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Eerste aanleg - meervoudig
DISTRICT COURT IN THE HAGUE
Criminal Law Section
Case no. 14/428
The Extradition Chamber of the District Court in The Hague renders the following judgment following a request from Rwanda for the extradition of:
[the person claimed],
born on [date of birth] 1959 in [place of birth],
living in [address],
currently detained at [the Penitentiary Institution],
hereinafter to be referred to as the person claimed.
As the Court will consider hereafter, the Surrender of War Crime Suspects Act1 is (amongst others) applicable to the request. To prevent confusion, in this judgment the Court will not use the term “surrender” but “extradition”. After all, according to current Dutch interpretation of law, the term surrender is reserved for legal assistance between the Netherlands and international courts and the legal assistance within the European Union. Legal assistance to countries outside the European Union, whereby a request is made to bring persons from the jurisdiction of one country to the jurisdiction of another, is usually referred to as extradition, so that the Court will use this terminology.
1 The extradition request.
In a letter dated November 22, 2012, the Rwandese Ministry of Foreign Affairs, through the intermediary of the Embassy of the Kingdom of the Netherlands in Rwanda, requested the Dutch authorities to extradite the person claimed for the purpose of prosecution.
2 The documents submitted.
With respect to this request, the following documents were submitted:
a letter in the English language from the Rwandese Ministry of Foreign Affairs to the Embassy of the Kingdom of the Netherlands in Kigali, Rwanda, dated November 22, 2012, containing the request to forward this letter to the competent judicial authorities in the Netherlands, which included:
an international arrest warrant in the English language, file reference number RPGR 1074/GEN/NM/SJB, dated November 8, 2012, for the arrest and extradition of the person claimed for the purpose of prosecution; the international arrest warrant includes an introduction, the historical context of the genocide in Rwanda, information about the territorial and material jurisdiction concerning the accusations, personal details of the person claimed, the accusations and explanations of the facts (in the arrest warrant referred to as the factual basis);
an indictment in the English language of November 8, 2012 with respect to the person claimed including a summary of the crimes the person claimed is accused of in Rwanda, the announcement that in Rwanda the death penalty has been abolished, guarantees regarding human rights and the right to a fair trial such as the right to examine (incriminating) witnesses and the right to remain silent, information regarding independent and impartial justice in Rwanda, information about the appeal possibilities, a summary of prior extraditions to Rwanda from other states and the assignment of cases by the ICTR to Rwanda, guarantees with respect to the circumstances of detention and legal assistance;
a Court record of interrogation of the person claimed, drawn up under solemn affirmation on January 23, 2014 by public prosecutor T. Berger;
a letter from the National Prosecutor’s Office2 dated February 11, 2014, including an appendix with relevant Rwandese legislation in the Kinyarwanda, English and French language;
a criminal record concerning the person claimed, dated February 27, 2014;
a letter from the National Prosecutor’s Office dated June 3, 2014 with an appendix that includes seven folders from the Mandorla investigation with the title ICTR, PV’s + index, IND folders I through III, documents from the digital seizure folders I and II and documents from the physical seizure folder I;
a letter from the Rwandese Ministry of Justice dated June 3, 2014, with appendices containing information about two mandats d’amener;
a letter from mr. R. Heemskerk dated June 12, 2014, also on behalf of mr. T. Felix and mr. J. Flamme, which includes the announcement that documents will be submitted and that the person claimed will also be represented by J. Flamme, lawyer in Ghent;
a letter from mr. R. Heemskerk dated June 16, 2014, also on behalf of mr. T. Felix and mr. J. Flamme, with appendices that include documentation concerning the situation in Rwanda, a referral to five open sources and ten witness statements;
a letter from mr. R. Heemskerk dated June 20, 2014 and submitted during the hearing of June 24, 2014, also on behalf of mrs. T. Felix and J. Flamme with appendices that contain four witness statements, including the one from [witness], two investigation reports and a referral to two open sources.
3 Miscellaneous documents.
During the hearing of the Extradition Chamber of March 6, 2014, the defense submitted written notes with eight appendices. From this hearing, a Court report was made.
During the hearing of the Extradition Chamber of June 23, 2014, the Public Prosecution Department submitted a written summary with an appendix containing its view on the admissibility of the extradition.
During the hearing of the Extradition Chamber of June 24, 2014, the defense submitted written pleadings with 29 appendices, as well as the appendices which had already been sent in a letter on June 20, 2014.
During the hearing of the Extradition Chamber of June 26, 2014, the Public Prosecution Department submitted written notes with appendices including the reaction of the Metropolitan Police Service concerning the security situation of [witness].
During the hearing of the Extradition Chamber of June 27, 2014, the defense submitted written notes with three appendices.
4 Description of the request.
The Court understands that extradition is requested for the facts mentioned in the international arrest warrant, as referred to above under I.A. Herein, the person claimed is accused of being guilty of the following crimes committed during the period of April 7 through July 14, 1994:
Complicity in genocide;
Conspiracy to commit genocide;
Murder as a crime against humanity;
Extermination as a crime against humanity;
Violation of article 3 common to the Geneva Conventions;
Formation, membership, leadership and participation in an association of a criminal gang whose purpose and existence is to do harm to people or their property.
The accusation that the person claimed has committed these crimes is substantiated as follows by the requesting state. The person claimed was Secretary-General of the Coalition pour la Défense de la République (the CDR-party). Between April and July 1994, he, together with others who were or were not members of the so-called Interahamwe militias, participated in planning, preparing and executing the killing or seriously wounding of Tutsis in the commune Nyamirambo, the commune Nyarugenge, the secteur Nyakabanda, Kimisagara, Biryogo and other parts of Kigali, with the intent to destroy this racial or ethnic group in whole or in part and has also violated article 3 of the Geneva Conventions. The person claimed is specifically accused of having committed the following crimes:
I) On April 8, 1994, he held a meeting in his home in the secteur Nyakabanda, he determined which road blocks would have to be manned and he incited Interahamwe militias to trace Tutsis and to kill them;
II) During this meeting, he and [person 1] drew up a list of Tutsis who were living in Nyakabanda after which he gave this list to the Interahamwe militias. This list included the names of, amongst others, [victim 1], [victim 2] (a driver), [victim 3], [victim 4] and dr. [victim 5], all Tutsis who subsequently were found and killed by Interahamwe militias;
III) During this meeting, he and [person 1] asked Colonel [person 2] for weapons. On April 11, 1994, he was supplied with weapons which he passed on to the Interahamwe militias who subsequently used them at the road blocks against fleeing Tutsis;
IV) On April 8, 1994, he and [person 1] participated in the killing of their ex-colleague [victim 3], a Tutsi who was shot dead at their instruction by [person 8];
V) He participated in many attacks on Tutsis, including the attack behind the office of the secteur Nyakabanda, from where he lead an attack on the home of [victim 6] where three girls were taken away and killed. He was also identified during an attack in which many Tutsis were killed in the home of a certain [person 3] in Nyakabanda II and in the offices of the Red Cross in Nyakabanda;
VI) On May 25, 1994, together with others, he carried out an armed robbery at the home of [person 4], whereby nobody was killed;
VII) He also participated in large scale massacres in the commune Nyarugenge, the secteurs Nyamirambo, Kimisigara, Biryogo and Nyakabanda and other parts of Kigali;
VIII) During the [person 5] and [person 6] regime, he disseminated the genocidal ideology among Hutus that Tutsis were their common enemy, thus inciting the masses to genocide;
IX) Between April and July 1994, he intently kept on collaborating with the political parties of that time, leaders of the Interahamwe and other civil and military authorities, despite of his knowledge of the foreseeable consequences.
5 The examination in Court.
During the hearings on March 6 and June 23, 24, 26 and 27, 2014, the Chairman of the Court announced the extradition request as well as the contents of the documents as mentioned above under 2.
The person claimed appeared at the hearing and was represented by his lawyers mrs. R. Heemskerk, lawyer in The Hague, T. Felix, lawyer in Amsterdam and J. Flamme, lawyer in Ghent. He has stated that he is the person referred to in the extradition request, that he is exclusively of Rwandese nationality and that he objects to the requested extradition. During the hearing, the person claimed and his lawyers put forward a defense, which will be discussed in more detail below.
In its summary, as mentioned under 3., the Public Prosecution stated that it deems the requested extradition admissible.
6 Determination of the admissibility of the requested extradition.
Applicable to the request are:
The Extradition Act;
the Surrender of War Crime Suspects Act;
The Convention on the Prevention and Punishment of Genocide (Trb. 1960, 32) (hereinafter: the Genocide Convention).
With respect to the adequacy and sufficiency of the documents, the Court considers as follows. On behalf of the person claimed it has been stated that the documents regarding count 4 – “murder as a crime against humanity” – are insufficient now that it is not clear where and when the alleged actions of the person claimed took place, so that already on this ground, the Court should declare the extradition inadmissible with respect to this count.
The Court does not follow this plea. It follows from the description of count 4 that this concerns the same material facts as referred to in counts 1 through 3 as well as 5 and 6, which do mention where and when these facts allegedly were committed. In view thereof the Court may and shall include these times and places in the facts under count 4, which means that the documents submitted by the requesting party with respect to count 4 meet the requirements included in article 18, third paragraph under b, of the Extradition Act.
Also for the remaining part, the documents are in compliance with article 18 of the Extradition Act, although the facts under (IX) have been described so vaguely, that the Court can only qualify them as participation in an organization which has the aim to commit crimes, made punishable under article 140 of the Dutch Criminal Code.
The consequence of this scantiness of the factual description is that there is no treaty basis for extradition with respect to the facts under (IX) and therefore fact 7, i.e. the “formation, membership, leadership and participation in an association of a criminal gang whose purpose and existence is to do harm to people or their property”. The missing treaty basis must lead to the conclusion that with respect to this part of the suspicion, the extradition cannot be declared admissible. It may be noted here, that according to Dutch law this fact is barred.
Regarding the other facts, as referred to under 4., the Genocide Convention offers the treaty basis now that it is clear, without further investigation, that these fall within the terms of the following criminal provisions in force in the Netherlands:
(I through V and VII through VIII) Genocide, punishable under article 3 of the International Crimes Act;
(VI) Attempted genocide, punishble under article 3 of the International Crimes Act in conjunction with article 45 of the Dutch Criminal Code.
Under Rwandese law, these facts are punishable with a term of imprisonment of more than one year. According to the Dutch legal provisions, the facts are also punishable with a term of imprisonment of more than one year.
During the court hearing, the defense was made on behalf of the person claimed that in case of extradition for genocide the principle of legality will be violated, since in 1994, genocide was not yet punishable in Rwanda. The Court rejects this plea. According to established case law of the European Court of Human Rights, this principle is not violated in case of punishment for a crime that was punishable under international law at the time it was committed.3 Not only did Rwanda join the Genocide Convention on April 16, 1975, but even prior to this, genocide was punishable under international customary law, according to established case law.4
Furthermore, on behalf of the person claimed it was pleaded that in 1994 in Rwanda, there was no planned genocide and in fact no genocide at all in the legal sense. In established legislation of, among others, the ICTR, Dutch and foreign courts it has been established repeatedly – even recently – that a genocide took place in Rwanda in 1994 in the factual and legal sense.5 Therefore, this concerns a commonly known fact. In the opinion of the Court, the question whether there existed a (planning of) genocide prior to April 6, 1994, is not relevant for the assessment of the extradition request, since that refers to acts in the period from April 7, 1994 through July 14, 1994, for which it has commonly been established that the genocide had commenced in any case.
In connection to the above, the defense has argued that – now that no planned genocide nor a genocide in the legal sense took place – it has been proven immediately that the person claimed is not guilty. Since the Court does not follow the defense in their view with respect to the genocide in Rwanda, this plea can only be dismissed.
In addition, it has been stated on behalf of the person claimed on a more factual basis that his innocence can (also) be proven immediately because at the time the crimes blamed on him were committed, he was not in his home in Nyakabanda anymore, but elsewhere in Kigali or Rwanda.
It should be put first that according to established case law, an innocence claim is only sound if the Court immediately - i.e. without detailed investigation comparable to the one conducted in criminal proceedings - comes to the conclusion that there cannot be a suspicion of guilt. This means that the person claimed has to prove that the accusation as formulated by the requesting state is based on a mistake. He will have to substantiate such a claim with evidence immediately. In this respect one should particularly think of the plea that the person claimed actually could not have committed the facts, for example because he has an indisputable alibi or he is the victim of demonstrable mistaken identity.
The witness statements submitted by the person claimed, to the extent that these state that in April 1994 he had already left his secteur, and here it should be noted that the person claimed has made different statements in this regard before the IND,6 do not plainly exclude his involvement in the crimes he has been accused of, already because of the fact that he is also accused of participation in and conspiracy to commit genocide, for which his physical presence is not required. Apart from the fact that the witness statements referred to, including the investigation conducted by [person 9], do not plainly exclude that the person claimed could have committed the crimes for which extradition is sought, an investigation into the possible reliability of those statements transcends the task of this Extradition Chamber. This means that the Court has come to the conclusion that the person claimed has not proven immediately that he is not guilty of the crimes he is accused of by the requesting state.
In so far as the defense has made a conditional request for a stay of the proceedings in order to discuss the matter in more detail with [person 9] and thereby substantiate the innocence of the person claimed, the following applies. The Court understands that this request was made in case the Court would deem the submitted documents insufficient to come to the conclusion that the innocence of the person claimed has been established immediately. The Court dismisses this conditional request, with reference to the considerations expressed above under 6.9.2 with respect to the innocence claim within the scope of extradition cases.
On behalf of the person claimed the plea was made that in absence of a bilateral extradition treaty between Rwanda and the Netherlands and in absence of the protection of the Convention for the Protection of Human Rights and Fundamental Freedoms (hereinafter: ECHR) it may not be assumed that the principle of legitimate expectations is applicable to this extradition procedure. This would imply that the Court has to examine in full whether the person claimed will receive a fair trial in Rwanda.
In the assessment of the plea, the Court principally refers to HR 17 June 17, 2014, ECLI:NL:2014:1441.7 Concisely rendered, in this case, the Supreme Court ruled that in view of the guarantees provided in the extradition request by Rwanda, which the District Court had deemed a sufficient safeguard to guarantee a fair trial in Rwanda for the person claimed, the single circumstance that the right to a fair trial has not been laid down in an extradition treaty does not plainly render the principle of legitimate expectations inoperative. Furthermore, in that ruling the Supreme Court repeated that the judge, based on his verification against article 6 ECHR, can only declare the extradition inadmissible if it becomes apparent that the extradition would expose the person claimed to such a risk of a flagrant violation of his rights to which he is entitled pursuant to article 6 ECHR, that the obligation resting with the Dutch State to secure that right pursuant to article 1 ECHR, will hinder the obligation to extradite as laid down in the applicable treaty. The applicable convention in aforementioned case was - as in present case - the Genocide Convention.
To this case the Transfer Law is also applicable, which provides ample guarantees in transferred cases. As a consequence of the principle of legitimate expectations the Court must assume that the requesting state – Rwanda – shall comply with the guarantees provided in the extradition request which secure a fair trial regarding the person claimed. Those guarantees, expressed in the extradition request under “Fair Trial Guarantees”, are equal to the guarantees provided in the case that has lead to abovementioned ruling of the Supreme Court. Also in the present case, the Court is of the opinion that those guarantees in general provide a sufficient safeguard for a fair trial.
This can only change if there are serious reasons to believe that the requesting state will, in the present case, not properly comply with the obligations resting with that state. Such a plea must be substantiated sufficiently. In this respect, the defense has argued that – despite the guarantees provided by Rwanda – the extradition will expose the person claimed to a flagrant violation of the rights he is entitled to under article 6 ECHR. This risk is substantiated with the arguments that a) the current general human rights situation in Rwanda makes a fair trial impossible, b) prosecution would actually tantamount to a political trial, c) there is a fabricated suspicion against the person claimed, d) the principle of legality will be violated and e) there will be no possibility for the person claimed to be represented by an independent lawyer.
However, to the judgment of the Court it has not been sufficiently substantiated on behalf of the person claimed in which way the general human rights situation in Rwanda will lead to a flagrant violation of article 6 ECHR in this specific case. In this respect the Court does not see how the threat against [witness] could lead to the conclusion that the person claimed would not receive a fair trial, also because of the fact that such threats have never been made in his direction. It is already for this reason that the Court dismisses the conditional request for a stay of proceedings, to the extent that it had been requested in order to be able to conduct further investigation into the threat of [witness].
Furthermore, the Court sees no reason to assume that the person claimed is a political target and therefore must fear for a political trial. In the IND interrogations, statements of the person claimed and his activities within FEDERMO, the providing of new
passports by the Rwandese regime and the date of the extradition request, the Court sees no indications for a fabricated suspicion against the person claimed. On top of this, the extradition request does not comprise political offenses, so that the person claimed will not be extradited and could not be prosecuted for such offenses.
Now that the Court has already considered that the principle of legality will not be violated in case of extradition of the person claimed, this plea does not provide a reason to assume a imminent flagrant violation of article 6 ECHR.
Although the Court, as the defense, deems it likely that within Rwandese society there are negative reactions towards lawyers who defend genocide suspects, it sees no reason to assume that in this specific case this will lead to the impossibility for the person claimed to be represented by a professional lawyer. The Transfer Law offers immunity for the remarks of counsel. The Special Enclosure will be remodeled in such a way that it will include space for confidential consultation between suspects and their lawyers.
The Court deems the Uwinkindi and Munyagishari trials relevant for the present case. After all, in these cases the Transfer Law is also applicable and the accusations also concern involvement in the 1994 genocide. In the observation reports of the Mechanism for International Criminal Tribunals in the Uwinkindi and Muyagishari cases, the Court has seen that there were some obstacles to the right to a fair trial, such as the right to financed legal representation. Although the expenses are not always paid adequately, the Court believes that the advance conclusion that in these cases there is a flagrant violation of the right to a fair trial is not justified. After all, money has actually been paid to lawyers and legal representation as such is available. This means that the proceedings in the Uwinkindi and Munyagishari cases do not justify the conclusion either that in the present case there would be a serious risk to such a violation. The Court judges that the arguments mentioned under a) through e), either by itself or in conjunction, do not lead to the conclusion that there is an imminent flagrant violation of article 6 ECHR.
During court hearing, the plea was made on behalf of the person claimed that his extradition will expose him to the risk of torture. Therefore, according to the defense, the extradition should be refused based on article 3 ECHR and article 3 of the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment. It is up to the Minister of Security and Justice and not up to the Court to form an opinion with respect to a possible imminent risk of torture. In this respect the Court may only judge the question whether a violation of these provisions has already taken place in connection with the facts for which extradition is requested. That this would be the case in the current situation has not been pleaded.
Also the pleas with respect to violation of article 10 of the Extradition Act and the imminent violation of article 6 ECHR and article 8 ECHR are at the discretion of the Minister of Security and Justice.
During court hearing, nothing was put forward by or on behalf of the person claimed that would represent an impediment to the Court for the admissibility of the requested extradition, while on its own initiative, the Court has not observed any such impediment either.
7 The applicable treaty- and law articles.
Besides the articles already mentioned, the following articles are applicable:
article 57 of the Dutch Criminal Code;
article 12 of the Extradition Act;
articles 1 paragraph 2 sub a and 2 of the Surrender of War Crime Suspects Act;
articles II, III and VII of the Genocide Convention.
- declares inadmissible the extradition to the Republic of Rwanda of abovementioned [the person claimed] for the purpose of prosecution for the facts IX as aforementioned under 4., as described under Count 7 in the documents aforementioned under 2.;
- declares admissible the extradition to the Republic of Rwanda of abovementioned [the person claimed] for the purpose of prosecution for the facts I through VIII, as aforementioned under 4., as described under Count 1 through 6 in the documents aforementioned under 2..
This judgment was delivered by:
mr. Renckens, Chairman,
mrs. Van As and Meessen, Judges,
in presence of mr. Van Zeeland, Court clerk,
and pronounced at the public hearing of this Court on July 11, 2014.
[End of translation]
1 In Dutch: Wet overlevering inzake oorlogsmisdrijven (translator’s note)
2 In Dutch: Landelijk Parket van het Openbaar Ministerie (translator’s note)
3 ECHR, Šimšić v. Bosnia and Herzegovina, 10 April 2012, Application No. 51552/10 (para. 23)en ECHR, Maktouf and Damjanović v. Bosnia and Herzegovina, 18 July 2013, Application Nos. 2312/08 and 34179/08 (para. 55)
4 ICJ, Reservations to the Convention on the Prevention and Punishment of Genocide, Advisory Opinion, 28 May 1951, 1951 ICJ Reports p. 23; ICTR, Prosecutor v. Kayishema and Ruzindana, Trial Chamber Judgement, 21 May 1999, Case No. ICTR-95-1-T (para. 88); ICTY, Prosecutor v. Jelisić, Trial Chamber Judgement, 14 December 1999, Case No. IT-95-10-T (para. 60); ICTY, Prosecutor v. Krstić, Trial Chamber Judgement, 2 August 2001, Case No. IT-98-33-T (para. 541)
5 ICTR, Prosecutor v. Akayesu, Trial Chamber Judgement, 2 September 1998, Case No. ICTR-96-4-T; ICTR, Prosecutor v. Bizimungu, Appeals Chamber Judgement, 30 June 2014, Case No. ICTR-00-56B-A
6 In Dutch: Immigratie- en Naturalisatiedienst (translator’s note)
7 A judgment of the Supreme Court of the Netherlands (translator’s note)