Uitspraken

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.

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

Furthermore the following documents are included in the extradition file:

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 interahamwe militias 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, interahamwe militias - 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":

The court notes that the Indictment attached 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.

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 Meester B. 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 Meester M. Blom and Meester E.M.A.F. Vos (hereinafter jointly called: the public prosecutor).

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.

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.

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 Indictment attached 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.

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:

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.

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.

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.

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 possibly have 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 possibly have 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.

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.