Friday 28 October 2011

Rwandan Extradition Authorized by European Court of Human Rights

Another element in the issue of extradition and transfer to the Rwandan justice system. Yesterday, a Chamber of the European Court of Human Rights dismissed the application by a Rwandan genocide suspect who was fighting extradition to Rwanda by Sweden. It is the latest in a long line of cases from various jurisdictions in Europe as well as from the International Criminal Tribunal for Rwanda that address the fairness of the Rwandan justice system and the danger of inhuman treatment if suspects are returned to Rwanda for trial. A further dimension to these cases is that they concern genocide and not just ordinary crimes. There is an international legal duty to ensure that genocide suspects are brought to justice.
Earlier this year, a Trial Chamber of the International Criminal Tribunal for Rwanda ruled that the transfer of a case to Rwanda could proceed. That decision is now on appeal.
Several European states have considered extradition. In the UK, four cases proceeded through the courts but extradition was ultimately denied and the suspects were set free. They continue to live in the UK and have not been brought to justice. Finland chose to proceed domestically by way of universal jurisdiction. Sweden rather boldly decided to go ahead with an extradition, despite the British ruling as well as those of the International Criminal Tribunal for Rwanda denying transfer. The case has been pending before the European Court for more than two years.
From the standpoint of the European Convention on Human Rights, there have been two issues, based upon articles 3 and 6. The article 3 issue concerns inhuman or degrading treatment, and it has not proven to be very difficult in any of the proceedings. The article 6 issue, about the risk of a flagrant denial of the right to a fair trial, has been more difficult, largely because the parameters of the European Court’s caselaw remain uncertain here. It all goes back to a reference in the famous Soering decision of 1989. Soering denied extradition based upon a possible violation of article 3, but said, in passing, that issues might also arise under article 6.
Here is what the Chamber had to say in yesterday’s decision:
115.  It should be noted that, in the twenty-two years since the Soering judgment, the Court has never found that an extradition or expulsion would be in violation of Article 6. This indicates that the “flagrant denial of justice” test is a stringent one. A flagrant denial of justice goes 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. What is required 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.
In my view, the earlier decisions of the International Criminal Tribunal for Rwanda were overly harsh and, ultimately, wrongly decided. They had a terrible influence on justice officials and courts in Europe, and ultimately contributed to impunity for genocide (even if this was not their intent).
One of the challenges to international justice is its ability to make fair assessments of domestic legal systems. At the International Criminal Court, a case may be admissible if the national justice system is ‘unable’ to proceed. Setting standards that are too high will mean that the international system will always prevail, at least when poor and developing countries are concerned.
We are constantly improving our expectations of fair trial standards. Even in rich countries, the expectations are much higher than they were decades ago. But does that mean that all trials in the past were unfair? There is something wrong with such assessments.
Thanks to Christopher Ryan.


Iain Edwards said...

This decision is very disappointing, if not entirely unpredictable. As Prof. Schabas notes, any other finding of the ECtHR on art. 6 would have been unprecedented. Despite some improvements, Rwanda's justice system still has a long way to go.

Pros. Schabas is wrong in arguing that the 2008 referral decisions of the ICTR were "overly harsh and, ultimately, wrongly decided." And for it to be said that these decisions had "a terrible influence" in Europe is, in my view, to miss the point spectacularly. The law was applied and the evidence was scrutinised in numerous national courts; time after time the Rwandan justice system was found wanting.

For example, the UK High Court decision in Brown (aka Bajinja) et al. considered the evidence itself, dispassionately and arguably in far greater detail than ever did the ICTR, and arrived at the same conclusion that there would be no fair trial in Rwanda. Indeed, the High Court went further than the ICTR's Appeals Chamber and accepted evidence of executive interference in the judiciary in Rwanda - a concession that Pros. Schabas himself was obliged to make in the context of the high-profile trial of the former President of Rwanda, Pasteur Bizimungu.

"Poor and developing" countries should not be held to a lower standard when it comes to fairly trying individuals charged with the very most serious of crimes. Art. 14 of the ICCPR imposes minimum standards applicable to all signatory states.

And to answer the rhetorical question: Yes, many (if not all) trials in the past in "rich countries" were unfair when assessed against today's more enlightened and fairer standards. Terrible miscarriages of justice did occur in "rich countries" as a direct result. We should strive to ensure that these risks are minimised in the future, irrespective of the country in which any given trial takes place, by insisting on universal minimum and, where necessary, evolving standards.

Alarmingly, the ICTR earlier this year in the Uwinkindi case (in which I have to declare an interest) woefully failed to apply the correct test and arrived at an extremely dangerous decision as a result. One can only hope that the Appeals Chamber rediscovers the right path.

Mark Klamberg said...

In view of the compliant at the ECtHR, the Swedish authoritier have postponed the transfer to Rwanda. However, the decision of the ECtHR was to late.

The suspect was released from Swedish custody in July 2011 because the Swedish Supreme Court could find no justification for keeping a person detained for such a long period (2008-2011). The suspect has now left Sweden.

Fannie Lafontaine said...

There are some interesting developments in Canada in the Léon Mugesera case that are not exactly innocently happening a few weeks after the ECHR and ICTR decisions on transfers!

After 20 years in Canada, 15 years before the courts and 7 years after a judgment of the Supreme Court of Canada had confirmed his deportation, Mr. Mugesera, a Quebec City resident, has now received his order of deportation to Rwanda. Judicial review ongoing...

For my quick 10cents on this news that came out 31 December 2011, please read my blog entry (thanks to Rub Currie for hosting me!)

"Mugesera: Canada's First Faltering Steps in the Debate Over Transferring Genocide Suspects to Rwanda":