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ECLI:NL:RBDHA:2019:10649

Instantie
Rechtbank Den Haag
Datum uitspraak
23-05-2019
Datum publicatie
11-10-2019
Zaaknummer
RK 09/1282V
Rechtsgebieden
Strafrecht
Bijzondere kenmerken
Eerste aanleg - meervoudig
Inhoudsindicatie

The District Court The Hague declares the extradition for the purpose of prosecution to the Rwandan authorities of a person suspected of genocide and crimes against humanity admissible, admissible. The demanded person has argued that he will not get a fair trial in Rwanda. The court comes to the conclusion, partly on the basis of monitoring reports issued in previous cases, that there is no fear of an imminent flagrant violation of the right to a fair trial. The court advises the Minister of Justice to have the trial in Rwanda also be observed in this case and to make the monitoring reports publicly available. The court also advises the Minister to make sure that the man will receive sufficient medical care in Rwanda. Ultimately, the Minister will have to decide whether the demanded person will actually be extradited. Unofficial translation of ECLI:NL:RBDHA:2019:5235.

Vindplaatsen
Rechtspraak.nl
Verrijkte uitspraak

Uitspraak

District Court The Hague

Criminal law

Extradition Chamber

Reference no. UTL-I-2010023570
Chamber Ref. No. 19/1282

District Court The Hague, Extradition Chamber, gives the following ruling at the request of the Rwandan authorities for the extradition of:

[demanded person],

born on [DOB] in [POB] (Rwanda),

residing in [place of residence],

currently detained in the remand prison ‘Alphen aan den Rijn’ in Alphen aan den Rijn,

hereinafter: the demanded person.

1 The request for extradition and the produced documents

1.1

The request for extradition

Het Rwandan Justice Ministry (hereinafter also: the requesting country) submitted a certified request in English to the Ministry of Justice and Security in the Netherlands dated 1 August 2018, in relation to the extradition of the aforesaid demanded person for the purpose of prosecution (hereinafter also: the extradition request).

According to the aforementioned request, the demanded person is in Rwanda believed to be guilty of participation in the 1994 genocide in Rwanda.

In a letter, dated 28 December 2018 from the Minister of Justice and Security (hereinafter: the Minister) to the National Centre for International Mutual Assistance (LIRC) in Driebergen, it was requested to deal with the request for the extradition of the demanded person made by the Rwandan authorities. By virtue of an application dated 19 March 2019, the Public Prosecutor with the National Public Prosecutor’s office demanded District Court The Hague to deal with the request for extradition. The Public Prosecutor with the National Public Prosecutor’s office attached a translation of the Dutch original of the extradition request made by a sworn translator.

1.2

The documents produced by the requesting country

The aforesaid request is accompanied by and/or the aforesaid request contains the following information:

  • -

    The warrant for the arrest of the demanded person, issued by the competent authorities of the requesting country, in relation to the offences for which the extradition is requested, dated 1 August 2018;

  • -

    A summary of the offences for which the extradition is requested;

  • -

    The wording of the applicable legal provisions in which the offences that the demanded person is believed to be guilty of are considered punishable, as well as the applicable legal provisions on (inter alia) abolition of the death penalty, the non-applicability of the prescription of prosecution, jurisdiction and the competency of courts;

  • -

    Documents regarding the identity of the demanded person and his nationality;

  • -

    Information on the expiry of the prescription period;

  • -

    Several guarantees in relation to the rights of the demanded person;

1.3

Other documents

Furthermore, the extradition dossier contains the following documents:

  • -

    Documents in relation to the arrest and the extradition detention of the demanded person;

  • -

    The written application made by the Public Prosecutor with the National Public Prosecutor’s office in Rotterdam and deputy Public Prosecutor in The Hague, received by the District Court on 18 March 2019, with respect to taking up the extradition request in question, and also containing the application for the detention of the demanded person;

  • -

    The written summary made by the Public Prosecutors, produced during the hearing of 9 May 2019, setting out their opinion on the admissibility of the extradition request;

  • -

    The memoranda of the oral pleading of the lawyers of the demanded person, produced during the hearing of 9 May 2019.

2 The content of the request

According to the request, the Rwandan authorities intend to prosecute the demanded person for genocide, complicity in genocide and crimes against humanity, committed in the period between 7 April 1994 up to and including July 1994 in the Specialise Cell of the Kigirambwa sector, in the Ruhashya commune, in the former Butare préfecture in the Republic of Rwanda.

The requesting country considers the following facts to be at the basis of the suspicion. The demanded person used to be the Director of [organisation]. Between 25 and 30 April 1994 he provided Hutu citizens with tools, such as hoes, large knives and machetes, in order for them to use to kill Tutsi citizens. Together with Hutu citizens from the Maraba municipality and gendarmes that he had taken from the [ name] military camp, he went to [place where the crime is committed]. When they were there, they organised themselves in such a manner that the Hutu citizens surrounded the Tutsi citizens who had gathered there. The gendarmes then shot the Tutsi citizens. Tutsi citizens who had managed to escape, were killed with traditional weapons.

In addition, he made an appeal to Hutu staff of [organisation] and Hutu citizens between 25 and 28 April 1994 and supplied them with hoes, large knives, machetes and traditional weapons. The Hutu Interahamwe, coming from the neighbouring Maraba and Masasu areas, collaborated with the Hutu citizens, who had been given tools to attack Tutsi citizens who worked for [organisation]. Together with others, he had brought gendarmes, after which all Tutsi citizens were gathered in several bushes around the Institute and killed with machetes, large knives and traditional weapons.

3 The hearing

3.1

Dealing with the case

The hearing was held in public on 9 May 2019. The extradition request as well as the content of the documents, mentioned above under (1), were notified.

The demanded person, who was present at the hearing - and was assisted by the lawyers mr. D.E. Wiersum and mr. C. Buisman – stated that he was the person referred to in the extradition request, and that he has been trying to obtain the Dutch nationality since 2000.

On behalf of the Public Prosecution Service, the Public Prosecutors mr. D.J. Laman and mr. N.H. Vogelenzang were present.

3.2

The position of the demanded person

On behalf of the demanded person, it was argued that the extradition should not be allowed. In that context it was put forward that extradition would violate the Articles 2, 3 and 6 of the European Convention on Human Rights and Fundamental Freedoms (hereinafter: ECHR). Furthermore, it was argued that the principle of proper administration of justice requires that in this case – provided that there is sufficient evidence – the prosecution is to take place in the Netherlands.

3.3

The position of the Public Prosecutors

The Public Prosecutors concluded that the request for extradition must be declared admissible.

4 The assessment of the admissibility of the requested extradition

4.1

Introduction

As the District Court will consider hereinafter, (inter alia) the Act on Surrender in relation to war crimes (hereinafter: WOO) is applicable on the request. In order to avoid confusion, the District Court will not use the term ‘surrender’ in this ruling but will use ‘extradition’ since the term surrender is according to the Dutch legal views these days reserved for legal assistance communications between the Netherlands and international courts and for legal assistance communications within the European Union. Legal assistance communications with countries outside the European Union, in which requests are made to have a person transferred from the jurisdiction of one country to the jurisdiction of another country, must be called extradition; therefore, the District Court will use this term.

The Extradition Act (hereinafter: UW) contains several grounds to refuse an extradition. In addition, additional grounds have often been included in multilateral and bilateral treaties. In the extradition proceedings, the demanded person may directly appeal to these stipulations. However, there is a strict separation in the Netherlands between the competences of the extradition court and the Minister on the other side. The extradition court makes a decision on the admissibility of the extradition, where the Minister must decide whether the request is to be granted (he is, however, bound to the judgment of the extradition court with regard to the (in)admissibility of the extradition). This entails that not all grounds for refusal set out in the UW and the treaties are submitted to the judgment of the extradition court. The extradition court is – insofar as this doesn’t already follow from the UW – merely competent to give judgments on grounds for refusal, if no judgment of the political situation and the administration of justice in the requesting country is required for which access for the court to closed information sources is necessary, no negotiations must be carried out on possible additional guarantees and no considerations have to be made that involve policy choices. The assessment framework of the extradition court is, therefore, much more limited than the Minister’s one. In its advise on the ruling to the Minister, the extradition court may, however, advise on all aspects.

The District Court will take the above as starting points, when preparing a judgment on the extradition request. Insofar as important, the court will, following the invoked defences, elaborate on the division of competencies between the Minister on one hand and the extradition court on the other hand. Insofar as reference is made on behalf of the demanded person to foreign extradition proceedings, the District Court notes that the Netherlands is one of the few countries where such a division of competencies is in place. As a result of this, judgments in foreign proceedings – in particular when they are based on a different legal system – are hardly or not at all comparable with the criteria the extradition court in the Netherlands may consider in its judgment.

4.2

Applicable laws and treaties

Applicable on the request, in addition to the WOO and the UW, the Convention on Prevention and Punishment of the Crime of Genocide (hereinafter: Convention on Genocide) that came into being in Paris on 9 December 1948, is applicable. The District Court officially finds that the Genocide Convention by and of itself offers no treaty basis for extradition in relation to crimes against humanity. According to the documents produced by the requesting country, the present case, however, is about one and the same complex of offences. In the opinion of the District Court, the Genocide Convention offers, thus, a sufficient treaty basis for extradition.

4.3

Sufficiency of documents

The request was made in writing and sent directly to the Minister. In accordance with Article 18 UW, the required documents, as set out in (1.2), were annexed to the request. The documents show that the demanded person is believed to be guilty of genocide, complicity in genocide and crimes against humanity, committed in [place where the crime was committed] in the Republic of Rwanda in the period between 7 April 1994 up to and including July 1994. In extradition proceedings, it is not up to the court to verify whether there the suspicion can be sufficiently substantiated.

Therefore, the documents suffice.

4.4

Double criminality and threat of punishment by terms of imprisonment of at least one year

Under Article 5, first Paragraph, introduction and by virtue of (a) UW, extradition may only be allowed, if both under the law of the requesting country and under Dutch law, a term of imprisonment of at least one year may be imposed for the offences the demanded person is believed to be guilty of. This requirement has been satisfied, since both under Dutch law and under Rwandan law, there is a threat of punishment of several years of imprisonment.

4.5

Ne bis in idem and prescription

Extradition of the demanded person is, by virtue of Article 9 UW, not admissible for an offence for which – in short - the demanded person is prosecuted in the Netherlands or was prosecuted and renewed prosecution is excluded under Dutch law or for an offence that is prescribed. Under Dutch law, there is no ongoing or accomplished prosecution and prescription does not constitute an obstacle since the offences the demanded person is believed to be guilty of do not prescribe.

4.6

Prosecution for a political offence

By virtue of Article 11 UW, extradition does not take place for offences of political nature, including associated offences. There are no indications for that. The District Court notes, perhaps unnecessarily, that in Article VII of the Genocide Convention it is explicitly stipulated that in the event of extradition, genocide is not considered to be a political crime.

4.7

Apparent innocence

Extradition must be refrained from if the demanded person is able to prove immediately that he is not guilty of the offences for which his extradition is requested. Apparent innocence can only be the case if the defence of the demanded person – and any substantiation with documents – shows that it is impossible that the demanded person physically committed the offences for which his extradition is requested. In the first place, a claim of innocence according to established case-law only applies if the Court immediately – which means without any further investigation similar to investigations in the criminal proceeding itself – comes to the conclusion that a presumption of guilt is out of the question.

The demanded person took the view that he is not guilty of what he’s been suspected of in Rwanda. However, this position was not substantiated in any way. The District Court believes that the demanded person has, therefore, not proven his innocence without delay.

4.8 (

Impending) violation of fundamental human rights

In principle, when assessing extradition cases, it is important to trust that the requesting country will observe the fundamental right of the demanded person in his prosecution and his trial the fundamental right (cf.. Hoge Raad [Supreme Court] [Supreme Court] 8 July 2003, ECLI:NL:HR:2003:AE5288).

According to stable case-law of the Hoge Raad [Supreme Court] (cf. the overview ruling of the Hoge Raad [Supreme Court] of 21 March 2017 ECLI:NL:HR:2017:463), the opinion on the question whether the requested extradition should be refused based on the unfounded presumption that, when allowing the request, the demanded person will be exposed to an impending violation of his fundamental right, as referred to in, inter alia, Article 3 ECHR, is reserved for the Minister. Should, however, be established that in the case, in which the extradition of the demanded person was requested, there is evidence of an accomplished violation of his fundamental right, the extradition court should declare the requested extradition inadmissible.

From the aforementioned case-law follows that the judgment of an appeal to an impending violation of Article 6, Paragraph 1 ECHR and/or Article 14, Paragraph 1 of the International Convention on Civil and Political Rights (hereinafter: ICCPR), is generally not up to the extradition court. An exception to this is possible, if examination of the extradition request at the trial following a sufficiently substantiated defence establishes ( a) that the demanded person following his extradition shall be exposed to the risk of a flagrant violation of any right he is entitled to based on said stipulations of the convention, and (b) that, after his extradition, no legal remedy, as stipulated in Article 13 ECHR respectively Article 2, Paragraph 3, introduction and under (a) ICCPR will be available to him with regard to this violation. From the ruling of the European Court of Human Rights, however, does not follow a quick exposure to a risk of a flagrant violation of Article 6, Paragraph 1 E CHR.

In general, the extradition court does not get around to assess an appeal on an accomplished violation of Article 6 ECHR, since only after the trial in the requesting country it may be established whether the violation of human rights is not (no longer) liable to restoration or compensation.

Although the extradition court, therefore, can merely make a judgment about an appeal on an accomplished violation of Article 3 ECHR and an impending flagrant violation of Article 6 ECHR, the arguments about an (impending) violation of Article 3 or 6 ECHR may prompt the extradition court to express any opinions in the context of the advise to the Minister, as laid down in Article 30 UW.

Given the above, the appeal on Article 3 ECHR made on behalf of the demanded person can not leas to the conclusion that extradition is to be declared inadmissible, since an accomplished violation of Article 3 ECHR is not the case.

On behalf of the demanded person an appeal on Article 6 ECHR was also made. It is stated that it is a real risk that the guarantees provided by the Rwandan authorities will not be complied with in practice. Referral is made to the report of mr. M.R. Witteveen of 3 June 2015, in which it is concluded – in short – that suspects of genocide in Rwanda will not be given a fair trial and will not be able to get an adequate legal representation. The District Court believes that – given a ruling of the The Hague Court of Appeal on a similar extradition to Rwanda (ECLI:NL:GHDHA:2016:1924) – it can not be concluded based on the content of this report that in the event of an extradition of the demanded person to Rwanda, there is a real risk of flagrant violation of Article 6 ECHR. Neither can it be concluded by virtue of the examples provided on behalf of the demanded person, in which there would (maybe) be a violation of the right to a fair trial. The District Court notes in that context that the majority of these examples relate to a different type of cases, which do not fall under the so-called Transfer Law. This is balanced by the fact that proceedings that do take place under the Transfer Law, including the criminal cases against two people who were extradited to Rwanda by the Netherlands at an earlier stage. In relation to those two criminal cases, the Kenyan Sector of the International Commission of Lawyers (hereinafter: ICJ Kenya) release monitoring reports on an annual basis. These monitoring reports don’t show any direct indications for a justified fear of an impending flagrant violation of Article 6 ECHR regarding the demanded person. The District Court, therefore, comes to the conclusion that no impending flagrant violation of Article 6 ECHR has been disclosed.

In addition, it can not be established that no legal remedy, as laid down in Article 13 ECHR, against a possible violation of the right to a fair trial, is available. The mere position that jurisdiction in Rwanda is not independent and the (not substantiated) position that rulings of the African Court on Humans and People’s Rights are disregarded by Rwanda, do not automatically mean that it must be concluded that there is no effective legal remedy, particularly since proceedings are now being monitored under the Transfer Law. The appeal is, therefore, dismissed.

Insofar as was argued on behalf of the demanded person that the principle of proper administration of justice implies that the (possible) criminal prosecution of the demanded person must take place in The Netherlands and not in Rwanda, the District Court notes that it is not up to the extradition court to judge this. Since, in such a judgment the chances of an impending flagrant violation of Article 3 ECHR must also be involved, which is not subject to any judgment by the extradition court.

4.9

Finally

During the hearing, nothing was put forward by or on behalf of the demanded person that the District Court considers to be an obstacle for the admissibility of the requested extradition; in addition, the District Court has not officially come across any such obstacle either.

5 The applicable articles of treaties and articles of law

The following articles of treaties and articles of law are applicable on the decision:

- Articles 5, 18, 26 and 28 UW;

- Articles 1 and 2 of the WOO;

- Articles II, III and VII of the Genocide Convention;

- Article 48 of the Dutch Criminal Code;

- Articles 3 and 4 of the International Crimes Act.

6 Decision

The District Court:

Declares the extradition to the Rwandan authorities of said [demanded person] for the purpose of prosecution for the offences, as set out in the affidavit produced by the Rwandan authorities, admissible.

This ruling was issued by:

mr. M.T. Renckens, President,

mr. E.J. van As, Judge,

mr. F.W. van Dongen, Judge,

in the presence of mr. M.R. Ekkart, Clerk.

and delivered in the public hearing of this District Court on 23 May 2019.

District Court The Hague

Criminal law

Extradition Chamber

Reference no. UTL-I-2010023570
Chamber Ref. No. 19/1282

Advise on extradition for the Minister of Justice and Security

The Extradition Chamber of the District Court The Hague, declares

in its ruling of today, 23 May 2019, the extradition to Rwanda of:

[demanded person],

born on [DOB] in [POB] (Rwanda),

residing in [place of residence],

currently detained in the remand prison ‘Alphen aan den Rijn’ in Alphen aan den Rijn,

hereinafter: the demanded person,

admissible.

Hereby, we send you a certified copy of this ruling. The District Court advises you to include the following information in your considerations on the decision whether the extradition can actually be allowed.

The Rwandan authorities have issued guarantees for a fair trial. These are codified in, inter alia, Article 14 of the Transfer Law, which applies to the present case. The trial is, by virtue of the Transfer Law, carried out by a special chamber of the High Court in Kigali. In addition, the Transfer Law has certain procedural guarantees, such as immunity for the defence lawyers who support a suspect in this type of cases. The suspected and convicted under the regime of the Transfer Law persons undergo their custody or and imprisonment respectively in separate (sections of) penitentiary facilities, especially set up for them.

Two persons were extradited to Rwanda at an earlier stage by The Netherlands, i.e. [naam] and [naam] for the purpose of a trial under the said Transfer Law. The Rwandan criminal cases against these persons have not yet been completed; however, the Kenyan Sector of the International Commission of Lawyers (hereinafter: ICJ Kenya) have issued annual monitoring reports. The District Court advises you – in the event that you allow the requested extradition of the demanded person – to have the trial in the present case also be monitored and to make the monitoring reports available to the public.

In addition, the Rwandan authorities have issued a guarantee in relation to access to medical care for the demanded person. According to the documents in the dossier, the demanded person needs permanent medical treatment, consisting of - inter alia – access to very specific medication. The guarantee of the Rwandan authorities does relate to medication; however, it is currently not clear to the District Court whether this meets the requirements to be met by the treatment of the demanded person. The District Court advises you, therefore, to make sure that the demanded person will get sufficient adequate medical care in Rwanda, both during the criminal proceedings that will take place over there and afterwards. The District Court notes, perhaps unnecessarily, that failure of the required medical care for the demanded person may lead to a violation of Article 2 or 3 ECHR.

This advise was given on 23 May 2019 by:

mr. M.T. Renckens, President,

mr. E.J. van As, Judge,

mr. F.W. van Dongen, Judge,

in the presence of mr. M.R. Ekkart, Clerk.