ECLI:NL:RBDHA:2022:12271

Uitspraak

District Court of The Hague

Criminal Law

Extradition chamber

Reference UTL-I-2012050151
Chamber number 22/1073

The District Court of The Hague, extradition chamber, delivers the following judgment on a request from the Rwandan authorities for extradition of:

[Name of the wanted person]

born in [place of birth] on [date of birth],

at present detained in the penitentiary institution [place].

Preamble

As the court will hold hereinafter, the request is governed (inter alia) by the Act on Surrender in respect of War Crimes (hereinafter called: WOO). In order to avoid confusion the District Court will not use the term "surrender" but "extradition". In practice the term surrender appears to be linked exclusively to the legal assistance transactions between the Netherlands and international courts and the legal assistance transactions within the European Union. Legal assistance transactions with countries outside the European Union in which the request is made to transfer persons from the jurisdiction of one state to the jurisdiction of another state, as is relevant to this case, tends to be referred to as "extradition". Therefore the court will use this terminology in this judgment.

1.The request for extradition and the documents submitted

1.1

The request for extradition

By letter of 10 October 2012 the Rwandan Ministry of Foreign Affairs delivered to the Dutch embassy in Rwanda an arrest warrant for [wanted person's name]. By letter of 10 May 2022 the Minister of Justice and Security (hereinafter called: the Minister) asked the National International Legal Assistance Centre (LIRC), which is part of the National Public Prosecutor's Office of the Public Prosecution Service, to handle the request for arrest made by Rwanda if the Dutch nationality no longer forms an obstacle for this.

On 11 May 2022 [wanted person's name] was arrested. By letter of 24 May 2022 the Rwandan authorities sent the Ministry of Foreign Affairs an authenticated request, dated 23 May 2022, for extradition of [wanted person's name] (hereinafter called: the wanted person) for the purpose of prosecution (hereinafter also called: the extradition request). According to the extradition request the wanted person is suspected in Rwanda of involvement in the genocide in Rwanda.

By demand of 1 June 2022 the public prosecutor with the National Public Prosecutor's Office demanded that the District Court of The Hague should handle the extradition request.

1.2

The documents submitted by the requesting state

The extradition request is accompanied by and/or the extradition request includes the following:

an authenticated copy of a warrant for the arrest of the wanted person issued by the authorities of the requesting state empowered to do so, dated 3 October 2012, relating to the facts for which extradition is requested;
an exposition of the facts for which the extradition is requested;
the text of the applicable legal regulations in which the facts to which the suspicion refers have been made punishable, and also legal prescriptions that (inter alia) refer to the jurisdiction and competence of courts and to the inapplicability of expiry of the limitation period for prosecution;
documents in connection with the identity of the wanted person and his nationality;
several guarantees in connection with the rights of the wanted person;
testimonies of witnesses in the English translation;
information concerning the progress of the limitation period.

1.3

The other documents

Furthermore the following documents are included in the extradition file:

an extract from the Judicial Documentation of 10 June 2022, concerning the wanted person;
documents in connection with the temporary arrest and the extradition detention of the wanted person;
the written demand of the public prosecutor of The Hague of 1 June 2022 for handling the said extradition request, and also comprising the demand for imprisonment of the wanted person;
the written pleading (with annexes) of the counsel of the wanted person, submitted at the session of 29 June 2022;
the official report of the session of 29 June 2022;
the decision on correction of 20 July 2022;
the public prosecutor's e-mail messages of 20 June 2022, 27 June 2022, 7 July 2022 and 16 October 2022;
the counsel's e-mail messages of 7 June 2022, 10 June 2022, 27 June 2022, 28 June 2022, 4 July 2022 and 11 October 2022;
the appointment of and order to Prof. Dr. F.L.A.C. Reyntjens as expert by the examining magistrate of 21 July 2022;
a report, drawn up by the said Prof. Dr. F.L.A.C. Reyntjens of 5 September 2022;
the written opinion about the admissibility of the extradition request and the summary of the public prosecutor in The Hague, submitted at the session of 19 October 2022;
the written pleading of the counsel of the wanted person, submitted at the session of 19 October 2022, with annexes.

1.4

The contents of the extradition request

The facts of which the wanted person is suspected in Rwanda were committed according to the extradition request in the period from 6 April 1994 to 14 July 1994 or thereabouts in Rwanda. This suspicion is based by the requesting state - in summary - on the following facts.

Between 1 October 1990 and 14 July 1994 there was a civil war between the Rwandan government troops and the Rwandan Patriotic Front, resulting in the murder of hundreds of thousands of Tutsi, committed with the intention to destroy this ethnic group. During that genocide of the Tutsi in 1994 the wanted person was a major in the Gendarmerie in Kigali. The suspicion reads that the wanted person in that capacity was involved in the murders in Mugina Commune in Gitarama Préfecture (hereinafter called: Mugina) and in Kigali.

The wanted person allegedly delivered weapons to the militias that murdered more than 30,000 Tutsi in a parish in Mugina. He allegedly also chaired a meeting in which plans were made to carry out two attacks on Tutsis on 25 April 1994. The wanted person allegedly had taken part in these attacks himself, with his security and militias that he controlled. Furthermore the wanted person is suspected of the execution of the mayor of Mugina, Ndagijimana Callixte, prior to the attacks.

The wanted person allegedly also participated in burning alive more than eighty Tutsis who had survived the attacks. For the purpose the wanted person allegedly delivered petrol and supervised the burning of the Tutsis.

The suspicion is furthermore that the wanted person had trained and armed
interahamwemilitias in Kigali and had led them in murdering Tutsis at different roadblocks in Kigali. On 7 June 1994 in Nyamirambo, a suburb of Kigali, the wanted person had allegedly been involved direct in a mass murderer there, together with two others.

Furthermore the wanted person allegedly formed, trained and equipped and led, together with others,
interahamwemilitias - criminal groups whose object was to harm people and goods and were responsible for the majority of the murders between April and July 1994.

According to the extradition request the Rwandan authorities intend to prosecute the wanted person for the following facts, described in the extradition request as
"charges":

genocide;

conspiracy for committing genocide;

complicity in genocide;

murder as a crime against humanity;

extermination as a crime against humanity;

violation of Common Article 3 of the Geneva Conventions;

creating, being a member of, leading and participating in a criminal organization that has the object to cause harm to persons and their properties.

The court notes that the
Indictmentattached to the extradition request is based on the same facts but does not speak of "charges", but "counts", while in that document a different order is also used (facts 2 and 3 are reversed, just like facts 4 and 6). The court will stick to the order and numbering of the "charges" in the extradition request.

2.The investigation at the session

2.1

The hearing

The investigation at the session was held - after a relevant request of the wanted person - behind closed doors on 29 June 2022 and in public on 19 October 2022. At the session notice was given of the extradition request and also of the contents of the documents mentioned above under 1.

The wanted person, who appeared at the session and was assisted by his counsel Mrs
MeesterB. van Straaten, declared that he is the person mentioned in the extradition request, that he does not have the Dutch nationality and that he resists the requested extradition.

Appearing on behalf of the Public Prosecution Service were the public prosecutors
MeesterM. Blom and
MeesterE.M.A.F. Vos (hereinafter jointly called: the public prosecutor).

2.2

The position of the wanted person

On behalf of the wanted person the request has been made to declare the extradition inadmissible. For the purpose it has been advanced that a basis for extradition on convention law is lacking, in so far as the extradition request refers to crimes under ordinary law, to violation of Common Article 3 of the Geneva Conventions and to crimes against humanity.

Furthermore it has been advanced that the innocence of the wanted person has clearly appeared with regard to the murder of Mayor Callixte Ndagijimana and the killing of the survivors from the parish in Mugina, as described in the extradition request.

Finally it has been advanced that there is a threat of flagrant violation of article 6 of the European Convention for the Protection of Human Rights and Fundamental Freedoms (hereinafter called: ECHR), because of the absence of an independent court in Rwanda, the absence of effective legal assistance in genocide cases and the use of statements

obtained under duress in criminal cases. On behalf of the wanted person for the sake of substantiation reference has been made to a number of public sources such as reports of Human Rights Watch, the monitoring reports in the criminal case against Paul Rusesabagina and newspaper articles or other public publications.

Finally it has been advanced that no effective legal remedy will be available to the wanted person in the event of a flagrant violation of article 6 of the ECHR.

2.3

The position of the public prosecutor

The public prosecutor has concluded that the extradition request must be declared admissible, except for fact 7 because for that fact a basis for extradition under a convention is lacking.

The public prosecutor has taken the position that the position on behalf of the wanted person with regard to the threat of flagrant violation of article 6 of the ECHR has been insufficiently substantiated. The case of the wanted person will be tried on the basis of the Rwandan Transfer Law, which provides several guarantees for a fair trial. On this basis it may be relied on that the wanted person will receive a fair trial. None of the monitoring reports in cases of persons extradited by the Netherlands to Rwanda before under the Transfer Law offers any reference point that the right to a fair trial will be violated.

Where necessary specific views of the wanted person and the public prosecutor will be discussed in more detail below.

3.Assessment of the admissibility of the requested extradition

3.1

Applicable laws and conventions

The extradition request is governed, alongside the WOO and the Extradition Act (hereinafter called: UW), by the Convention on the Prevention and Punishment of the Crime of Genocide concluded on 9 December 1948 in Paris (hereinafter called: Genocide Convention). Both the Netherlands and Rwanda are parties to the Genocide Convention. Article VII of the Genocides Convention entails that the contracting parties undertake to grant requests for extradition, in accordance with their laws and the conventions applicable to them.

Decisive for the question whether the Genocide Convention in this case offers the required convention basis for extradition under Dutch law is the statement of the facts on which the requesting state has based the extradition request. The interpretation of those facts is reserved for the court.

The court believes that the facts 1 through 3, in view of the complex of facts set out by the requesting state, represented in the
Indictmentattached to the extradition request may be regarded as genocide, just as the requesting state has done. Therefore the Genocide Convention offers the required convention basis for these facts..

Facts 4 and 5 in the extradition request are regarded by the requesting state as murder and extermination as a crime against humanity; fact 6 as a violation of Common Article 3 of the Geneva Conventions.

Differently than for genocide it is not required for crimes against humanity and violation of Common Article 3 of the Geneva Conventions that the fact has been committed with the intent to destroy, in whole or in part, a national, ethnic, religious group or a group that is part of a specific race, as such, as this is described in article II of the Genocide Convention.

The court reads the facts 4, 5 6, however, as part of the complex of facts stated in the
Indictment. In the statement of the facts it has been explicitly included that these facts have been committed against Tutsis, with the intent to destroy this ethnic group in whole or in part as such. That means that these facts, as part of that complex of facts, may be regarded not only as crimes against humanity (facts 4 and 5 ) or violation of Common Article 3 of the Geneva Conventions (fact 6) but also - in view of the definition contained in article II of the Genocide Convention - as genocide.

The court therefore believes that for these facts in principle the Genocide Convention also offers a sufficient convention basis for extradition.

With regard to the crime under ordinary law mentioned in the documents under fact 7, participation in a criminal organization, the court believes that the convention basis is lacking for extradition. For that reason the court will declare the extradition for this fact inadmissible.

3.3

Adequacy of the documents

The request has been made in writing and has been sent direct to the Minister. The request is accompanied by the required documents mentioned under 1.2 in conformity with section 18 of the UW. From the documents it follows that against the wanted person the suspicion exists that he has been guilty of genocide, complicity in and conspiracy for genocide, murder and extermination as a crime against humanity, and of war crimes, committed in the period from 6 April 1994 to 14 July 1994 in Kigali and Mugina, Rwanda.

In the extradition proceedings it is not up to the court to test whether there is sufficient substantiation for that suspicion. However, the documents must form a proper basis for the court to test the substrate of facts against the conditions for extradition. In that way the most accurate description of the circumstances of the facts possible offers the court an opportunity to examine whether the facts are punishable under Dutch law.

On page 23 of the extradition request in the explanation of the
"facts"for substantiation of the violation of Common Article 3 of the Geneva Conventions three qualifications or listings of the conduct forbidden according to that article are included, namely:

“
Attacked, killed civilians placed "hor[s] de combat"(out of fight)
Inflicted wounds and outrageous torture upon personal dignity, in particular humiliating and degrading treatment”
.

The qualifications under the first and third hyphens, in so far as reference is made to
outrages upon personal dignity, have not been described in more detail ("factualized"). In the description of the
"factual basis for count 1"the court cannot discern any description of the circumstances of these punishable facts either. The court therefore believes that the explanation of the reproached violation of Common Article 3 of the Geneva Conventions (fact 6), first and third hyphens, is inaccurate in the statement of the fact and the place and/or the time at which this was allegedly committed and that the documents in the extradition request are therefore inadequate. Therefore the court cannot test whether the conditions for extradition, including the double punishability, have been met. For that reason the court will declare the extradition for this fact inadmissible to that extent.

The documents with regard to the second hyphen of fact 6 and with regard to facts 1 through 5 are adequate in the opinion of the court, because the extradition request contains a sufficiently accurate mention of fact, place and time to that extent.

3.4

Double punishability and threat of punishment with custodial sentences of at least one year

In pursuance of article 5 (1), beginning and under (a) of the UW extradition can only be permitted if the facts are punishable both under the law of the requesting state and under the law of the Netherlands and a custodial sentence of at least one year can be imposed for the punishable act of which the wanted person is suspected. It is enough that the Netherlands would be able to prosecute in a factually comparable situation with regard to a same punishable act.

With regard to the facts 1 through 5 and fact 6, second hyphen, the court believes that the requirement of double punishability has been met, because these facts are punishable both under Dutch law and under Rwandan law and there is a threat of punishment of several years.

3.5

Ne bis in idem and limitation period.

In pursuance of section 9 of the UW extradition is not permitted for a fact in respect of which - in summary - the wanted person is prosecuted or has been prosecuted in the Netherlands and renewed prosecution under Dutch law is excluded, or for a fact for which the limitation period has passed. According to an extract from the Judicial Documentation of 10 June 2022 concerning the wanted person there is no question of such a situation. Neither has the limitation period for the facts expired under Rwandan or Dutch law.

3.6

Obvious innocence

Extradition must not be effected if the wanted person can prove immediately that he is not guilty of the facts for which the extradition has been requested. It can only be a matter of obvious innocence if it follows from the defence of the wanted person - and any substantiation thereof with documents - that the wanted person
cannot possiblyhave committed the facts for which his extradition is requested. In that connection it must be stated at the outset that an allegation of innocence will only have effect if the court immediately - that is to say without a thorough investigation comparable to that in the criminal action itself - reaches the conviction that there can be no question of a suspicion of guilt. The wanted person must be able to prove, on the basis of documentary evidence to be submitted by him, that the suspicion is based on error, for instance because it is a matter of mistaken identity or an incontestable alibi.

The wanted person has taken the position that he is innocent of what he is accused of. In support of this he has referred to the judgment of the Department of Administrative Justice of the Council of State of 11 May 2022 in the action following the decision of the secretary of state of justice and security to withdraw his Dutch nationality (ECLI:NL:RVS:2022: 1267). In that judgment it was held - in summary - that there are tangible connecting points for doubt of the correctness of the matters contained in an individual official notice of the Minister of Foreign Affairs about the part of the wanted person in the kidnapping and killing of survivors of the attack in Mugina in May and June 1994, the murders in the Parish of St. Famille in June 1994, the attempted murder of refugees in the Gisimba Orphanage on 2 July 1994 and the murder of mayor Callixte Ndagijimana.

In the opinion of the court this does not lead to the conclusion that it has become established that the wanted person
cannot possiblyhave committed those facts, if they even form a basis for the extradition request . After all, the fact that there are connecting points for doubt does not mean that there cannot be any question of a suspicion of guilt. In the opinion of the court the wanted person has not immediately proven his innocence in any other way either.

3.7

Threat of violation of fundamental human rights

The wanted person has argued that there are facts and circumstances that cast doubt on the judicial independence and impartiality in Rwanda in cases against political opponents. In brief the most far-reaching defence amounts to it that according to the wanted person there is political interference in trials against political opponents in Rwanda. The wanted person has alleged that he may be regarded as a political opponent. For that reason there would be a question of a threat of flagrant violation of his right to a fair trial, against which no effective legal remedy would be available to him after his extradition.

3.7.1

Legal framework

The starting point in extradition cases is that the assessment of an extradition request based on a convention relationship must be based in principle on the trust that the requesting state will respect the fundamental rights relating to the prosecution and conviction of the wanted person (see Supreme Court 16 June 2014, ECLI:NL:HR:2014:1441, and Supreme Court 21 March 2017, ECLI:NL:HR:2017:463). There is an exception to this starting point, however, if during the hearing of the extradition request it has become established at the session in connection with a sufficiently substantiated defence that as a result of his extradition the wanted person will be exposed to the risk of a flagrant infringement of any [apparent omission, TN] him in pursuance of article 6(1) of the ECHR, and that no legal remedy, as referred to in article 13 of the ECHR, will be available to him after his extradition with regard to that infringement.

In pursuance of article 6(1) of the ECHR everyone is entitled, in the determination of the validity of a prosecution instituted against him, to a fair and public hearing of his case within a reasonable time by an independent and impartial tribunal established by law . In short, this concerns the right to a fair trial.

From the case law of the European Court for Human Rights (hereinafter called: ECtHR) it follows that it will not quickly be a matter of exposure to the risk of a flagrant infringement of article 6(1) of the ECHR. According to the ECtHR a flagrant violation of the right to a fair trial is synonymous to a trial that is manifestly contrary to the provisions or principles formulated in article 6 of the ECHR.^[1]

One of the most important rights that follow from article 6 of the ECHR is the right to a fair hearing of his case by an independent and impartial tribunal. That is an absolute right from which no derogation is possible.^[2]Violation of that right is manifestly contrary to the provisions and principles formulated in article 6 of the ECHR and consequently produces a flagrant violation of article 6 of the ECHR in the opinion of the court.

3.7.2

Application of the legal framework in this case

Sources about (the prosecution of) political opponents in Rwanda

To prove his allegation that the judicial independence and impartiality in Rwanda in cases against political opponents must be doubted, the wanted person has drawn attention to several public sources. According to the wanted person those sources show that the oppression of (presumed) political opponents or critics of the Rwandan authorities has increased in the last few years.

The picture that emerges from the sources quoted by the wanted person agree with the contents of other public sources such as country notices and reports on human rights. In particular the court has taken note of the following sources.

The thematic official notice on human rights and justice in Rwanda from 2016 of the Ministry of Foreign Affairs includes that in theory jurisdiction in Rwanda is independent but that according to sources there is political influence on trials involving military personnel, members of the political opposition or rich businessmen.^[3]

The Ministry of Foreign Affairs of the United States included in a country report about human rights in Rwanda from 2021 that national and international observers mentioned that the outcome in prominent genocide cases, cases about state security and politically sensitive cases appears to be established beforehand.^[4]

For the Universal Periodic Review about Rwanda in 2021 the council of Human Rights of the United Nations expressed it concerns in connection with the reports of unlawful intervention in the administration of justice by government officials and the procedure for the appointment of judges, which may possibly make judges susceptible of pressure from politicians.^[5]

In 2017 Human Rights Watch published a report about the arbitrary imprisonment and torture in detention centres of persons who are suspected of cooperating with enemies of the Rwandan government. If suspects or witnesses relate at court that they have been tortured, this is not investigated by the court.^[6]

In 2020 several observers reported to the Human Rights Council of the United Nations about irregularities in some politically motivated trials, about interference by executive powers in politically motivated cases and about the trampling of the rights of the defence in cases again critics of the government.^[7]

In March 2022 Human Rights Watch published that in 2020 and 2021 it had followed several trials in which political opponents, commentators and journalists were prosecuted for political reasons .^[8]

In June 2022 Human Rights Watch reported about the criminal case against Aimable Karasira, a prominent Rwandan commentator on YouTube, that Karasira had complained to the court about torture in prison, including sleep deprivation by means of light and loud music and mistreatment. The judges ordered no further investigation into the accusations.^[9]

In "The Rwandan" an article was published in 2020 about an operation of the Rwandan government called "Cleaning The West".^[10]In the article it is described that the purpose of this operation is to silence members of the opposition and human rights activists outside Rwanda. Mentioned as possible methods are poisoning, liquidating, kidnapping, issuing arrest warrants and discrediting persons.

Prof. Dr. F.L.A.C. Reyntjens, emeritus professor at Antwerp University, has reported as expert in the present case. When answering the question of the court whether and, if so, in which trials in Rwanda concrete indications exist that point at political interference, the expert states at the outset that the relevant distinction is not the reproached crime but whether the suspect can be regarded as a political opponent. He considers it unlikely that a political opponent will get a fair trial in Rwanda . In that respect the expert refers to the following examples.

- In 2021 Paul Rusesabagina was sentenced to imprisonment for the duration of 25 years for terrorism. The suspicion of initial acts followed after Rusesabagina had criticized the Rwandan regime and president Kagame openly . Under false pretenses Rusesabagina was transferred to Rwanda. The Rwandan Minister of Justice has confirmed that the plane in which Rusesebagina was flown to Rwanda had been rented for that purpose by the Rwandan government. He also confirmed that the rights of Rusesebagina to confidential communication with his lawyer was infringed during his detention. An American witness in the case against Rusesabagina was also a paid consultant for the Rwandan government, which was not taken into account in the judgment. President Kagame spoke about Rusesabagina's guilt several times before the judgment. Human Rights Watch called the trial “
flawed” and asserted that the trial showed that “
the Rwandan Courts are overpowered by political influence”.^[11]The European Parliament, the American Bar Association and the Belgian Minister of Foreign Affairs voiced criticism about the trial in the case against Rusesabagina.^[12]In its resolution the European Parliament stresses that Rwanda must guarantee the independence of the administration of justice. In the
Trial Monitoringin the case of Rusesabagina mention is made that Rusesabagina and his fellow suspects made statements under duress (tied by hands, feet and face) or torture, which was not investigated by the court. The statements were used by the Rwandan court as evidence.^[13]

- Victoire Ingabire Umuhoza was active in different Rwandan opposition movements including FDU-Inkingi. In 2010 is she was arrested in Rwanda on suspicion of complicity in terrorism and the distribution of the ideology of genocide. In 2013 she was sentenced to a prison term for a duration of 15 years for conspiracy against the Rwandan government by means of terrorism, violence, denial of the genocide and sedition. The African Court on Human and Peoples’ Rights (hereinafter called: the African Court) held in 2017 that the Rwandan government violated Ingabire's right to freedom of speech.^[14]On the day before the hearing of the case Rwanda withdrew its recognition of the power of the African Court.

- Rwanda is has been convicted several times for violations by the African Court but never implemented these convictions, which the then Junior Minister of Foreign Affairs, the current Rwandan ambassador in the Netherlands justified as follows in a tweet

in 2018: “
The rule of law is not to allow genociders or their accomplices to manipulate a human rights court to their profit”.

- Diane Rwigara stood as candidate for the presidential elections in Rwanda in 2017. The Rwandan government declared that Rwigara did not have enough signatures to stand as a candidate, after which she was arrested. According to the Human Rights Council of the United Nations the arrest and detention of Rwigara were arbitrary.^[15]In 2018 Rwigara was acquitted by the Rwandan High Court. The appeal of the public prosecutor against this acquittal was withdrawn on the instruction of the Rwandan Minister of Justice. The expert does not rule out a deal in this case, because after this judgment Rwigara ceased her political activities and no longer appears in public now. According to the expert this could point at political manipulation of the course of justice.

- The detention of two convicted Rwandan (former) military officers has been termed arbitrary by the UN Human Rights Council. The officers, Colonel Tom Byabagamba and retired brigadier general Frank Rusagara, had spoken out against president Kagame and were subsequently arrested and sentenced in 2016 to prison terms for durations of 20 and 21 years respectively. Several irregularities were mentioned about the procedure in the report of the Newman Rights Council. In that way the judge who rejected the request for bail allegedly acted as a witness against the accused later. One of the suspects was allegedly also sentenced by a military court for facts in a period in which he was a civilian. One of the witnesses later declared that he had been forced to make an incriminating statement. None of the accused was given opportunity to ask questions of the witnesses who made incriminating statements. On appeal the sentences were upheld.^[16]

Interim Conclusion

On the basis of the thematic official notice of the Ministry of Foreign Affairs, the American country report, the report of the Human Rights Council of the United Nations, the messages and reports of Human Rights Watch and the contribution of prof. dr. F.L.A.C. Reyntjens the court determines that there is widely shared doubt about the independence of the administration of justice in Rwanda in criminal cases against political opponents. Moreover several recent cases may be designated in which political opponents did not get a fair trial or in which there were irregularities. In particular reference can be made to the cases against Rusesabagina, Karasira, Byabagamba and Rusagara. In those trials defenses that touch upon the essence of the right to a fair trial, were ignored by the relevant judges without reasons. Reports and defenses that statements had been obtained under duress or torture were not investigated any further. The court views all this against the background of the image that emerges from the sources represented above, namely that (alleged) members of the opposition may have to deal with threats, kidnapping, disappearance and/or prosecution after they have spoken critically about the regime or have become politically active. Furthermore the operation “Cleaning the West” seems to indicate that the regime has made it an objective to silence members of the opposition outside Rwanda as well.

On the basis of the above issues, viewed in conjunction with one another, the court believes that there are objectively justified doubts about the judicial independence in Rwanda in the event of trials of some (prominent) political opponents of the regime, owing to the risk of political interference in such trials.

The wanted person as a political opponent

During the civil war in Rwanda the wanted person was an officer in the Rwandan army in the rank of major and he participated in the peace talks at the end of the civil war. After the civil war in Rwanda the wanted person emigrated to the Netherlands. According to his statement he afterwards remained on the radar of the Rwandan authorities: in 2003 he was approached by the Rwandan authorities in an attempt to persuade him to repatriate. The wanted person suspected that the purpose of this was that he could subsequently be used by the regime for political purposes in Rwanda. The wanted person refused this.

Since 2006 he has been politically active from the Netherlands with the political party Forces Democratiques Unifiées Inkingi (hereinafter called: FDU-Inkingi), an opposition party in Rwanda. The wanted person held two positions in FDU-Inkingi:
Commissioner for Information and Documentation(2006-2018) and
Commissioner for Discipline(2018-2022).

FDU-Inkingi has been called a terrorist organization by the Rwandan authorities government and is mentioned as one of the targets of the operation "Cleaning the West”. In Rwanda several members of FDU-Inkingi disappeared, were murdered or convicted in the last few years. In that way Illuminée Iragena disappeared in 2016 and her disappearance has not been investigated by the police. In 2017 seven members of FDU-Inkingi were arrested for forming an
irregular armed group.^[17]Human Rights Watch reports about intimidation, arbitrary imprisonment, and mistreatment of members of FDU-Inkingi in Rwanda.^[18]In January 2020 six members of FDU-Inkingi in Rwanda were sentenced to punishments between seven and twelve years because of
armed rebellion.^[19]

The court determines that in view of his active membership of FDU-Inkingi the wanted person can be regarded as a political opponent of the Rwandan regime. In addition he is a former high-ranking soldier and also remained of interest to the Rwandan government after his emigration. Only after the wanted person had become active in FDU-Inkingi, was an arrest warrant issued against him by the Rwandan authorities.

In the view of the court these circumstances create a real risk that in the event of extradition

the wanted person will have to deal with political interference in his trial and that in that case he will not be tried by an independent court.

The fact that the International Criminal Tribunal for Rwanda, as the public prosecutor has argued, permitted the transfer of suspects to Rwanda in 2011 and rejected defenses about the lack of a fair trial on that occasion does not change the above. The assessment of such defenses is made on the basis of the facts and circumstances of the case. In this specific case the court reaches a different opinion, also taking account of the capacity of the wanted person and the currently known more recent information about (the trying of) political opponents in Rwanda.

Conclusion

From the matters held above by the court it follows that it has been substantiated adequately that the wanted person will be exposed by his extradition to the risk of a flagrant violation of the right of a fair trial due to him in pursuance of article 6(1) of the ECHR.

As such it is correct that the trial of the wanted person in Rwanda is governed by the so-called Transfer Law.^[20]The Transfer Law contains guarantees for a fair trial of (among others) extradited persons in Rwanda. In the extradition request Rwanda has guaranteed that it will observe those guarantees. In the opinion of the court the guarantees from the Transfer Law in this case provide an insufficient safeguard to overcome the threat of flagrant violation of the right to a fair trial, because Rwanda has a very troubling recent history with regard to the prosecution and trying of political opponents of Rwanda's regime - as explained above.

Finally the courts believes that with regard to the flagrant violation no effective legal remedy is available to the wanted person. In so far as the wanted person could use a legal remedy against a possible conviction, the risk of political interference would also be present in a trial by a higher court in Rwanda, as has also appeared from the public sources and examples.

Consequently the court will declare the extradition of the wanted person inadmissible for all facts.

4.The extradition detention

It is incorporated in the system of the UW that a declaration of inadmissibility by the court does not simply mean the end of the extradition detention. After all, an appeal from the judgment of the court to the Supreme Court is available, so that the declaration of inadmissibility is not yet irrevocable. In that connection it must be remarked that the UW does not offer the possibility of ordering imprisonment as yet in the Supreme Court phase. In the opinion of the court the flight risk, which it recognized earlier, is fully present and therefore a reason to let the extradition detention of the wanted person continue. Ex officio the court sees no occasion for suspending the extradition detention of the wanted person. The flight risk can still not be overcome adequately by imposing conditions.

5.Decision

The court declares the extradition of the said wanted person to the Rwandan authorities inadmissible for the purpose of criminal proceedings as described in the extradition request.

This judgment has been given by:

MeesterE.A.G.M. van Rens, chairman,

MeesterJ. Snoeijer, judge,

MeesterB.W. Mulder, judge,

in the presence of
MeesterF. Kok, clerk of the court,

and pronounced at the public session of this Court of 9 November 2022.