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ECLI:NL:RBDHA:2021:10294

Instantie
Rechtbank Den Haag
Datum uitspraak
30-04-2021
Datum publicatie
21-09-2021
Zaaknummer
20/3145 (vertaling)
Rechtsgebieden
Strafrecht
Bijzondere kenmerken
Eerste aanleg - meervoudig
Inhoudsindicatie
Vindplaatsen
Rechtspraak.nl
Verrijkte uitspraak

Uitspraak

THE HAGUE DISTRICT COURT

Criminal law

Extradition Chamber

Reference UTL-I-2013003808

Chamber No. 20/3145

The District Court of The Hague, Extradition Chamber, renders the following judgment on a request of the Rwandan authorities for the extradition of:

[Person claimed],

born on [Date of birth] in 1949 [Place of birth] ( [Country of birth] ), living in [Domicile] ,

currently detained in the Penitentiary Institution [PI Address],

hereinafter referred to as: the person claimed

Preliminary Consideration

As the court will consider hereinafter, the Surrender of War Crime Suspects Act (inter alia) is applicable to the request (hereinafter: WOO). To avoid confusion in this judgment, the

Court will not use the term ‘surrender’, but ‘extradition’.

In practice the term ‘surrender’ appears to be exclusively associated with requests for legal assistance between the Netherlands and international courts and the requests for legal assistance within the European Union. Requests for legal assistance with countries outside the European Union whereby it is requested to transfer persons from the jurisdiction of one State to the jurisdiction of another State is usually referred to as ‘extradition’. Therefore, the court will maintain this term in this judgment.

1 The request for extradition and the documents submitted

1.1

The request for extradition

By letter of 15 September 2015, the Rwandan authorities sent the Ministry of Justice and Security of the Netherlands a certified request in English, dated 7 September 2015, for the extradition of the person claimed for the purpose of criminal prosecution (hereinafter also:

the R equest for extradition).

According to the aforementioned request, the person claimed is suspected of involvement in the genocide in Rwanda.

By letter of 5 July 2016 from the Minister for Justice and Security (hereinafter: the Minister) to the Public Prosecutor of the National Public Prosecutor's Office in Rotterdam, it was requested that Rwandan’s request for extradition of the person claimed be considered.

1.2

The documents submitted by the requesting State

The aforementioned request is accompanied with and/or the aforesaid Request contains the following:

• a certified copy of a warrant issued for the arrest of the person claimed by the competent Authority of the requesting State, relating to the offences for which extradition is requested, dated 11 October 2012;

• a statement of the offences for which the extradition is requested;

• the text of the applicable legal regulations in which the offences to which the suspicion relates are punishable, as well as legal regulations relating (inter alia) to the nonapplicability of the prescription of the right to prosecute, jurisdiction and competence of the Courts;

• documents with regard to the identity of the person claimed and his nationality;

• various guarantees with regard to the rights of the person claimed;

• a description of the course of the proceedings and possibilities of appeal in Rwandan criminal law;

• witness statements translated into English;

• three judgments of the Rwandan Tribunal.

1.3

The other documents

The extradition file also contains the following documents:

• documents relating to the arrest and extradition detention of the person claimed;

• the written demand of the Public Prosecutor of the National Public Prosecutor's Office in Rotterdam and Acting Public Prosecutor in The Hague, registered with the court on 26 October 2020, for the purpose of dealing with the aforementioned request for extradition, as well as containing the order for detention in custody of the person claimed;

• an extract from the Criminal Record System of 16 April 2021, concerning the person claimed;

• the letter from the Legal Advisers with enclosures, dated 11 January 2021;

• the e-mail messages from the Public Prosecutor of 15 January 2021 and 18 January 2021;

• the written position of the Public Prosecutor, (with enclosures) submitted at the hearing on 22 January 2021;

• the written pleading (with enclosures) from the Legal Advisers of the person claimed, submitted at the hearing on 22 January 2021;

• the records of the hearings of 22 January 2021, 28 January 2021, and 4 March 2021;

• the written summary from the Public Prosecutor, submitted at the hearing on 16 April

2021, containing his opinion regarding the admissibility of the Request for extradition;

• the written pleading (with enclosures) from the Legal Advisers of the person claimed, submitted at the hearing on 16 April 2021.

The contents of the request

According to the Request for extradition, the Rwandan Authorities intend to prosecute the person claimed for the following offences, described in the Request for extradition as

“charges” and in the Arrest warrant as “counts”;

i. genocide (count 1) ii. complicity in genocide (count 2), iii. conspiracy to commit genocide (count 3), iv. murder as a crime against humanity (count 4),

v. extermination as a crime against humanity (count 5), vi. violation of common Article 3 of the Geneva Conventions (count 6), vii. leading and participating in a criminal organization whose purpose is to:

do harm to persons or goods (count 7).

According to the Request for extradition, the offences were committed from 6 April up to and including 4 July 1994 in the [Place where the offence was committed] in Rwanda.

The requesting State bases this suspicion on the following facts. The person claimed was an employee of the [Company] and owner of a [Company]. In addition to this, he was also a member of the political party [Name]. On 8 April, together with [Name] he ordered the killing of [Name], who worked with them at the [Company]. Furthermore, that day, with another colleague, they prepared a list of Tutsis who lived in [Place] and this list was provided to the Interahamwe militia in order to kill the persons on the list. In addition, he participated in several attacks on Tutsis, including an attack on three girls in [Place], an attack in which many Tutsis were killed in a house in [Place] and in offices of the Rwandan Red Cross in [Place]. Together with Interahamwe militias, he formed a criminal group with the purpose of attacking people and goods.

The Court has established that in the brief description of the charge on page 3 of the Arrest warrant of the person claimed, the charges against him are (partly) numbered and/or named differently than subsequently actually set out and described under the counts of page 17 of the Arrest warrant. In that statement of facts they refer to the same counts as the charges mentioned in the Request for extradition. The court assumes that the brief description is based on a mistake.

3 The court hearing

3.1

The proceedings

The court hearing was held in public on 22 January 2021, 28 January 2021, 4 March 2021, and subsequently (for the hearing on the merits)) on 6 April 2021. There the request for extradition was announced as well as the content of the above-mentioned documents stated to under 1.

The person claimed, who appeared at the hearing - and assisted by his Legal Advisers F.T.C. Dölle, LLM and G. Sluiter, LLM - stated that he is the person mentioned in the Request for extradition, that he only has the Rwandan nationality and that he opposes the requested extradition.

On behalf of the Public Prosecution Service Prosecutors A. J. van Dooren, LLM and A.M.A.F. Vos appeared,

3.2

The position of the person claimed

On behalf of the person claimed, it has been argued that the extradition should be declared inadmissible. This is a matter of an imminent flagrant violation of Article 6 of the ECHR. The human rights situation in Rwanda has deteriorated severely since 2019, as evidenced by a large number of critical reports. The monitoring reports on persons previously extradited by the Netherlands to Rwanda show that a violation of Article 6 of the ECHR exists.

Finally, the specific situation of the person claimed clearly exposes him to a flagrant violation of Article 6 of the ECHR, against which no effective legal remedy is available. Moreover, the extradition is in violation of Articles 2 and 3 of the ECHR and Article 10 of the Extradition Act.

3.3

The opinion of the Public Prosecutors

The Public Prosecutor concluded that the request for extradition must be declared admissible except for the purpose of prosecution with respect to count 7 (charge vii). For the rest, the formal requirements have been met. It can be assumed on the basis of the guarantees given by Rwanda, and the Rwandan Transfer Law that the person claimed will receive a fair trial in Rwanda.

Where necessary, specific positions of the requested person and the Public Prosecutors will be discussed in more detail below.

4 Assessment of the admissibility of the requested extradition

4.1

The Extradition Act (hereinafter: UW) provides for various grounds for refusing extradition. Besides, additional grounds are often included in multilateral and bilateral treaties. The person claimed can invoke those provisions directly in the extradition procedure. In the Netherlands, however, there is a strict separation of the powers of the extradition Judge on the one hand and the Minister on the other. It is up to the extradition Judge to decide on the admissibility of the extradition, whereas the Minister is to decide whether the request will be granted (although he is bound by the decision of the extradition Judge as to whether the extradition is inadmissible). This implies that not all grounds for refusal provided by the UW and the treaties are subject to the judgment of the extradition Judge.

The extradition Judge, insofar as not already ensued from the UW, is only competent to decide on grounds for refusal if this does not require an assessment of the political situation and the administration of justice in the requesting State, requiring access to sources of information closed to the Court, there is no need to negotiate about additional guarantees, if any, and no considerations need to be made in which policy choices play a role. The assessment framework of the extradition Judge is therefore many times more limited than that of the minister. However, the extradition Judge can advise the Minister on all aspects in an advice to the decision.

The Court will take the above as starting points in assessing the extradition request. Insofar as relevant, it will further discuss the division of powers between the Minister on the one hand and the extradition Judge on the other, in response to the defences presented. Insofar as reference was made on behalf of the person claimed to foreign extradition proceedings, the Court notes that The Netherlands is one of the few countries to have such a division of powers. As a result, decisions in foreign proceedings - certainly when based on a different legal system - cannot or can hardly be compared with the criteria the extradition Judge in The Netherlands can include in the judgment.

4.2

Applicable Laws and Treaties

In addition to the WOO and the UW, the Convention for the Prevention and Punishment of Genocide (hereinafter: Genocide Convention), concluded in Paris on 9 December 1948, shall apply. The Court finds, ex officio, that the Genocide Convention in itself does not provide a treaty basis for extradition with regard to crimes against humanity or violation of common Article 3 of the Geneva Conventions. However, the Court reads the facts set out under counts 4 up to and including 6 as part of and in conjunction with the body of facts set out with regard to counts 1 up to and including 3. As decided by the Court, the Genocide Convention therefore provides an adequate treaty basis for extradition except for what is noted about this hereinafter with regard to charge vii, referred to as count 7 in the Arrest warrant.

4.3

Sufficiency of the documents

The request was made in writing and sent directly to the Minister. In accordance with Article 18 of the UW, the request was accompanied with the required documents referred to under 1.2. The documents show that the person claimed is suspected of having committed genocide, complicity in and conspiracy to commit genocide, murder and extermination as a crime against humanity, war crime and forming, leading and participating in a criminal organization with the purpose of doing harm to persons or goods, committed in the period from 6 April 1994 up to and including 4 July 1994 in [Place] the Republic of Rwanda, as referred to above under 2. In the extradition procedure, it is not up to the court to examine whether there is sufficient substantiation for that suspicion. The documents are therefore sufficient.

Under charge vii (count 7) the following is described: Formation, membership, leadership and participation in association of a criminal gang whose purpose and existence is to do harm to people or their property. The Court considers this body of facts so vaguely described that the Court can only qualify it as participation in an organization whose purpose is to commit crimes, punishable under Article 140 of the Dutch Criminal Code.

Because this description is so concise, it leads to the judgment that there is no treaty basis for extradition with regard to the body of facts under charge vii (Count 7). As a result, the Court agrees with the Public Prosecutors and the Defence that the extradition cannot be declared admissible with regard to this part of the suspicion. Superfluously, the Court notes that this offence is statute-barred under Dutch law in any case.

4.4

Double criminality and penalty with custodial sentences of at least one year

Pursuant to Article 5, first paragraph, preamble and under a of the UW, extradition can only be allowed if, under both the law of the requesting State and the law of the Netherlands, a custodial sentence of at least one year can be imposed for the offence of which the person claimed is suspected. This requirement has been met now that both under Dutch law and Rwandan law this is a matter of a sentence of several years

4.5

Ne bis in idem and lapse of time

Extradition of the person claimed is not permitted pursuant to Article 9 of the UW for an offence in respect of which - in short - the person claimed is prosecuted or was prosecuted in The Netherlands and retrial is excluded under Dutch law or for an offence that is statutebarred. According to an extract from the Judicial Documentation System of 16 April 2021 concerning the person claimed, there is no such situation of prosecution in the Netherlands, nor is there any lapse of time under Rwandan or Dutch law.

4.6

Prosecution for a political offence

Pursuant to Article 11 of the UW, extradition does not take place for criminal offences of

political nature, including related offences. There are no clues for that. Perhaps unnecessarily, the Court notes that in Article VII of the Genocide Convention it is expressly determined that in the event of extradition, genocide is not considered a political crime.

4.7

7 Obvious innocence

Extradition must be waived if the requested person can indicate without delay that he is not guilty of the offences for which extradition has been requested. It can only be a matter of obvious innocence if the defence of the person claimed - and the substantiation with documents, if any, - shows that the person claimed could not have materially 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, without delay - i.e. without an in-depth investigation similar to that in the criminal proceedings itself - comes to the conclusion that there is no suspicion of guilt. The person claimed must be able to demonstrate, on the basis of evidence to be submitted by him, that the suspicion is based on a mistake, for example because of a mistaken identity or an indisputable alibi.

The person claimed has taken the position that he is innocent of what he is accused of in Rwanda. However, This position is in no way concretely substantiated. On behalf of the person claimed, it has been argued that he saved several Tutsis and that he, because he [company] worked, could not be present at roadblocks. The Court considers this insufficient. Given the nature of the suspicion, which also includes participation in and conspiracy to commit genocide, physical absence is not a contraindication for the suspicion. Statements, too, that the person claimed saved several people do not automatically exclude that he was involved in genocide. The conclusion of the Court is that the person claimed did not immediately demonstrate his innocence of the accusation made by the requesting State.

4.8 (

Imminent) violation of fundamental human rights

In principle, in extradition cases, the decision should be based on the trust that the requesting State will respect the relevant fundamental rights in the prosecution and trial of the person claimed (cf. Supreme Court of 8 July 2003, ECLI:NL:HR: 2003:AE5288). According to fixed case law of the Supreme Court (see the summary judgment of the Supreme Court of 21 March 2017, ECLI:NL:HR:2017:463), the judgment on the question whether the requested extradition should be refused due to a well-founded suspicion that, if the request is granted, the requested person will be exposed to an imminent infringement of his fundamental rights as referred to, inter alia, in Article 3 of the ECHR, is reserved to the Minister. However, if it is established that the case for which the extradition of the person claimed has been requested constitutes a completed infringement of his fundamental rights, it is the extradition Judge who must declare the requested extradition inadmissible.

Furthermore, the above case law shows that also the judgment regarding an appeal of an imminent violation of Article 6, paragraph 1, of the ECHR and/or Article 14, paragraph 1, of the International Covenant on Civil and Political Rights (hereinafter: ICCPR), usually does not lie with the extradition Judge. There may be an exception to this if it is established during the hearing of the request for extradition with reference to a defence sufficiently substantiated: a) that the person claimed, as a result of his extradition, will be exposed to the risk of a flagrant infringement of any right he is entitled to pursuant to these treaty provisions, and b) that after his extradition with regard to that infringement there will be no legal remedy available to him as referred to in Article 13 of the ECHR or Article 2, paragraph 3, preamble and under a of the ICCPR. However, from the case law of the European Court of Human Rights, it does not follow quickly that it is a matter of exposure to the risk of a flagrant infringement of Article 6(1) of the ECHR.

In case of a request for extradition for the purpose of criminal prosecution, the extradition Judge cannot decide on an appeal to a completed violation of Article 6 of the ECHR, because it can only be established after the trial in the requesting State whether the human rights violation is not (or no longer) susceptible for recovery or compensation. Incidentally, this is different in the case of a request for extradition for the purpose of criminal execution, in which case the extradition Judge indeed has to decide whether it is a matter of a completed flagrant violation of Article 6 of the ECHR and/or Article 14, paragraph 1of the ICCPR.

Although, in this case, the extradition Judge, can only decide on an appeal to a completed violation of Article 3 of the ECHR, an imminent flagrant violation of Article 6 of the ECHR in the case of a prosecution extradition, what has been argued about an (imminent) violation of Article 3 or 6 of the ECHR does constitute grounds for the extradition Judge to express views, if any, in the advice to the Minister as referred to in Article 30 of the UW.

In view of the above, the appeal made on behalf of the person claimed cannot lead to the conclusion that the extradition must be declared inadmissible. After all, it is not a matter of a completed violation of Article 3 of the ECHR, nor has it been argued as a ground for declaring the extradition inadmissible. In addition, on the basis of the file currently available, it cannot be established that it is a matter of an imminent flagrant violation of the right to a fair trial as referred to in Article 6 of the ECHR, nor that no legal remedy is available to the person claimed as referred to in Article 13 of the ECHR. the ECHR is at the service.

In that regard, the Court finds the following. The Court points to HR 17 June 2014, ECLI:NL:2014:1441. In short, the Supreme Court ruled in that case that in view of the guarantees given in the request for extradition by Rwanda, in which the Court had seen a sufficient guarantee that the person claimed will get a fair trial in Rwanda, the mere circumstance that the right to a fair trial is not laid down in an extradition treaty does not automatically invalidate the principle of legitimate expectations. Furthermore, the Supreme Court recalled in that judgment that, on the basis of its assessment under Article 6 of the ECHR, the Court can only declare extradition inadmissible if it appears that the person claimed would be exposed to such a risk of a flagrant infringement of any of his rights as a result of his extradition in accordance with Article 6 of the ECHR, that the obligation on The Netherlands under Article 1 of the ECHR, to ensure that right, precludes the obligation ensuing from that applicable treaty to extradite. The applicable treaty in that case was also, like here too, the Genocide Treaty.

Furthermore, the so-called Transfer Law applies to the present case, which provides transferred cases with the necessary guarantees. As a result of the principle of legitimate expectations, the Court must assume that the requesting State – Rwanda – will comply with the guarantees given in the Request extradition to ensure a fair trial against the person claimed.

Those guarantees, referred to in the Request for extradition as Fair Trial Guarantees, are identical to the guarantees given in the case that led to the aforementioned judgment of the Supreme Court. In the present case, too, the Court generally sees those guarantees as a sufficient guarantee for a fair trial.

This can only change if there are serious reasons to assume that the requesting State will not properly fulfil its obligations in the present case. A defence based on this must be sufficiently substantiated. In that context the Defence argued that the person claimed – despite the guarantees given by Rwanda – will be exposed to a flagrant infringement of his rights under Article 6 of the ECHR as a result of his extradition. Where the Netherlands currently does not surrender to a country such as Poland, it would be incomprehensible that extradition to Rwanda is considered permissible, given the risk of a flagrant violation of Article 6 of the ECHR. This risk has been substantiated by the arguments that the general human rights situation in Rwanda has deteriorated severely at the moment and makes a fair trial impossible, that it constitutes a politically motivated prosecution and that it constitutes a fabricated suspicion against the person claimed.

Now that the Court must assess each extradition case on its own merits, it considers the reference to a refusal of a surrender to Poland irrelevant for the judgment of the present case.

The Court concluded that on behalf of the person claimed it is insufficiently substantiated in which way the general human rights situation in Rwanda in this specific case will lead to an imminent flagrant violation of Article 6 of the ECHR in his case. The Court concludes that the reports referred to by the Defence show an alarming picture of the general human rights situation in Rwanda.

On the other hand, however, the Transfer Law is applicable to the present extradition containing the guarantees, which is not (always) the case in the cases mentioned in the reports. The monitoring reports of ICJ Kenya in the cases of persons previously extradited by the Netherlands to Rwanda ( [name] and [name] ), contrary to what the Defence suggests, that there are no direct indications that there is a fear of an imminent flagrant violation of Article 6 of the ECHR in the case of the person claimed. The monitoring reports show that there are obstacles with regard to, inter alia, financing, the possibilities to visit the suspects in connection with Covid-19 and delays in the procedure. However, the Court does not find that the overall course of events constitutes a flagrant infringement of the right to a fair trial. In addition, in this regard the Court considers that an appeal as referred to in Article 13 of the ECHR is available.

The Court finds that the existence of politically motivated prosecution is insufficiently concretely substantiated. The mere statement that the person claimed had contacts with the opposition in the past is insufficient for this. The same applies to the statement that the alleged threat against [name] does not necessarily lead to the conclusion that the person claimed himself could not get a fair trial. In addition, the extradition request does not relate to political offences, so that the person claimed will not be extradited for this and can be prosecuted.

The Court sees no indications in what the Defence has put forward, in particular with regard to the official message of 26 June 2012 in the aliens case of the person claimed, that there is a fabricated suspicion against the person claimed.

The appeal is therefore dismissed.

4.9

In conclusion

Insofar as argued on behalf of the person claimed that the principle of proper administration of justice means that prosecution, if any, must take place in the Netherlands, the Court considers that this is not at the discretion of the extradition Judge.

Other defences which have been put up and relate to Articles 2 and 3 of the ECHR, an imminent violation of Article 6 of the ECHR and Article 10 of the UW are also not subject to judgment by the extradition Judge.

At the hearing nothing to such an effect was put forward by or on behalf of the person claimed, that the District Court should see this as an impediment to the admissibility of the requested extradition, while, ex officio, the District Court has neither not found such impediment.

5 The applicable articles of treaty and law

The following articles of treaty and law apply to the decision:

  • -

    Articles 5, 18, 26 and 28 of the UW;

  • -

    Articles 1, 2 and 6 of the War Crimes Surrender Act;

  • -

    Articles II, III, IV of the Genocide Convention; - Articles 48 and 57 of the Dutch Criminal Code; - Articles 2, 3 and 4 of the International Crimes Act.

6 Decision

The District Court:

declares admissible the extradition to the Rwandan authorities of the aforementioned [Person claimed] for the purpose of criminal prosecution in respect of the aforementioned counts 1, 2, 3, 4, 5 en 6 (in the documents described as charges i, ii, iii, iv, v and vi) under 2;

declares inadmissible the extradition to the Rwandan authorities of the aforementioned [Person claimed] for the purpose of criminal prosecution in respect of the aforementioned count 7 (in the documents described as charge vii) under 2.

This decision was issued by:

E.A.G.M. van Rens, LLM

President,

A.M.A. Keulen, LLM

Judge,

M.T. Renckens, L LM

Judge,

in the presence of F. Kok, LLM

Court Clerk,

and pronounced at the public hearing of 30 April 2021 of this District Court.