court noted that improvements had been made
in recent years to Rwandan legislation and administration –
including the witness protection programmes – in an attempt to
meet international fair-trial requirements. While Mr Bandora’s
counsel had claimed that problems persisted in practice in regard to
the independence of the judiciary and the equality of arms, the court
found that the legislative and other changes, as well as the
possibility for observers to follow the trial, meant that there was
no real risk that the trial would be unfair. There was thus reason to
reach a different conclusion than that drawn in earlier ICTR transfer
decisions and in the judgment of the UK High Court. The court also
took into account that the Norwegian police had made ten
investigative visits to Rwanda since September 2009 and had
interviewed a total of 149 witnesses in the country in regard to four
different cases. According to the report of the police, there had
been no indication that the witnesses – whether testifying for
or against the suspects in question – had been influenced or
instructed by the Rwandan authorities to give particular statements
or that they had been threatened in any way. Nor had any of the
witnesses expressed a fear of the authorities or a reluctance to give
testimony to the Norwegian police. In the court’s view, these
findings – together with the Rwandan witness protection
guarantees and the alternative ways of giving testimony in cases
transferred to Rwanda – indicated that Mr Bandora’s fear
that witnesses would refuse to give testimony on his behalf if his
case were to be tried in Rwanda was not sufficiently justified.
The
Oslo court further found that the ICTR Referral Chamber’s
decision in the case of Uwinkindi had to be accorded great
weight, in particular due to the ICTR’s knowledge of the
conditions in Rwanda and since the threshold was higher for transfers
from the ICTR (the chamber had to be satisfied that the accused would
receive a fair trial) than for extraditions examined under Article 6
of the Convention (which were impermissible only if there would be a
“flagrant denial of justice”). While the court noted that
the Referral Chamber had taken into account the monitoring it had
ordered and the revocation mechanism it had at its disposal, the
court stressed that the chamber had considered revocation only as “a
remedy of last resort” and that it had generally been satisfied
that the material changes in Rwandan legislation would render the
trial fair.
Mr
Bandora has appealed against the decision.
THE LAW
I. ADMISSIBILITY
The
Court considers that the application is not manifestly ill-founded
within the meaning of Article 35 § 3 (a) of the Convention. It
further notes that it is not inadmissible on any other grounds. It
must therefore be declared admissible.
II. MERITS
A. Alleged violation of Article 3 of the Convention
The
applicant complained that his extradition to Rwanda, to stand trial
for charges of genocide, would violate Article 3 of the Convention,
which reads as follows:
“No one shall be subjected to torture or to
inhuman or degrading treatment or punishment.”
1. The submissions of the parties
(a) The applicant
The
applicant claimed that he was suffering from heart problems and would
have to undergo heart bypass surgery in a few years. There was a
serious risk that he would not be able to get that surgery in Rwanda.
He also claimed that he risked persecution because he is a Hutu.
Moreover,
the applicant asserted that the conditions in Rwandan detention and
imprisonment would violate his rights under Article 3. He would face
a real risk of torture and ill-treatment in detention. Further, while
the Rwandan authorities had stated that he would serve a possible
prison sentence at Mpanga Prison, nothing prevented the Rwandan
authorities from placing him in another prison. The Swedish
Government would not be able to take any measures against such a
change.
(b) The respondent Government
The
Swedish Government submitted that it had not been substantiated by a
medical certificate or any other evidence that the applicant needed
to undergo heart bypass surgery. In any event, it had not been shown
that his medical condition was serious enough to render an
enforcement of the expulsion order contrary to the Convention. The
Government further pointed out that the applicant had not invoked any
specific circumstances in support of his allegation that he ran the
risk of persecution due to his ethnicity. In the Government’s
view, the general situation in Rwanda did not lend itself to
concluding that people of Hutu origin risked being subjected to
treatment contrary to Article 3 solely on the basis of their
ethnicity.
As
regards the prison conditions in Rwanda, the Government referred to
the Rwandan arrest warrant of 17 July 2008 and the extradition
request of 4 August 2008, in which Rwanda “guaranteed”
that, if the applicant were to be arrested, detained or imprisoned
following extradition, he would be placed in a prison that met
international standards (see paragraph 14 above). They also referred
to information from the Swedish Office for Development Cooperation,
according to which the conditions in detention centres and prisons
for this specific type of arrested or convicted person were assessed
as good or very good and that these detainees were the Rwandan
Government’s highest priority. Rwanda was expected to give
these detainees the best possible care due to the great interest from
the international community. The Swedish Office for Development
Cooperation had also asserted that genocide convicts coming under the
Transfer Law would serve their sentences in the newly built Mpanga
Prison. Its international section contained 26 individual cells built
in accordance with international standards, as confirmed by the ICTR
as well as the Special Court for Sierra Leone (which had recently
decided to allow eight people convicted of war crimes to serve their
sentences at that prison). The Government further submitted that a
temporary transfer facility, which also met international standards,
had been set up at Kigali Central Prison. Moreover, they pointed out
that, following legislative changes, the applicant could not be
sentenced to life imprisonment in isolation. Finally, noting that the
applicant had only alleged a risk of torture or ill-treatment in
general terms, the Government held that their investigation did not
point to any facts suggesting the occurrence in Rwanda of systematic
or state-sanctioned torture or inhuman treatment of crime suspects or
convicted offenders.
(c) The third-party intervener
The
Netherlands Government submitted that, while there had been
international criticism of the conditions in the ordinary Rwandan
prisons, genocide suspects and convicts were to be detained in the
Mpanga Prison, which fully complied with international standards and
which currently hosted persons convicted by the Special Court for
Sierra Leone.
2. The Court’s assessment
(a) The relevant principles
The
Contracting States have the right, as a matter of well-established
international law and subject to their treaty obligations, including
the Convention, to control the entry, residence and expulsion of
aliens (see, among other authorities, Vilvarajah and Others v. the
United Kingdom, judgment of 30 October 1991, Series A no. 215, p.
34, § 102).
It
is the settled case-law of the Court that extradition by a
Contracting State may give rise to an issue under Article 3, and
hence engage the responsibility of that State under the Convention,
where substantial grounds have been shown for believing that the
person in question would, if extradited, face a real risk of being
subjected to treatment contrary to Article 3 in the receiving
country. The establishment of such responsibility inevitably involves
an assessment of conditions in the requesting country against the
standards of Article 3 of the Convention. Nonetheless, there is no
question of adjudicating on or establishing the responsibility of the
receiving country, whether under general international law, under the
Convention or otherwise. In so far as any liability under the
Convention is or may be incurred, it is liability incurred by the
extraditing Contracting State by reason of its having taken action
which has – as a direct consequence – the exposure of an
individual to proscribed ill-treatment (see Soering v. the United
Kingdom, judgment of 7 July 1989, Series A no. 161, pp. 35-36, §§
89-91, and Mamatkulov and Askarov v. Turkey [GC], nos.
46827/99 and 46951/99, ECHR 2005-I, § 67).
It
would hardly be compatible with the “common heritage of
political traditions, ideals, freedom and the rule of law” to
which the Preamble refers, were a Contracting State knowingly to
surrender a person to another State where there were substantial
grounds for believing that he would be in danger of being subjected
to torture or inhuman or degrading treatment or punishment (see the
above-cited Soering, pp. 34-35, § 88, and Mamatkulov
and Askarov v. Turkey, § 68).
In
determining whether substantial grounds have been shown for believing
that a real risk of treatment contrary to Article 3 exists, the Court
will assess the issue in the light of all the material placed before
it or, if necessary, material obtained proprio motu. If the
applicant has not been extradited or deported when the Court examines
the case, the relevant time for the assessment of the existence of
such a risk will be that of the proceedings before the Court (see
Chahal v. the United Kingdom, judgment of 15 November 1996,
Reports of Judgments and Decisions 1996-V, p. 1856,
§§ 85-86, and Mamatkulov and Askarov v. Turkey,
cited above, § 69).
Furthermore,
ill-treatment must attain a minimum level of severity if it is to
fall within the scope of Article 3. The assessment of this minimum
is, in the nature of things, relative; it depends on all the
circumstances of the case, such as the nature and context of the
treatment or punishment, the manner and method of its execution, its
duration and its physical or mental effects (see the above-cited
Vilvarajah and Others, p. 36, § 107, and
Mamatkulov and Askarov v. Turkey, § 70). Allegations of
ill-treatment must be supported by appropriate evidence (see, mutatis
mutandis, Klaas v. Germany, judgment of 22 September
1993, Series A no. 269, pp. 17-18, § 30).
Aliens
who are subject to removal cannot, in principle, claim any
entitlement to remain in the territory of a Contracting State in
order to continue to benefit from medical, social or other forms of
assistance and services provided by that State. The fact that the
applicant’s circumstances, including his life expectancy, would
be significantly reduced if he were to be removed from the
Contracting State is not sufficient in itself to give rise to breach
of Article 3. The decision to remove an alien who is suffering from a
serious mental or physical illness to a country where the facilities
for the treatment of that illness are inferior to those available in
the Contracting State may raise an issue under Article 3, but only in
a very exceptional case, where the humanitarian grounds against the
removal are compelling. In the case of D. v. the United Kingdom
(judgment of 2 May 1997, Reports of Judgments and Decisions
1997-III) the very exceptional circumstances were that the
applicant was critically ill and appeared to be close to death, could
not be guaranteed any nursing or medical care in his country of
origin and had no family there willing or able to care for him or
provide him with even a basic level of food, shelter or social
support (see also N. v. the United Kingdom [GC], no.
26565/05, § 42, 27 May 2008).
(b) Application of the above principles to
the present case
The
Court notes that the applicant has invoked heart problems, stating
that he needs to have bypass surgery in a few years. While it appears
that he had bypass surgery some years ago, no medical certificates
have been submitted which indicate that he has to undergo such
surgery again. In any event, the threshold for a medical condition to
raise an issue under Article 3 is, as shown by the case-law referred
to above, a very high one. At this moment, the applicant’s
heart problems cannot be considered so serious as to raise an issue
under that Article and there are no compelling humanitarian grounds
against his extradition to Rwanda due to his medical condition.
The
applicant has further claimed that he would risk persecution in
Rwanda because of the fact that he is a Hutu. The Court notes that
none of the decisions by the ICTR and national jurisdictions refusing
transfer or extradition to Rwanda has been based, even in part, on
such considerations. Nor has any evidence been submitted or found
which gives reason to conclude that there is a general situation of
persecution or ill-treatment of the Hutu population in Rwanda.
Moreover, the applicant has not pointed to any particular personal
circumstances which would indicate that he risks being subjected to
treatment contrary to Article 3 due to his ethnicity.
Turning
to the issue of the conditions of detention and imprisonment in
Rwanda, the Court first notes that Rwanda’s extradition request
of 4 August 2008 and the letter of 12 August 2009 from the
Rwandan Minister of Justice state that the applicant will be detained
and serve a possible prison sentence at the Mpanga Prison and,
temporarily during his trial before the High Court, at the Kigali
Central Prison. It is true, as pointed out by the applicant, that the
Rwandan authorities would be able to place him in a different prison
without the Swedish Government having any means to prevent it.
However, given the provisions of the Transfer Law and the repeated
assurances by the Rwandan authorities, the applicant’s
observation must be considered as no more than speculative.
The
respondent Government have submitted that the two mentioned detention
facilities meet international standards. This assessment is shared
by, for instance, the ICTR (see § 53 above), the Netherlands
Government (§ 82) and the Oslo District Court (which took
into account observations made by the Norwegian police following
visits to the Mpanga Prison; § 72). The Court has regard also to
the fact that the Special Court for Sierra Leone has sent several
convicted persons to the Mpanga Prison to serve their sentences
there. The Special Court must accordingly have found the conditions
in the prison to be satisfactory. Moreover, there is no evidence in
the case that the applicant would face a risk of torture or
ill-treatment at the Mpanga Prison or the Kigali Central Prison.
The
Court further notes that, pursuant to Article 3 of the Death Penalty
Abolition Law, as amended in 2008, no persons transferred from other
states under the Transfer Law may be sentenced to life imprisonment
in isolation.
The
Court is mindful of the fact that the ICTR Referral Chamber, in the
Uwinkindi case, accorded certain weight to the regular prison
visits to be conducted by the appointed monitors of ACHPR and to
their immediate reporting should they discover any matter of concern.
Although the Rwandan authorities have invited the Swedish Government
to monitor the applicant’s detention conditions, this mechanism
or guarantee has not been formalised in the applicant’s case
and it is not clear whether the Swedish Government would actually
monitor the applicant’s situation in Rwanda. However, in the
Court’s opinion, the monitoring carried out by the ACHPR must
be seen as merely an extra safeguard and the fact that the ICTR
ordered such monitoring does not change its general finding that the
detention conditions, as set out in the Transfer Law, were adequate.
Thus,
in the light of the material before it, the Court is not able to
conclude that substantial grounds exist for believing that the
applicant faces a real risk of treatment proscribed by Article 3.
Consequently,
the applicant’s extradition to Rwanda would not involve a
violation of Article 3 of the Convention.
B. Alleged violation of Article 6 of the Convention
The
applicant complained that a trial in Rwanda would amount to a
flagrant denial of justice. He relied on Article 6 of the Convention,
which provides the following:
1. In the determination of ... any criminal
charge against him, everyone is entitled to a fair and public hearing
within a reasonable time by an independent and impartial tribunal
established by law. ...
2. Everyone charged with a criminal offence
shall be presumed innocent until proved guilty according to law.
3. Everyone charged with a criminal offence
has the following minimum rights:
(a) to be informed promptly, in a language
which he understands and in detail, of the nature and cause of the
accusation against him;
(b) to have adequate time and facilities for
the preparation of his defence;
(c) to defend himself in person or through
legal assistance of his own choosing or, if he has not sufficient
means to pay for legal assistance, to be given it free when the
interests of justice so require;
(d) to examine or have examined witnesses
against him and to obtain the attendance and examination of witnesses
on his behalf under the same conditions as witnesses against him;
...”
1. The submissions of the parties
(a) The applicant
The
applicant maintained that, although Rwanda had introduced legislative
changes aimed at improving the rule of law, there was no evidence
that these changes had had an effect in practice. For instance, the
majority of the applicant’s witnesses were living outside
Rwanda and were not willing to travel to the country in order to
testify. The possibility of examining witnesses via video-link had
not solved the problem of witnesses who were too afraid to come
forward. Those who were willing to testify via video-link had to sign
a statement revealing their residential address and those who had
fled Rwanda did not dare to do so. Furthermore, it was not likely
that this type of testimony would carry the same weight as testimony
given in court.
Another
problem facing the applicant if he were to stand trial in Rwanda was
the lack of qualified lawyers that could defend him.
Moreover,
the applicant asserted that the Rwandan judiciary was not impartial
or independent from the executive. According to the Organization for
Peace, Justice and Development in Rwanda (“OPJDR”), a
former judge at the Higher Instance Court of Butare-Rwanda had stated
that the applicant was on a list of Hutu intellectuals against whom a
number of prosecutors, still in service, had been instructed to
collect and fabricate accusations.
The
applicant’s personal situation was further compounded by the
fact that he had given testimony for the defence in several cases
that had been or were about to be adjudicated by the ICTR. He was
therefore of great interest to the Rwandan authorities. Furthermore,
as former head of the Rwandan Civil Aviation Authority, the ruling
party in Rwanda, FPR, might want to silence the applicant, believing
that he has knowledge of the circumstances surrounding the shooting
down on 6 April 1994 of the plane carrying President Habyarimana.
On
17 August 2010 the applicant submitted two copies of judgments dated
6 January and 24 May 2008, respectively, allegedly from gacaca
courts in Rwanda, in which the applicant had been found guilty of
having destroyed and looted other people’s property and had
been ordered to pay damages. One of the judgments specified that the
crimes had been committed during the 1994 genocide. The courts had
ordered the seizure and public auction of the applicant’s house
to cover the damages, which in total equalled about 130,000 US
dollars. In the applicant’s opinion, these judgments showed
that sentences had already been passed against him and that,
consequently, he would not get a fair trial in Rwanda.
In
regard to the decision of the ICTR Referral Chamber of 28 June 2011
in the case of Uwinkindi, the applicant pointed out that the
decision was not final. Moreover, the Referral Chamber had stressed
that the nature of extradition and referral proceedings were
materially different; whereas the extraditing State had no control
over the trial of the extradited person, the ICTR retained the power
to revoke its decision and had also ordered the referral pursuant to
a stringent monitoring mechanism. In the applicant’s view, it
was clear that the Referral Chamber had relied heavily on the
monitoring programme, which would ensure that detention conditions
were satisfactory and evaluate the ability for the accused to present
his line of defence. Both these issues being of concern to the
applicant, he pointed out that the Swedish Government would not
exercise any control over the trial after an extradition. Moreover,
even if they were to receive information about violations of his
rights, they would not be able take any remedial action.
(b) The respondent Government
The
Swedish Government submitted that the Rwandan Transfer Law, as
amended in 2009, fulfilled the internationally accepted minimum
requirements of the rule of law. By amending its legislation, Rwanda
had responded directly to the criticism expressed by the ICTR and
other countries and international organisations, in particular in
regard to its witness protection system. The amendments had been
introduced in May 2009, thus after the decision of the Finnish
Ministry of Justice and the judgment delivered by the UK High Court,
refusing to allow extraditions to Rwanda.
Of
decisive importance were the legislative changes adopted which
allowed the defence to call and examine witnesses – in Rwanda
or elsewhere – under the same conditions as the prosecution,
using various alternative means of giving testimony, and without
there being a risk that the witnesses would be prosecuted themselves
for anything said or done during the trial. In the Government’s
view, there was no indication that these amendments would not be
adhered to in practice. According to the Swedish Office for
Development Cooperation, international organisations and foreign
missions considered that Rwanda’s efforts in witness protection
had been successful. The Office had also stated that there were no
technical obstacles in Rwanda to the use of video-links. The
Government added that testimony via video-link was an accepted and
commonly used measure within international legal co-operation in
cases where witnesses were unable to travel to a court and was often
a natural consequence of the transfer of proceedings to other states.
Having regard to the alternative ways of giving testimony and the
development of the witness protection system, the Government held
that the applicant’s claim that his witnesses would not be able
to come forward was unsubstantiated.
Moreover,
among the guarantees in the Transfer Law was the right to defence
counsel, provided for free if the accused had no means to pay for
counsel. The Government pointed out that, in their extradition
request, Rwanda had stated that all accused persons were informed of
their right to counsel of their choice.
The
Government further stated that there was no indication that the
courts or proceedings in Rwanda would be biased or lack the
impartiality or independence required in a case of the present
character. Extradited suspects were heard by the High Court of the
Republic at first instance, with a possibility to appeal to the
Supreme Court which, according to the Rwandan Constitution, sat with
three judges. The Constitution guaranteed judicial independence and
the judiciary’s financial and administrative autonomy. The
judges were professional and bound by ethical rules. The Government
pointed out that none of the ICTR Prosecutor’s requests for
referral to Rwanda had been refused due to a lack of independence and
impartiality of the Rwandan judiciary. The chambers of the ICTR had
noted that no evidence had been found to suggest that there was a
significant risk that the Rwandan Government would interfere in
transfer cases before the High Court and the Supreme Court.
The
Government maintained that, as their extradition decision was not
based on guarantees made by Rwanda but, instead, on an assessment
that the extradition of the applicant – regardless of
guarantees – would be consistent with Article 6, the issue of
monitoring commitments was not relevant. However, in the letter of 12
August 2009 (see § 24 above), the Rwandan Minister of Justice
had confirmed that Swedish authorities were welcome to monitor and
evaluate the conditions of the applicant’s detention or
imprisonment in Rwanda as well as his trial. While not considering
that Sweden had an obligation to do so under international law, the
Government stated that, due to the circumstances of the case, Sweden
was prepared, if necessary, to take measures to monitor the legal
proceedings and the applicant’s situation as a detainee.
The
Government stressed that, in accordance with the provisions of the
Transfer Law and the repeated confirmations by the Rwandan
authorities in the applicant’s case, the applicant would not be
tried in the gacaca courts. The documents from gacaca
courts, introduced by the applicant late in the proceedings,
concerned damages, and the applicant had not explained the
connection, if any, between the acts mentioned in those documents and
the criminal acts pertinent to the extradition proceedings. In the
Government’s view, the documents submitted had no bearing on
the present case.
In
regard to the decision of the ICTR Referral Chamber in the Uwinkindi
case, the Government submitted that it supported their observations
regarding the positive developments of the justice system in Rwanda
as well as their position that the enforcement of the extradition
decision would not violate the applicant’s rights under the
Convention. They noted that the standard applied by the ICTR (that
the accused should receive a fair trial) was more stringent than the
standard applied by the Court when determining whether an act of
extradition is compatible with the Convention.
(c) The third-party intervener
The
Netherlands Government submitted that, as a strong material supporter
of the build-up of the Rwandan justice system after the genocide,
they had closely witnessed the developments. Furthermore, the
Netherlands had been investigating genocide cases in Rwanda since
2006 and Dutch detectives, prosecutors and investigating magistrates
frequently visited Rwanda for this reason. The co-operation of the
Rwandan judicial authorities, including on the issue of witness
protection, had been exemplary and there were no indications of
interference with the investigating teams or with witnesses. The
officials never inquired about the witnesses or about the content of
their testimonies.
In
the opinion of the Netherlands Government, Rwanda had made
substantial and fundamental progress in furthering the rule of law.
They referred to recent legal amendments as well as changes in
judicial and legal practice, including the abolition of the death
penalty, the introduction of the possibility to use remote witness
testimony in court and the building of the Mpanga Prison.
Furthermore, the Rwandan judiciary attached great importance to its
impartiality and Rwandan ordinary court judges were generally –
also by their European and ICTR peers – considered to be
impartial.
The
Netherlands Government pointed out that the decisions to refuse
transfers and extraditions of genocide suspects preceded the changes
in the Rwandan justice system. They further stated, in regard to
criticism levelled by, for instance, Human Rights Watch, at the
gacaca proceedings, that extradited genocide suspects would
not appear before the gacaca courts.
2. The Court’s assessment
(a) The relevant principles
According
to the Court’s case-law, an issue might exceptionally arise
under Article 6 by an extradition decision in circumstances where the
individual would risk suffering a flagrant denial of a fair trial in
the requesting country. The principle was first set out in Soering
v. the United Kingdom (cited above, § 113)
and has been subsequently confirmed by the Court in a number of cases
(see, for instance, Mamatkulov and Askarov, cited above,
§§ 90-91).
The
term “flagrant denial of justice” has been considered
synonymous with a trial which is manifestly contrary to the
provisions of Article 6 or the principles embodied therein (see,
among other authorities, Sejdovic v. Italy [GC], no. 56581/00,
§ 84, ECHR 2006-II).
It
should be noted that, in the twenty-two years since the Soering
judgment, the Court has never found that an extradition or expulsion
would be in violation of Article 6. This indicates that the “flagrant
denial of justice” test is a stringent one. A flagrant denial
of justice goes beyond mere irregularities or lack of safeguards in
the trial procedures such as might result in a breach of Article 6 if
occurring within the Contracting State itself. What is required is a
breach of the principles of fair trial guaranteed by Article 6
which is so fundamental as to amount to a nullification, or
destruction of the very essence, of the right guaranteed by that
Article.
In
executing this test, the Court considers that the same standard and
burden of proof should apply as in the examination of extraditions
and expulsions under Article 3. Accordingly, it is for the applicant
to adduce evidence capable of proving that there are substantial
grounds for believing that, if removed from a Contracting State, he
would be exposed to a real risk of being subjected to a flagrant
denial of justice. Where such evidence is adduced, it is for the
Government to dispel any doubts about it (see, mutatis mutandis,
Saadi v. Italy [GC], no. 37201/06, § 129, ECHR
2008-...).
(b) Application of the above principles to
the present case
The
Court reiterates that, in 2008 and early 2009, the ICTR as well as
courts and authorities of several national jurisdictions refused to
transfer or extradite genocide suspects to Rwanda due to concerns
that the suspects would not receive a fair trial in that country. The
decisions mainly focused on the difficulties for the defence to
adduce witness testimony, on account of the fears of witnesses to
appear for fear of reprisals and the risk that remote defence
testimony would not be given the same weight by the courts as
evidence for the prosecution given in person. While the ICTR found no
reason to criticise the impartiality and independence of the Rwandan
judiciary or the composition of the courts, the UK High Court
concluded that there was evidence of judicial interference by the
Rwandan executive. Several decisions also found that the possibility
of life imprisonment in isolation constituted an impediment to
transferring the suspects to Rwanda.
Since
these decisions were taken, several amendments have been made to the
Rwandan legislation. The respondent Government and the third-party
intervener have submitted that there have been additional
improvements in legal practice. Consequently, it needs to be
determined whether these changes are sufficient to conclude that, if
the applicant is now extradited to Rwanda, he would not be subjected
to a real risk of a flagrant denial of justice.
As
noted above in regard to the applicant’s complaint under
Article 3, he cannot be sentenced to life imprisonment in
isolation (see § 93). Thus, this particular issue need not
be examined further.
The
Court considers that the central issue in the present case is the
applicant’s ability to adduce witnesses on his behalf and
obtain an examination of testimony by the courts that reasonably
respect the equality of arms vis-à-vis the prosecution.
As
regards the fears of reprisals that the applicant’s witnesses
may have, it is, as noted by the ICTR in Uwinkindi, not
determinative whether those fears are reasonable or well-founded but
rather whether there are objective reasons to believe that witnesses
would refuse to come forward. In this respect, the Court first notes
that, through a May 2009 amendment to Article 13 of the Transfer
Law, witnesses – as well as other participants in the
proceedings – are afforded immunity from prosecution for
statements made or actions taken during a trial. Furthermore, in
addition to the witness protection programme previously in existence
under the auspices of the Office of the Prosecutor-General (“VWSU”),
Rwanda has recently made arrangements for an additional witness
protection unit under the direction of the judiciary (“WPU”).
The Court also takes into account the submissions made by the
Netherlands Government, according to which, during Dutch
investigations of genocide cases in Rwanda, the Rwandan officials had
never inquired about the witnesses or their statements. Similar
assessments, recorded in the Oslo District Court’s judgment of
11 July 2011, had been made by the Norwegian police after having
interviewed 149 witnesses in Rwanda since September 2009.
Furthermore,
the introduction of Article 14 bis of the Transfer Law provides for
the possibility of witnesses residing outside Rwanda to give
testimony through the use of several alternative means, without
having to appear in person at a trial. Besides the possibility of
making depositions before a judge in Rwanda or abroad, the most
important development is perhaps that the law now provides for the
hearing of witnesses during the trial via video-link. Already in its
first referral case, Munyakazi, the ICTR Appeals Chamber was
satisfied that video-link facilities were available and would likely
be authorised in cases where witnesses residing abroad genuinely
feared to testify in person. In the present case, the respondent
Government have submitted that there are no technical obstacles to
the use of video-links in Rwanda. In this connection, the Court
reiterates that it has previously held that the use of video-link
testimony is as such in conformity with Article 6 (see, for instance,
Kabwe and Chungu v. the United Kingdom (dec.), nos. 29647/08
and 33269/08, 2 February 2010). Furthermore, in view of the
legislative changes providing for alternative ways of giving
testimony, the Court cannot find any basis for concluding that
statements thus made would be treated by the courts in a manner
inconsistent with the respect for the equality of arms.
In
conclusion, the Court finds no reason to conclude that the
applicant’s ability to adduce witness testimony and have such
evidence examined by the courts in Rwanda would be circumscribed in a
manner inconsistent with the demands of Article 6.
The
applicant has further claimed that there were no qualified lawyers
able to defend him in Rwanda. The Court finds that this claim is
unsubstantiated. It appears that the applicant would be free to
appoint foreign defence counsel. More importantly, reference is made
to the decision in the Uwinkindi case, where the Referral
Chamber noted, inter alia, that many members of the Rwandan
Bar had more than five years’ experience, that Rwandan lawyers
were obliged to provide pro bono services to indigent persons
and that there was a legal framework as well as a budgetary provision
for legal aid.
Turning
to the independence and impartiality of the Rwandan judiciary, the
Court takes note of the concerns expressed by some international
organisations as well as the UK High Court. However, in its referral
cases, the ICTR has concluded that the Rwandan judiciary meets these
requirements. In Uwinkindi, the Referral Chamber considered
that the judges of the High Court and the Supreme Court were
qualified and experienced and in possession of the necessary skills
to handle a transferred case. Furthermore, both the ICTR and the
respondent Government have pointed to the legal and constitutional
guarantees of the judiciary’s independence and impartiality.
The experience of the Dutch investigative teams and the Norwegian
police – that Rwandan authorities had not in any way interfered
with their work or with the witnesses they heard – points in
the same direction. The Court therefore concludes that there is no
sufficient indication that the Rwandan judiciary lacks the requisite
independence and impartiality.
As
to the applicant’s personal situation, the Court finds that it
has not been substantiated that his trial would be conducted unfairly
because of his having given testimony for the defence in trials
before the ICTR or because of his former position as head of the
Rwandan Civil Aviation Authority. Furthermore, in regard to the
decisions allegedly taken by gacaca courts in 2008, the Court
first notes that they were invoked only in August 2010, more
than two years after their date of issuance and more than a year
after the introduction of the present application. Even assuming that
they are genuine, the Court notes that they relate to damages that
the applicant had been ordered to pay as compensation for having
destroyed and looted property. It has not been shown that there is a
connection between the acts for which he was ordered to pay damages
and the acts covered by the charges in Rwanda’s extradition
request. Moreover, according to the provisions of the Transfer Law
and the statements made by the Rwandan authorities in connection with
the extradition request, extradited genocide suspects –
including the applicant – will have their criminal liability
tried by the High Court and the Supreme Court and not by the gacaca
courts.
The
Court has in the foregoing referred to the ICTR Referral Chamber’s
decision in Uwinkindi. While noting that the decision is not
final, the Court nevertheless considers that its conclusions have to
be given considerable weight. It is the first transfer decision taken
by the ICTR since the legislative changes in Rwanda. The Chamber
found that the issues that had led to the decisions in 2008 to refuse
transfers had been addressed to such a degree in the intervening
period that the Chamber was confident that the accused would be
prosecuted in a manner consistent with internationally recognised
fair trial standards enshrined in the ICTR Statute and other human
rights instruments. While the Chamber also relied on the monitoring
it ordered and its ability to revoke the transferred case if
necessary, this does not, as noted above in regard to the complaint
under Article 3, change the conclusions drawn. In this connection,
the Court notes that Sweden has declared itself prepared to monitor
the proceedings in Rwanda and the applicant’s detention.
It
must also be emphasised that the decision to transfer Uwinkindi
for trial in Rwanda was made pursuant to Rule 11 bis of the
Rules of Procedure and Evidence of the ICTR which, among other
things, stipulate that the referring chamber must be satisfied that
the person in question will receive a fair trial in the courts of
Rwanda. The standard thus established clearly set a higher threshold
for transfers than the test for extraditions under Article 6 of the
Convention, as interpreted by the Court.
In
conclusion, having regard to the above considerations, the Court
finds that the applicant, if extradited to stand trial in Rwanda,
would not face a real risk of a flagrant denial of justice.
Consequently,
the application does not reveal a violation of Article 6 of the
Convention.
III. RULE 39 OF THE RULES
OF COURT
The
Court reiterates that, in accordance with Article 44 § 2 of the
Convention, the present judgment will not become final until (a) the
parties declare that they will not request that the case be referred
to the Grand Chamber, or (b) three months after the date of the
judgment, if referral of the case to the Grand Chamber has not been
requested, or (c) the Panel of the Grand Chamber rejects any request
to refer under Article 43 of the Convention.
It considers that the indication made to the
Government under Rule 39 of the Rules of Court must remain in
force until the present judgment becomes final or until the Panel of
the Grand Chamber of the Court accepts any request by one or both of
the parties to refer the case to the Grand Chamber under Article 43
of the Convention (see F.H. v. Sweden,
no. 32621/06, § 107, 20 January 2009).
FOR THESE REASONS, THE COURT UNANIMOUSLY
Declares the application admissible;
Holds that the applicant’s extradition to
Rwanda would not involve a violation of Article 3 of the Convention;
Holds that the extradition would not involve a
violation of Article 6 of the Convention;
Decides to continue to indicate to the
Government under Rule 39 of the Rules of Court that it is desirable
in the interests of the proper conduct of the proceedings not to
extradite the applicant until such time as the present judgment
becomes final.
Done in English, and notified in writing on 27 October 2011, pursuant
to Rule 77 §§ 2 and 3 of the Rules of Court.
Claudia Westerdiek Dean Spielmann
Registrar President
