Case of Ahorugeze v. Sweden

Court	European Court of Human Rights, France
Case number	37075/09
Decision title	Judgment
Decision date	27 October 2011
Parties	Sylvère Ahorugeze Sweden
Categories	Crimes against humanity, Genocide, Torture
Keywords	Extradition; torture; ill-treatment; 1994 Rwandan genocide; crimes against humanity
Links	Judgment: Ahorugeze v. Sweden
Other countries involved	Rwanda Sweden

Summary

Sylvère Ahorugeze was a Rwandan national and former director of the Rwandan Civil Aviation Authority and Kigali international airport. An international arrest warrant was issued against him on the basis of his alleged participation in the crime of genocide (intentional destruction of a national, racial, ethnical or religious group or part of it) and crimes against humanity (crimes committed on large scale including but not limited to murder, rape, torture) committed in Rwanda in 1994. On 16 July 2008, Ahorugeze was arrested in Sweden and on 7 July 2009, the Swedish government decided that he could be extradited to Rwanda.

Subsequently, Ahorugeze filed an application at the ECtHR. He claimed that his health was poor, and that his Hutu ethnic background, the prison conditions in Rwanda, and a lack of impartiality and independence of the judiciary were factors that should prevent his extradition to Rwanda. The Court dismissed his case and held that there were no reasons to believe that Ahorugeze would be subjected to inhumane or unfair treatment in Rwanda and that he would not receive a fair trial.

Procedural history

Sylvère Ahorugeze, a Rwandan national and former director of the Rwandan Civil Aviation Authority and former head of Kigali international airport, legally resided in Denmark since 2001 and claimed to have left Rwanda on 14 April 1994. Since Danish law allows for the prosecution of genocide suspects residing in Denmark, a Danish public prosecutor opened a preliminary investigation into Ahorugeze over allegations that he was involved in genocide and crimes against humanity in Rwanda in 1994. This investigation was opened in January 2006 and specifically concerned the massacre of Tutsis on 7 April 1994. In September 2007, the preliminary investigation was brought to a halt as the prosecutor did not believe that there was sufficient evidence to prosecute Ahorugeze.

Subsequently, the Rwandan government requested Ahorugeze’s extradition but the Danish authorities were unable to decide on the request for extradition due to the Rwandan government’s failure to provide sufficient information and evidence about the alleged crimes.

On 16 July 2008, after Ahorugeze visited the Rwandan embassy in Stockholm, he was arrested by the Swedish police in compliance with an international alert and arrest warrant. A Swedish court ordered him to remain in custody pending a request for extradition by Rwanda on charges of genocide and crimes against humanity.

On 26 May 2009, the Supreme Court of Sweden ruled (in Swedish only) that the Swedish government had final authority on granting the extradition of Rwandan nationals. The Court dismissed the arguments of Ahorugeze that his extradition was prevented under the Swedish extradition law and under Articles 3 and 6 of the European Convention on Human Rights (ECHR) due to the risk of persecution as he was a Hutu, the shortcomings of Rwanda’s justice system, and circumstances concerning his poor health. The Court found that the extradition was allowed under both domestic and international law, thereby taking into account the general improvements of Rwanda's justice system and legislative reforms ensuring, inter alia, the right to a fair trial and other human rights standards.

On 7 July 2009, the Swedish government decided to extradite Ahorugeze to Rwanda to stand trial for genocide and crimes against humanity.

On 13 July 2009, Ahorugeze filed an application with the European Court of Human Rights (ECtHR), claiming again that his extradition would violate Articles 3 and 6 of the ECHR. Ahorugeze was of the opinion that because of his ethnic background as a Hutu and the prison conditions in Rwanda, he would be at serious risk of torture and other ill-treatment if extradited to Rwanda. In addition, Ahorugeze was suffering from heart problems and argued that he needed a heart bypass operation within a few years which could not be done in Rwanda. Furthermore, according to Ahorugeze, a fair trial could not be guaranteed, inter alia, because of a lack of qualified lawyers who could defend him, his inability to bring forth witnesses due to their fear of reprisal, and because of a lack of independence and impartiality of the judiciary in Rwanda. Moreover, as Ahorugeze had given testimony for the defense in cases adjudicated by the ICTR he said he was therefore of great interest to the Rwandan authorities.

On 20 July 2011, the Swedish government decided not to enforce the extradition until further notice.

On 27 July 2011, the Supreme Court ordered Ahorugeze to be released because there was no basis to keep him in custody until the ECtHR would decide on his case. Ahorugeze returned to Denmark.

Related developments

Ahorugeze currently resides in Denmark. In order for Ahorugeze to stand trial on charges of genocide and crimes against humanity in Rwanda, the Rwandan authorities would have to request his extradition from Denmark.

Legally relevant facts

As regards the prison conditions, the Dutch government as third-party intervener stated that genocide suspects and convicts in Rwanda were to be detained in the Mpanga Prison that fully complies with international standards. In addition, the Swedish Office for Development Cooperation also held that Ahorugeze would serve his sentence in the Mpanga Prison, and asserted that the detention centers and prisons for persons arrested or convicted for the crime of genocide were assessed as good. Moreover, it held that those persons would receive the best possible care due to the great interest from the international community.

Core legal questions

Would Ahorugeze, in case of extradition to Rwanda, be at risk of being subjected to torture or other ill-treatment which is in violation with Article 3 ECHR?

Would Ahorugeze’s fundamental rights, such as the right to a fair trial as provided in Article 6 ECHR, be violated if extradited to Rwanda in order to stand trial for alleged crimes against humanity and genocide?

Specific legal rules and provisions

The Extradition for Criminal Offences Act, 1957, Sweden:

Section 1 and 4 - Extradition
Sections 5-8 - Limitations on extradition
Section 14 - Extradition request
Section 15 - Role of Prosecutor-General
Section 16 - Necessary investigation by the Prosecutor-General
Sections 17-18 - Prosecutor-General submits the case to the Supreme Court
Section 20 - Report to the Government after Supreme Court issued decision
Section 23 - Specific rules on coercive measures

Organic Law no. 11/2007 of 16/03/2007 concerning transfer of cases to the Republic of Rwanda from the International Criminal Tribunal for Rwanda and from other States:

Article 2 - Court with competent jurisdiction to try the cases
Article 13 - Guarantee of rights of an accused person
Article 14 - Protection and assistance to witnesses
Article 14 bis - Testimony of a witness residing abroad
Article 15 - Defence Counsel
Article 16 - Appeals
Article 21 - Heaviest penalty
Article 23 - Detention
Article 24 - Applicability of this law to other matters of transfer between Rwanda and other states

Organic Law no. 31/2007 of 25/07/2007 relating to the abolition of the death penalty, Rwanda:

Article 2 - Abolition of the death penalty
Article 3 - Substitution of death penalty
Article 4 - Life imprisonment with special provisions

Convention for the Protection of Human Rights and Fundamental Freedoms, 1953:

Article 3 - Prohibition of torture
Article 6 - Right to a fair trial

Court's holding and analysis

On 27 October 2011, the Fifth Section of the ECtHR decided on Ahorugeze’s case.

In respect to the claim of violation of Article 3 ECHR, the Court held that Ahorugeze’s medical condition as propounded by him could not be proven by medical certificates and therefore, the Court found that there were ‘no compelling humanitarian grounds’ to block his extradition (para. 89). The Court also rejected the allegation that there is a risk of persecution on ethical grounds. The Court held that there was no evidence showing ‘that there is a general situation of persecution or ill-treatment of the Hutu population in Rwanda’, and neither had Ahorugeze put forward ‘any particular personal circumstances which would indicate that he [would risk] being subjected to treatment contrary to Article 3 due to his ethnicity’ (para. 90). In respect of the conditions of detention and imprisonment in Rwanda, the Court relied on assessments made by the ICTR, the Dutch government and the Oslo District Court. The Court held that the Rwandan facilities do meet international standards and, therefore, there is no risk of being tortured or subjected to other ill-treatment (paras. 91-94).

Consequently, the Court concluded that Ahorugeze’s extradition to Rwanda would not violate Article 3 ECHR.

With regard to Ahorugeze’s assertion that Article 6 ECHR would be violated if extradited to Rwanda, the Court held that ‘an issue might exceptionally arise under Article 6 by an extradition decision in circumstances where the individual would risk suffering a flagrant denial of a fair trial in the requesting country’ (para. 113). In order for “a flagrant denial of justice” to exist, 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’ (para. 115). In respect of Ahorugeze’s arguments alleging a violation of Article 6 ECHR, the Court held that, as a result of amendments to Rwandan law, witnesses are protected and immune from prosecution for statements made or actions taken during a trial, and, in addition, their statements are examined by the courts in Rwanda (paras. 120-123). Furthermore, the Court stated that many lawyers in Rwanda have more than five years’ experience, and that the Rwandan judiciary does not lack the requisite independence and impartiality (paras. 124-125). As regards Ahorugeze’s testimonies given for the defense in trials before the ICTR, the Court found ‘that it has not been substantiated that his trial would be conducted unfairly’ because of these testimonies. Therefore, the Court came to the conclusion that it could not be proven that his trial would be conducted unfairly and that there was no reason to fear that Ahorugeze would face “a flagrant denial of justice” (para.129).

Accordingly, the Court ruled that extradition of Ahorugeze would not involve a violation of Articles 3 and 6 of the ECHR.

The judgment became final on 4 June 2012.

Further analysis

M. L. Rettig, ‘Transnational Trials as Transitional Justice: Lessons from the Trial of Two Rwandan Nuns in Belgium’, Washington University Global Studies Law Review, 2012, Vol. 11(2), pp. 365- 414.

R. D. Ivory, ‘The Right to a Fair Trial and International Cooperation in Criminal Matters: Article 6 ECHR and the Recovery of Assets in Grand Corruption Cases’, Utrecht Law Review, September 2013, Vol. 9(4), pp. 147- 164.

Instruments cited

Additional materials

‘Sylvere Ahorugeze’, TRIAL.

'ICTR/Genocide - Swedish Court Nods Extradition of Rwanda Genocide Fugitive', Hirondelle News Agency, 27 May 2009.

W. A. Schabas, 'Finally, an Extradition to Rwanda', PhD Studies in Human Rights, 11 July 2009.

‘Sweden 'not wrong' to okay genocide suspect extradition: court’, The Local, 27 October 2011.

Registrar of the European Court of Human Rights, ‘Extradition of genocide suspect would not breach the European Convention on Human Rights’, European Court of Human Rights, 27 October 2011.

‘European Court of Human rights Okay Ahorugeze ext radition’, Great Lakes Voice, 27 October 2011.

‘World Report 2012: Rwanda’, Human Rights Watch, January 2012.

‘Genocide suspect’s appeal denied in Europe’, The Local, 14 June 2012.

‘Rwandan genocide suspect fights extradition’, ENCA, 7 November 2013.

Social media links

‘Supreme Court Sweden: Extradition of Sylvere Ahorugeze to Rwanda on Genocide charges’, International Criminal Law Digest, 22 July 2009.

G. Gordon, ‘Sweden Decides to Extradite . . . And Then Changes Its Mind’, Opinio Juris, 23 July 2009.

D. Zimmermann, ‘The decision of the Swedish Government to extradite a Rwanda genocide suspect’, International Law Observer, 10 September 2009.

J. Ramji-Nogales, ‘A fair trial in Rwanda?’, IntLawGrrls, 31 October 2011.

‘European Human Rights Court oks extradition to Rwanda’, The Arusha Times, 5 November 2011.

J. Schurr, ‘Green light - Sweden to Rwanda genocide extradition’, Radio Netherlands Worldwide, 7 November 2011.

G. Hall, ‘The European Court of Human Rights Grants Rwanda’s Extradition Request’, Impunity Watch, 7 November 2011.

‘ECHR: Ahorugeze: Court Gives Green Light to an Extradition to Rwanda’, Justice Updated, 9 November 2011.

V. Harris, ‘Has Rwanda Restored An Independent Judiciary?’, Colored Opinions, 27 February 2012.

‘Renewed Requests to Extradite Ahorugeze’, Rwanda Express, 31 January 2013.