Introduction
On 9 July 2009 the Swedish government rendered an affirmative decision on whether or not to extradite a Rwandan citizen to Rwanda due to his suspected involvement in the 1994 genocide. The decision by the Swedish government was the first of its kind of a European State and the implementation was stopped only after the suspect appealed the government’s decision before the European Court of Human Rights (ECtHR), on the basis that he would not receive a fair trial in Rwanda, leading to the issuing of an order by the ECtHR that no extradition was to take place until the Court had investigated the case further. Already the decision by the Swedish government holds the potential of being trend-setting insofar as it might influence the assessment made by other States on the fundamental legal issues that are common in extraction cases of this sort. In the following I will illustrate how this decision was motivated and what legal impact it might have. The focus will not be on a description of the administrative procedure in extradition cases in Sweden but instead on the underlying legal questions and their assessment made by in particular the Supreme Court of Sweden and the government.
The background in the case of Sylvère Ahorugeze[1]
Sylvère Ahorugeze was the director of the Rwandan Civil Aviation Authority in 1994. He was a core member of the presidential party at the time.[2] By the authorities in Kigali he is accused of having committed war crimes and genocide during the events in 1994; more specifically he was allegedly involved in the killing of some 25 people on 7 April 1994. On 14 April 1994 Ahorugeze fled from Rwanda.
Since 2001 he was living in Denmark where he received refugee status. He was arrested in early September 2006 on charges for the murder of 25 Tutsis.[3] On 6 September 2007 the charges against Ahorugeze were, however, dropped due to the lack of evidence. On 16 July 2008 Ahorugeze was arrested in Stockholm after his visit to the Rwandan embassy. On 18 July 2008 a district court (Tingsrätt) confirmed an arrest warrant and on 4 August 2008 the Rwandan Prosecutor-General issued a formal extradition request.[4]
In conformity with the Utlämningslagen [Extradition Act][5] a legal opinion on the extradition request was given by the Swedish Prosecutor-General on 9 March 2009. In this the Prosecutor-General supported the extradition of Ahorugeze. Subsequently the Supreme Court of Sweden (Högsta Domstolen) gave its decision in the same matter (§ 20 Extradition Act) and denied that any legal obstacles would prevent the extradition and referred the case to the government.[6] Pursuant to § 20 (2) Extradition Act the government rendered its decision on 9 July 2009, which was affirmative and set a timeframe of three weeks, within which Ahorugeze was to be extradited. However, Ahorugeze appealed this decision before the ECtHR on 13 July 2009 claiming that he would not receive a fair trial before the Rwandan national courts. On 16 July 2009 the Swedish government stated that it would abide by an ECtHR order not to deport until the Court had examined the case.
Assessment of the underlying legal questions by the Swedish authorities
In situations where formal extradition requests have been issued the Swedish Prosecutor-General is according to § 15 Extradition Act[7] called upon to give his opinion (yttrande). Besides this legal opinion, if the accused has not agreed to the extradition, a further decision (beslut) in the case must be obtained from the Supreme Court (§ 15 Extradition Act). The Supreme Court first asked for any obstacles to the extradition pursuant to the Extradition Act. Just as the Prosecutor-General the Court found that Ahorugeze was accused of having committed crimes that enable an extradition pursuant to § 4 Extradition Act (crimes for which the punishment is one year or above, here: genocide, assistance and plotting of genocide), that it was probable (sannolika skäl; § 9 (2) Extradition Act) that the accused had committed the crimes and denied the possibility to refuse extradition due to the risk of persecution that might threaten the persons life (§ 7 Extradition Act) and the possibility to refuse extradition on humanitarian grounds (§ 8 Extradition Act).