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England and Wales High Court (Administrative Court) Decisions
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Cite as:  EWHC 770 (Admin)
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ON APPEAL FROM THE CITY OF
WESTMINSTER MAGISTRATES COURT
(District Judge Evans)
(AND IN THE MATTER FOR JUDCIAL REVIEW
Strand, London, WC2A 2LL
B e f o r e :
LORD JUSTICE SULLIVAN
| Vincent Brown aka Vincent Bajinja
|- and -
|The Government of Rwanda
The Secretary of State for the
WordWave International Limited
A Merrill Communications Company
190 Fleet Street, London EC4A 2AG
Tel No: 020 7404 1400, Fax No: 020 7831 8838
Official Shorthand Writers to the Court)
Lord Gifford QC and Ms Kaly Kaul (instructed by O'Keefes Solicitors) for Munyaneza
Diana Ellis QC and Ms Joanna Evans (instructed by Robert Lizar Solicitors) for Nteziryayo
Mr Edward Fitzgerald QC and Mr Ben Watson (instructed by Hallinan Blackburn Gittings and Nott Solicitors) for Ugirashebuja
Mr James Lewis QC, Mr Hugo Keith and Ms Gemma Lindfield (instructed by the Crown Prosecution Service) for the Government of Rwanda.
Ms Clair Dobbin (instructed by Treasury Solicitors) for the Secretary of State for the Home Department.
Hearing dates: 1-5 December 2008 & 16-19 December 2008
Crown Copyright ©
LORD JUSTICE LAWS:
This is the judgment of the court, to which both members have contributed.
"(1) This section applies if the Secretary of State believes that—
(a) arrangements have been made between the United Kingdom and another territory for the extradition of a person to the territory, and
(b) the territory is not a category 1 territory or a category 2 territory.
(2) The Secretary of State may certify that the conditions in paragraphs (a) and (b) of subsection (1) are satisfied in relation to the extradition of the person.
(3) If the Secretary of State issues a certificate under subsection (2) this Act applies in respect of the person's extradition to the territory as if the territory were a category 2 territory.
(4) As applied by subsection (3), this Act has effect—
(a) as if [various sub-sections] were omitted;
(b) with any other modifications specified in the certificate."
Category 2 territories are (in summary) those territories to which Part II of the 2003 Act applies. Following the conclusion of the MoU on 14 September 2006 the Secretary of State issued a certificate under s.194(2) on 11 October 2006, and an amending certificate on 22 December 2006.
THE 2003 ACT
"79(1) If the judge is required to proceed under this section [sc. as was the case here] he must decide whether the person's extradition to the category 2 territory is barred by reason of—
(b) extraneous considerations;
(c) the passage of time;
(2) Sections 80 to 83 apply for the interpretation of subsection (1).
(3) If the judge decides any of the questions in subsection (1) in the affirmative he must order the person's discharge.
(4) If the judge decides those questions in the negative and the person is accused of the commission of the extradition offence but is not alleged to be unlawfully at large after conviction of it, the judge must proceed under section 84.
81 A person's extradition to a category 2 territory is barred by reason of extraneous considerations if (and only if) it appears that—
(a) the request for his extradition (though purporting to be made on account of the extradition offence) is in fact made for the purpose of prosecuting or punishing him on account of his race, religion, nationality, gender, sexual orientation or political opinions, or
(b) if extradited he might be prejudiced at his trial or punished, detained or restricted in his personal liberty by reason of his race, religion, nationality, gender, sexual orientation or political opinions.
82 A person's extradition to a category 2 territory is barred by reason of the passage of time if (and only if) it appears that it would be unjust or oppressive to extradite him by reason of the passage of time since he is alleged to have committed the extradition offence or since he is alleged to have become unlawfully at large (as the case may be).
84(1) If the judge is required to proceed under this section he must decide whether there is evidence which would be sufficient to make a case requiring an answer by the person if the proceedings were the summary trial of an information against him.
(2) In deciding the question in subsection (1) the judge may treat a statement made by a person in a document as admissible evidence of a fact if—
(a) the statement is made by the person to a police officer or another person charged with the duty of investigating offences or charging offenders, and
(b) direct oral evidence by the person of the fact would be admissible.
(3) In deciding whether to treat a statement made by a person in a document as admissible evidence of a fact, the judge must in particular have regard—
(a) to the nature and source of the document;
(b) to whether or not, having regard to the nature and source of the document and to any other circumstances that appear to the judge to be relevant, it is likely that the document is authentic;
(c) to the extent to which the statement appears to supply evidence which would not be readily available if the statement were not treated as being admissible evidence of the fact;
(d) to the relevance of the evidence that the statement appears to supply to any issue likely to have to be determined by the judge in deciding the question in subsection (1);
(e) to any risk that the admission or exclusion of the statement will result in unfairness to the person whose extradition is sought, having regard in particular to whether it is likely to be possible to controvert the statement if the person making it does not attend to give oral evidence in the proceedings.
(4) A summary in a document of a statement made by a person must be treated as a statement made by the person in the document for the purposes of subsection (2).
(5) If the judge decides the question in subsection (1) in the negative he must order the person's discharge.
(6) If the judge decides that question in the affirmative he must proceed under section 87.
87(1) If the judge is required to proceed under this section... he must decide whether the person's extradition would be compatible with the Convention rights within the meaning of the Human Rights Act 1998.
(2) If the judge decides the question in subsection (1) in the negative he must order the person's discharge.
(3) If the judge decides that question in the affirmative he must send the case to the Secretary of State for his decision whether the person is to be extradited.
93(1) This section applies if the appropriate judge sends a case to the Secretary of State under this Part for his decision whether a person is to be extradited.
(2) The Secretary of State must decide whether he is prohibited from ordering the person's extradition under any of these sections—
(a) section 94 (death penalty);
(b) section 95 (speciality);
(c) section 96 (earlier extradition to United Kingdom from other territory).
(3) If the Secretary of State decides any of the questions in subsection (2) in the affirmative he must order the person's discharge.
(4) If the Secretary of State decides those questions in the negative he must order the person to be extradited to the territory to which his extradition is requested...
94(1) The Secretary of State must not order a person's extradition to a category 2 territory if he could be, will be or has been sentenced to death for the offence concerned in the category 2 territory.
(2) Subsection (1) does not apply if the Secretary of State receives a written assurance which he considers adequate that a sentence of death—
(a) will not be imposed, or
(b) will not be carried out (if imposed).
95(1) The Secretary of State must not order a person's extradition to a category 2 territory if there are no speciality arrangements with the category 2 territory.
(3) There are speciality arrangements with a category 2 territory if (and only if) under the law of that territory or arrangements made between it and the United Kingdom a person who is extradited to the territory from the United Kingdom may be dealt with in the territory for an offence committed before his extradition only if—
(a) the offence is one falling within subsection (4), or
(b) he is first given an opportunity to leave the territory.
(4) The offences are—
(a) the offence in respect of which the person is extradited;
(b) an extradition offence disclosed by the same facts as that offence, other than one in respect of which a sentence of death could be imposed;
(c) an extradition offence in respect of which the Secretary of State consents to the person being dealt with;
(d) an offence in respect of which the person waives the right that he would have (but for this paragraph) not to be dealt with for the offence.
103(1) If the judge sends a case to the Secretary of State under this Part for his decision whether a person is to be extradited, the person may appeal to the High Court against the relevant decision.
(3) The relevant decision is the decision that resulted in the case being sent to the Secretary of State.
(4) An appeal under this section may be brought on a question of law or fact.
104(1) On an appeal under section 103 the High Court may—
(a) allow the appeal;
(b) direct the judge to decide again a question (or questions) which he decided at the extradition hearing;
(c) dismiss the appeal.
(2) The court may allow the appeal only if the conditions in subsection (3) or the conditions in subsection (4) are satisfied.
(3) The conditions are that—
(a) the judge ought to have decided a question before him at the extradition hearing differently;
(b) if he had decided the question in the way he ought to have done, he would have been required to order the person's discharge.
(4) The conditions are that—
(a) an issue is raised that was not raised at the extradition hearing or evidence is available that was not available at the extradition hearing;
(b) the issue or evidence would have resulted in the judge deciding a question before him at the extradition hearing differently;
(c) if he had decided the question in that way, he would have been required to order the person's discharge.
108(1) If the Secretary of State orders a person's extradition under this Part, the person may appeal to the High Court against the order.
(3) An appeal under this section may be brought on a question of law or fact.
109(1) On an appeal under section 108 the High Court may—
(a) allow the appeal;
(b) dismiss the appeal.
(2) The court may allow the appeal only if the conditions in subsection (3) or the conditions in subsection (4) are satisfied.
(3) The conditions are that—
(a) the Secretary of State ought to have decided a question before him differently;
(b) if he had decided the question in the way he ought to have done, he would not have ordered the person's extradition.
(4) The conditions are that—
(a) an issue is raised that was not raised when the case was being considered by the Secretary of State or information is available that was not available at that time;
(b) the issue or information would have resulted in the Secretary of State deciding a question before him differently;
(c) if he had decided the question in that way, he would not have ordered the person's extradition.
137(1) This section applies in relation to conduct of a person if—
(a) he is accused in a category 2 territory of the commission of an offence constituted by the conduct, or
(b) he is alleged to be unlawfully at large after conviction by a court in a category 2 territory of an offence constituted by the conduct and he has not been sentenced for the offence.
(2) The conduct constitutes an extradition offence in relation to the category 2 territory if these conditions are satisfied—
(a) the conduct occurs in the category 2 territory;
(b) the conduct would constitute an offence under the law of the relevant part of the United Kingdom punishable with imprisonment or another form of detention for a term of 12 months or a greater punishment if it occurred in that part of the United Kingdom;
(c) the conduct is so punishable under the law of the category 2 territory (however it is described in that law)."
"In Rwanda, the bourgmestre is the most powerful figure in the commune. His de facto authority in the area is significantly greater than that which is conferred upon him de jure."
"106. … On 6 April 1994, President Habyarimana and other heads of State of the region met in Dar-es-Salaam (Tanzania) to discuss the implementation of the peace accords [sc. which had been signed earlier]. The aircraft carrying President Habyarimana and the Burundian President, Ntaryamirai, who were returning from the meeting, crashed around 8:30 pm near Kigali airport. All aboard were killed.
107. The Rwandan army and the militia immediately erected roadblocks around the city of Kigali. Before dawn on April 7 1994, in various parts of the country, the Presidential Guard and the militia started killing the Tutsi as well as Hutu known to be in favour of the Arusha Accords and power-sharing between the Tutsi and the Hutu. Among the first victims were a number of ministers of the coalition government, including its Prime Minister, Agathe Uwilingiyimana (MDR), the president of the Supreme Court and virtually the entire leadership of the parti social démocrate (PSD). The constitutional vacuum thus created cleared the way for the establishment of the self-proclaimed Hutu-power interim government, mainly under the aegis of retired Colonel Théoneste Bagosora.
108. Soldiers of the Rwandan Armed Forces (FAR) executed ten Belgian blue helmets, thereby provoking the withdrawal of the Belgian contingent which formed the core of UNAMIR. On April 21 1994, the UN Security Council decided to reduce the peace-keeping force to 450 troops.
109. In the afternoon of 7 April 1994, RPF troops left their quarters in Kigali and their zone in the north, to resume open war against the Rwandan Armed Forces. Its troops from the north moved south, crossing the demilitarized zone, and entered the city of Kigali on April 12 1994, thus forcing the interim government to flee to Gitarama.
110. On April 12 1994, after public authorities announced over Radio Rwanda that 'we need to unite against the enemy, the only enemy and this is the enemy that we have always known...it's the enemy who wants to reinstate the former feudal monarchy', it became clear that the Tutsi were the primary targets. During the week of 14 to 21 April 1994, the killing campaign reached its peak. The President of the interim government, the Prime Minister and some key ministers travelled to Butare and Gikongoro, and that marked the beginning of killings in these regions which had hitherto been peaceful. Thousands of people, sometimes encouraged or directed by local administrative officials, on the promise of safety, gathered unsuspectingly in churches, schools, hospitals and local government buildings. In reality, this was a trap intended to lead to the rapid extermination of a large number of people.
111. The killing of Tutsi which henceforth spared neither women nor children, continued up to 18 July 1994, when the RPF triumphantly entered Kigali. The estimated total number of victims in the conflict varies from 500,000 to 1,000,000 or more."
"114. Even though the number of victims is yet to be known with accuracy, no one can reasonably refute the fact that widespread killings were perpetrated throughout Rwanda in 1994.
115. Indeed, this is confirmed by the many testimonies heard by this Chamber. The testimony of Dr. Zachariah who appeared before this Chamber on 16 and 17 January 1997 is enlightening in this regard. Dr. Zachariah was a physician who at the time of the events was working for a non-governmental organisation, 'Médecins sans frontières'. In 1994 he was based in Butare and travelled over a good part of Rwanda upto its border with Burundi. He described in great detail the heaps of bodies which he saw everywhere, on the roads, on the footpaths and in rivers and, particularly, the manner in which all these people had been killed. At the church in Butare, at the Gahidi mission, he saw many wounded persons in the hospital who, according to him, were all Tutsi and who, apparently, had sustained wounds inflicted with machetes to the face, the neck, and also to the ankle, at the Achilles' tendon, to prevent them from fleeing. The testimony given by Major-General Dallaire, former Commander of the United Nations Assistance Mission for Rwanda (UNAMIR) at the time of the events alleged in the Indictment, who was called by the defence, is of a similar vein. Major-General Dallaire spoke of troops of the Rwandan Armed Forces and of the Presidential Guard going into houses in Kigali that had been previously identified in order to kill. He also talked about the terrible murders in Kabgayi, very near Gitarama, where the interim Government was based and of the reports he received from observers throughout the country which mentioned killings in Gisenyi, Cyangugu and Kibongo.
116. The British cameraman, Simon Cox, took photographs of bodies in many churches in Remera, Biambi, Shangi, between Cyangugu and Kibuye, and in Bisesero. He mentioned identity cards strewn on the ground, all of which were marked 'Tutsi'. Consequently, in view of these widespread killings the victims of which were mainly Tutsi, the Chamber is of the opinion that the first requirement for there to be genocide has been met, the killing and causing serious bodily harm to members of a group.
117. The second requirement is that these killings and serious bodily harm, as is the case in this instance, be committed with the intent to destroy, in whole or in part, a particular group targeted as such.
118. In the opinion of the Chamber, there is no doubt that considering their undeniable scale, their systematic nature and their atrociousness, the massacres were aimed at exterminating the group that was targeted. Many facts show that the intention of the perpetrators of these killings was to cause the complete disappearance of the Tutsi. In this connection, Alison Desforges, an expert witness, in her testimony before this Chamber on 25 February 1997, stated as follows: 'on the basis of the statements made by certain political leaders, on the basis of songs and slogans popular among the Interahamwe, I believe that these people had the intention of completely wiping out the Tutsi from Rwanda so that - as they said on certain occasions - their children, later on, would not know what a Tutsi looked like, unless they referred to history books'. Moreover, this testimony given by Dr. Desforges was confirmed by two prosecution witnesses, witness KK and witness OO, who testified separately before the Tribunal that one Silas Kubwimana had said during a public meeting chaired by the accused himself that all the Tutsi had to be killed so that someday Hutu children would not know what a Tutsi looked like.
119. Furthermore, as mentioned above, Dr. Zachariah also testified that the Achilles tendons of many wounded persons were cut to prevent them from fleeing. In the opinion of the Chamber, this demonstrates the resolve of the perpetrators of these massacres not to spare any Tutsi. Their plan called for doing whatever was possible to prevent any Tutsi from escaping and, thus, to destroy the whole group. Witness OO further told the Chamber that during the same meeting, a certain Ruvugama, who was then a Member of Parliament, had stated that he would rest only when no single Tutsi is left in Rwanda.
120. Dr. Alison Desforges testified that many Tutsi bodies were often systematically thrown into the Nyabarongo river, a tributary of the Nile. Indeed, this has been corroborated by several images shown to the Chamber throughout the trial. She explained that the underlying intention of this act was to 'send the Tutsi back to their place of origin', to 'make them return to Abyssinia', in keeping with the allegation that the Tutsi are foreigners in Rwanda, where they are supposed to have settled following their arrival from the Nilotic regions.
121. Other testimonies heard, especially that of Major-General Dallaire, also show that there was an intention to wipe out the Tutsi group in its entirety, since even newborn babies were not spared. Even pregnant women, including those of Hutu origin, were killed on the grounds that the foetuses in their wombs were fathered by Tutsi men, for in a patrilineal society like Rwanda, the child belongs to the father's group of origin. In this regard, it is worthwhile noting the testimony of witness PP, heard by the Chamber on 11 April 1997, who mentioned a statement made publicly by the accused to the effect that if a Hutu woman were impregnated by a Tutsi man, the Hutu woman had to be found in order 'for the pregnancy to be aborted'."
SINCE THE GENOCIDE: ESTABLISHMENT OF THE ICTR
THE COURSE OF THE PROCEEDINGS
Fair Trial – the Law: the 2003 Act and ECHR Article 6
"81 A person's extradition to a category 2 territory is barred by reason of extraneous considerations if (and only if) it appears that—
(b) if extradited he might be prejudiced at his trial or punished, detained or restricted in his personal liberty by reason of his race, religion, nationality, gender, sexual orientation or political opinions."
"87(1) ... [The judge]... must decide whether the person's extradition would be compatible with the Convention rights within the meaning of the Human Rights Act 1998.
(2) If the judge decides the question in subsection (1) in the negative he must order the person's discharge."
"1 In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law....
2 Everyone charged with a criminal offence shall be presumed innocent until proved guilty according to law.
3 Everyone charged with a criminal offence has the following minimum rights:
(a) to be informed promptly, in a language which he understands and in detail, of the nature and cause of the accusation against him;
(b) to have adequate time and the facilities for the preparation of his defence;
(c) to defend himself in person or through legal assistance of his own choosing or, if he has not sufficient means to pay for legal assistance, to be given it free when the interests of justice so require;
(d) to examine or have examined witnesses against him and to obtain the attendance and examination of witnesses on his behalf under the same conditions as witnesses against him;
(e) to have the free assistance of an interpreter if he cannot understand or speak the language used in court."
Fair Trial – the Law: the Test for Article 6
"While the Strasbourg jurisprudence does not preclude reliance on articles other than article 3 as a ground for resisting extradition or expulsion, it makes it quite clear that successful reliance demands presentation of a very strong case. In relation to article 3, it is necessary to show strong grounds for believing that the person, if returned, faces a real risk of being subjected to torture or to inhuman or degrading treatment or punishment [references given]... Where reliance is placed on article 6 it must be shown that a person has suffered or risks suffering a flagrant denial of a fair trial in the receiving state: Soering, paragraph 113 (see paragraph 10 above)..."
We should also cite the cross-reference at paragraph 10 of Lord Bingham's opinion (and, for the context, we will set out paragraph 9):
"9. Domestic cases as I have defined them are to be distinguished from cases in which it is not claimed that the state complained of has violated or will violate the applicant's Convention rights within its own territory but in which it is claimed that the conduct of the state in removing a person from its territory (whether by expulsion or extradition) to another territory will lead to a violation of the person's Convention rights in that other territory. I call these 'foreign cases', acknowledging that the description is imperfect, since even a foreign case assumes an exercise of power by the state affecting a person physically present within its territory. The question was bound to arise whether the Convention could be relied on to resist expulsion or extradition in a foreign case. It is a question of obvious relevance to these appeals, since the appellants do not complain of any actual or apprehended interference with their article 9 rights in the United Kingdom.
10. A clear, although partial, answer to this question was given in Soering v United Kingdom (1989) 11 EHRR 439, a case in which the applicant resisted extradition to the United States to stand trial in Virginia, contending that trial there would infringe his right to a fair trial under article 6 of the European Convention and that his detention on death row, if convicted and sentenced to death, would infringe his rights under article 3. Neither the conduct of the trial nor the conditions of detention would, of course, be within the control or responsibility of the United Kingdom. The Court did not reject the applicant's complaint under article 6 as ill-founded in principle, but dismissed it on the facts in paragraph 113 of its judgment:
'113. The right to a fair trial in criminal proceedings, as embodied in Article 6, holds a prominent place in a democratic society. The Court does not exclude that an issue might exceptionally be raised under Article 6 by an extradition decision in circumstances where the fugitive has suffered or risks suffering a flagrant denial of a fair trial in the requesting country. However, the facts of the present case do not disclose such a risk.'"
"34. It was not submitted in argument that the threshold test laid down in Ullah misrepresented or understated the effect of the Strasbourg authority as it stood then or stands now. It is true, as Carnwath LJ pointed out in the Court of Appeal (para 38), that different expressions have at different times been used to describe the test, but these have been used to describe the same test, not to lay down a different test. Nor, as I would understand the joint partly dissenting opinion of Judges Bratza, Bonello and Hedigan in Mamatkulov and Askarov v Turkey (2005) 41 EHRR 25, 537, para OIII 14, did they envisage a different test when they said, with reference to article 6 (omitting footnotes):
'While the court has not to date found that the expulsion or extradition of an individual violated, or would if carried out violate, article 6 of the Convention, it has on frequent occasions held that such a possibility cannot be excluded where the person being expelled has suffered or risks suffering a flagrant denial of a fair trial in the receiving country. What constitutes a "flagrant" denial of justice has not been fully explained in the court's jurisprudence but the use of the adjective is clearly intended to impose a stringent test of unfairness going beyond mere irregularities or lack of safeguards in the trial procedures such as might result in a breach of article 6 if occurring within the Contracting State itself. As the court has emphasised, article 1 cannot be read as justifying a general principle to the effect that a Contracting State may not surrender an individual unless satisfied that the conditions awaiting him in the country of destination are in full accord with each of the safeguards of the Convention. In our view, what the word "flagrant" is intended to convey is a breach of the principles of fair trial guaranteed by article 6 which is so fundamental as to amount to a nullification, or destruction of the very essence, of the right guaranteed by that article.'
35. In adopting and endorsing the test formulated by the AIT in Devaseelan I did not in para 24 of my opinion in Ullah  2 AC 323 understand that tribunal to be distinguishing a 'flagrant denial or gross violation' of a right from a complete denial or nullification of it but rather to be assimilating those expressions. This was how the point had been put to the House by the Attorney General for the Secretary of State, as is evidenced from the report of his argument (p 337D):
'If other articles can be engaged the threshold test will require a flagrant breach of the relevant right, such as will completely deny or nullify the right in the destination country: see Devaseelan v Secretary of State for the Home Department  Imm AR 1. A serious or discriminatory interference with the right protected would be insufficient.'
It is difficult, with respect, to see how the point could be put more clearly, and any attempt at paraphrase runs the risk of causing confusion."
Fair Trial – the Law: a Different Approach under the MoU?
"Extradition will not be granted in any of the following circumstances:
(d) if [CU]... would not receive the minimum guarantees in criminal proceedings, as contained in the International Covenant on Civil and Political Rights [ICCPR], article 14…"
Article 14 of the ICCPR bears a close resemblance to ECHR Article 6. It includes this provision:
"In the determination of any criminal charge against him,... everyone shall be entitled to a fair and public hearing by a competent, independent and impartial tribunal established by law."
Fair Trial – the Law: s.81(b) of the 2003 Act
Fair Trial – the Law: Did the Judge Apply the Wrong Test?
"It is clear, therefore, from these judgements that the test is a very high one and that the burden of proof lies on the defence on a balance of probabilities."
And at paragraph 536:
"The burden is on the defence to satisfy the court that there is a real risk of a flagrant denial of justice or fair trial. On the evidence produced they have failed to satisfy on a balance of probabilities the high test which has been set. Reliance was placed on the amicus brief of HRW, but the conclusions reached do not justify the reliance placed on it when seeking to cross the high hurdle which the defence have to. In its conclusions, when dealing with the question of fair trial the brief states on seven occasions that the matters in question… may lead to a violation. It is put no higher than that and does not come near the higher Article 6 test."
The test is correctly stated in the opening sentence of paragraph 536. Notwithstanding that, the judge appears to have directed himself that the appellants carried the burden of proving on the balance of probabilities that there would be a flagrant denial of justice if they were extradited. But "real risk" does not mean proof on the balance of probabilities. It means a risk which is substantial and not merely fanciful; and it may be established by something less than proof of a 51% probability. The approach is the same as that taken in refugee cases, where the asylum seeker has to show a real risk that if he is returned to his home State he will be persecuted on any of the grounds set out in the 1951 United Nations Refugee Convention (see Sivakumaran  1 AC 958). We think that despite his citation of the correct test the judge fell into error here. He may have been distracted by the second part of the test – "flagrant denial": so much is suggested by his repeated references to the "high" or "very high" test.
Fair Trial – the Law: the Organic Law of 2007
"This Organic Law shall regulate the transfer of cases and other related matters, from the International Criminal Tribunal for Rwanda and from other States to the Republic of Rwanda.
This Organic Law shall also determine the procedures of admissibility of evidence in Rwanda collected by the ICTR in proceedings before a competent court."
Article 2 provides that the Rwandan High Court is the competent court to try transferred cases, and at first instance the court shall be constituted by a single judge. Article 3 provides that a transferred defendant shall be "prosecuted only for crimes falling within the jurisdiction of the ICTR". Article 7, "General Principles in evidentiary matters":
"Evidence collected in accordance with the Statute and the Rules of Procedure and production of evidence of ICTR may be used in proceedings before the High Court of the Republic.
The High Court of the Republic shall not convict a person solely on written statements of witnesses who did not give oral evidence during the trial.
However, the High Court of the Republic may convict a person on the probative value of a written statement if it is corroborated by other witnesses."
Article 13 guarantees a series of rights for transferred defendants, including "a fair and public hearing", the presumption of innocence, and the right of silence. The list is very similar to that set out in ECHR Article 6. Article 14 is cross-headed "Protection and assistance to Witnesses", and indeed provides for such matters. Thus the third paragraph states in part:
"All witnesses who travel from abroad to Rwanda to testify in the trial of cases transferred from the ICTR shall have immunity from search, seizure, arrest or detention during their testimony and during their travel to and from the trials."
The scope of Article 14 is on its face expressly limited so as to make provision only for witnesses in cases transferred from the ICTR. However it is to be noted that Article 24 provides:
"This Organic Law applies mutatis mutandis in other matters where there is transfer of cases to the Republic of Rwanda from other States or where transfer of cases or extradition of suspects is sought by the Republic of Rwanda from other states."
Fair Trial – the Merits – Defence Witnesses: Decisions of the ICTR
"(i) Witnesses inside Rwanda
60. The Chamber has a number of concerns regarding witnesses within Rwanda, the first and foremost being their safety. The Chamber shares the concerns of ICDAA [sc. the International Criminal Defence Attorneys Association] and HRW [sc. Human Rights Watch], as detailed above, regarding the difficulty the Accused would have in securing Defence witnesses to testify on his behalf because of their fears of harassment, arrest and detention. Specifically, the Chamber is concerned about the reports of murdered witnesses. HRW reported that at least eight genocide survivors were murdered in 2007 and in some cases, the killings were related to testimonies that the survivors provided or intended to provide in genocide prosecutions…
61. Furthermore, many witnesses fear their appearance will lead to an indictment being issued against them, as has happened in numerous Gacaca trials. Defence witnesses may fear being accused of 'genocidal ideology', a term mentioned in the Rwandan Constitution but undefined under Rwandan law. The term has been used by Government officials to encompass a broad spectrum of ideas, expressions and conduct, including those perceived as being in opposition to the policies of the current Government. For example, according to the 2006 Rwandan Senate report, questioning the legitimacy of the detention of a Hutu is one manifestation of 'genocidal ideology'. In several cases documented by HRW, witnesses who appeared for the defence at the Tribunal, were arrested after their return to Rwanda. The Government would appear to condone these arrests, for example, in February 2007, the Rwandan Minister of Justice, Tharcisse Karugarama, was quoted as saying:
'We have nothing to lose [by granting immunity] if anything, we have everything to gain, by these people turning up, it will be a step toward their being captured. They will have to sign affidavits on which their current address will be shown and that would at any other time lead to their arrest.'
(ii) Witnesses outside Rwanda
63. The Chamber notes that most Defence witnesses reside outside Rwanda. The Chamber considers that in the context of Rwanda this places the Defence in a disadvantageous position with regard to the right to obtain the attendance and examination of witnesses. The Chamber is concerned that Defence witnesses coming from abroad would fear the intimidation and threats currently faced by witnesses residing in Rwanda, as well as the fear of arrest, as mentioned above."
"26. The Appeals Chamber considers that there was sufficient information before the Trial Chamber of harassment of witnesses testifying in Rwanda and that witnesses who have given evidence before the Tribunal experienced threats, torture, arrests and detentions, and, in some instances, were killed. There was also information before the Trial Chamber of persons who refused, out of fear, to testify in defence of people they knew to be innocent. The Trial Chamber further noted that some defence witnesses feared that, if they testified, they would be indicted to face trial before the Gacaca courts, or accused of adhering to 'genocidal ideology'. The Appeals Chamber observes that the information available to the Trial Chamber demonstrates that regardless of whether their fears are well-founded, witnesses in Rwanda may be unwilling to testify for the Defence as a result of the fear that they may face serious consequences, including threats, harassment, torture, arrest, or even murder. It therefore finds that the Trial Chamber did not err in concluding that Kanyarukiga might face problems in obtaining witnesses residing in Rwanda because they would be afraid to testify.
31. The Appeals Chamber finds that the Trial Chamber did not err in accepting Kanyarukiga's assertion that most of his witnesses reside outside Rwanda, as this is usual for cases before the Tribunal, and is supported by information from HRW. The Appeals Chamber also finds that there was sufficient information before the Trial Chamber that, despite the protections available under Rwandan law, many witnesses residing outside Rwanda would be afraid to testify in Rwanda. It therefore finds that the Trial Chamber did not err in concluding, based on the information before it, that despite the protections available in Rwandan law, it was not satisfied that Kanyarukiga would be able to call witnesses residing outside Rwanda to the extent and in a manner which would ensure a fair trial if the case were transferred to Rwanda.
33. The Appeals Chamber considers that Rwanda has established that video-link facilities are available, and that video-link testimony would likely be authorized in cases where witnesses residing outside Rwanda genuinely fear to testify in person. However, the Appeals Chamber is of the opinion that the Trial Chamber did not err in finding that the availability of video-link facilities is not a completely satisfactory solution with respect to the testimony of witnesses residing outside Rwanda, given that it is preferable to hear direct witness testimony, and that it would be a violation of the principle of the equality of arms if the majority of Defence witnesses would testify by video-link while the majority of Prosecution witnesses would testify in person."
"62. Witness protection concerns are also related to the issue of 'genocidal ideology', which has been extensively referred to in some of the submissions. The constitution refers to the fight against 'the ideology of genocide'. Article l3 does not use this concept but states that revisionism, negation and trivialisation of genocide is punishable by law, and the 2003 Genocide Law prohibits the negation of genocide. This is in itself legitimate and understandable in the Rwandan context. The Chamber recalls that many countries criminalize the denial of the Holocaust, while others prohibit hate speech in general. In the present case, it is argued that an expansive interpretation and application of the prohibition of 'genocidal ideology' will lead to Defence witnesses not being willing to testify, as they are afraid of being accused of harbouring this ideology.
63. The material indicates that in several instances, the concept has been given a wide interpretation. There are examples of persons being too afraid to appear as witnesses for persons who allegedly were innocent. On the other hand, many persons living in Rwanda have testified for the Defence in proceedings there. In addition, the Transfer Law provides specific rules and remedies in the field of witness protection… However, the Chamber cannot exclude that some potential Defence witnesses in Rwanda may refrain from testifying because of fear of being accused of harbouring 'genocidal ideology'."
We have not seen any judgment of the Appeals Chamber in Gatete.
Fair Trial – the Merits – Defence Witnesses: Human Rights Watch Report July 2008
""State Protection of Witnesses
According to the Rwandan law on evidence, Rwandan prosecutors and judges may take any measure necessary to protect witnesses needed for the prosecution. Only one of some 15 lawyers, prosecutors, and judges questioned by Human Rights Watch researchers about witness protection mentioned this provision and one judge, then president of a higher instance court, specifically said that the law on evidence provided no protection for witnesses. None of the jurists mentioned any instance of this law having been invoked to protect witnesses.
Despite this general lack of recourse to legal safeguards for protecting witnesses, the government did establish a witness protection service that has offered assistance to more than 900 people since its creation in 2005. Even those engaged in delivering this assistance said they were unaware of the article in the law on evidence providing protection for witnesses.
As presently constituted, the witness protection service is under the national prosecutor's office, making it unlikely that witnesses for the defense who encounter problems would seek its assistance. In one recent case where nine defense witnesses were harassed after testifying at the ICTR and sought assistance from the witness protection service, they were threatened with harm rather than receiving help…
They Shut their Mouths
The difficulty of presenting a defense through witness testimony remains one of the chief obstacles to the delivery of justice, particularly in cases that have attracted considerable attention. Asked about the right to defense, a former prosecutor said:
People are scared to defend any accused. When certain people are accused, you can see the shock on others' faces, but then they shut their mouths because they're afraid. And many judges have a tendency to listen to accusations more than to arguments in defense - there is no equilibrium between the defense and the prosecution.
Several lawyers expressed the same opinion to Human Rights Watch researchers, one going so far as to say that there had been no persons willing to speak as defense witnesses in the cases in which he had defended persons accused of genocide. In cases known to Human Rights Watch, it is more typical for a small number of witnesses to appear for the defense than none at all. It also appears that the greater the public attention to the case, the greater the difficulty in securing witnesses for the defense. A lawyer summed up the problem saying that Rwandans were well aware that 'any statement can bring misfortune'.
"Official Interference with Witnesses
Police officers, security agents, and other officials have sought on occasion to influence the testimony of witnesses through the promise of rewards or through intimidation, mistreatment, detention or threat of prosecution. In several cases, officials hoped to obtain testimony for the prosecution, as in the case of Pasteur Bizimungu and his co-defendants, but in others they sought to prevent or alter testimony for the defense.
ln one bitterly contested case, a gacaca official summoned several genocide survivors and asked them to explain why they had given testimony for the defense. Local police reinforced the impact of the intimidation by arresting three defense witnesses and holding them in jail for more than a week on unspecified charges. When one of these persons was released, he was warned that if he persisted in giving testimony, he could be charged with 'genocide ideology'.
On at least one occasion a judicial official threatened to arrest a defense witness in conventional court. In a trial for genocide in Nyamirambo, Kigali in 2002, one of two defense witnesses sought to establish the credibility of her testimony by saying that she had been present at a barrier with the defendant during the genocide. The prosecutor immediately threatened to prosecute her for that admission.
In at least two cases before the ICTR, Rwandan authorities have failed to assist the ICTR in ensuring the right of the defense to present witnesses. Counsel for Col. Bagosora were unable to obtain the presence of Gen. Marcel Gatsinzi, even after Chamber I issued a subpoena compelling his appearance. In a second case, Rwandan authorities refused for months to permit Agnes Ntamabyaliro to travel to Arusha to testify in defense of Justin Mugenzi. The order of Trial Chamber II, issued April 13, 2006 and directing the Rwandan government to permit her travel to Arusha finally resulted in her appearance, but only on August 27, 2006.
Among other cases reported to Human Rights Watch of persons who encountered problems after having testified for the defense at the ICTR, one witness disappeared, two fled Rwanda after having been threatened, at least three were arrested, and at least one was re-arrested. The arrests and re-arrest took place soon after the witnesses testified in Arusha, suggesting that the fact of having testified or the information provided during testimony was important in triggering the arrests.
'Genocide Ideology' and the Risks of Testifying for the Defense
Many persons who have valuable testimony to offer refuse to speak for the defense because they fear being perceived as making common cause with accused persons and thus opening themselves to accusations of harboring or propagating 'genocide ideology'. As indicated above, the 2006 Senate commission report mentioned statements about Hutu being wrongly detained as one manifestation of genocide ideology.
ln the case of Father Theunis only one person, a Human Rights Watch researcher, spoke in Theunis' defense. At least three other persons in attendance possessed information helpful to the defense but dared not speak. As crowds were departing at the conclusion of the session, they furtively expressed regret about their silence to Human Rights Watch researchers. All had been colleagues of Theunis in the human rights movement.
General Frank Rusagara, known for his role as an ideological spokesman for the armed forces, also present that day, later published an article in the government-linked The New Times denouncing the witness who testified for Theunis as a 'negationist', guilty of 'trivializing' the genocide and 'being an apologist of the génocidaires' forces'.
Popular Pressure and Official Threats
Human Rights Watch researchers have recorded many instances where witnesses or potential witnesses for prosecution and for the defense have been harassed or threatened. Some of the saddest such cases involve survivors causing problems for other survivors who are willing to testify in defense of persons accused of genocide.
In one such case, nine defense witnesses who had testified in a genocide trial at the ICTR were expelled from Ibuka, the association of genocide survivors, as a result of their testimony. In documents filed as part of a motion by defense counsel, they said they had been harshly criticized at a local meeting of Ibuka in April 2008 and had then been expelled from the association, a decision that was transmitted in writing to the mayor of the district. They were told that they would receive no further benefits meant for survivors of the genocide, such as health care or school fees, and one person said she was threatened with expulsion from her home. Although the benefits are provided by a government fund rather than by Ibuka, a non-governmentaI association, expulsion from Ibuka might well complicate receiving the benefits. In any case, the threatened persons believed that their expulsion had cost them their benefits.
After their plight became known at the ICTR, tribunal staff referred the problem to the office of the Rwandan prosecutor, who sent a representative of the Rwandan witness protection service to talk with the witnesses. According to the defense witnesses, the representative of the witness protection service threatened them with harm rather than providing them with assistance. According to a report filed by an ICTR staff member who investigated the case, the Rwandan deputy prosecutor general promised to meet the witnesses himself to assure them that their benefits would continue and undertook to see that the representative of the Rwandan witness protection service would be made aware that her conduct had been inappropriate.
In several cases noted by Human Rights Watch researchers, persons who chose to keep silent later apologized either to the accused or to his family. In one dramatic instance, a genocide survivor broke down in tears as he admitted how ashamed he was at having refused to testify for a man who had saved his own life and that of more than a dozen members of his family. In at least some of these cases, the accused or his relatives have excused the silence of those who might have helped mount a defense, saying they understood the fear that dictated the choice."
Fair Trial – the Merits – Defence Witnesses: the Evidence in these Proceedings
"6. ... Some specifically mentioned the office of the public prosecutor, others mentioned community members who worked in conjunction with the office of the public prosecutor and various survivor organizations, while others feared the Rwandan National Police…
7. With one exception, all witnesses signed their declarations only under the condition that their declarations would be withdrawn if there was no assurance that their identities would be kept from the Rwandan government.
8. After we determined that witnesses were too afraid to testify openly about their experiences during the genocide, we set out to determine the basis of their fear and the reasonableness of that fear. Regarding the basis of their fear, witnesses stated that community members acting on behalf of the government would inform government officials that they were speaking with the defendant's representatives. If the government learned they had come forward to testify on behalf of individuals that the government had identified as its enemies, the witnesses would be accused of 'genocide minimization,' 'genocide ideology', or 'divisionism,' and imprisoned and/or harassed in other ways.
Conduct of Rwandan Prosecuting Authorities
9. While investigating the reasonableness of their fear, we learned that the Rwandan government has implemented widespread use of charges of genocide minimization and divisionism to silence dissent. During interviews, lay witnesses, attorneys, researchers, and NGO representatives confirmed that these accusations are made with little or no evidence, and referred us to specific cases…"
"The first fear was that we would inform the Office of the Prosecutor that we were interviewing these witnesses and provide their names. Many had been incarcerated and many had been pressurized into giving evidence against other individuals. This was a huge fear. Others had been pressured by powerful individuals in the community. They were clear that the goal was to prosecute [CU]. Not to conduct an enquiry but to drum up evidence of his participation in the genocide. Witnesses who gave statements said that they would be withdrawn if their identities became known.
Their fears [sc. those of the fourteen] were that they would be harassed, possibly incarcerated, that they would lose education for their children, some of them had witnessed people killed so theirs was a real fear for their lives.
Based on my personal experiences investigating in the previous case and how it all turned out and the subsequent conduct, after I left Rwanda, of organizations working with the Rwanda government, I believe their fears to be very reasonable.
The witnesses believed that genocide minimization is used as a tool to cow people who would otherwise come forward and give accurate accounts.
One of the witnesses I interviewed had been charged with genocide minimization for coming to the defence of someone who assisted her during the genocide, she was detained for a certain period of time and then released."
Mr Fitzgerald asked her whether she believed that witnesses with exculpatory evidence would be prepared to come forward. She answered:
"No. During the time I was in Rwanda and since that time I have been unable to find witnesses who would be reliable who would come forward."
Ms Nerad gave further evidence in chief in answer to questions from Lord Gifford QC for CM. Her organization had been involved in speaking to frightened witnesses in a number of different jurisdictions. She said:
"Without question Rwanda is a place where the fear is greatest of any country where my organization has been involved."
Ms Nerad was extensively cross-examined by Clare Montgomery QC for the GoR. Ms Montgomery established that there were some omissions from statements which Ms Nerad had taken from defence witnesses, but did not, as we read the transcript substantially undermine her testimony. The judge (paragraph 350) observed that "she could only come to her conclusions by accepting that what had been said by the defence witnesses was entirely truthful". Obviously Ms Nerad's testimony relied on what the witnesses had said to her. But the judge's comment gave no weight to the multiplicity of consistent accounts, their consistency with other evidence (though in fairness to the judge this point speaks loudest in relation to the HRW Report of July 2008 which of course post-dates his judgment), or Ms Nerad's experience as an investigator.
"In my opinion, this is the most serious concern about the ability to conduct fair trials in Rwanda. The problem here is that the difficulties appear to afflict prosecutions at all levels." (second report, 9 November 2007, paragraph 47)
It is true that in the same paragraph Professor Schabas proceeded to observe that the ICTR had succeeded in holding fair trials for over a decade, and witnesses had been brought to court "under acceptable conditions of security". He concluded:
"I see no serious reason to doubt that the national prosecutions, carried out in the context of transfer from the International Tribunal or on the basis of extradition, cannot and will not meet the same standard."
A good deal of material has of course come to light since this was written in November 2007, not least in the shape of the ICTR decisions refusing transfer, the HRW Report of July 2008, and Ms Nerad's researches. But this airy dismissal of any qualitative difference between the treatment of witnesses at the ICTR and what might befall them in Rwanda seems extraordinary. It is to be noted that during his live evidence before the judge on 22 April 2008 Professor Schabas stated that he had not studied the transcripts of any cases in the Rwandan High Court, and had no knowledge of how the court dealt with witnesses who asked for anonymity.
"Q. The concern is that witnesses who might be called for the defence are either intimidated from giving evidence or the subject of reprisals by way of prosecution or being beaten up afterwards. That is the concern?
A. It is obvious to me that that is a major concern and that could interfere in a very serious way with the ability to deliver a fair trial."
In addition there was some evidence about difficulties concerning witnesses from Professor Sands QC, who was instructed for EN (see paragraphs 123 and 125 of his report dated 29 October 2007), but this adds no fresh dimension and with respect we need not set it out.
"18. I have good reason based on what I have experienced, seen, and heard, to ask that my identity and the identities of those I have named in this statement be kept from the Rwandan Government. Already they have threatened and tried to bribe me on their own. If they learn that I have actively helped their opposition, even if it is the truth, they will surely seek to imprison me again."
Like statements are made by the others. Miss Ellis QC for EN drew particular attention to the position relating to witness X, who on his statement gave important exculpatory evidence for EN. She submitted that he had been subjected to threats, violence and imprisonment occasioned by his opposition to certain of the regime's policies including the killing of Hutu by the RPF. It was proposed that he give live evidence before the judge, but on condition of anonymity. In fact the judge ruled that the statements of some defence witnesses living in Rwanda should be read on condition of anonymity and gave reasons for that conclusion at paragraph 243 of his judgment, accepting that they entertained "a subjective fear for their safety"; but he declined to grant the same facility to witness X.
Fair Trial – the Merits – Defence Witnesses: the Government of Rwanda's Position
"In addition, Article 14 of the [Organic] Law incorporates ICTR Rule 75, which contains a general provision that appropriate measures can be adopted to guarantee the privacy and protection of witnesses. This provision is broad enough to permit videolink in appropriate circumstances."
However, as we have noted, the scope of Article 14 is on its face expressly limited so as to make provision only for witnesses in cases transferred from the ICTR. It is true that this is apparently subject to Article 24, which makes provision mutatis mutandis for other cases. But we have no evidence of how these provisions or the relation between them work in practice. This is, moreover, an instance of a more general point made by the appellants. The GoR has placed much reliance on the Organic Law, as did the judge; but we have virtually no evidence of its application in real cases. In particular, in the present context, there is nothing to tell us that video-link facilities would be made available at trials of these appellants in the High Court of Rwanda to receive the evidence of witnesses in the United Kingdom or elsewhere who declined to give evidence in person out of a professed fear of reprisals.
Fair Trial – the Merits – Independent and Impartial Tribunal: Introduction
"The Rwandan authorities have improved the delivery of justice in the last five years, a noteworthy achievement given the problems they faced."
The ICTR Trial Chamber in Kanyarukiga asserted:
"104. The Chamber concludes that the Republic of Rwanda has made notable progress in improving its judicial system. Its legal framework contains satisfactory provisions concerning jurisdiction…"
The Danish Institute for Human Rights, in a document submitted to the Magistrates Court for the purpose of taking objection to certain observations made by Professor Schabas, states as follows:
"By way of introduction, it should be acknowledged that Rwanda has made significant achievements in the justice sector over the past 12 years, building up a system that was in ruins after the 1994 genocide. There were extremely limited numbers of qualified and experienced justice sector personnel (judges, prosecutors and lawyers and judicial police), and a legal framework that was inadequate to deal with the challenge. Those working to build up the system were working under exceptionally difficult circumstances in the attempt to bring to justice those accused of masterminding and participating in the genocide. The steps taken have led to many innovative solutions and the development of progressive laws, for example in the introduction of community service, sentence reductions for guilty pleas as well as for example in the field of inheritance, where women - and thus widows of the genocide - have been enabled to inherit land. Both state and society can feel justifiable pride in the peaceful and orderly way in which most trials have been conducted and justice carried out."
"There was fundamental agreement on this, but the degrees were in dispute - Professor Reyntjens saying that there was increased repression whilst Professor Schabas conceded that it was not a democracy, was authoritarian and a one party state."
Professor Reyntjens is Professor of Law and Politics at the University of Antwerp, and was instructed on behalf of VB. He had rather more to say than the judge here records. This appears in his report:
"11... Advances have not occurred in political governance in Rwanda. In 1994 the RPF voiced its commitment to the principle of power sharing found in the Arusha Accords, but from 1994 onwards developed a consistent policy of excluding Hutus from effective power and concentrating both power and wealth in the hands of a few. The International Community over those first ten years displayed a degree of tolerance for the regime's excesses - doubtless because of the history of genocide that is astutely invoked by those presently in power. Those ten years were marked by early optimism being displaced by increased repression by the regime.
12. Many persons started to flee the country… The Hutu elite were subject to persecution and prejudice. Some were physically eliminated. This affected the whole breadth of Hutu civil life - businessmen, the military, doctors, journalists, teachers, high ranking civil servants, judges and lawyers. Those who fled spoke of prejudice, discrimination and fear. The next group to flee were Tutsis who had survived the genocide. They began to flee from early 2000 claiming to have been discriminated against and threatened by the RPF, which was largely composed of Tutsis who had lived outside Rwanda for many years as refugees. Finally, some hardcore RPF supporters, including prominent members of the leadership, began to leave Rwanda.
13. There were local elections in 2001 and Presidential elections in 2003. Both were deeply flawed. The few remaining, independent voices were silenced. The principal Hutu party of opposition, the MDR, was effectively banned. Opponents were arrested or 'disappeared'. Voters were intimidated and, in reality, the vote was not secret. Paul Kagame achieved 95% of the vote - which rather indicates the point."
Mr Lewis observed that Professor Reyntjens had not been to Rwanda for over ten years (in fact not since 1994), and as it transpired knew nothing of the Organic Law. As we shall explain a little more fully later, the judge also criticized Professor Reyntjens. However none of the criticisms appears to impugn the narrative in these paragraphs, which is more a description of objective facts and events than a contentious expression of opinion.
"14. Freedom of the press has been consistently targeted by the Government. Papers were forced to close down or toe the line. Journalists were forced to flee. The rare independent papers currently existing in Rwanda are constantly threatened and intimidated, often in a violent fashion."
Professor Sands said:
"147. Despite repeated denials from the Rwandan government that there are any restrictions on freedom of expression in the country, there are numerous reports of the curtailment of freedom of expression and of prominent journalists being brought before the courts for criticising the government or portraying it in an unfriendly light."
"91... Rwanda's Prosecutor general, Martin Ngoga, stated in interview that his government was not happy with the acquittal and that the accusations against him were still considered live, claiming that 'the trial was not properly conducted', on the grounds, inter alia, that additional charges of rape and complicity to rape were not leveled against Mr Bagambiki once the trial was underway. I was told that Mr Ngoga's comments were consistent with a pattern of statements made by or on behalf of the Government of Rwanda reacting negatively to acquittals at the ICTR."
Professor Sands proceeds to cite the Deputy Chief Justice, Mr Rugege, who had robustly asserted that such pronouncements did not undermine the presumption of innocence. However it appears that Mr Bagambiki was swiftly brought to trial in a Rwandan court on charges of rape and incitement to rape, convicted in absentia and sentenced to life imprisonment. Professor Sands continues:
"94. The treatment of Mr Bagambiki, coupled with the Government's reaction to acquittals at the ICTR, give rise to doubts as to whether a high level defendant transferred back to Rwanda would really benefit from the presumption of innocence that is required by Article 14 [sc. this may be a mistake for Article 13 of the Organic Law]. As stated by Professor Drumbl:
'The fact that the Rwandan Government will not accept acquittals by the ICTR might be taken as a reflection of certain presumptions as to guilt. Public pronouncements to protest acquittals at the ICTR indicates a degree of politically motivated involvement at the highest levels.'"
"In February 2008 Spanish judge Fernando Andreu Merelles issued international arrest warrants for 40 high-ranking RPA officers. In his judicial decision Judge Merelles said that he had tried without success to obtain cooperation from Rwandan authorities in investigating at least two of the crimes. Rwandan authorities have not begun any judicial action in reaction to Judge Merelles' order although some have proposed prosecuting the Spanish judge for 'genocide ideology'. High-ranking officials began denouncing the judge and his order in the press and at diplomatic gatherings, putting into effect their announced intention to deal with the Spanish order through political and diplomatic means. President Kagame reportedly told a iournalist, 'He has no moral authority in doing that. ... lf I met him, I would tell him to go to hell - they have no jurisdiction over Rwanda, over me or over anybody.' The ministry of foreign affairs called on other governments to ignore the arrest warrants. The minister of justice described the judicial order as 'racist and negationist', and asked African union ministers of justice to condemn what he characterized as a neo-colonial attempt to reassert controI over African states by a judicial coup d'etat. Showing again the link made by some Rwandan officials between discussion of RPF crimes and 'genocide ideology', Rwandan authorities said they were exploring the possibility of prosecuting the Spanish judge for 'genocide ideology'."
This case is also referred to by the ICTR Trial Chamber in Munyakazi, in which it will be recalled judgment was delivered on 28 May 2008:
"45. Judge Fernando Andreu of Spain has also faced condemnation from Rwanda. During the Referral Hearing, the HRW representative stated that 'when the Spanish indictment was issued against forty high-ranking RPF officers, the national assembly passed a resolution asking for that Spanish judge to indeed be prosecuted for negating the genocide'. The Rwandan Government representative at the Referral Hearing denied this, stating that 'there is no such thing as a resolution by Rwandan Parliament to prosecute a Spanish judge'. However, the Rwandan Government's sponsored website posted an article, dated 6 March 2008, stating that the Lower House of the Rwandan Parliament asked the Rwandan Minister of Justice, Tharcisse Karugarama, to prosecute Spanish Judge Fernando Andreu Merelles for negationism of genocide."
Fair Trial – the Merits – Independent and Impartial Tribunal: the ICTR and the Judge Below
"40. Although Rwanda has ratified international treaties guaranteeing the right to be tried before an independent tribunal, and included this right in the Transfer Law [the reference is to Article 13 of the Organic Law], the Chamber is of the view that sufficient guarantees against outside pressures are lacking in Rwanda. The Chamber finds that, while Rwandan legislation enshrines the principle of judicial independence, which by definition includes guarantees against outside pressures, the practice has been somewhat troubling. In particular, the Chamber notes the Rwandan Government's interrupted cooperation with the Tribunal following a dismissal of an indictment and release of an Appellant, as well as its negative reaction to foreign judges for indicting former members of the [RPF] [the reference here includes the case of the Spanish judge, and other instances]. The Chamber is concerned that these actions by the Rwandan Government… show a tendency to pressure the judiciary, a pressure against which a judge sitting alone would be particularly susceptible."
The Appeals Chamber in Munyakazi (judgment delivered on 8 October 2008) took a different view. It stated:
"26. While the Appeals Chamber shares the Trial Chamber's concern about the fact that politically sensitive cases, such as genocide cases, will be tried by a single judge, it is nonetheless not persuaded that the composition of the High Court by a single judge is as such incompatible with Munyakazi's right to a fair trial…
28. Further, the Appeals Chamber finds that the Trial Chamber erred in considering that there was a serious risk of government interference with the judiciary in Rwanda. The Trial Chamber primarily based its conclusion on Rwanda's reaction to Jean-Bosco Barayagwiza's successful appeal concerning the violation of his rights [the reference is to a passage in paragraph 41 of the Trial Chamber's judgment which we have not set out], and the reactions of the Rwandan government to certain indictments issued in Spain and France. However, the Appeals Chamber recalls that the Barayagwiza Decision was issued nine years ago. It notes that the Tribunal has since acquitted five persons, and that Rwanda has not suspended its cooperation with the Tribunal as a result of these acquittals. The Appeals Chamber also observes that the Trial Chamber did not take into account the continued cooperation of the Rwandan government with the Tribunal. The Appeals Chamber also considers that the reaction of the Rwandan government to foreign indictments does not necessarily indicate how Rwanda would react to rulings by its own courts, and thus does not constitute a sufficient reason to find that there is a significant risk of interference by the government in transfer cases before the Rwandan High Court and Supreme Court."
"29. The only other information referred to by the Trial Chamber in support of its findings relating to the independence of the Rwandan judiciary was the 2007 United States State Department Report cited by the ICDAA in its amicus curiae brief. However, this report states only in very general terms that there are constraints on judicial independence, and 'that government officials had sometimes attempted to influence individual cases, primarily in gacaca cases'. The Trial Chamber did not cite any other information supporting its findings
relating to the independence of the judiciary, and notably did not refer to any information demonstrating actual interference by the Rwandan government in any cases before the Rwandan courts. Moreover, other evidence submitted by the amicus curiae during the referral proceedings concerning interference with the judiciary primarily involved gacaca cases, rather than the High Court or Supreme Court, which will adjudicate the transfer cases, and failed to mention any specific incidents of judicial interference. The Appeals Chamber therefore finds that, based on the record before it, no reasonable Trial Chamber would have concluded that there was sufficient risk of government interference with the Rwandan judiciary to warrant denying the Prosecution's request to transfer Munyakazi to Rwanda."
"The amicus curiae brief submitted by HRW [dated 17 March 2008] refers to interviews with 25 high-ranking Rwandan judicial officials stating that the courts were not independent, but provides no
information about the basis for this view, or any cases of actual
attempts to interfere with the judiciary."
The Appeals Chamber declined to consider the HRW Report of July 2008 (see
below paragraphs 83 – 91) because it was not part of the record of the case and,
as new evidence, had not been admitted under the ICTR's rules: see footnote
14 on page 2 of the Appeals Chamber's decision.
Fair Trial – the Merits – Independent and Impartial Tribunal: Human Rights Watch Report July 2008
"This report is based on observations of conventional trials and gacaca proceedings and on some 100 interviews with legal professionals, of both Rwandan and other nationalities. Most of the research was done between 2005 and mid-2008, although Human Rights Watch research materials from earlier years have been used to provide background to more recent developments."
They then describe their interviewees: ministers of justice, judges, prosecutors, attorneys, court staff and others. We should say that the Report's sources, whether in the form of interviews or documents, are meticulously cross-referenced in footnotes. We have not set these out: there are limits to the utility of including such material in what is already an over-long judgment.
"Gacaca jurisdictions and conventional courts differ from each other in law, procedure, and personnel, but the two nonetheless comprise a single judicial system with considerable interchange between them. This report focuses on the conventional sector and those aspects of gacaca jurisdictions that impinge most directly upon it."
The summary proceeds to express HRW's general view that "at this time the independence of the courts and the assurance of fair trial rights are too limited to permit… extradition or transfer [sc. of genocide suspects for trial in Rwanda]".
"Technical improvements in the administration of justice have not changed the dynamics of the political system, where the judiciary remains largely subordinate to the executive branch and even to elite unofficial actors who enjoy both economic and partisan political power. A former police officer asked to assess the effectiveness of recent reforms said, 'You can't understand. You see what's on paper but you don't know the truth... You foreigners are easily tricked.'
In a November 2007 report [by the International Legal Assistance Consortium: Justice in Rwanda: An Assessment, section 6.3.7, November 2007], a delegation of international jurists who had visited Rwanda noted allegations of continuing political pressure on the judiciary and concluded that legislative reforms had yet to be accompanied by 'a corollary shift in judicial culture towards greater independence'. In supporting this conclusion, they remarked on the paucity of prosecutions against RPA soldiers accused of war crimes and crimes against humanity.
One judge, named since the reform took effect, said that loyalty to the RPF was important in winning appointment as a judge and provided a detailed account of his own experience as proof. He had been recruited for his post in several meetings with a representative of the RPF who had no link with the judicial system. According to a lawyer, interviewed by a Human Rights Watch researcher in another context, political affiliation is also important in the choice of Supreme Court judges who are elected by the Senate. He said that of the two candidates presented for the vote, one clearly was meant to be chosen while the second was there only for show. Among some in the legal profession, he said, the second candidate is known as the 'bridesmaid'.
There follow some observations under the heading "Misuse of Prosecutorial Power", which we may pass over, save to note HRW's concerns as to a recent marked increase in the bringing of rape charges, of which a possible explanation is
"to enhance the possibility of obtaining convictions. In a number of cases there are grounds for believing that rape charges (which do not fit the facts) may be being used to undertake prosecution where other charges cannot be successfully brought or are unlikely to secure conviction."
HRW proceed to refer to the case of Mr Bagambiki, the subject of comment by Professor Sands to which we have already referred (paragraph 73).
"A former minister of justice, judges and former judges, former prosecutors, and lawyers all recounted cases of interference with the judicial system that they had experienced or knew of in some detail. A former official well-acquainted with such practices said that judges in important cases were rarely bought off, but were subject to pressure from the executive as well as from powerful persons outside the government. He said that judges 'would know what to do'. Or, if there was any doubt about the decision, they would receive a call to tell them 'this is what is expected'.
In several cases documented by Human Rights Watch, important persons from the executive branch seem to have pressured judges or prosecutors. In other cases, less important officials or persons who were not officials but had political or economic power may have been the ones to intervene. Their motivations may have been political, economic, or personal - such as settling scores for some past wrong, imagined or real - or a combination of these reasons. Some of the persons targeted by these abusive actions themselves had considerable stature: political, religious, economic or military. Others were less visible.
In the last year the President of the Rwandan High Court Johnston Busingye has told at least two persons that judges in his court had been subjected to attempts by the executive to influence their decisions. He said that he had himself called those trying to pressure the judges in order to discourage their attempted interference.
In cases where judicial personnel have been subject to pressure, they have disregarded procedure, ignored allegations that evidence was coerced through abuse, wilfully misread or distorted evidence, and substituted substantially different charges when the original charge fails. Some prosecutors and judges who have been subject to influence have taken decisions that fail to reflect the law and the facts of the case."
"Some prosecutors and judges try to resist pressure, whether from politically powerful persons or from wealthy businessmen. 'Turn off your phone', was the practical counsel from one judge to colleagues less experienced in such circumstances.
Those who do 'turn off the phones' pay a price for their attempt to protect the independence and integrity of the judicial process. Judges or prosecutors connected with the cases of Bizimungu and Biseruka, for example, no longer hold positions in the Rwandan judicial system and at least three of them fled Rwanda and received asylum abroad.
In one case, the judge Evode Uwizeyimana was interviewed by a Voice of America journalist after Alfred Katisa had been rearrested following his brief liberation in the bank case. Uwizeyimana spoke up in defense of judicial authority and criticized the police for having taken Kalisa back into custody. Asked later by various officials to account for his statement, Uwizeyimana - who already had a reputation for expressing his opinions frankly - felt sufficiently threatened to resign his post. Although he was no longer a judge, the Superior Judicial Council summoned him for a hearing on an alleged case of corruption. They found him guilty and dismissed him from the judiciary, a punishment that was redundant considering his previous resignation but which made it impossible for him to practice law or other professions. He subsequently sought asylum abroad."
"The rule of law requires that judges be able to require state agents to obey lawful orders of the court. According to the 2003 Constitution and the code of penal procedure, judges have the authority to require such obedience, but in fact they are not always able to do so.
In a landmark case in May 2005, for example, Tharcisse Karugarama, then president of the High Court, ordered police to produce a detainee who was illegally held, a first use of the habeas corpus power established by one of the 2004 judicial reforms. The police released the detainee but failed to obey the order to produce him in court. Because the new penal code that is to provide sanctions for state agents who fail to obey judges' orders had not then - and has not yet - been adopted, Judge Karugarama had no way to punish police officers for not complying with his order.
Human Rights Watch researchers also documented several cases where persons acquitted by courts of law were not released from prison, or were released only to be re-arrested shortly thereafter, in violation of a court order. One person interviewed by Human Rights Watch researchers was arrested and detained three times on a single arrest warrant, and held in prison for an additional twenty months after he was declared innocent. Others remain in prison despite having been acquitted at trial, including some for as long as five years. In May 2005, a defendant ordered to be released by the court was immediately handcuffed as he left the courtroom and was returned to prison. 'The audience was shocked,' said the court clerk who witnessed the incident. 'But,' he continued 'it would seem the police still have more power than the judges."
"In Rwanda the presumption of innocence is most at issue in cases of genocide or in cases involving expressions of ethnic hostility, such as those where 'divisionism' or 'genocide ideology' are charged. The widespread involvement of many - though certainly not all - Hutu in the genocide has led many public officials to speak as if all Hutu are guilty of this crime. When officials responsible for the administration of justice and the police make such statements they promote an atmosphere where it is difficult to assure judicial processes that are impartial and free of bias.
In an address to legal professionals at The Hague in 2006, the President of the High Court said that 'the architects of the genocide literally made every one a direct or indirect participant'. Under Rwandan law, 'indirect participants', that is, accomplices to the crime, are equally guilty and receive the same punishment as the principal perpetrators.
ln a May 2007 statement about the killings of 20 detainees by police officers, the Commissioner General of the Rwandan National Police Andrew Rwigamba (formerly chief prosecutor in the military justice system) said that the 'suspects involved in these cases were of extreme criminaI character ready to die for their genocide ideology'. The detainees, all recently arrested, had not been tried for any crimes and none had been convicted of holding 'genocide ideology'.
Officials, including judicial officials, discount acquittals with which they do not agree and continue to speak of the acquitted as if they were guilty. After ICTR judges found former Cyangugu governor Emmanuel Bagambiki not guilty, Prosecutor General Jean de Dieu Mucyo said, 'There was clear evidence that the two [Bagambiki and co-defendant Andre Ntagerura] were among the leaders of the genocide and that many people are dead because of their actions."
The Report then proceeds to discuss individual cases with which we need not take time.
Fair Trial – the Merits – Independent and Impartial Tribunal: Professor Reyntjens and Professor Sands QC
"56. The United States Department of State's Human Rights report for 2006 expressed concern as to effective judicial independence. There is a well documented history of concern in this area and nothing I have seen leads me to have the confidence that Prof Schabas has expressed in his report. The whole structure and nature of the present regime militates against it.
74. Given the Rwandan Govemment's Human Rights record, its participation in the killing of tens - if not hundreds - of thousands since 1994, its stifling of opposition, including by extrajudicial killings, the use made of the Genocide as the raison d'etre for the present Government and an excuse for its excesses, the 'Tutsisation' of Rwandan society and consequent exclusion of Hutu, there are compelling reasons to have the gravest doubts as to the undertakings made by that Government in respect of fair trial issues. This is particularly true of the independence of the judiciary. It is essential to see its functioning in a broader political context, beyond technical considerations such as e.g. the improvement of legal training.
75. In my opinion, present Rwandan society is not capable of providing the guarantees necessary in the present case. Vincent Bajinya cannot expect to receive a fair trial in Rwanda given the nature of the charges against him and the political dimension to them. There is no prospect of a Judge, operating under the current regime in Rwanda, being able to act independently of the current pervasive RPF elite. His or her decision will be subject to the will of the Kigali regime and not independent of it."
"63. I have reviewed materials pertaining to genocide trials in the ordinary courts in Rwanda… [T]his information is limited insofar as there is little information publicly available on the processes and procedures of recent trials before the ordinary courts. However the literature provides historic examples of defendants having been jeered or mocked openly in court, without intervention from the presiding judge, as in the trials of Deogratias Bizitnana and Egide Gatanazi. Similarly, spectators at the trial of Froduald Karamira were not prevented by the trial judge from laughing and chanting at the defendant during trial proceedings. This would certainly not meet the guarantee of a fair hearing under international law.
70. In an assessment of the independence of the judiciary, the 2006 United States Department of State Report… records that the judiciary had 'made significant progress during the year' by assuming more control over the judicial budget and providing continuing training for new judges and that there were no reports of direct pressure on judges. The 2006 State Department Report also records that interviewed members of the Rwandan Bar Association had reported that 'they believed that the judiciary was more independent during the year than in 2005, citing the increased willingness of judges to rule against the government and a higher standard of judicial training and education'. The report supports the views expressed by those lawyers that judges had ruled against senior political figures during the course of 2006 and that several judges had been dismissed during the year for abuse of office or corruption following investigations by the Judicial Council.
71. Despite these positive elements, the 2006 State Department Report identifies problems and concludes that 'there were constraints on judicial independence' in 2006 and that, although judges appeared to be 'more assertive' in ruling against the executive, 'problems remained'. That assessment is based inter alia on stated views of members of the executive that 'calling judges to discuss ongoing cases privately and to express executive preferences was appropriate.' Further, while the 2006 State Department Report states that there were no reports of direct pressure on judges, in some cases deemed to be politically sensitive, it records that 'indirect public pressure may have influenced the judiciary', although this is rejected as uncorroborated 'nonsense' by the Rwandan government."
"There are severe restrictions on the separation of powers. The forum of political parties in which all legal parties are members is dominated by the RPF party, which controls government and parliament. Opposition parties are weak and their influence is nearly nonexistent as a consequence of both recent elections and their forced collaboration in the forum. If parties are seen to endanger the position of the RPF, they are dissolved (as was the case with the MDR) or not admitted (as seen with a party founded by Pasteur Bizimungu).
While the judiciary is formally independent and institutionally differentiated, in reality it is significantly subordinated to the will of the executive. As such, it acts in the interest of the executive's interpretation of 'ethnic and divisive tendencies' as was the case with the censuring of Bizimungu in 2004. Here, the case of Umeso's editor is illustrative. He was acquitted on the charge of divisionism in 2004 after publishing an article accusing the influential RPF member Denis Polisi of trying to overthrow Kagame, being corrupt and sabotaging legislation against corruption. It was obvious that influential groups in the leadership had used him to attack Polisi via the newspaper. As a result, he was ordered only to pay a symbolic fine... Although fighting corruption is an important political aim, corrupt officeholders are not prosecuted adequately under the law if they are influential, as was the case with Polici."
Professor Sands continues:
"73. Other observers have noted the existence of a deliberate 'Tutsification' of the judiciary under the leadership of Paul Kagame, leading to a politicisation of the different branches of the state and in positions of power within Rwandan society, with Hutus playing only a 'nominal' role. Rene Lemarchand, writing in 1991, claimed that 'appointed parliament is a fig leaf... the civil service, the judiciary, the economy, the schools and university are all under Tutsi control. This claim has been more recently reiterated by Filip Reyntjens who argues that the 'Tutsification' of the State began in 1996 and encompasses the Supreme Court and judges, amongst others. Amnesty International has previously reported the removal of Hutu judicial personnel and the recruitment and training by the government of predominantly Tutsi legal candidates, and stated that this has undermined the perceived impartiality of the judiciary. Amnesty International reports provide numerous historical examples of governmental interference in the judicial system since the genocide. Examples identified include the purported suspension of judges and prosecutors for failing to obey political orders or for taking decisions with which the government disagreed; the arrest on genocide charges of prosecutors and assistant prosecutors following the release of detainees; and the murder of members of the justice system. Also in the past there have been claims that the government has taken action against members of the legal profession for denouncing the interference of administrative and military authorities in the functioning of the judicial system or for refusing to authorise the detention of people accused of genocide against whom there was no evidence. Although these examples are historic, they concern the same government that is in power in Rwanda today.
74. There are also more recent examples of cases in which the government has apparently sought to use the courts to silence its critics. One example is the case of Professor Katabaruka, a law professor at the Catholic University of Bukavu in the Eastern Democratic Republic of Congo, who was arrested on 16 February 2007 while teaching a law course at the Adventist Lay University of Kigali. He was charged with 'threatening state security' and 'discrimination and sectarianism'. The charges related to several public documents that Professor Katabaruka was alleged to have co-authored, including an article entitled 'Alerte Rwanda' ('Rwanda warning') published in 2005… The article provided an overview of human rights concerns in Rwanda, and denounced the gacaca courts as places of 'intimidation, terror and injustice', devoid of 'sincerity' and biased in their sole focus on Hutu rather than Tutsi crimes. After being held for one month, charges against Professor Katabaruka were dropped, but he was declared persona non grata and forcibly removed to the Democratic Republic of Congo. The episode appears to reflect how the Government of Rwanda deals with certain critics. The fact that the criticisms concerned the fairness of certain genocide proceedings (before the gacaca court system) appears relevant to the assessment of the political conditions in which genocide proceedings before the criminal courts take place."
"The High Court, which would try any person transferred to Rwanda by another State, now has 26 judges and 19 members of support staff, all 'trained in 1aw'.  All judges of the High Court and the Supreme Court must now possess a law degree, as a minimum qualification. Candidates must also possess 'adequate legal experience'."
After describing various factors pro and con judicial competence in Rwanda Professor Sands says this:
"83. In sum, the experience with the appointment of new judges is very recent, and it appears to be too early to be able to express any firm view on the independence and impartiality of the judges who might hear the Defendant's case. Professor Schabas' report is silent on the question of judicial impartiality. The letter of the law and the formal requirements are capable of meeting the standards set down in Article 14 [sc. of the ICCPR] concerning the independence of the judiciary. However, in order to be able to express a clear view it would be necessary to have detailed information on the judges, including their backgrounds and experience in dealing with cases of this kind. It would also be necessary to be able to review a body of case-law and practise emanating from these judges. None of this information appears to be available. It may well be that were the Defendant to be extradited the judge in his case would show him or herself to be competent, independent and unsusceptible to political or other pressure. However, having regard to the examples cited, it is difficult to exclude the possibility of there being a real risk that the defendant would not be tried by an independent tribunal, especially given the high profile nature of the case. As stated by Professor Drumbl, following his detailed review of the case law in genocide cases:
'If you look at the special chambers, over time there have been great improvements, with routine acquittals. The system has grown in sophistication. My review of the case law surprised me, in terms of the extent to which it complied with the spirit of Article 14. But I must make two important caveats to that statement. The first is that the published judgments that are available for review in the French language do not provide a snapshot of the whole. And secondly, these cases did not focus on the top highest order defendants, and I do think that the political pressures to secure convictions would be higher as you go higher up.'
84. Having regard to historical experience and some more recent examples it would seem to be difficult to exclude the possibility that there is a real risk that this aspect of Article 14 ICCPR might not be respected."
"The three expert witnesses who have given evidence to the court are Professor Schabas for the Government and Professors Reyntjens and Sands for the defence. Even here, however, a note of caution must be entered as Professor Schabas and Sands hold Chairs in Public International Law and Professor Reyntjens holds one in Law and Politics."
We suppose this is intended as a reservation about these witnesses' status as experts, on the footing that their respective disciplines are not specific to Rwanda (or Africa); otherwise the comment is simply mystifying. At paragraph 432 the judge refers to Professor Sands' lack of first-hand knowledge of Rwanda, "and so had to get in touch with former students in order to be able to try to interview people and form a picture of the situation on the ground…". This seems a little curmudgeonly.
Fair Trial – the Merits – Independent and Impartial Tribunal: the Bizimungu Case
""The trial against Bizimungu and his seven co-defendants, which began in March, was marred by a lack of corroborating evidence against the defense and was characterized by many international observers as having fallen short of international standards of fairness and impartiality. During the course of the trial, Bizimungu's attorney was detained for 24 hours for contempt of court, the judge prevented the defense from fully cross-examining the prosecution's witnesses, and the defense was only allowed to present a limited number of witnesses."
The contempt allegedly committed by the attorney consisted in his insistence on questioning a witness. The eight defendants were convicted on some charges and acquitted on others. Bizimungu was sentenced to fifteen years imprisonment.
"The verdict could not be explained by purely legal considerations since all eight had been convicted of the criminal association charge largely on the basis of the same faulty witness."
Bizimungu was freed by presidential pardon in 2007.
"I think there probably was executive interference in the Bizimungu case. I don't know the full nature of it, but it certainly smells like a case of executive interference."
"450. lf what was reported to Professor Schabas was correct, then this is, of course, very disturbing. Paradoxically, however, the defendant was granted a Presidential pardon.
451. However, this is the only case that the defence can point to as an example of executive interference. It was mentioned countless times in the course of this case, and the very number is illustrative that there appears to be no other case which may be highlighted."
Paradoxical or not, the grant of a pardon after the event does not mitigate the fact of executive interference, if fact it was. And the suggestion that Bizimungu is not merely the only identified instance of such interference with the judiciary, but the only actual instance, seems entirely unwarranted given the consistent failure of the GoR to respond to repeated requests, made during the currency of the proceedings below, for judgments and other details of trials in Rwanda's conventional courts for genocide and linked offences (see in particular Miss Ellis' skeleton argument paragraphs 9.3 – 9.9). Given that the relevant information about the day-to-day administration of justice in those courts must primarily be in the hands of the GoR, the singularity of the Bizimungu case does not begin to imply that it is the only such case. If anything the GoR's silence tends to imply the opposite. Seeking to refute this approach Mr Lewis pointed to this observation made by Professor Schabas in relation to the High Court in his evidence in chief on 15 November 2007:
"I couldn't give you a precise number but I know that there have been a significant number of trials, and to my knowledge there have not been serious or significant complaints about justice delivered in that court."
However his cross-examination by Mr Fitzgerald on 22 April 2008 included this:
"Q. Now, have you yourself studied the performance of the High Court in those matters since 2004?
A. No, I haven't.
Q. I mean, can you tell us in relation to the High Court trying those criminal matters, what the acquittal rate is there?
A. I cannot.
Q. It might be nil, for all you know?
A. It is possible.
Q. Have you studied the transcripts of any of the cases in the High Court?
No. I haven't, sir.
Q. Have you any knowledge of how they actually deal with witnesses who ask for anonymity?
A. No, I am not aware of that.
Q. Can you give any example where they have excluded evidence on grounds of police maltreatment, or said they won't rely on it because of police maltreatment?
A. I am not aware of that.
Q. Can you give any example where they have even criticized the police?
A. I cannot.
Q. We know something about two matters which were before the High Court, Bizimungu and the Agnes case which is still there. By contrast, can you put before this judge a case and say: 'Look, there was a case decided by this new High Court which was plainly fairly decided and plainly reached a fair decision'? Can you give one example?
A. I cannot."
We are left where we were. As we have said, the singularity of the Bizimungu case (assuming the alleged political pressure happened) does not begin to imply that it is the only instance of executive interference with the judiciary.
"The president of the trial chamber that convicted Bizimungu later fled Rwanda and told journalists that there had been no substantial proof of Bizimungu's guilt and that he had been convicted as a result of political pressure."
HRW's source for this statement is given in a footnote (fn. 170) as being "Didas Gasana, 'Bizimungu: Est-ce le pardon, la pression ou un plan politique?' Umuseso, no. 280, May 19-26, 2007". It is not on the face of it clear whether this represents the same source as was available to Avocats sans Frontières or whether the trial judge had given his account of political pressure to more than one listener. As it happens Professor Schabas' visit to Rwanda in order to conduct interviews for the purpose of preparing his report also took place in May 2007. However Mr Lewis told us that the judge below had been informed that there were different sources.
Fair Trial – the Merits – Independent and Impartial Tribunal: Professor Schabas
"57. By all accounts Rwanda has made extraordinary progress in rebuilding the country since the 1994 genocide. Its justice system is unrecognizable. Compared with the sham that existed in l993 and 1994 there are functioning courts with trained professional judges. There is a vigorous defence bar, that accepts its responsibility to act on behalf of the indigent. The courthouses have appropriate physical facilities for trials. Although most of the detention premises are still quite disgraceful, places now exist where accused persons and convicted offenders may be detained in accordance with international standards.
58. Although Rwanda is obviously making these improvements because of its desire to develop a modern justice system, there is an important incentive in the current process of transferring accused persons from the International Criminal Tribunal for Rwanda to national justice systems. For various reasons, some related to transitional justice imperatives and some merely a question of national pride, Rwanda is eager to effect these transfers. A dynamic has been established whereby international standards that are the sine qua non of transfer by the International Tribunal have prompted further progress and improvement in the Rwandan justice system.
59. Even the most modern and sophisticated of justice systems, in countries with long traditions of judicial impartiality and respect [for] due process, are capable of missteps. It seems to me that the issue is not whether a miscarriage of justice might occur but rather whether it is likely, and under such a standard it is my opinion that Rwanda now passes the test. I am comforted in my opinion by the apparent willingness of the Prosecutor of the International Criminal Tribunal for Rwanda to effect the transfers to Rwanda. Rwanda cannot afford to be cavalier with respect to any of the transferred accused, whether they come from the International Tribunal or [from] other States. I am confident that fair trials will be held by the High Court in Kigali, subject to intense international scrutiny, and that the individuals charged; if convicted, will be detained in conditions that are humane and acceptable."
"…Human Rights Watch established an office in Rwanda in February 1995 and has maintained an office in Rwanda continuously since that time, to the present… [it] considers the human rights situation in Rwanda to be of great importance… and [has] considered Rwanda a high priority for our work for many years and continue to do so."
Furthermore it emerged in his oral testimony that Professor Schabas had spoken with Alison des Forges (author of "Leave None to Tell the Story"), the distinguished HRW researcher, in May 2007 and must surely have appreciated the force of her views as regards the difficulties of getting justice in Rwanda.
"Human Rights Watch is not a neutral investigative body. It is an advocacy organization which takes positions at a political or policy level, then marshalling the evidence, such as it exists, in order to support its views. As for the International Association of Criminal Defence Attorneys, it manifests the ambiguities of all professional bodies of lawyers around the world, defending both the public concern in fair trials but also the material interests of its members. Could a factor in the organisation's opposition to transfers have been that its members earn their living at the International Criminal Tribunal for Rwanda, rather than in the national courts of Rwanda? Might this have influenced its objectivity in fact-finding?"
Professor Schabas is not, it seems, a dispassionate observer of the affairs of HRW (or the International Association of Criminal Defence Attorneys).
"a strong dose of caution with respect to the more general analyses presented by these organisations and, I dare say, by similar groups".
He concluded that
"(t)here is a negativism from some observers that simply does not correspond to the reality".
"The references to the interviews and information given by Avocats sans Frontières, the Danish Institute for Human Rights and Penal Reform International are an inaccurate representation of what each of our 3 organisations said. The statements referred to in the report are taken out of context and the interpretation and quotation of the examples given, incorrect and incomplete;
All three organisations understood that Professor Schabas was writing a report in his independent capacity as an academic. It was not clearly stated that he was writing a report for the Crown Prosecution Service nor did Professor Schabas request permission to quote us as organisations or individuals."
There followed correspondence in which some details of the inaccuracies complained of were given. Thus Alison Hannah, Executive Director of Penal Reform International, wrote a further letter dated 25 September 2007 in which she states inter alia:
"Our mission in Rwanda is far from 'predictable grumbling' but involves detailed monitoring and research of an ongoing justice process that is taking place in a highly charged and sensitive political environment. It is not clear whether Professor Schabas has seen PRI's reports... They refer to a number of issues that may well be relevant for the trial of category 1 cases – for example, the speed with which the process was introduced; the lack of adequate training for those responsible for trying cases in the gacaca courts; the absence of a presumption of innocence; pressure on suspects to confess; the risk of false evidence being given as a means of obtaining revenge and poor prison facilities.
Professor Schabas' interview with Fatima Boulnemour, our Regional Director, lasted around 20 minutes. He described himself as an independent researcher, without informing her that he was briefed to report to the CPS, at the request of the Rwandese Government. She does not accept his account of her comments, and believes he has distorted her views. It is true that he asked her if she could give an example of political influence on the justice system, and she mentioned the case of Agnes Ntamadyariror. She did not express an opinion as to whether she should have been released or not. She did express her concerns over interference by the local authorities and the speed of bringing cases before the courts posing a risk for the justice system…"
And there are other instances, including an unequivocally worded statement from the Danish Institute for Human Rights.
Fair Trial: Conclusions
OTHER GROUNDS OF APPEAL
(1) any of the appellants had a case to answer under section 84(1);
(2) there had been no lack of candour or failure of disclosure by the GoR;
(3) the extradition of VB, EN and CU was not barred by reason of the passage of time under section 79(1)(c);
(4) the extradition of VB would not infringe his rights under Article 8 of ECHR; and
(5) in respect of EN, the offences alleged against him were extradition offences as defined by section 137(2).
(1) the appellants would not be subject to the death penalty; and
(2) the GoR would uphold the rule of specialty.
We address these various arguments in turn.
No Case to Answer
"A fact finding exercise as to where the truth lies is for any court of trial in the future."
The appellants' submissions that the GoR's witness statements were so unreliable that they should not be admitted under s.84(3), or should have been excluded under s.78 of PACE, were to a substantial extent a reformulation of the points made as to why the written material relied upon by the GoR against the appellants did not amount to a case to answer. The judge dealt with these submissions in paragraphs 204-215 of his judgment. We can see no error in his conclusion that in all the circumstances, including the appellants' ability to adduce written and oral evidence to controvert the written evidence against them it was not unfair to admit under s.84(1) the witness statements relied on by the GoR.
Lack of Candour/Disclosure
"there nevertheless remains their duty of good faith and candour which requires them to disclose matters which destroy or severely undermine their case."
Passage of Time
"But because of the non-self-executing character of the convention, it could not readily be invoked in prosecutions. Rwandan legislation later admitted this in the preamble to legislation enacted in 1996 to facilitate prosecutions for genocide."
"that it results in effect from the legislation applicable in Rwanda, more specifically law No 33bis/2003 of 6 September 2003, that repression of acts qualified as genocide or crimes against humanity were up till then absent from the criminal apparatus of this country."
The Appeal against the Secretary of State
"no reason why Rwanda would compromise its relations with the UK and its future ability to seek the surrender of other individuals from the United Kingdom, and indeed from other states, by not upholding the rule of speciality and by not giving effect to Paragraph 8 of the MOU."