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).
The Court then went to decide whether the ECHR prevented extradition, due to imminent violations of Art. 3 and 6 ECHR. In view of possible violations of Art. 3 the Court merely held that the current case did not meet the high standard of proof set up by the ECtHR in the Case of Saadi v Italy[8], namely that ‘substantial grounds have been shown for believing that the person concerned, if deported, faces a real risk of being subjected to treatment contrary to Article 3’ (para. 125). In view of a possible violation of Art. 6, the Court referred to the Case of Soering v The United Kingdom, in which the ECtHR established the formula that a violation of Art. 6 could at least not be ruled out ‘where the fugitive has suffered or risks suffering a flagrant denial of a fair trial in the requesting country.’ (Para. 113.)[9] Moreover, the Court mentioned the ECtHR’s decisions in the Case of Einhorn v France (paras 33-34)[10] and Case of Saadi v Italy (para. 129) in support of the duty of the person fearing that his/her extradition will violate Art. 6 to show that this will be the case. The standard of proof for this flagrant violation is, according to the Supreme Court, the same as applied in the context of Art. 3, namely ‘substantial grounds for believing’. The Court then turns to an assessment of various sources providing information on the Rwandan judiciary. The Court not only uses sources gathered by the Prosecutor-General, i.e. a report from the Swedish ministry for foreign affairs and various NGO reports,[11] but also includes extradition decisions from the justice ministry in Finland, the ICTR and the High Court of Justice in the UK. The Finnish decision was almost exclusively based on argumentation in two decisions from the ICTR. In Case No. ICTR-97-36-R11bis[12] the ICTR found that the suspect’s ‘right to obtain the attendance of, and to examine, Defence witnesses under the same conditions as witnesses called by the Prosecution, can [not] be guaranteed at this time in Rwanda’ (para. 50). In Case No. ICTR-2002-78-R11bis[13] especially the poor working conditions of the defense and the access to witnesses prevented a referral. Those decisions, in the opinion of the Court, however, had to produce a deeper investigation of the trials that would be conducted in Rwanda as Art. 11bis of the ICTR’s Rules of Procedure and Evidence[14] demands of the ICTR to satisfy itself that the accused will receive a fair trial. This is not what is demanded under Art. 6. And even if the problems with calling witnesses would be considered to be true, in the opinion of the Court this would not mean a violation of Art. 6 as such problems do occur even in developed countries.
The High Court judgment also addressed the standard adopted by the ECtHR, namely that of a ‘flagrant denial of justice.’ Although the Supreme Court conceded that the decision by the High Court was raising doubts as to whether Ahorugeze would receive a fair trial in Rwanda, the Court was nevertheless not sure about the High Court’s assessment of the evidence brought before it and was therefore not willing to adopt the High Court’s reasoning (and/or conclusion altogether).
In a successive passage the Court makes the rather subtle suggestion that independent from any flagrant violation of Art. 6 the denial of a fair trial could be reason enough to deny extradition. The Court thus seems to suggest that it wants to go further in its interpretation of the scope of protection under Art. 6. However, the Court then makes the elegant move of saying that it (!) only has to answer whether an extradition could be in accordance with the applicable law (inter alia the customary interpretation of Art. 6 ECHR). Since it is the government that has to make the final decision it suggests itself that the Court adopts the same restraint already used by the ECtHR (‘flagrant denial of a fair trial’) and leaves to the government to make any further interpretations beyond what the ECtHR states. Without further reasoning the conclusion of the Court is that no legal obstacle can be found to an extradition.
Pursuant to § 20 (1) Extradition Act the government is to make the final decision in extradition cases. The government agrees with the Supreme Court’s assessment of the application of the Extradition Act.
On Art. 3 the government recognizes that (I) the death penalty has been abandoned in Rwanda, (II) that life imprisonment may not be combined with isolation, (III) that a new and more modern prison has been built, (IV) and that no signs of government sanctioned torture can be found. In view of the restrictive interpretation that the ECtHR adopted on Art. 3 the government does not see that an extradition would violate Art. 3 ECHR.
On Art. 6 the government acknowledges that the development of the legal system in Rwanda has made progress in the last years, that especially legislation has been adopted in early 2009 that makes it easier for accused persons to call witnesses, e.g. through video link. Moreover, the Rwandan judiciaries lacking independence and impartiality, which has been criticized before, was no longer considered an obstacle by the ICTR Appeals Chamber, as decided in Case No. ICTR-97-36-R11bis. As a consequence, the government did not see that any violation of the right to a fair trial was to be expected, hence the ECHR was not opposing an affirmative decision in this extradition case. Hence the extradition was ordered.
Deciding extradition requests from Rwanda – state and ICTR practice
As already mentioned by the Supreme Court and in the decision of the Swedish government, several decisions on extraditions of genocide suspects are available. The High Court of the UK in its decision denied the extradition in a similar case based on the accused’s lacking possibility to bring his/her own evidence to the procedure (the High Court could not take into account recent Rwandan legislation on this point), and the doubts regarding the Rwandan judiciary’s independence and impartiality.[15] Switzerland refused a request to extradite a Rwandan national due to ‘the situation in the state regarding human rights’.[16] On similar grounds the extradition request regarding Claver Kamana[17] was rejected by the Court of Appeals in Lyon, France on 10 January 2009.
The ICTR has, to my knowledge, so far decided on three requests for transfer to Rwanda,[18] and rejected all of them. The main underlying reasons were the following:
(I) The ICTR was not satisfied that Rwanda can ensure the defendant’s right to obtain the attendance and examination of witnesses on his behalf under the same conditions as the witnesses against him.
(II) The current legislative provisions for life imprisonment in isolation without adequate safeguards may violate the defendants right to not be subjected to cruel, inhuman or degrading punishment.
(III) The current composition of the High Court with one judge and the compounding fact that the ICTR is not convinced that Rwanda respects the independence of the judiciary.
Assessment
The presented case raises three fundamental questions:
(I) What does the decision of the Swedish government mean for the future practice of other States in similar extradition cases?
It is to be expected that many future decisions by States on extradition requests from Rwanda will take into consideration the Swedish decision, not at least because it seems to be the most recent one thus taking into consideration the most recent developments in Rwanda. Yet it is not at all certain that e.g. other national courts will follow the ruling of the Swedish Supreme Court. Why? The Court bases its decision, different from e.g. the High Court, on merely (modest) formal sources, reports, other judgments etc., it was rather short (20 pages) and was rendered within 2,5 months. In comparison the High Court’s decision of 8 April 2009 took into account extensive evidence material from the parties (inter alia testimonies), the decision was 70 pages long and was rendered a year after the court received the appeal. Certainly, the High Court’s decision overruled the affirmative extradition decision of a lower court, which thus had made a totally different assessment of the evidence presented. Therefore, as the Swedish Supreme Court states, it is difficult to know what constitutes a ‘flagrant denial of justice’. But the Swedish decision, both by the Court and the government, must be seen as being overly formalistic. It can certainly be criticized that the Swedish government was surprisingly optimistic in its affirmative assessment of the changes that are on their way in Rwanda. After all, the legislative changes that have been made are very recent and the value of basing your assessment of the Rwandan judiciary on the actual situation in practice should not be underestimated.
(II) What can be expected to be the outcome of the assessment of the ECtHR?
It is to be hoped that the ECtHR will give some guidance on what constitutes a ‘flagrant denial of justice’ and hence when a decision to extradite violates the member States’ obligations under Art. 6. Nevertheless it should not be forgotten that the ECtHR has so far, at least to my knowledge, not seen a violation of Art. 6 itself, i.e. without at the same time applying Art. 3, as a sufficient reason to prevent extradition. There is reason to believe that the ECtHR in this case might be called upon to give a decision on this particular issue. Yet still it seems unlikely that the Court will support this view based on the facts of the case. Moreover, it should not be forgotten that there are certain differences between Art. 3 and Art. 6 when it comes to preventing an extradition due to a violation of the ECHR. Art. 3, which has already in itself been found to be a sufficient reason to prevent extradition, was interpreted to be a clear exception to the rule that a State is not responsible for the actions being taken on another State’s territory. Furthermore, Art. 3 is backed by the principle of non-refoulement in Art. 3 Torture Convention,[19] and Art. 6 is different from Art. 3 not among the non-derogable rights listed in Art. 15 (2). Certainly, if the ECtHR would consider Art. 6 to allow the prevention of an extradition, this would provide material for a discussion on Art. 6’s place as a core right, a part of the human rights ordre public, on the same level as Art. 3.
(III) What does this development mean for the referral of cases from the ICTR to the Rwandan national judiciary?
The consequences of the decision of the Swedish government for potential referrals from the ICTR to the national judiciary of Rwanda might be even clearer and more suitable to assess at this point in time, as the ICTR is not bound by the ECHR and thus neither by the decisions of the ECtHR. The assessments made by the Swedish government (and the Supreme Court) were able to take into consideration legislative changes in Rwanda that did not influence the ICTR’s decisions so far.[20] As the current decision did address exactly those concerns earlier mentioned by the ICTR as obstacles to referrals, it is indeed likely that we will see future referrals from the ICTR to the national judiciary. This is all the more the case as the completion strategy for the ICTR, which envisages that all first-instance cases are to have completed trial by the end of 2009[21] and all work is to be completed by 2010, is certain to leave individual cases untried. In view of the overall goal of the world community to not leave potential perpetrators of the crimes committed in 1994 unpunished, and considering that only few States are able and willing to take on this roll under the umbrella of universal jurisdiction (so far there have been cases in e.g. Belgium and Switzerland)[22] the referral to the Rwandan judiciary is crucial. Already the Prosecutor of the ICTR, Justice Hassan Jallow, announced earlier this year that the prosecution will make renewed efforts for the referral of some cases by the ICTR to Rwanda and ‘will consider making further applications before the Trial Chambers in the course of the year’,[23] something he has reiterated on numerous conferences.
[1] General information on the website of Trial Watch: http://www.trial-ch.org/en/trial-watch/profile/db/legal-procedures/sylvere_ahorugeze_476.html
[2] National Republican Movement for Democracy and Development.
[3] Charges were raised on 7 September 2006.
[4] An order of arrest was issued in Rwanda on 17 July 2008.
[5] Lag (1957:668) om utlämning för brott, available online http://www2.notisum.com/rnp/sls/lag/19570668.htm
[6] If the Supreme Court had found any obstacles to the extradition, the government would have been barred from complying with the Rwandan request.
[7] 15 §: ’Innan regeringen meddelar beslut i anledning av framställningen, skall yttrande avges av riksåklagaren. Har inte den som avses med framställningen samtyckt till att han utlämnas, skall ärendet dessutom prövas av högsta domstolen. Är det uppenbart att framställningen ej bör bifallas, skall den dock omedelbart avslås.’ Lag (1981:1090).
[8] Case of Saadi v Italy, Application No. 37201/06, Court (Grand Chamber) Judgment of 28/02/2008, available online http://cmiskp.echr.coe.int/tkp197/view.asp?action=html&documentId=829510&portal=hbkm&source=externalbydocnumber&table=F69A27FD8FB86142BF01C1166DEA398649
[9] ‘The Court does not exclude that an issue might exceptionally be raised under Article 6 (art. 6) by an extradition decision in circumstances where the fugitive has suffered or risks suffering a flagrant denial of a fair trial in the requesting country.’ (Para. 113.) Case of Soering v The United Kingdom, Application No. 14038/88, Court (Plenary) Judgment of 07/07/1989, available online http://cmiskp.echr.coe.int/tkp197/view.asp?action=html&documentId=695496&portal=hbkm&source=externalbydocnumber&table=F69A27FD8FB86142BF01C1166DEA398649
[10] Case of Einhorn v France, Application No. 71555/01, Court (Third Section) Decision (Final) of 16/10/2001, available online http://cmiskp.echr.coe.int/tkp197/view.asp?action=html&documentId=670446&portal=hbkm&source=externalbydocnumber&table=F69A27FD8FB86142BF01C1166DEA398649
[11] Amnesty International and Organization for Peace, Justice and Development in Rwanda.
[12] The Prosecutor v Yussuf Munyakazi, Case No. ICTR-97-36-R11bis, 8 October 2008, http://www.ictr.org/ENGLISH/cases/Munyakazi/decisions/081008.pdf
[13] The Prosecutor v Gaspard Kanyarukiga, Case No. ICTR-2002-78-R11bis, 30 October 2008, http://www.ictr.org/ENGLISH/cases/Kanyarukiga/decisions/081030.pdf
[14] Art. 11bis (B): ‘The Referral Bench may order such referral […] after being satisfied that the accused will receive a fair trial […].’ Available online http://www.icty.org/x/file/Legal%20Library/Rules_procedure_evidence/IT032_Rev43_en.pdf
[15] Government of Rwanda v Munyaneza and others, High Court of Justice the Divisional Court (Lord Justice Laws Lord Justice Sullivan), Judgment of 8 April 2009.
[16] http://www.iol.co.za/index.php?click_id=68&art_id=nw20090701131257230C805643&set_id=
[17] http://www.trial-ch.org/en/trial-watch/profile/db/legal-procedures/claver_kamana_772.html
[18] (I) The Prosecutor v Yussuf Munyakazi, Case No. ICTR-97-36-R11bis; (II) The Prosecutor v Gaspard Kanyarukiga, Case No. ICTR-2002-78-R11bis; (III) The Prosecutor v Ildephonse Hategekimana, Case No. ICTR-00-55B-11bis, 19 June 2008, http://unictr.org/ENGLISH/cases/Hategekimana/decisions/080619.pdf.
[19] ‘No State Party shall expel, return (“refouler”) or extradite a person to another State where there are substantial grounds for believing that he would be in danger of being subjected to torture.’ Available online http://www.hrweb.org/legal/cat.html
[20] Most of these concerns have been addressed by the Rwandan government since. A new law has made it easier to take testimonies on other places than in Rwanda and bars against prosecution for denial of genocide made in testimonies. Life imprisonment in isolation has been abandoned (Law 66/2008 from 21 November 2008), the death penalty has been abolished. The threats to the independence and impartiality of the Rwandan judiciary have been ruled out already by the Appeals Chamber of the ICTR in the Case of The Prosecutor v Yussuf Munyakazi, inter alia by referring to the undertaking of the African Commission on Human and People’s Rights to monitor such transfer cases (paras 22-31).
[21] Originally end of 2008, UNSC Res. 1503 S/RES/1503 (28 August 2003) http://daccess-ods.un.org/TMP/8786516.html.
[22] The first ‘Rwanda’ trial in Belgium took place in 2001 against four perpetrators; Public Prosecutor v ‘Butare Four’, Cour d’Assises, 8 June 2001. Cases against Etienne Nzabonimana and Samuel Ndashykirwa, Cour d’Assises, 29 June 2005 and Bernard Ntuyahaga, 4 July 2007. The Swiss Tribunal Militaire d’Appel 1A on 26 May 2000 convicted Fulgence Niyonteze.
[23] Statement by Justice Hassan B. Jallow, Prosecutor of the ICTR, to the UN Security Council, 4 June 2009; available online http://www.ictr.org/ENGLISH/speeches/jallow090604.htm
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