Rwandan genocide: High Court rules that extradition would breach Article 6 ECHR

In a landmark ruling following a six day appeal hearing at the High Court between November and December 2016, a Divisional Court has ruled that the extradition to Rwanda of five men in relation to the 1994 genocide would breach Article 6 ECHR. The judgment is available here.

 

In ruling in favour of the Respondents, the court (Irwin LJ and Foskett J) upheld the decision of Deputy Senior District Judge Emma Arbuthnot (now the Chief Magistrate of England and Wales) who, following the longest running extradition proceedings in Westminster Magistrates’ Court, discharged all five men from the extradition request in December 2016. The Divisional Court further held that, in two of the Respondents’ cases – Mutabaruka and Nteziryayo – extradition was statute barred by reason of double jeopardy.

 

The decision is the latest event in an eleven year battle on behalf of the Government of Rwanda to secure extradition of the men, who are alleged to have participated in the genocide. In 2006, the Government of Rwanda and the UK signed a Memorandum of Understanding which gave rise to the first set of extradition proceedings in 2007. At that time, national jurisdictions would not extradite genocide suspects to Rwanda to stand trial, following the practice of the International Criminal Tribunal for Rwanda (ICTR), which had refused to transfer genocide suspects to Rwanda to stand trial in all applications which had come before it (Munyakazi; Kanyarukiga; Hategekimana; Gatete; Kayishema). The common thread of the respective legal positions adopted by national jurisdictions and the ICTR was that the Rwandan state was not yet able to guarantee fair trial rights, and that there was serious difficulty regarding the availability and presentation of defence evidence, which included issues relating to witness intimidation and reprisals from state actors.  

 

At the conclusion of the first round of proceedings in 2008, the Secretary of State ordered that extradition should take place. All requested persons appealed to the High Court. In the decision of the High Court in 2009 (Brown and others v Government of Rwanda and another [2009] EWHC 770 (Admin)), Lord Justice Laws ruled that extradition would breach Article 6 ECHR because of the risks of witness intimidation and absence of judicial independence in Rwanda. The Court recorded the efforts made by Rwanda to rebuild its criminal justice system and to conform with international standards, but held that:

 

“...we have not forgotten the scale of the dreadful tribulations suffered in Rwanda in 1994. Nor have we ignored the real and substantial measures taken to establish a judicial system capable of delivering criminal justice to acceptable standards. But our duty is to apply an objective test – real risk of flagrant denial of justice. We certainly cannot sanction extradition as a means of encouraging the Rwandan authorities to redouble their efforts to achieve a justice system that guarantees due process. That might serve a political aspiration, but would amount to denial of legal principle.” [120]

 

Following a shift in the approach of the ICTR in 2009 with the ruling in Jean Uwinkindi (Case No. ICTR-2001-75-R11bis), in which the ICTR authorised the first transfer of a genocide suspect to Rwanda under Rule 11 bis, a number of national jurisdictions followed suit. The Government of Rwanda signed a second Memorandum of Understanding with the UK and launched the second round of extradition requests in 2013, arguing that there had been a ‘sea-change’ in the international legal community’s assessment of Rwanda’s ability to deliver fair trial rights to genocide suspects. The second extradition hearing started in April 2014.

 

Since then, the case has centred on the political regime in Rwanda, judicial independence, the provisions of Rwanda's Transfer Law, the independence of the judicial police, and the quality of defence representation in genocide and politically sensitive trials. The case has heard evidence from lay and expert witnesses across the world, including evidence from a range of political scientists and lawyers specialising in the Rwandan genocide, as well as anonymous genocide survivors. The Respondents relied upon evidence which tended to demonstrate the complicity of the Rwandan government in extra-judicial killings, disappearances and torture both inside and outside of Rwanda. This evidence included a number of Osman warnings given by British police to Rwandan individuals in the UK. The case was also considered by the United Kingdom Supreme Court in 2014 during an interlocutory judicial review relating to anonymous witness evidence: R (on the application of VB) v Westminster Magistrates’ Court [2014] EWHC   889 (Admin).  

 

In reaching the conclusion that, if extradited, there was a real risk that the Respondents would be subject to a flagrant denial of justice contrary to Article 6 ECHR, the Divisional Court held:

 

“If there is a real risk of a flagrant denial of justice, that means there is a real risk of the innocent being convicted. To extradite in the face of such a risk, even if motivated by a desire to repatriate the criminal process to the country where it should properly be conducted, would be no more and no less a wrong than it would be to permit a serious miscarriage of justice here.” [369]

 

The Court has invited the Government of Rwanda to consider whether it can, by way of a “final opportunity”, proffer any assurances that would meet the failings identified.

 

In Emmanual Nteziryayo and others v Government of Rwanda [2017] EWHC 1912 (Admin), Edward Fitzgerald QC and Kate O’Raghallaigh represented Celestin Ugirashebuja, instructed by Hallinan Blackburn Gittings and Nott. Tim Moloney QC represented Charles Munyaneza, instructed by O’Keefe’s Solicitors.

 

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