ECLI:NL:RBDHA:2014:13742

• Datum uitspraak: 11 juli 2014
• Publicatiedatum: 12 november 2014
• Zaaknummer: UTL-I-2012058615 advies ENG
• Instantie: Rechtbank Den Haag
• Type: Uitspraak
• Rechtsgebied: Strafrecht
• Procedures: Eerste aanleg - meervoudig
• Rechters: J. Renckens; A. van As; M. Meessen
• Vindplaatsen: Rechtspraak.nl

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Advisering over de uitlevering van een verdachte aan Rwanda in een genocidezaak

Op 11 juli 2014 heeft de Rechtbank Den Haag in een uitleveringszaak geoordeeld over de aanvraag tot uitlevering van een verdachte aan Rwanda, die wordt verdacht van genocide. De rechtbank heeft de uitlevering gedeeltelijk toelaatbaar verklaard, onder voorbehoud van bepaalde garanties van de Rwandese autoriteiten. De rechtbank heeft aandacht besteed aan de relevante wetgeving, waaronder de Wet overlevering inzake oorlogsmisdrijven en de Uitleveringswet. De rechtbank heeft geadviseerd dat de Rwandese autoriteiten moeten garanderen dat de tijd die de verdachte in Nederland in detentie heeft doorgebracht, in mindering wordt gebracht op een eventuele gevangenisstraf in Rwanda. Daarnaast heeft de rechtbank de noodzaak benadrukt van garanties met betrekking tot de 'specialiteitsregel', die waarborgt dat de verdachte niet voor andere misdaden kan worden vervolgd dan waarvoor de uitlevering is verleend.

De rechtbank heeft ook de zorgen van de verdachte en zijn raadsman over mogelijke schendingen van artikel 3 van het Europees Verdrag voor de Rechten van de Mens (EVRM) in overweging genomen, met betrekking tot het risico op foltering of onmenselijke behandeling na uitlevering. De rechtbank concludeerde dat er onvoldoende bewijs was om te stellen dat de verdachte een reëel risico loopt op dergelijke schendingen, vooral gezien de garanties die Rwanda heeft gegeven voor een eerlijk proces. De rechtbank heeft ook de omstandigheden in Rwandese gevangenissen beoordeeld, maar vond geen reden om aan te nemen dat de verdachte in gevaar zou komen.

Verder heeft de rechtbank de argumenten van de verdachte over een mogelijk oneerlijk proces in Rwanda onder artikel 6 EVRM overwogen. De rechtbank merkte op dat Rwanda garanties heeft gegeven voor een eerlijk proces, maar dat er zorgen zijn over de financiering van de verdediging. De rechtbank heeft aanbevolen om de rechtsgang in de zaak te observeren en de rapporten openbaar te maken. Tot slot heeft de rechtbank geconcludeerd dat er geen redenen zijn om de uitlevering te weigeren op basis van artikel 8 en artikel 10 van de Uitleveringswet, aangezien er geen bewijs is van een discriminerende vervolging.

Uitspraak

DISTRICT COURT IN THE HAGUE

Criminal Law Section

Extradition Chamber

Reference UTL-I- 2012058615

Case no.: UTL-14/428

By judgment of today, July 11, 2014, the District Court in The Hague, rendering judgment in extradition cases, has declared the requested extradition to Rwanda of:

[the person claimed],

born on [date of birth], 1959 in [place of birth]

living in [address],

presently detained at [the Penitentiary Institution],

partly admissible. A certified copy of the judgment is herewith forwarded to you.

The Court has paid attention to article 4, first paragraph of the Surrender of War Crime Suspects Act ^[1] in conjunction with article 30, second paragraph of the Extradition Act.

The Court advises you to grant the extradition request referred to in that judgment, with due observance of the following.

1. Extradition detention.

The Court suggests that you make the Rwandese authorities guarantee that, should the person claimed be convicted to a temporary term of imprisonment for one or more of the crimes referred to in the extradition request, the time he spent in detention in the Netherlands prior to his extradition be deducted from that term of imprisonment.

2. Rule of speciality.

In the extradition file, the Court has not found any statement by the Rwandese authorities that the rule of speciality as in article 12 of the Extradition Act will be respected and advises you to claim guarantee in this respect.

3. Article 3 ECHR.

The person claimed and his counsel have argued that after his extradition he will run the risk of torture or other inhumane treatment because he, if found guilty of genocide, will run the real risk of being convicted to life imprisonment without any prospects of release or pardon. The Court has taken cognizance of the judgment of July 9, 2012, of the European Court for Human Rights in the case Harkins and Edwards against the United Kingdom (appl. nos. 9146/07 and 32650/07) in which the Court considers – concisely rendered – that the lack of proportionality of the sentence in extradition cases only in exceptional cases constitutes an infringement of article 3 of the Convention for the Protection of Human Rights and Fundamental Freedoms (hereinafter: ECHR). The Court considers that life imprisonment only constitutes an infringement of article 3 of the ECHR if no reasonable purpose of punishment is served by executing the sentence and when life imprisonment also really

means life imprisonment, de facto and de jure. Leaving aside that at present, the person claimed has not yet been tried, let alone that a sentence has been imposed on him, it cannot be said that a conviction to a life sentence would be a disproportional punishment
per se, since it concerns a suspicion of genocide. Therefore, in the arguments put forward, the Court sees no cause to advise you not to allow the extradition for reasons of imminent violation of article 3 ECHR.

Moreover, the Court has taken cognizance of the Organic Law no. 31/2007 of July 25, 2007, providing for the abolition of the death penalty. Article 3 of that Law stipulates that the death penalty be replaced by life imprisonment or life imprisonment with special provisions. For a person convicted to life imprisonment with special provisions, article 4 heading and paragraph 1. of that Law offers the possibility of pardon, amnesty, conditional release or rehabilitation in case the deprivation of liberty has at least lasted 20 years, while article 4 heading and par. 2 stipulates that the convicted person be held in solitary confinement. Pursuant to article 1 of the Organic Law no. 66/2008 of November 21, 2008, life imprisonment with special conditions may not be imposed in cases which have been transferred to Rwanda under the Transfer Law. The Court deems it hardly imaginable that there would not be the possibility of a pardon etc. for persons convicted to life imprisonment
without special conditions, but has observed that relevant statutory provisions to that regard are not included in the documents. Therefore, the Court suggests (like it did in the Iyamuremye case) to request information from the Rwandese authorities regarding the existence of such provisions.

In addition, the person claimed and his counsel have argued that when extradited, he will run the risk of torture, cruel or inhumane treatment or disappearance. The arguments put forward are that he has openly criticized president Kagame’s regime, has supported Mrs. Victoire Ingabire in her campaign against Kagame and, as the chairman of [organization], has drawn attention to the violation of human rights by the Kagame regime, thus drawing the attention of the regime to him. The person claimed has also pointed to recent attacks and threats against opponents of the current regime, in which that regime would have been involved and he has uttered his fear that he will suffer the same fate.

After his extradition, the person claimed will be prosecuted on the suspicion of genocide. Even if it has to be assumed that his criticizing the regime and his supporting Mrs. Ingabire have become known to the regime, for which the Court sees no clues, any relation between the suspicion of genocide and his being critical of the regime has not become apparent. Moreover, after his extradition, the person claimed will fall under the Transfer Law, also regarding his detention. In view of the above, the Court sees no reason to advise you to demand guarantees from the requesting state with respect to the safety situation of the person claimed.

Finally, within the scope of the article 3 ECHR-plea, the person claimed has drawn the attention to the bad quality of food in Rwandese prisons. Having to stay there without family to take care of food would mean starvation. In the observation reports by the Mechanism for International Criminal Tribunals in the Uwinkindi and Munyagishari cases, the Court has read that there were complaints about the food in the Special Enclosure of Kigali Central Prison, where the person claimed most probably will end up, but that in the meantime, those problems have been solved. Therefore, the Court sees no reason to advise you to demand guarantees from the Rwandese authorities in this respect.

4. Article 6 ECHR.

Furthermore, the person claimed and his counsel have argued that after his extradition, he will not receive a fair trial as referred to in article 6 ECHR. In this respect, the Court opines that there are insufficient grounds to deem the requested extradition inadmissible for reasons of an imminent flagrant violation of article 6 ECHR.

However, the Court wishes to draw your attention to the following.

As considered in the judgment, Rwanda has given guarantees for a fair trial. These have been codified in article 14 of the Transfer Law, which is applicable to the present case. The transfer to Rwanda of Jean Uwinkindi and Bernard Munyagishari by the International Criminal Tribunal for Rwanda (hereinafter: ICTR) have also taken place under this Law. However, their cases have not yet come to a conclusion at all. The Court has taken cognizance of observation reports published in these cases so far. These reports show that budgets for and payments of the defense are a regular point of serious discussion and negotiation. The detention circumstances seem to have been improved and the construction of two separate consulting rooms are underway, so that prisoners may consult their lawyers confidentially and without being disturbed.

The request by Uwinkindi for the withdrawal of the transfer order to Rwanda was dismissed by the Mechanism for International Tribunals on March 12, 2014, because, among other matters, negotiations about financial means for the defense were still going on. Munyagishari’s first request for the withdrawal of the transfer order was dismissed on March 13, 2014. Munyagishari’s second request for the withdrawal of the transfer order for lack of financial means for the defense and violation of the ‘equality of arms’ was also dismissed on June 26, 2014, because negotiations about these financial means are still ongoing and these matters may still be presented to the Rwandese courts
. The reports do show however that in particular the payment to lawyers is not plain sailing, but the conclusion that the defendants will be (fully) deprived from legal assistance, or run that risk, cannot be drawn.

Complaints that the right to remain silent was not respected or discouraged do not appear in the latest reports anymore. The Court does not believe that complaints about the lack of translations of trial documents or assistance from interpreters will be an issue in the case of the person claimed, since he speaks both Kinyarwanda and French.

However, the Court would like you to consider, also in view of possible future extradition requests, to have the proceedings in the present case observed and to make the observation reports accessible to the public. The Court also recommends that you stipulate that the person claimed, if so desired, will have the possibility to have himself represented by a foreign lawyer (as well) (article 14 sub 6 of the Transfer Law does not seem to exclude this possibility, but this is not certain) since the latter may feel more free to carry out a defense strategy which might displease the current regime (during court hearing, the person claimed adopted the stand that the genocide had never taken place). In this respect the question whether this legal assistance will be subject to reimbursement under the Rwandese financial regulations deserves your attention.

5. Article 8 ECHR.

The Court sees no cause to give you a negative advice regarding an imminent violation of article 8 of the ECHR, since it is the Court’s opinion that there are no extraordinary circumstances which may jeopardize the extradition. It goes without saying that the extradition will have a great impact on the person claimed and his family, including his two handicapped children. However, the extradition has been requested with respect to the most serious crimes known to the international legal order. Therefore, greater weight must be attached to the importance of criminal procedure in Rwanda.

6. Article 10 Extradition Act.

Finally, the Court sees no reason to advise you not to allow the extradition because of the provisions in article 10 of the Extradition Act. During the court hearings, it has not been proven in any way that the person claimed would face discriminatory prosecution because of his political convictions or activities or background.

This advice was given in The Hague, on July 11, 2014, by
mr. Renckens, Chairman,

mr. Van As and
mr. Meessen, judges, in presence of
mr . Van Zeeland, clerk of the Court.

[End of translation]

Voetnoten

1. In Dutch: