Information Note on the Court’s case-law No. 145
October 2011
Ahorugeze v. Sweden - 37075/09
Judgment 27.10.2011 [Section V]
Article 6
Criminal proceedings
Extradition
Article 6-1
Fair hearing
Alleged risk of flagrant denial of justice if Hutu suspected of genocide and crimes against humanity was sent to stand trial in Rwanda: extradition would not constitute a violation
Article 3
Extradition
Alleged risk of ill-treatment if Hutu suspected of genocide and crimes against humanity was sent to stand trial in Rwanda: extradition would not constitute a violation
Facts – The applicant, a Rwandan national of Hutu origin, left his home country in 1994. Since 2001 he had resided in Denmark, where he was granted refugee status. In 2008 he was arrested in Sweden under an international arrest warrant. The Swedish authorities then received a request for his extradition to Rwanda to stand trial on charges including genocide and crimes against humanity. In their submissions, the Rwandan authorities relied on recent legislative changes in their country which they said guaranteed the applicant a fair trial. They also indicated that he would be detained in detention facilities that offered adequate accommodation and treatment. The applicant’s case was referred to the Swedish Supreme Court, which, after careful examination, ruled that there was no legal impediment to the applicant’s extradition. Subsequently, the European Court issued an interim measure under Rule 39 of its Rules, suspending the applicant’s extradition pending its examination of the case. Meanwhile, in its Uwinkindi decision of 28 June 2011*the International Criminal Tribunal for Rwanda (ICTR) ruled for the first time that a suspect could be transferred to Rwanda in order to stand genocide charges. In so holding, it noted that Rwanda had made material changes to its laws such that the ICTR was confident that the case would be prosecuted consistently with internationally recognised fair-trial standards.
Law – Article 3: The applicant had submitted no medical certificates in support of his claim that he suffered from heart problems that would require bypass surgery within a few years. In addition, given the high threshold for a medical condition to raise an issue under Article 3, the applicant’s alleged heart problems could not at present be regarded as sufficiently serious as to constitute compelling humanitarian reasons for not extraditing him to Rwanda. His allegations that he was at risk of persecution because he was a Hutu were not valid since no decision of the ICTR or of any national jurisdiction refusing transfer or extradition to Rwanda had ever been based on such grounds, nor was there any evidence of a general situation of persecution or ill-treatment of the Hutu population in Rwanda. Finally, the Rwandan authorities had provided assurances that the applicant would be detained and would serve any prison sentence imposed on him in certain named facilities, which the ICTR and some international delegations had found to meet international standards. Lastly, under Rwandan law, the sentence of life imprisonment in isolation could not be imposed on persons who had been transferred to Rwanda from other States. In the light of these considerations, the Court was satisfied that the applicant would not face a real risk of treatment proscribed by Article 3 if extradited to Rwanda.
Conclusion: extradition would not constitute a violation (unanimously).
Article 6: Under the principles first set out in the Soering v. the United Kingdom judgment**, a decision to extradite or expel could exceptionally give rise to an issue under Article 6 if the person concerned risked a flagrant denial of a fair trial in the requesting State. The test to be applied was a stringent one: a flagrant denial of justice went beyond mere procedural irregularities or lack of procedural safeguards which might have resulted in a breach of Article 6 had they occurred within one of the Contracting States. What was required was such a fundamental breach of the fair-trial guarantee as to amount to a destruction of the very essence of that right. Although, in decisions in 2008 and early 2009 the ICTR and various national jurisdictions had refused to transfer or extradite genocide suspects to Rwanda owing to concerns that they would not receive a fair trial, those decisions had mainly focused on difficulties for the defence in calling witnesses who feared reprisals. However, changes had since been made to the Rwandan legislation that afforded witnesses immunity from prosecution in respect of their statements or actions at trial and a new witness-protection programme had been launched. Witnesses residing outside Rwanda could give testimony via video-link. Accordingly, there was no reason to conclude that the applicant would be unable to call witnesses or to have their evidence examined by the Rwandan courts. As to the applicant’s allegations of a lack of qualified defence lawyers in Rwanda, the ICTR had noted in the Uwinkindi case that many members of the Rwandan bar had more than five years’ professional experience, that Rwandan lawyers were obliged to provide pro bono services to indigent defendants and that a legal framework and budgetary provision for legal aid had been set up. Defendants were also free to appoint foreign defence counsel. Further, in the light of the findings in the Uwinkindi case and the experience of international investigative teams, there were not sufficient grounds for calling into question the independence and impartiality of the Rwandan judiciary. Nor had the applicant substantiated allegations that he would be denied a fair trial because of testimony he had given in earlier ICTR cases or his former position in the Rwandan aviation authority.
The Court explained that, although the ICTR’s decision in Uwinkindi was not yet final it had nevertheless attached considerable weight to its conclusions: this was the first transfer decision the ICTR had taken since the legislative changes in Rwanda and it had found that the issues that had led it to refuse transfers in 2008 had been addressed to such a degree in the intervening period that it was confident that the accused would be prosecuted in a manner consistent with internationally recognised fair-trial standards. The Court further noted that the ICTR’s decision to transfer Uwinkindi for trial in Rwanda had been made pursuant to the ICTR Rules of Procedure and Evidence that required it to be satisfied that the accused would receive a fair trial in the Rwandan courts. The standard thus established clearly set a higher threshold for transfers than the test for extraditions under Article 6 of the Convention, as interpreted by the Court.
In the light of these considerations, the applicant would not face a real risk of a flagrant denial of justice if extradited to stand trial in Rwanda.
Conclusion: extradition would not constitute a violation (unanimously).
* Prosecutor v. Jean Uwinkindi, Case No. ICTR-2001-75-R11bis, Decision on Prosecutor’s request for referral to the Republic of Rwanda.
** Soering v. the United Kingdom, no. 14038/88, 7 July 1989.
© Council of Europe/European Court of Human Rights
This summary by the Registry does not bind the Court.
Click here for the Case-Law Information Notes
Full & Egal Universal Law Academy