The Director of Public Prosecutions v. T.

Court	Supreme Court of Denmark, Denmark
Case number	105/2013
Decision title	Order of the Supreme Court of Denmark
Decision date	6 November 2013
Parties	The Director of Public Prosecutions T
Categories	Crimes against humanity, Genocide, War crimes
Keywords	genocide, murder, extraterritorial jurisdiction, universal jurisdiction
Links	Order (Original in Danish) Order (Translation in English)

Summary

T, a Rwandan national who had lived in exile in Denmark under a false name since 2001, was brought before a Danish court in 2011 for committing genocide, namely heading a death squad and participating in the slaughter of 25,000 Tutsis in a Rwandan town in 1994.

While the Rwandan authorities requested T's extradition in February 2012, the Danish Supreme Court decided on 26 April 2012 that T. could be prosecuted in Denmark for genocide. Nevertheless, on 29 June 2012 the Minister of Justice decided that T. was to be extradited to Rwanda. T. challenged this decision, but both the first instance and appeals courts dismissed his arguments.

In last instance, the Supreme Court found, referring inter alia to the Sweden v. Ahorugeze-decision on extradition in a rather similar situation, that there was no reason to not extradite T. It confirmed the earlier decisions.

Procedural history

On 31 May 2011, T, a Rwandan national who had lived in exile in Denmark under a false name, was brought before a Danish court for committing genocide (namely heading a death squad and participating in the slaughter of 25,000 Tutsis in a Rwandan town) in 1994. Although the Roskilde City Court and the Eastern High Court only convicted him for murder, the Danish Supreme Court overturned their decisions and decided on 26 April 2012 that T. could be prosecuted for genocide, regardless of whether the genocide took place outside Denmark or whether T. was not a Danish national.

Meanwhile, Rwanda requested T's extradition in February 2012. On 29 June 2012 the Danish minister of Justice decided that T. was to be extradited to Rwanda indeed. T. challenged this decision in court, but both in first instance (19 November 2012) and in appeal (22 March 2013) the decision to extradite was affirmed. He challenged the appeals decision at the Danish Supreme Court.

Related developments

The preparation of T.'s extradition was stalled after he issued a complained at the European Court for Human Rights (ECtHR), claiming that his fundamental rights would be violated if he were to be extradited to Rwanda. However, the ECtHR dismissed his complaints on 12 January 2014 and affirmed the Supreme Court's order authorising the extradition.

Legally relevant facts

The Accused was a school inspector during the Rwandan genocide in 1994 and allegedly acted as the head of a death squad resulting in the deaths of 25 000 Tutsis. Later, the Accused fled to Denmark where has has lived under a false name in exile, until the Danish police arrested him in December 2010.

In February 2012 the Rwandese authorities requested his extradition. Their request was granted by the Danish minister of Justice on 29 June 2012.

Core legal questions

The main question the Supreme Court had to answer, was whether T. could be extradited to Rwanda. The law - both Danish and European - prohibits extradition under certain circumstances, which the Supreme Court had to assess:

(Lack of) dual criminality, or time-barred prosecution;
Lack of evidentiary basis for the Rwandese charges;
Risk of persecution or torture in case of extradition;
Unfair trial;
No extradition allowed for political offences;
Ne bis in idem/double jeopardy; and
Humanitarian circumstances ("age, health or other personal conditions").

Specific legal rules and provisions

Articles 3, 6 and 8 of the European Convetion on Human Rights.
Sections 1 and 2 of Danish Act No. 132 on punishment of genocide.
Section 237 of the Danish Criminal Code.
Articles 1(1), 2A, 3(3)-(4), 6(1)-(2),7, 8(1) and 16(1) of the Danish Extradition Act.

Court's holding and analysis

In deciding whether T. could be extradited, the Supreme Court assessed all possible reasons why extradition would not be allowed.

The Court commenced with finding that (complicity to) genocide and manslaughter are criminal offences in both Danish and Rwandan law; hence, the requirement of dual criminality has been fulfilled. And due to the gravity of these crimes, their criminal liability cannot become time-barred under Danish law.

Continuing with the evidentiary basis-argument, the Court found that since the Rwandese extradition request was unfounded. And referring to the Ahorugeze v. Sweden-decision, the arguments that T. would risk being subjected to torture or inhuman treatment or that his trial would be unfair, were dismissed as well. No indications supporting such allegations were found.

Concerning the exemption of political offences from extradition, the Court noted that genocide was definitely not a political offence in the sense of the Extradition Act.

T's position that he had been convicted in Rwanda by a Gacaca Court for the same acts already (on 18 September 2008) may have been correct, but since Rwandan law had already cancelled the legal bindingness of these Gacaca Court decisions and ordered retrial of such cases, extradition and subsequent trial would not violate the ne bis in idem-principle.

And finally, regarding "humanitarian circumstances", the Court agreed that extradition would mean a serious intervention into T.'s personal and social conditions: he had lived in Denmark for twelve years, together with wife and children. However, the Court argued, the crimes for which his extradition was requested are of such grave and serious nature that they override his personal interests.

In conclusion, the Court ordered that extradition of T. to Rwanda is lawful.

Further analysis

For an analysis of the Danish extradition legislation, see J. Vestergaard, 'Implementation of the Framework Decision regarding the European Arrest Order - the Danish Extradition Legislation', in: S. Alegre & M. Leaf (Eds.), European Arrest Warrant. A solution ahead of it time? , London: Justice, pp. 91-96.