Government of Rwanda v Nteziryayo & Ors [2017] EWHC 1912 (Admin)

“23. The effect of sections 27(2) and (3) of the Extradition Act 2003 is that an appeal may be allowed only if, in this court's judgment, the District Judge ought to have decided a question before her differently. This places the original issues very nearly at large before us, but with the obvious restrictions, first, that this court must consider the District Judge's reasons with great care in order to decide whether it differs from her and, secondly, that her fact-findings, at least where she has heard evidence, should ordinarily be respected in their entirety.”

“The Rwandan authorities have improved the delivery of justice in the last five years, a noteworthy achievement given the problems they have faced.”

“68. Moreover, the question whether a court is independent and impartial cannot be answered without considering the qualities of the political frame in which it is located. If the political regime is autocratic, betrays an intolerance of dissent, and entertains scant regard for the rule of law, the judicial arm of the State may be infected by the same vices; and even if it is not, it may be subject to political pressures at the hands of those who are, so that at the least the courts may find it difficult to deliver objective justice with even-handed procedures for every litigant whatever the nature of his background or the colour of his opinions. We must take care, of course, to avoid crude assumptions as to the quality of a State’s judiciary based on the quality of the State’s politics. There are, thankfully, many instances of independent judges delivering robust and balanced justice in a harsh and inimical environment; but it takes courage and steadfastness of a high order.”

“119. As will be apparent from this judgment, we accord great respect to the ICTR’s decisions. However, the Appeals Chamber’s finding that 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 transfer request was based only on the record before it, and in particular on the failure to mention any specific incidents of judicial interference (paragraph 78 above). We have had the advantage of being able to consider not only the HRW Report of July 2008, including its treatment of the Bizimungu case (paragraph 104 above), but also the evidence of Professor Reyntjens, Professor Sands and Professor Schabas, and in particular the acceptance by Professor Schabas in cross-examination on 21 April 2008 that there probably was executive interference in the Bizimungu case (see paragraph 101 above). Thus we have the evidence of a specific incident of judicial interference that the Appeals Chamber lacked. 120. More generally, we have not forgotten the scale of the dreadful tribulations suffered in Rwanda in 1994. Nor have we ignored the real and substantial measures taken to establish a judicial system capable of delivering criminal justice to acceptable standards. But our duty is to apply an objective test – real risk of flagrant denial of justice. We certainly cannot sanction extradition as a means of encouraging the Rwandan authorities to redouble their efforts to achieve a justice system that guarantees due process. That might serve a political aspiration, but would amount to denial of legal principle. 121. We stated earlier (paragraph 68) that the question whether a court is independent and impartial cannot be answered without considering the qualities of the political frame in which it is located. We have had no day-by-day details from the GoR of the conduct of the Rwandan High Court’s business. No details of trials; of defences run, successfully or unsuccessfully; no details of any of the myriad events that show a court is working justly. We have reached a firm conclusion as to the gravity of the problems that would face these appellants as regards witnesses if they were returned for trial in Rwanda. Those very problems do not promise well for the judiciary’s impartiality and independence. The general evidence as to the nature of the Rwandan polity offers no better promise… ”

“34. …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 …. 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.”

“545. To conclude, I am drawing a distinction between the way the Rwandan High Court tries cases with a political flavour and the way they try genocide allegations. This is based on the clear evidence I have seen about the approach taken by the Specialised Chamber towards the five transferred genocide cases. Having considered all the evidence, I cannot exclude a risk of interference but judging from the transferred defendants the highest risk is from the pressure exerted by GoR ministers’ comments in public and in the press. I consider any such risk would be reduced by a robust, able and experienced defence team with an ability to investigate the defence case and international monitoring of some sort. I consider that without both of these the RPs would be at a greater risk of judges behaving partially and being influenced by factors outside the evidence.”

“630. From all the evidence I have read and heard I concur with Witteveen’s Final Conclusions in his Additional Report, he is certain that the facts in genocide cases can be established but “only under the condition of high quality and professional investigations, applying internationally accepted standards. Part of this professionalism and these standards is the necessity to have defence attorneys who possess the knowledge, experience and the resources to conduct investigations for the defence, including the capabilities to conduct investigations abroad”

“Reliance on such Articles required presentation of an exceptionally strong case, such that the actual or threatened treatment would amount to a flagrant denial or gross violation of the relevant right.”

“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.”

“24. 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: Soering, paragraph 91; Cruz Varas, paragraph 69; Vilvarajah, paragraph 103. In Dehwari, paragraph 61 (see paragraph 13 above) the Commission doubted whether a real risk was enough to resist removal under article 2, suggesting that the loss of life must be shown to be a "near-certainty". 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); Drodz, paragraph 110; Einhorn, paragraph 32; Razaghi v Sweden; Tomic v United Kingdom. Successful reliance on article 5 would have to meet no less exacting a test. The lack of success of applicants relying on articles 2, 5 and 6 before the Strasbourg court highlights the difficulty of meeting the stringent test which that court imposes. This difficulty will not be less where reliance is placed on articles such as 8 or 9, which provide for the striking of a balance between the right of the individual and the wider interests of the community even in a case where a serious interference is shown. This is not a balance which the Strasbourg court ought ordinarily to strike in the first instance, nor is it a balance which that court is well placed to assess in the absence of representations by the receiving state whose laws, institutions or practices are the subject of criticism. On the other hand, the removing state will always have what will usually be strong grounds for justifying its own conduct: the great importance of operating firm and orderly immigration control in an expulsion case; the great desirability of honouring extradition treaties made with other states. The correct approach in cases involving qualified rights such as those under articles 8 and 9 is in my opinion that indicated by the Immigration Appeal Tribunal (Mr C M G Ockelton, deputy president, Mr Allen and Mr Moulden) in Devaseelan v Secretary of State for the Home Department [2002] IAT 702, [2003] Imm AR 1, paragraph 111: “The reason why flagrant denial or gross violation is to be taken into account is that it is only in such a case - where the right will be completely denied or nullified in the destination country - that it can be said that removal will breach the treaty obligations of the signatory state however those obligations might be interpreted or whatever might be said by or on behalf of the destination state”.” “The reason why flagrant denial or gross violation is to be taken into account is that it is only in such a case - where the right will be completely denied or nullified in the destination country - that it can be said that removal will breach the treaty obligations of the signatory state however those obligations might be interpreted or whatever might be said by or on behalf of the destination state”.”

“69. The adjective "flagrant" has been repeated in many statements where the Court has kept open the possibility of engagement of articles of the Convention other than article 3, a number of which are enumerated in paragraph 24 of the opinion of Lord Bingham of Cornhill in the present appeal. The concept of a flagrant breach or violation may not always be easy for domestic courts to apply - one is put in mind of the difficulties which they have had in applying that of gross negligence - but it seems to me that it was well expressed by the Immigration Appeal Tribunal in Devaseelan v Secretary of State for the Home Department [2003] Imm AR 1 at p 34, para 111, when it applied the criterion that the right in question would be completely denied or nullified in the destination country. This would harmonise with the concept of a fundamental breach, with which courts in this jurisdiction are familiar.”

“3. I take the wording of the test to be applied to determine whether there would be a flagrant denial of this right from what Judges Bratza, Bonello and Hedigan said in their joint partly dissenting opinion in Mamatkulov and Askarov v Turkey(2005) 41 EHRR 25, 537-539. That was a case where political dissidents claimed that they would not receive a fair trial if they were extradited to Uzbekistan because, among other things, torture was routinely used to secure guilty verdicts and because suspects were frequently denied access to a lawyer. Their case was that they ran a real risk of a flagrant denial of justice. In para O-III14 the judges said: “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.”

“13. Running through these three recent cases is a recognition by the Strasbourg court that, while the Contracting States are obliged to protect those from other jurisdictions who can show that for whatever reason they will suffer persecution or are at real risk of death or serious ill-treatment or will face arbitrary detention or a flagrant denial of a fair trial in the receiving country, limits must be set on the extent to which they can be held responsible outside the areas that are prescribed by articles 2 and 3 and by the fundamental right under article 6 to a fair trial. Those limits must be seen against the background of the general principle of international law that states have the right to control the entry, residence and expulsion of aliens.”

“35. In adopting and endorsing the test formulated by the AIT in Devaseelan I did not in para 24 of my opinion in Ullah[2004] 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[2003] Imm AR 1. A serious or discriminatory interference with the right protected would be insufficient.”

“133. I have described earlier the origin of the phrase “flagrant breach” in relation to foreign Convention cases and expressed the view that, where article 5 is engaged, the potential consequence of a breach of that article must be severe before the breach can properly be described as flagrant. This approach to the meaning of “flagrant breach” should pose little difficulty where the right engaged is substantive. It is not so easy where the right arises under article 6, for that right is not substantive but procedural. As there is no reported foreign case where article 6 has successfully been invoked, there is a lack of authoritative guidance as to what will amount to a “flagrant breach” of that article.”

“135. SIAC adopted this test when considering Mr Othman’s case. They held that to succeed under article 6 he needed to establish “a real risk of a total denial of the right to a fair trial” para 451. The Court of Appeal also held at paragraphs 15 to 19 of the judgment in Mr Othman’s appeal that the test was whether there had been a “complete denial or nullification of the Convention right.” 136. This is neither an easy nor an adequate test of whether article 6 should bar the deportation of an alien. In the first place it is not easy to postulate what amounts to “a complete denial or nullification of the right to a fair trial”

“The Court does not exclude that an issue might exceptionally be raised under Article 6 by an expulsion decision in circumstances where the person being expelled has suffered or risks suffering a flagrant denial of a fair trial in the receiving country, particularly where there is the risk of execution (see, mutatis mutandis, Soering v United Kingdom, [(1989) 11 EHRR 439], § 113; Ocalan v Turkey, [(2005) 41 EHRR 985], §§ 199-213). Whether an issue could be raised by the prospect of arbitrary detention contrary to Article 5 is even less clear.”

“Moreover, to impose a death sentence on a person after an unfair trial would generate, in circumstances where there exists a real possibility that the sentence will be enforced, a significant degree of human anguish and fear, bringing the treatment within the scope of Art.3 of the Convention. In this connection it should also be noted that the Court has acknowledged that an issue might exceptionally be raised under Art.6 of the Convention 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. It follows that an issue may arise under Arts 2 and 3 of the Convention if a contracting state deports an alien who has suffered or risks suffering a flagrant denial of a fair trial in the receiving State, the outcome of which was or is likely to be the death penalty.”

“…subject to being replaced by executive decision. They would be subject to the influence of the executive. While not independent there was no reason to suspect them of partiality.” (paragraph 144) There had been in the past acquittals and successful appeals. Lord Phillips observed that such a court would not satisfy the Article 6 requirement of an independent and impartial tribunal (paragraph 145) and to conclude that: “146. While in a domestic case the composition of the SSCt would violate article 6, it does not follow that this would, of itself, constitute a flagrant breach of article 6 sufficient to prevent deportation in a foreign case. The Court of Appeal considered this question at paragraphs 33 to 42 of its judgment and, in agreement with SIAC, concluded that it would not. I have reached the same conclusion and would endorse the reasoning on this point of the Court of Appeal.”

“… it is not to be supposed that the Secretary of State intended that the MoU would require a different test or standard for the fair trial guarantee than, advisedly, the Appellants would enjoy under ECHR Article 6 mediated in this context by Section 87 of the 2003 Act.

“31. In any event it is of the first importance to notice the concession made - plainly rightly - by Mr Lewis QC for the GoR to the effect that if the appellants were brought to trial before a tribunal that was not impartial and independent, that would indeed constitute a flagrant breach of their rights under Article 6; and this is a large dimension in the case the appellants seek to make. In our judgment nothing turns on the epithet "flagrant" in these appeals' particular context if the appellants' whole case on fair trial, or the want of it, is substantially established; for if it is, a flagrant violation will be made out.”

“The bar of ‘flagrant denial of justice’ is set very high … but he says that there is one feature which stands out and which alone suffices. This is the fact that the court which convicted and sentenced the Claimant was neither independent nor impartial. Mr Fitzgerald submits that this fact alone necessarily means that the Claimant suffered a flagrant denial of justice such that the conviction was not by a ‘competent court’ within the meaning of Article 5 of the ECHR.”

“88. We would make two points about this decision. First, it is not clear whether SIAC would have reached the same conclusion if the lack of independence issue had stood alone. Secondly, even if the lack of independence issue had stood alone, it is not clear how critical was the fact that not only were the judges institutionally lacking in independence and impartiality, but there was evidence that they were in fact influenced, decisively so, by what Colonel Quadafi said both in public and in private.”

“92. We observe that the court’s conclusion that there was a real risk of a flagrant denial of justice was not based on the simple proposition that lack of judicial independence and impartiality would of itself involve a flagrant denial of justice. The court adopted a more calibrated approach than that. In assessing the seriousness of the lack of independence and impartiality, they took into account the fact that there was evidence of actual governmental interference in particular cases. Furthermore and in any event, it is not at all certain that the lack of independence and impartiality of the judiciary in Rwanda was a decisive factor in the court’s overall conclusion stated at para 121. It is clear that the lack of independence and impartiality was not the only feature of the Rwandan justice system which led the court to its overall conclusion. 93. In our judgment, Mr Fitzgerald seeks to place a weight on Brown which it cannot bear. It does not purport to state any general principle. It is no more than an example of a case where the high threshold of “flagrant denial of justice” was satisfied on the particular facts of the case having regard to the situation likely to face persons in Rwanda accused of genocide.”

“99. It is a striking fact that there is no case of which we are aware in which this test has been successfully invoked in any context in relation to article 6 on the grounds of lack of independence and impartiality of a court. We recognise that judicial independence and impartiality are cornerstones of a democratic society and that their absence will without more involve a breach of article 6. But we cannot accept that lack of judicial independence and impartiality will necessarily involve a flagrant denial of justice or the “nullification or destruction of the very essence of the right guaranteed” by article 6. Whether the lack of independence and impartiality has that effect must depend on the particular facts of the case, examined critically as a whole. Regrettably, there are many states throughout the world where judges are less independent and less impartial than they are in the UK and other democratic societies which are fully committed to the rule of law. But even where the judiciary are not fully independent and impartial, it is possible for a trial to take place which does not involve the complete nullification or destruction of the very essence of the right guaranteed by article 6.”

“was able to present a written submission and to supplement his written material with oral submissions so as to deal with the issues in the case. In particular, he was able to advance the claimant’s defence of necessity or duress.”

“nowhere near amounting to a nullification or obstruction of the very essence of the right guaranteed by Article 6.”

“113. According to the Court’s case-law, 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. The principle was first set out in Soering v. the United Kingdom (cited above, § 113) and has been subsequently confirmed by the Court in a number of cases (see, for instance, Mamatkulov and Askarov, cited above, paragraphs 90-91). 114. The term “flagrant denial of justice” has been considered synonymous with a trial which is manifestly contrary to the provisions of Article 6 or the principles embodied therein (see, among other authorities, Sejdovic v. Italy [GC], no. 56581/00, paragraph 84, ECHR 2006-II). 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. 116. In executing this test, the Court considers that the same standard and burden of proof should apply as in the examination of extraditions and expulsions under Article 3. Accordingly, it is for the applicant to adduce evidence capable of proving that there are substantial grounds for believing that, if removed from a Contracting State, he would be exposed to a real risk of being subjected to a flagrant denial of justice. Where such evidence is adduced, it is for the Government to dispel any doubts about it (see, mutatis mutandis, Saadi v. Italy [GC], no. 37201/06, paragraph 129).”

“122. …Although the general situation is relevant, it is necessary to look at the particular circumstances of the suspect and not just at the general situation (see also Sharipov v Russia (no 18414/10), 11 October 2011, at paras 33-37; Yefimova v Russia (no 39786/09), 19 February 2013). Thus, an allegation that any suspect in Kazakhstan or Tajikistan runs the risk of ill-treatment is too general. It is only in "the most extreme cases", where the general situation is such that any removal to the particular country would necessarily violate a Convention right, that the court should proceed purely on the basis of generality (Dzhurayev v Russia (supra at para 153). 123. It was this type of reasoning which influenced the court in deciding that the evidence about the general situation in Albania was irrelevant, in that the material produced contained nothing to suggest a concern in the appellant's particular case. It is this area which the court now requires to review. The court assumes that the United Kingdom Supreme Court was not disagreeing with the European Court in Dzhaksybergenov v Ukraine (supra) when it stated (para 32) that "systemic corruption in a judicial system affects everyone who is subject to it" and that thus "No tribunal that operates within it can be relied upon to be independent and impartial". Rather, it must be asking this court to consider whether the general circumstances in Albania are so extreme as would inevitably lead to a violation in the appellant's and any other person's case. If that is correct, it would theoretically be sufficient for the appellant to demonstrate that the general situation in Albania, is in the "most extreme" category, thus avoiding the need for any reference to the particular circumstances of the appellant's own case. This would result in a "total ban" (Dzhaksybergenov (supra) para 37; Shapirov (supra) at para 35) on extradition to Albania. However, conversely, presumably if it is positively demonstrated that a particular person will in fact receive a fair trial in Albania, the general situation in Albania cannot fall into the "most extreme" category, since it would have been demonstrated that the extradition of the particular individual would not result in a violation. It must therefore follow, if that were demonstrated, that extraditions to Albania as a generality will not necessarily violate a Convention right. 124. The court is, accordingly, acutely conscious that its remit may be a curious one. It must, first, determine whether there is "systemic" corruption in the Albanian judicial system on the hypothesis (which this court must accept) that, if there is, it must affect everyone involved in that system (including the appellant) on the basis that no "tribunal that operates within it can be relied upon to be independent and impartial". Secondly, it must determine whether there are substantial grounds for believing that there is a real risk of a flagrant denial of justice in the appellant's case if he were returned to Albania. That does not require an appellant to prove the existence of a risk on the balance of probabilities. He merely has to show "substantial grounds" and leave it to the respondent to dispel any doubts. It would seem, however, that the evidence demonstrating the grounds has to be "compelling" in the form of something approaching an international consensus.”

“68. Moreover the question whether a court is independent and impartial cannot be answered without considering the qualities of the political frame in which it is located.”

“…overall the tables paint a clear and compelling picture.”

“…the regime was authoritarian” as he said “in the broadest possible sense – you could argue over some of the specifics”

“210. Professor Longman in his first report dated 9th December 2013 said that Rwanda had gone through an ostensible transition to democracy with the reality that power had become more centralised and the government more authoritarian (Page 4, Paragraph 13). Power had increasingly concentrated in the hands of the RPF, Tutsi and Anglophones (Paragraph 14) with President Kagame increasing his personal power. 211. Professor Longman in his report at Page 12, made the telling observation that “The public and official policies of the government often appear moderate and consistent with standards of democracy and human rights, but the realities in practice are quite different, revealing a regime that maintains strict control and is deeply authoritarian. For example, de jure power may be shared among parties and ethnic groups, but de facto power is firmly in the hands of Tutsi from the RPF”. 212. I noted that Bertelsmann Stiftung in their 2014 report (referred to above) at ‘Objective’ Bundle 9, Pages 54 onwards, at Page 61 summarised the system as “a skillfully designed institutional facade that conceals the real distribution of power. All major political and power-related matters are decided by the president, together with his key advisers”. 213. Professor Longman recognised that the GoR had achieved much, driven by their “Vision 2020” policy that Rwanda will transform from an agricultural to a knowledge based economy by 2020. It will do this by “promoting good governance and efficient administration, training the population for work in sciences and information technology, developing the infrastructure and encouraging private business” (Paragraph 15). The government is fighting corruption and Rwanda has moved from 158th to 58th in terms of the ease of doing business. 214. Professor Longman recognised the many positives of the Rwandan regime whilst pointing out that in his view the international community is being manipulated and conned into seeing the positives of good technocratic governance whilst ignoring the authoritarian RPF’s grip on politics. Professor Longman explained that a key element of the RPF’s strategy to maintain strong support from the international community is by justifying many of its policies by referring to the genocide and its legacy. It has suppressed discussion about its own violence against civilians as it took power and in its invasions of Congo. The RPF justifies its behaviour by saying that it is preventing another genocide. The restrictions on free speech and the laws banning “divisionism” and “genocide ideology” are said to be because of a necessity to prevent extremism from gaining strength in Rwanda (Paragraph 21). 215. In this expert’s view since 1999 the RPF had given up the extensive violence it used to control the population after the genocide to using more subtle means to silence it and keep it fearful (Page 6, Paragraph 19). Laws had been passed to regulate speech, judicial processes are used to silence critics, opponents are arrested whether they are journalists or politicians. Professor Longman’s evidence was that all the human rights organisations have either been taken over, coerced or closed. The press is similarly controlled. His evidence is that the population from the “most local communities to the highest levels of political and civil society, feel threatened and fearful”. [Emphasis of SDJ Arbuthnot] 216. Professor Reyntjens (VB File 1, Page 1 onwards) was another expert who had not been able to go back to Rwanda since 1994 when he was critical of human rights’ violations carried out by the new RPF Government. For his information he relies on a network of researchers in Rwanda as well as academics based there. He did not name them at their request and explained at Page 5 “Both they and I hold the view that to identify them would likely have an adverse impact on their personal security and their ability to undertake the work they do”. 217. Reyntjens said the regime exercises strong control within the country. Opponents are arrested, they disappear or they flee the country. He described the government as highly autocratic and authoritarian (Page 10, Paragraph 20) and said matters had deteriorated since his first statement for the 2007 proceedings. He held the strong view that the political landscape had closed even further since 2010. He points out that in the Democracy Index 2012 of the Economist Intelligence Unit, Rwanda now occupies the 132nd place out of 148.”

“Whoever betrays the country will pay the price, I assure you. Letting down a country, wishing harm on people, you end up suffering the negative consequences.”

“Domestic political observers commented that Turatsinze had access to politically sensitive financial information related to certain Rwandan government insiders.”

“the UK regrets that legal due process was not followed”

“…the Government continues to impose severe restrictions on freedom of expression and association and does not tolerate dissent. Political space is extremely limited and independent and civil society remains weak. Real or suspected opponents inside and outside the country continue to be targeted. The ruling Rwandan Patriotic Front dominates all aspects of political and public life. Opposition parties cannot operate in a meaningful way.”

“I find that the UK authorities had received information that led them to believe that the GoR was threatening to kill UK citizens on UK soil. I was not in a position to see the evidence relied upon by the police before they gave those warnings but I had to accept there was sufficient concern for the police to take what is a very unusual step in each of these three situations. If the police were correct in their concerns, it is not a satisfactory state of affairs that a foreign government thought it appropriate to plan to kill those taking refuge here at a time they were seeking to take advantage of a memorandum of understanding brought about by diplomatic ties between the two countries, which they hoped would lead to extradition.”

“By mid-1999 Paul Kagame was the ultimate boss of all security institutions, the army, the police, intelligence and was chairman of the RPF. The speaker of parliament, Joseph Sebarenzi, had been forced to resign; Seth Sendashonga had been forced into exile and he too was assassinated just after it had become know that he proposed testifying for the defence at the ICTR in Arusha; Theoneste Lizinde, also forced into exile was then assassinated. Paul Kagame held meetings with United States, United Kingdom and German ambassadors and claimed that [former President] Pasteur Bizimungu was corrupt. He had to resign in 2000 and Paul Kagame became president in his place. Any pretence of power sharing had gone. Almost the entire workforce at the presidency was Tutsi. The Hutu were marginalised and held no positions of power and influence.”

“I watched Rwanda develop a political system which maintains a false appearance of multi-party democracy whereas in reality no opposing political views or criticism are tolerated. Whilst in Rwanda I was close to the centre of power for many years and this has allowed me to gain considerable insight and understanding of the way in which the country is governed. The Rwandan Patriotic Front, under President Kagame, has engineered changes which have led to Rwanda becoming a one party secretive police state with a façade of democracy and in which there is no space for political participation and where political opposition is not tolerated. The Rwandan Patriotic Front ensures it maintains its monopoly of power by use of draconian measures to restrict the exercise by Rwandan citizens of their fundamental human rights. The media, civil society and opposition political parties are not permitted to operate openly and freely.”

“Dr Rudasingwa … stated it was not possible for a former bourgmestre to have a fair trial (EN Volume 4, Tab 22 Page 235 and in cross examination on 16th June 2014). Dr Clark the GoR’s expert did not deny the point.”

“I noted that Dr Clark considered that Dr Gahima was a respected academic and when he lived in Rwanda had been dedicated to cross ethnic dialogue.”

“i. In Rwanda … the RPF is itself controlled by the military and security services and it exercises absolute control over all branches of government including the judiciary; ii. The judiciary, prosecution service and law enforcement agencies are dominated by RPF members and more especially Tutsi, particularly those who came from Uganda to Rwanda in 1994; iii. Organs which appoint judges, prosecutors and police officers responsible for criminal investigations merely ratify decisions which have been made internally by the party leaderships, upon the advice of state intelligence services; iv. A large number of judges, including the majority of judges of the most senior courts, are active RPF members; v. Judges and prosecutors I know from personal experience are compelled to pay financial contributions to the RPF party and to participate in its activities; vi. The primary obligation of the judges is to the party, not the state or the people of Rwanda. The party has the power to remove them from office at will; vii. When I was Prosecutor General, I became aware of many attempts by the Executive to influence prosecutorial and judicial decisions; viii. Local government, security and military officials […] interfered with the independence of the judiciary and the prosecution service; ix. Even the highest levels of the leadership of the judiciary and prosecution service were not immune from attempts to interfere with their independent functioning; x. On many occasions, President Kagame and security services personnel have overruled the decisions of the judiciary and have removed judges from office for failing to toe the line; xi. The Courts have been used as a mechanism to silence opposition leaders and government critics such as the former President Pasteur Bizimungu, Charles Ntakirutinka, Victoire Ingabire, Bernard Ntaganda, Deo Mushayidi, Dr Niyitegeka, Nkusi Uwimana Agens and Mukakibibi Saidata; xii. The judiciary is vulnerable to political manipulation … in cases where the executive has an interest; and xiii. While I believe that many in Rwanda’s judiciary are persons of integrity, the judiciary is not independent. The executive and particularly the security services, wish to influence the outcome of a case then they can and will do so because members of the RPF have been placed in all strategic positions of leadership and are often called upon to assign cases to judges willing to do what the government wants done. (b) Dr Gahima also gave evidence of two specific attempts which were made to interfere with his independent functioning as Prosecutor General. The first incident related to Pasteur Bizimungu as set out above and was made on behalf of President Kagame himself. The second attempt at interference was made by James Musoni (President Kagame’s personal assistant on RPF matters) and Colonel Jack Nziza who asked Dr Gahima to arrest, detain and institute criminal proceedings against several opposition politicians in order to prevent them from participating in forthcoming elections. Although Dr Gahima declined this request, the police nonetheless opened fake criminal investigations against most of the politicians in question, arrested them and instructed the politicians to report for questioning on many days during the course of the campaign period. Both of these individuals still hold high office in Rwanda.”

“The GoR will use the return of the Respondents as examples to show that the state’s justice system is recognised internationally as a system which can try defendants fairly [judgment para. 527].”

“It is clear that the path to reconciliation is long. It has a long way to go because if you look at the number of people who were killed in this country, it is not something that one can get over quickly. But still, if one looks around, one realises that there is no strong political policy designed to help the Rwandan people achieve genuine reconciliation. For example, if we look at this memorial, it only refers to the people who died during the genocide against the Tutsis. There is another untold story with regard to the crimes against humanity committed against the Hutus. The Hutus who lost their loved ones are also suffering; they think about the loved ones who perished and are wondering “When will our dead ones also be remembered?”

“266. The conclusions I have drawn from the evidence of the conduct of the High Court trial is that the Court was not fair to Ms Ingabire and that political considerations may have been at play. It is clear that the President and the GoR were very concerned about the prosecution against Ingabire but at the same time there is no evidence that the judges were directly interfered with by the executive. 267. I cannot exclude the fact that the High Court judges may have been reacting to Kagame and his ministers’ repeated comments, the press reporting and other factors that are unknown, when they convicted her. These comments undermined the presumption of innocence in her case and I give more weight to the influence that ministers’ comments may have in Rwanda than I would give to such comments in a genuinely democratic country. I noted, against the above, that the High Court did acquit her of four out of the six charges she faced. The Supreme Court although doubling her sentence and convicting her of a new charge, did not uphold all aspects of her conviction. The Supreme Court judgment is detailed and I have no evidence that that Court was unfair in its conclusions other than it is upholding (as indeed the Court must) the law of minimizing genocide, which interferes with free speech and did so, in Amnesty’s view, on this occasion. ”

“The defence would argue that pressure happens behind closed doors; it can be consciously applied or applied through comments made in the press by politicians and others. It is very rare that a situation occurs, such as in the case of Bizimungu, when a judge confesses that he was pressurised into giving a particular verdict. The defence is of course right. Inappropriate pressure is almost impossible to expose and the only possible way to look at whether it is being applied in the Uwinkindi case is [to] consider the way the case is being conducted by the parties in particular by the judges. I saw no sign of anything of out of the ordinary in the hearings that were described by the monitors.”

“I accordingly consider that the monitors in the Uwinkindi and Munyagishari cases should limit themselves to providing objective information relevant to any possible violations or impediments to the fair trial rights of Mr Uwinkindi and Mr Munyagishari in their reports, and refrain from including in their reports any opinion, assessment, or conclusions regarding such violations or impediments unless otherwise directed.”

“402. I accept the evidence of Witteveen; he had seen some of the trial and for anything that he had missed he had been able to rely on the contemporaneous account of it made by someone from the Dutch embassy. According to Witteveen, the defence lawyers had neither the experience nor the skill to ensure that Mr Bandora received a fair trial. Nothing, however, that Witteveen said led me to conclude in that case that the judges were not independent or impartial nor that defence witnesses were reluctant to give evidence.”

“Q: If it is dire, if they are not taking obvious points, if they are walking out of cases in a huff, the situation is plainly that you will not get the effective representation of counsel? Would you accept that? A: I agree.”

“438. When it comes to payment for the defence lawyers, I cannot say without more that the GoR is being intransigent but I consider that the GoR had not anticipated how expensive these sort of cases are to investigate and defend adequately. As the complaints to the ICTR multiplied and in the light of the comments of Witteveen, who was after all the GoR’s own witness, the GoR have bowed finally to the pressure and changed the law in relation to investigators. This should have happened before when this issue was raised by other defendants such as Uwinkindi in 2011 at the ICTR and in 2012 in the High Court in Rwanda. The change in the law is so recent there is no evidence how the new law will be applied in practice. I have to put in the balance the unfortunate fact that there are numerous examples of the law in Rwanda being changed but being very slow to be put into practice (video-links are but one example). 439. I concluded that the initial reported budget the GoR had set aside for such cases was clearly inadequate and would not begin to cover the sort of investigation required by these genocide cases.”

“459. The other failings I note from the evidence I have read and heard is that the prosecution in Rwanda have failed to provide the documents required for his defence to [Mugesera’s attorney] and crucially she was not told that the 2009 amendments to the Transfer Law would apply to a case of deportation. The failure too to pay for translation costs of the documentation also means that foreign lawyers would be unable to represent Mugesera. Kanas, the American lawyer originally instructed to defend Mugesera, explains in a statement read to this court the problems with the lack of funding. They could not find an expert to examine the recording of a speech which was given by Mugesera and is at the centre of the allegations against him; furthermore they could not hire investigators. 460. It seems to me that with the reluctant defence witnesses I have heard about from Ms Nerad the funding to allow for a professional investigation is crucial. 461. The evidence I have read and heard leave me with considerable reservations about whether the assurances given by the GoR to Canada are being respected and whether Dr Mugesera’s trial is fair.”

“484. In these proceedings I also heard evidence from judges who gave evidence that after the acquittals of CU and EN in Gacaca courts they were summoned and interrogated about the decisions they had reached. CU/2 and CU/3, for example, were both former Gacaca judges, CU/2 had been a judge at Mr CU’s Gacaca proceedings in 2008. CU was exonerated after the hearing of numerous defence witnesses and the acquittal was then nullified. CU/3 said that after the acquittal, some Gacaca judges were arrested and interrogated.”

“…had placed too much emphasis on recent legislative changes, there was pressure on the ICTR to wind down and no other countries were willing to take these defendants.”

“545. To conclude, I am drawing a distinction between the way the Rwandan High Court tries cases with a political flavour and the way they try genocide allegations. This is based on the clear evidence I have seen about the approach taken by the Specialised Chamber towards the five transferred genocide cases. Having considered all the evidence, I cannot exclude a risk of interference but judging from the transferred defendants the highest risk is from the pressure exerted by GoR ministers’ comments in public and in the press. I consider any such risk would be reduced by a robust, able and experienced defence team with an ability to investigate the defence case and international monitoring of some sort. I consider that without both of these the RPs would be at a greater risk of judges behaving partially and being influenced by factors outside the evidence.”

“598. There are many reports of witnesses being willing to give evidence in genocide trials in the High Court in Kigali. I consider that although there can never be any guarantee of safety at least some of the frightened defence witnesses are likely to give evidence for the defence were the defendants to be returned for trial. I do not accept that the defence in this case will be unable to marshall a sufficient number of defence witnesses if the defendants are properly represented with adequate assistance and the new provisions for video-link, anonymity, the WPU etc are explained to them which will enable them to give evidence in a protected environment. 599. I find that there is no real risk of a flagrant denial of fair trial in relation to the availability of defence witnesses as long as the RPs, if returned, are represented by able and effective representatives who are able to investigate and put together the case for the defence.”

“As investigation judge I conducted pre-trial investigations in criminal cases of international crimes for which the district court in The Hague is competent. During the pre-trial investigations, I heard numerous witnesses, mostly abroad during which the prosecution and the defence team were present and had the opportunity to examine the witnesses. During these years, I conducted investigations into two criminal cases of genocide in Rwanda, one criminal case against the leadership of the Tamil Tigers in the Netherlands, one criminal case of an Afghan general allegedly involved in atrocities during the 80s in Afghanistan as well as various cases of human trafficking around the world. I have conducted approximately 30 field missions to Rwanda, each mission one to two weeks in length …”

“In summary, the assistance rendered to me by the [National Public Prosecution Authority] NPPA during the Investigations and hearings in Rwanda, was complete, professional, of high standard and absent of any undue influences or interferences. The circumstances under which I could conduct hearings and other investigation activities created the best possible conditions in which I could pursue truth finding in these complex cases, which enabled the trial judges in the district court in The Hague to adjudicate the case and render their judgment. The NPPA has set a high standard and were exemplary for how other countries could also cooperate in these matters.”

“619. There have been thousands of genocide trials in Rwanda at all levels of the judicial system and at present it would seem that that country can ill afford to put in the sort of resources required to investigate properly each case, especially for the defence but probably not for the prosecution either. One of my concerns is whether it is appropriate that this court should look at the prospects of a fair trial using as a benchmark the very high standards expected in the European context. I suspect that by Rwandan standards, the five transferred defendants are having a fair trial. They are occasionally represented and whether they are or not, can address the court. They can ask questions of the prosecution witnesses and although they cannot call defence witnesses from abroad at least they can call some witnesses from Rwanda. The authorities may well question with some justification why it should be that defendants transferred from abroad should have the resources to defend themselves that local defendants lack. I remind myself that defendants in Gacaca proceedings did not have lawyers and were tried by people of integrity with little or no legal training in the local communities. I agree with Mr Witteveen in the conclusion in his first report that with genocide allegations impunity is not an option. Nevertheless my responsibility is to conclude from the evidence whether if returned there would be a real risk of a flagrant denial of justice in relation to the prosecution of these men. 620. Witteveen was an objective witness who unlike any other had witnessed the trials of the transfer cases and considered the monitors’ reports. Although of course counsel for Rwanda are right when they say he had seen only a limited number hearings but he had read the notes provided by his colleague as well as all the other evidence in relation to the conduct of the trials. The evidence he gave about how shocked he was by what he had witnessed of the defence representation of Bandora was striking and vivid. He had such “deep concern” and “profound doubts” (cross-examination 9.6.15) about the quality of defence representation that he felt duty bound to draft his Additional Report and wanted to give the court a true picture of what was going on. One can only imagine what a difficult situation he must have found himself in. 621. On a more positive note, I also saw some evidence in the ICTR reports, in the early days of Uwinkindi’s proceedings, that the defence lawyers even with their pay continually being fought over, seemed capable of arguing the points that they should, usually procedural ones. It is the preparation and presentation of the defence case which thus far has been such a failure. 622. Witteveen does not blame the defence community in Rwanda for their lack of experience or ability but rather points out that whilst the prosecution (NPPA) and the judiciary have received extensive help in capacity building from donors, the Rwandan Bar Association has received virtually none. 623. I feel reluctant to consider the rates of pay fixed by the President of the Kigali Bar Association who after all knows the local conditions and what the cost of living in Rwanda is, which this court does not. Nevertheless I did consider that the officers of the KBA who negotiated the rates of pay for the defence lawyers with MiniJust did not understand the demanding nature of even an adequate defence approach to such cases and had never considered the amount of preparation required. It was clear from MiniJust’s approach that it had completely underestimated the time it would take to defend such cases when it had decided on the original fees of 30K RwFr per hour per lawyer. MiniJust was concerned this was open to abuse and since then it has gradually reduced the fees which has led to the disputes. It is mark of the lack of professionalism of the lawyers that they have allowed the disputes to overshadow the work that should have been taking place to defend the transferred men who face such serious charges with long sentences if they are convicted. 624. I have said above that the early lawyers in Uwinkindi were clearly able to argue procedural points; Ms Kabasinga in the Rebuttal Material provided the brief curriculum vitae of the two later lawyers appointed for Uwinkindi. In the Supreme Court, Uwinkindi argued that one of the two new counsel had been found by another court not to have the ability to plead a genocide case whilst the second lawyer had no relevant experience. I take into account that they may not have included their experience of genocide cases in their cvs but on the face of it I had to agree with Uwinkindi they did not seem to have the experience that is needed in such cases. 625. At the end of 63 days of evidence in this case, I have seen the sort of work needed to be carried out to investigate alleged genocide cases. If the cases of VB and EN are typical of such cases, and I have no reason to think they are not, there is much important evidence, potentially undermining of the prosecution case, that can be gleaned from Gacaca proceedings and other cases where the prosecution witnesses have given evidence. 626. In VB’s case, instructed lawyers and investigators have poured over a mass of Gacaca material to find out what witnesses have said on earlier occasions, some of these witnesses were defendants in trials. Although VB has carried out some of this work, the other RPs if returned to Rwanda will have to do so too. Another example, this time not in the case of VB but in the case of CMU, is the witness Sabine Hategekimana who accepts lying before the ICTR in another case. Proper investigations into that matter will have to be undertaken which will include obtaining statements taken by ICTR investigators. 627. The importance of defence preparation and investigation is shown by the example found in the case against VB where witnesses transpose accusations against one man to the RP. Miss Malcolm contends a similar situation has arisen in the case against CMU, in that whereas Alfred Musema is accused of orchestrating killings at Bisesero, the same witnesses now suggest CMU is the perpetrator. Miss Malcolm and Mr Weeks have produced schedules which analyse the evidence of two ICTR witnesses, Kabagora and Ntagara in their submissions. They show a number of differences in their accounts at different times. All these investigations I accept will have to take place conducted by lawyers or investigators who have experience, knowledge, application and the appropriate funding. 628. This leads to the second concern I have in relation to these RPs which is the lack of funding for the identification and locating of witnesses in particular abroad. Without such funding and without defence counsel with the ability to identify, locate, contact and interview such witnesses themselves or without an investigator to do it for them, it is difficult to see how Uwinkindi or any other defendant will have a defence case to put before the court. 629. In August 2015 a new law was passed allowing for applications for defence funding for investigations in genocide transfer cases. Uwinkindi had raised this as a problem at the ICTR in 2011 and in the Rwandan High Court in 2012. It took four years for the law to be changed and I suspect it had a lot to do with Uwinkindi’s ability to refer his case back to MICT. This change of course opens the way for funding to be granted. It is too early to say how this will be applied in practice. I noted that the Uwinkindi budget for investigations abroad was US $ 64,595 (about £43,000), a vast sum. Any investigation budget for witnesses abroad inevitably will dwarf amounts spent on the lawyers and the investigations in Rwanda. In the cases of these five RPs some of the investigation work has been done and it may well be the costs will be lower, nevertheless the GoR will have to spend a great deal on investigations and it remains to be seen whether they will commit that sort of money to defence cases. 630. From all the evidence I have read and heard I concur with Witteveen’s Final Conclusions in his Additional Report, he is certain that the facts in genocide cases can be established but “only under the condition of high quality and professional investigations, applying internationally accepted standards. Part of this professionalism and these standards is the necessity to have defence attorneys who possess the knowledge, experience and the resources to conduct investigations for the defence, including the capabilities to conduct investigations abroad”

“Three different sources in Rwanda have strongly advised me not to return to Rwanda for my safety, if I would be granted a visa at all. These sources say some Rwandan authorities have called me a traitor.”

“In summary, I support extraditions to Rwanda and, based partly on my own experiences in Rwanda, dating back to 2008 as well as experiences of others, dismiss allegations that government authorities intervene in cases, unduly influence witnesses, genocide cases are political of nature and defendants run security risks after being transferred. It is my observation that Rwanda has a functioning justice system for genocide transfer cases. However, based on my observations during my year in Rwanda, in my additional expert report, I have criticized the quality and performance of the defence attorneys in the five cases I observed. It is my assessment that in four of the five cases there is either no defence, formally or materially, and/or the defence is of substandard quality.”

“4. It was my deliberate choice in the additional expert report to focus on the quality of the defence in the transfer cases and not criticize government authorities. First because I see it as the first and foremost reason for an impediment to fair trial in these cases. Secondly, no one else will present this view because no one has an interest. 5. Remarkably, none of the defence attorneys in court in London questioned me about the role of government authorities in respect of the functioning of the defence attorneys in the transfer cases. Some came very close but at the end did not ask the right questions. Still there are observations, I made, which I believe are relevant. The purpose of this memo is to describe them. The main caveat is that many observations are objective facts but the inferences I make can be questioned, although are difficult to refute. It is my profound conviction that, in order to know the realities in Rwanda, one will have to dig a little deeper into the layers of truth. I have only scratched the surface, which is still much more than what others have been doing who judge on the functioning of the justice system in Rwanda, especially those in other jurisdictions, whose sources are mainly Rwanda government sources.”

“7. I do maintain my opinion in my additional report and my testimony in court that I am convinced that there are no defence attorneys who can perform a credible defence investigation, certainly not abroad. This is not necessarily a criticism to the attorneys, but an obvious fact as lawyers not very often have the knowledge, expertise, experience and skills to perform such an investigation. That is why defence teams hire qualified investigators. But under Rwanda [case] law, a defence investigator cannot be appointed and the lawyers will have to personally conduct this task. It is totally unrealistic. 8. More importantly, I have little doubt left that, if these qualified lawyers exist in Rwanda, you will not see them in the transfer genocide cases. Simply because these lawyers will challenge both the authorities in general as well as the court. These lawyers will not accept everything the Minister has determined in his policies, they will fight for sufficient resources to perform a credible defence investigation, they will delay proceedings with their motions and filings before the court. And this is not accepted. Consequently, they will be removed from the case as happened in Uwinkindi and will happen soon in Munyagishari. More ‘cooperative’ lawyers will be appointed.”

“Even after four years, there are no final policies, regulations and, very important, an organization that executes these regulations professionally. Even as we speak, drafts of contracts with defence attorneys are discussed, clauses are taken out or taken in, the fees issue has not been concluded definitely and defence attorneys are moved out of the case and replaced. One court orders that the defendant be submitted a list to choose his defence attorney, another court now finds that there is no right to choose a lawyer from a list when indigent and rules the RBA needs to appoint a lawyer. Whether this is a purely legal decision or is motivated by the need to speed up trials and sideline lawyers who are critical who have to be sidelined as non-cooperative is an open question. The decision of the Minister to keep the execution of legal aid to himself is in my view not a very wise decision as it makes the whole thing too political. It is him against the defence lawyers. The usual language that everything is solved now and the defence attorneys can concentrate on their cases, no longer suffices.”

“When the Minister unilaterally ended the contract with the attorneys in the middle of the crucial part of the trial and considering he had already rejected a budget proposal submitted by the defence to conduct an investigation abroad, what else could the defence attorneys do and bring it to the court?”

“… the competent, experienced lawyers … who have operated in the ICTR theatre, will not be seen in these cases.”

“17. The next thing I am worried about is the influence the Minister and the Ministry has had on the proceedings. To an extent that I even question the independence of the judges. (Emphasis added.) I have seen a number of events that I believe are a real concern in this respect. 18. First of all I believe it is clear that the origin of the recent difficulties in the proceeding is with the Minister. I believe it was him personally who decided that the proceedings were taking too long and the cases should be concluded. Based on the minutes of the meetings with the defence attorneys and other documents, there can be no doubt he decided to act. A question of course is: what were his motives and why he didn’t leave it to the judges. He claims it was the limited budget and the fact that it got depleted by the defence attorneys delaying tactics. But I put that into question. Based on his legal aid policy, promulgated in September of 2014 he had budgeted 100.000.000 Rwandan Francs each year for four years for hiring lawyers for the transfer cases. If he pays each defence attorney 1 million a month, he can hire eight lawyers for these cases to stay within the budget. If the Minister spends 15 million Francs in a case and the case takes five years, he spends 3 million Francs per case per year. To spend 100.000.000 in a year he needs 33 cases, while there are only five. So, his assertion that he depleted the budget is not very convincing. 19. Secondly, the Minister has always blamed the defence attorneys for the delays in court. But the reality of course is that the judges decided on postponements during all these years. Sometimes these postponements were triggered by requests of the defence attorneys, but not always. In Uwinkindi the composition of the chamber changed in 2014 leading to an additional postponement. Many times the courts have been extremely indecisive in matters that should not take long to decide. Has the Minister started to get critical to the judges? 20. Whatever the reason, there has been a clear pattern since the end of 2014 where the judges started to accelerate the proceedings. Firstly in Uwinkindi of course where the judges have quickly rejected every motion and request by the defence and decided to proceed with the case without defence. When the defence attorneys decided to appeal the decisions of the High Court in January, I was told that the High Court would wait for the Supreme Court’s ruling, as they did in the past. But I found out end of February that the High Court had changed its position and was now proceeding with the case. To my surprise they went on hearing witnesses, both prosecution witnesses as well as defence witnesses without any presence of defence attorneys. The judges had taken three years to take their time in deciding all kinds of preliminary matters and now, all of a sudden, they finished the witnesses in just a couple of days and without defence attorneys. 21. Then the court decided to close the case by requesting the prosecution to present its closing arguments. When the day, which was set for that, arrived, the prosecution requested a postponement of two weeks or so as they had not finalized the preparations. The postponement was given and when the next date arrived, the court decided to postpone the case till the Supreme Court had ruled in appeal. I have tried to find out why the court had changed position but I couldn’t get a clear answer. 22. What had changed was that the President of the MICT had decided to put a full chamber of the deferral request. This immediately sparked tension in the prosecution in Rwanda and I have no doubt this also caused the change in position of at least the Prosecution fearing they would be criticized of hearing witnesses without any defence. If the court had not allowed the prosecution a slight delay in their closing arguments, Uwinkindi’s case would have been closed. Clearly, the recent decision to have the new defence attorneys represent Uwinkindi and the possible re-hearing of the witnesses have come under pressure and was by no means a voluntary step.”

“In conclusion: I believe there are clear indications that external factors have brought the judges of the High Court, at least in Uwinkindi and Bandora, to speed up the trial at the cost of credible defence. It will never be known whether the judges received an instruction to speed up or whether they did not need an instruction and knew what to do. The change in position in Uwinkindi is clearly the result of the MICT decision, not of a respect for defence rights.”

“Some of these issues have been raised during the referrals in Munyagishari and Uwinkindi before the ICTR but rejected as unfounded or speculative. I believe they might be true after all.”

“31. Generally, all defence attorneys claimed it is very hard to defend genocide defendants especially from abroad as society in general but their family, partners, clients and the like in particular do not accept they defend a defendant on genocide. They tell they lose clients. This seems relevant as private lawyers make their income on commercial cases rather than criminal cases. You wonder what will happen to defence attorneys who will be successful and get their clients an acquittal. 32. In the contracts that the defence attorneys signed there was a clause to the effect that the Minister could unilaterally end the contract in case the defence attorney openly criticized the Minister or the Ministry. This clause has been removed now from the new contracts offered by the Ministry but they may still be valid under the existing contracts such as in Bandora. Apart from what the clause says and whether the clause is valid or not, I continuously sense that defence attorneys are conscious not to criticize. The clause does not make much difference. 33. In Mugesera, the defendant was given the opportunity to comment on the prosecution witnesses presented in the case. Mugesera said that one victim witness had been lying and called the witness a liar. The prosecutor in the case immediately reprimanded Mugesera that he could not call the witness a liar. The judge joined in criticizing Mugesera and used softer language to make Mugesera clear he could not use this kind of language to qualify the witness. Apparently victim witnesses do not lie. 34. In the case of Bandora the defence attorneys said it was a shame that the prosecutor had brought witnesses to court who testified they were forced by the prosecutors to wrongfully accuse the defendant. Again, the prosecutors objected to the wording “a shame” and again, the judges, more softly joined in that criticism. At the end, the defence attorney openly apologized in court to the prosecutors. 35. A crucial element of the trial in Bandora was in October 2014 when two prosecution witnesses retracted their statements claiming they had been visited by the prosecutors in the court room who requested him to wrongfully accuse the defendant. The statements by these two witnesses did not attract much attention and the defence never requested anything to the court in examining what exactly had happened, although it seemed relevant. I questioned the defence attorney afterwards why he had not requested that this incident were to be investigated. The defence attorney replied he thought it was sufficient for him the witnesses had retracted their statements. Although it is hard to prove, there is certainly a likelihood, in light of the other observations, that it is not expected from defence attorneys to request a further examination of alleged conduct by the prosecution. Surprisingly, in the verdict of the High Court in Bandora, the incident was reduced to mentioning the witnesses had retracted their statements. The fact that the witnesses claimed the prosecutors had requested them to falsely accuse the defendant did not make it to the verdict. 36. Recently, Mugesera [who is definitely more qualified to litigate his case than his lawyer, probably after he became experienced after ten years of litigation in Canada] commented on prosecution witnesses and requested the court to call an investigator as a witness because he believed that several witnesses had coordinated their statements. The judges refused and said that they could not do that and referred him to the prosecutor.”

“The Defence submits that the Accused wishes to argue in his defence that the mass graves found in July and August 1994 at Kayenzi Church were not filled with Tutsi bodies as a result of his actions, but that those graves were filled with Hutu victims of the RPF. The Defence contends that running this particular line of defence is “simply untenable” in Rwanda’s current political-legal climate. It concludes that despite the immunity added to the Transfer Law in 2009 it is unlikely that a potential witness would be willing to present evidence on the role of the RPF in killings in Rwanda and that it is equally unlikely that any defence counsel in Rwanda would agree to represent a client putting forward such a politically sensitive defence. Citing the arrest of Peter Erlinder, ICDAA argues that notwithstanding the immunity granted under Article 13 of the Transfer Law, Rwandan courts will still be able to curtail certain lines of defence by initiating contempt proceedings against lawyers or witnesses voicing politically sensitive views.”

“Whether such a defence is really untenable in Rwanda we will probably never know, because it is highly unlikely the current defence attorneys or any defence attorney will make that argument. There is little doubt that no witness will take any chance by supporting the events as described by Uwinkindi.”

“45. What looms is a situation where defendants are convicted without [sufficient] evidence and, through strict control and direction by the Ministry, embraced by the judges, capable and experienced defence attorneys are sidelined and replaced by handpicked lawyers who do not have any trust from their clients, are not conducting any credible defence investigation and are cooperative with the court. From the outside it will look consistent with fair trial. In fact it is flawed. 46. I do not claim that all is bad intent. Certainly on behalf of the prosecution service I have seen a sincere desire to comply with fair trial rights. What is the matter, I believe, is that this is all new to Rwandan institutions and it takes time to learn. There seems to be an innate attitude averse to anything that criticizes, confronts or challenges what government institutions present. The fact that these are genocide cases makes it more complex. 47. I do not take the position that extraditions should be stopped or referrals revoked. To the contrary, there is only one way which is the way ahead. But Rwanda needs pushes from external persons or institutions and we have the obligation to provide for and contribute to these pushes. Therefore I strongly advocate for forms of hybrid solutions. I believe this has been a missed chance years ago, when there were better opportunities to create hybrid systems in Rwanda. The case of the War Crimes Chamber in Bosnia and ICTY’s role in it, could serve as an example. But there is still time to amend what was not fixed earlier. I have therefore recommended to have foreign defence attorneys team up with local attorneys and defend the cases with external donor funds. Equally important is it to have foreign judges sit in the High Court chamber, which was foreseen when Rwanda adjusted their laws to facilitate that and what the ICTR, when referring the cases, expected to happen [para 114 Uwinkindi referral decision]. 48. I believe that my analysis and suggestions are in the interest of Rwanda and the broader aspects of justice. That is what I seek to do.”

“The memorandum was not disclosable under ICTR Rule 68 because it was not exculpatory in any sense. The ICTR and MICT did not recognize Mr Witteveen as an expert and, thus, his unsolicited memorandum containing only his personal opinions or beliefs was not regarded as evidence …. Uwinkindi, in all events, was well aware of the pending United Kingdom extradition proceedings as he attached various filings from that case, including copies of Mr. Witteveen's various reports, to his submissions in support of revocation. He did not, however, substantively develop any of the points raised in Mr.Witteveen's reports in his revocation request, despite the opportunity to do so.”

“29. First of all, apart from the monitors appointed by the Registrar, the Prosecutor appointed his own monitor, who observed the proceedings and presumably reported to the Prosecutor. Arguin does not mention him and there may be reasons for this. 30. I have met the OTP-monitor twice in July and August of 2014. He was a retired Tanzanian judge. I found him quite professional and open. We had two discussions. I am not in a position to recount what he expressed to me. The fact of the matter is that I have not seen him again in Rwanda. Admittedly, I may have missed him as I have not been in all of the trial proceedings, but all the proceedings I was in, he was not there. I wonder what he reported and discussed with the Prosecutor and why we did not see him back. Did the Prosecutor not value his opinion? 31. The history of the official ICTR monitors has been marred with difficulties and issues. Throughout the years there have been many changes in the monitors. Not all monitors had a prosecutor or judge background or had experience with criminal trial proceedings themselves and none of the monitors have performed their tasks for any substantive time. Their reporting was at best superficial. 32. In February or March 2015 a new team of monitors were appointed, who were all members of the Kenya branch of the International Commission of Jurists. The monitors worked as a team from Nairobi and they were a huge improvement right from the start. I believe the quality of the reporting immediately improved. Whether that caused the President of the MICT to put a full chamber on the motion for deferral by Uwinkindi in April 2015, I do not know, but it was a remarkable, immediate change. 33. Yet, the monitors were bound by many limitations, as were the previous monitors as Arguin describes. In essence, they could only speak with the parties and other directly involved officials and they could not perform any analysis of what they found or express views. 34. Arguin tries to explain this as natural and logical, but I find it awkward. And even if you accept their limited mandate, it still does not explain why the monitors never described factually what I and others saw happening in the trial proceedings – e.g. as I have described from the Bandora case as well as other trial proceedings. I find it inexcusable that the monitors did not report on the apparent flaws of the defence in the various cases as they missed out on what was at the heart of the problem with the defence attorneys. 35. Even the trainee for the Dutch Embassy, who had no trial experience herself at all but sat on many of these trial proceedings, particularly in the Bandora case, with me, recorded exactly what was said and what the defence attorneys failed to do and say. She meticulously reported all of that to her Ambassador. Till today, I fail to understand why the monitors of the ICTR [albeit the ‘old’ monitors], who sat in the same proceedings, did not report any of that.”

“One fundamental misimpression is … that Rwanda has adopted an accusatorial or common law system for trials in transferred cases. Rwanda has traditionally been a civil law jurisdiction. Legal reforms instituted since 1994 have introduced aspects of common law practice, including expanded reliance on judicial precedent and cross-examination as a means of establishing truth. However, the Rwandan legal system cannot be categorized as either purely civil or common law; rather, it is a hybrid system that retains elements of both civil and common law practices.”

“37. Another aspect of Rwanda's hybrid legal system relates to the conduct of trials. Rwandan judges play a much more active role in questioning witnesses than in most common law systems. Although the Transfer Law applicable to referred and extradited cases allows for cross-examination of witnesses, it does not specify how cross-examination will be conducted. In keeping with its civil law traditions, many Rwandan judges conduct the questioning of witnesses, generally after seeking input from the prosecution and defence on the types of questions that should be asked. Increasingly, Rwandan judges are providing counsel with more leeway to conduct their own cross-examinations as has been seen in all of the transferred cases, including Uwinkindi and Munyagishari. 38. It also is not uncommon in Rwandan judicial proceedings for the accused to play an active role in the conduct of their defence. Accused persons are not restricted to merely watching the proceedings and listening to the arguments of their counsel as they are in many common law systems. Instead, accused persons are free to directly address the judges and respond to points made by the prosecution or testimony of witnesses. Counsel are present during these submissions and, when necessary, intervene to make any clarifications or additions that may be required to protect their client's interests. 39. Several of the criticisms Mr. Witteveen cites arise from his misimpression that trials in transferred cases are purely accusatorial in nature. He criticizes the adequacy of investigations without acknowledging the role of the judicial police in collecting both inculpatory and exculpatory evidence. He criticizes what he regards as the active role judges play in questioning witnesses without recognizing that this is a common feature in many civil law jurisdictions and without acknowledging Rwanda's efforts to expand the role of counsel in conducting cross­examinations. He also criticizes the accused's ability to make direct submissions without recognizing that, in Rwanda, this is a hallmark of the right to direct one's own defence. All of these criticisms contribute to Mr. Witteveen's overall assessment that Rwandan defence counsel are ineffectual but none of them adequately accounts for the essentially hybrid nature of Rwandan trial proceedings. Any assessment of fair trial rights in Rwanda must recognize this fundamental distinction.”

“The question is not whether the Rwandan justice system is accusatorial or hybrid as [Mr Arguin] explains, but whether there is a balanced system where evidence for the defence and alternative scenarios for the prosecution case are presented ….”

“30. … Under Rwandan law, the judicial police are required to gather evidence both for and against the accused. While the judicial police are not investigating judges, they nevertheless perform the same function as investigating judges in other civil law jurisdictions. Like investigating judges, the judicial police are charged with preparing a dossier for each case that includes all of the evidence - both inculpatory and exculpatory - relating to the charges. 31. The judicial police also must consider requests from the prosecution and defence to conduct any additional investigations the parties may deem relevant. These investigations may be conducted either in Rwanda or abroad and the information generated from these additional investigations will be added to the official dossier. If the judicial police decline to conduct additional investigations requested by the defence, the defence may request the court or prosecutor to order them to do so. 32. The dossiers compiled by the judicial police are substantial. In the Uwinkindi and Munyagishari cases, the dossiers included the complete ICTR investigation files plus additional materials obtained by the judicial police in the course of their supplemental investigations. These dossiers each contained several thousand pages of documents, including dozens of witness statements. The dossiers prepared in relation to other transferred cases are likewise substantial. The Mugesera dossier, for instance, includes over 1,280 pages of documents obtained in Rwanda, plus two compact discs prepared by Canadian authorities in relation to Mugesera's extradition that contain approximately 5,000 additional pages of material. Mbarushimana’s dossier is not yet complete but already contains approximately 500 pages, including documents obtained during the Danish extradition proceedings. The Bandora dossier was nearly 500 pages long. Although the size of a case file does not alone guarantee a competent investigation, the substantial dossiers compiled by the judicial police in transferred cases cannot fairly be described as "limited" or "rather basic" as Mr. Witteveen suggests. 33. One difficulty observed in relation to the cases referred to Rwanda for trial was that the accused and some of their counsel ignored the role of the judicial police. They attempted to bypass the judicial police by seeking independent defence investigations, without first demonstrating that the judicial police were unable or unwilling to conduct the investigation. The High Court rejected these requests not because it did not respect the right to an effective defence but because investigations in Rwanda are usually conducted by the judicial police.”

“For genocide investigations the NPPA uses police officers from the RNP who are physically located in the … GFTU, headed by Mr. Siboyintore. This gives the NPPA a slight advantage from the position where the RNP investigates genocide cases from their own offices.”

“I have never seen, read or heard that any investigator collected or was even interested in collecting exculpatory evidence or was instructed to do so [emphasis added]. They were pressured to produce a genocide investigation in the timeframe of one or two weeks at best and collect as many incriminating witnesses’ statements as they possibly could. [Anecdotally], I know they dismissed or ignored exculpatory evidence when they encountered it.”

“… I have seen many files produced by investigators but none was more than some tens of pages with witnesses’ statements no longer than two to five pages per statement. When the transfer cases contain hundreds of pages of documents and statements, it is because the jurisdiction that seeks to transfer defendants to Rwanda for trial, produces these documents and statements for Rwanda’s use. It still puzzles me whether the prosecutors, who litigate the cases, use these foreign made documents.”

“To obtain public funding for defence investigations, the accused must first submit an ex parte request to the High Court, which examines the reasonableness of the request, taking into account among other things the availability of alternative means of obtaining the evidence by video-link or phone call. Once the High Court is persuaded that the request is reasonable and in the interests of justice, it will issue an order to the Ministry of Justice to extend the required funds. In addition, the practice direction provides guidance on the types of expenses that will be covered, e.g., economy class tickets and daily subsistence allowance.”

“[Arguin] defends the Bar Association by pointing to the fact the Ministry deleted a provision in the contracts with the defence attorneys which prohibited them to openly criticize the Minister and the Ministry, which [he] attributes to the Bar Association. I do not understand that. It was the Bar Association [that] has accepted this and other shameful provisions in the contracts in the first place. It was external pressure and critics that made the change.”

“In light of the record established by the MICT trial chamber, Mr. Witteveen's assertion that Uwinkindi was "without any defence" since January 2015 is plainly mistaken. Counsel always was available to assist Uwinkindi; he simply refused to accept their services. Nevertheless, counsel did their best to protect his interests and obtained appropriate relief from the trial chamber, including re­opening the examination of prosecution witnesses and obtaining more time for trial preparation, including review of the case file Uwinkmdi refused to provide counsel. Regrettably, these events occurred after Mr. Witteveen submitted his report and, thus, were not available to guide his assessment of the competence of Rwandan defence lawyers, whose performance must, of course, be assessed on an individual not collective basis.”

“66. [Arguin] tries to defend the court in its position to oust the defence attorneys in Uwinkindi in January 2015 and continue with the trial proceedings and hearing all the witnesses in just a day or so, including defence witnesses, without Uwinkindi being represented. [He] all blames it on the defence attorneys and Uwinkindi and presents it as if every court would have handled the case like it was handled. 67. I contest that. I do not state that the situation was easy, but I remain that it was indicative of the questionable situation as I have tried to describe it. To finalize the case without defence attorneys and to hear all the witnesses, including defence witnesses, in a day or two, without any defence attorney present is not defendable. The case would have been concluded by the court if the Prosecution would not have requested to reverse the situation under pressure of the scrutiny of the international community and the motion for deferral in Uwinkindi in the MICT which had been assigned to a full chamber. 68. The best indicator that the wrong decision had been taken and the court lost its sense for fair trial rights, is the fact that it was the Prosecution who took the initiative to reverse the situation and apparently, there was no mechanism within the court to do that. I have tried to describe in my Memo to [Mr Arguin] why I believe the Court did not apply common sense themselves and what caused the court to proceed with the case as it did.”

“69. At the end of the day, I ask the question why the cases in our respective jurisdictions must be transferred Rwanda. Even when that is the preferred option, but if there are questions about fair trial rights and other questions, if cases are not transferred to Rwanda, it does not mean those cases will not be adjudicated. Each of our jurisdictions are competent to try these cases and we have the resources and the experience to do that. 70. My expert opinion has been developed over time, after I got to know the situation in Rwanda. More importantly, my opinion is highly influenced by the fact that in these cases, defendants are charged with genocide, without doubt the most serious crimes of all crimes the world has come to deal with. For each of these defendants, there is much at stake and each defendant is facing a lifelong imprisonment. 71. If that is the situation, does that not oblige us apply the utmost care and consider whether we should try these cases in our home jurisdictions?”

“… we do not consider that anything is added by the distinct submission of prejudice at the appellants’ trial within the meaning of s.81(b) of the 2003 Act. We have already referred to the potential overlap between the scope of s.81(b) and that of Article 6. The appellants’ contention that, being Hutu, they will suffer prejudice if they are consigned to the High Court of Rwanda is in reality a theme of their general case that they will not be fairly tried.”

“VB contends that the GoR approach is that all 1994 Hutu officials were involved in the genocide and the prosecution has been made against him because of his high profile in the diaspora.”

“92. All the RPs argue that they are prejudiced by their ethnicity. I do not find there is any evidence of prejudice against Hutus in prosecutions for genocide related offences. The Gacaca courts were introduced to speed up the process of trial for the many thousands held in custody. The Gacaca laws enable those convicted to be released into the community and to complete community work, many of those were Hutu. Likewise the abolition of the death penalty in 2007 would have affected in particular Hutus charged with genocide. 93. … 94. I do not find that any role that VB has in the diaspora today is such that it would lead to a prosecution for alleged genocide in 1994. 95. A number of the submissions I heard I will look at in greater detail when I come to consider the Article 6 fair trial arguments as there is a considerable overlap between the two. As regards section 81(a), I conclude that there is insufficient evidence for this court to find there is a reasonable chance, a serious possibility that the request for the RPs' extradition (though purporting to be made on account of the extradition offence) is in fact made for other purposes including their political opinions or by reason of their ethnicity. As can be seen later in this judgment I have found there is a prima facie case and I do not find that the case has been constructed by the GoR to punish and imprison these men just because they … had positions of power in 1994. 96. As regards section 81(b), there is a considerable overlap with Article 6 which I look at later in the judgment. I adopt the approach of the Divisional Court in Brown and others at Paragraph 32 where the Court did not consider that anything was added by the distinct submissions of prejudice at the RPs trial with-in section 81(b); that contention is in reality a theme of their general case that they will suffer prejudice if they are consigned to the High Court of Rwanda where they will not be fairly tried. I do not find that there is a reasonable chance or a serious possibility that they might be prejudiced at their trials with-in the meaning of section 81(b) by reason of their political opinions or ethnicity. I find their extradition is not barred by reason of extraneous considerations.”

“Calling someone part of Akazu is something special – means that those who say it consider them as being party or privy to the central organisation of the genocide. Although this would not be fair to a number of people who I would consider part of the Akazu but played no part in the genocide. Calling a person a member of Akazu is a serious indictment.”

“In my opinion, the present Rwandan judicial system, embedded as it is in the Rwandan political system, is not capable of putting into effect the guarantees necessary in the present case. [VB] cannot expect to receive a fair trial in Rwanda given the nature of the charges against him, the allegation that he is a leading Hutu activist and the political context in which the charges are formulated. There is no prospect that a judge, operating under the current arrangements in Rwanda, will be able to act independently of the current pervasive RPF control. His or her decision will be subject to the will of the Rwanda government.”

“I have never said that no one who is extradited can possibly have a fair trial. I have expressed concerns about fair trial in this case and other cases. It is simply impossible to say that there is any certainty that these men or anyone extradited will not have a fair trial, but I have said likely will not have fair trial.”

“101. The RPs have not shown on the balance of probabilities a risk of prejudice in their defence by the passage of time other than the sort of difficulties facing any defendant who is being tried in relation to allegations that are historical. The prosecution and defence witnesses are still available and subject to my findings in relation to Article 6 the RPs are able to defend themselves. The work carried out by the investigators working on their behalf means that they are probably better equipped to defend themselves than many others facing similar charges in Rwanda. 102. There was delay between 1994 and the last proceedings whilst Rwanda attempted to piece together its justice system. The failure by the GoR to allow investigation by the British police post 2009 prior to a possible prosecution here does not mean the delay between 2009 and 2015 is such that I find extradition of either VB or EN would be unjust. It is understandable that Rwanda wishes to try these allegations in their own country; the alleged offences took place in Rwanda and that is where the prosecution witnesses are. 103. As to oppression, any attempt at extradition is followed by a long and hard process which causes anxiety to not only the RP but also his family. I accept VB has lived in London openly with his family since the last proceedings. I accept that he was in custody for two years and three months between December 2006 and April 2009 and for over six weeks before he was granted bail during this set of proceedings. I do not find he would have had a sense of security after the last proceedings ended. He was never told that the GoR would not pursue another extradition request. I have taken into account too as I am required to the gravity of the allegations. I do not find any culpable delay on the part of the GoR nor do I find that the RP’s circumstances have changed significantly since 2009. I do take into account that both VB and EN’s family will be greatly affected if he is extradited to Rwanda. In all the circumstances I find that extradition of VB or EN is not oppressive such that it comes within section 82 ….”

“The further delay since the 2009 judgement has been caused entirely by the requesting state’s refusal to allow the Metropolitan Police to investigate the allegations with a view to prosecution in the UK. The Judge failed to consider at all the failure of GoR to cooperate with the UK without meaningful explanation, in contrast to the various jurisdictions with which it was contemporaneously willing to assist in ensuring prosecution of Rwandans under universal jurisdiction in the foreign state.”

“Following the High Court decision in 2009 that Dr Brown and three others should not be extradited and the introduction of the amendments to the International Criminal Court Act made by Section 70 of the Coroners and Justice Act 2009 an investigation was commenced in 2010 by the Counter Terrorism Command of the Metropolitan Police into alleged war crimes committed by Dr Brown and the three others. A Letter of Request for mutual legal assistance was sent to the Rwandan Authorities by the CPS to establish if the Rwandan Authorities would assist the Metropolitan Police in their investigation. The CPS received a reply from the Prosecutor General stating that the Rwandans were not prepared to “cede jurisdiction to the UK authorities” and would not provide copies of their evidence to the police. Without the co-operation of the Rwandan Authorities an effective investigation could not be carried out and therefore a domestic prosecution in the UK is not possible.”

“110. In 2009 [District Judge] found a prima facie case against [VB] and this finding was accepted by the Divisional Court. I accept [Mr Jones’] argument that the evidence is not entirely the same as it was in 2007-8. The [judicial authority] has withdrawn some evidence and there is new evidence obtained since. 111. I have set out Mr Jones’s submissions and the evidence relied on in an appendix to this judgment. In summary there are a number of witnesses relied upon by the GoR. They have given contradictory accounts which are set out in full in the appendix. Mr Jones relied heavily and justifiably on the fact that none of these witnesses who had been witnesses for the prosecution or indeed defendants in a number of other proceedings, had ever mentioned VB. I have concluded that this is a weak case against Dr Brown, that all of the witnesses have been undermined to a lesser or greater extent but that the true weight of the case against VB cannot be judged without hearing the witnesses on both sides give evidence and be tested in cross-examination. The evidence is not worthless. I find there is evidence which would be sufficient to make a case requiring an answer from him.”

“My overall conclusion is that this is a weak case against [VB], that all of the witnesses who say they saw him instigating and encouraging killings have been undermined to a lesser or greater extent but that the true weight of the case cannot be judged without hearing the witnesses give evidence and be tested in cross examination. I find there is a prima facie case against the RP. I do not find the evidence is worthless. What I do find though is that for Dr Brown to have a fair trial he will need to have an experienced defence team including an investigator to be able to marshal a great deal of material for cross examination of the prosecution witnesses and many reluctant witnesses for his defence.”

“As to whether the RPs who are bourgmestres and have other positions of authority, would be prejudiced by the roles they played in 1994, I rely on the evidence of Martin Witteveen [who said] that in all his observations of the trials he had not seen any sign that anyone who had a leadership role in 1994 was presumed guilty. In the many exhibited ICTR monitors’ reports examining the trials of Uwinkindi and Munyagishari there is no evidence of prejudice in relation to the local positions they held in 1994.”

“124. In 2009 the Divisional Court concluded that in relation to the GoR’s evidence found in a large number of witness statements “taken at face value there can be no doubt that the material in these statements was sufficient to make a case requiring an answer from each of the appellants” …. [Ms Ellis and Ms Evans] argue that in the light of the new material they have obtained, where much of the material is exculpatory, the court no longer has to take ‘at face value’ the prima facie statements. Some of the new material consists in previous statements made by the GoR’s witnesses which are inconsistent with the statements relied on by the Ngoga. Miss Ellis argues that the veracity of the evidence is undermined. 125. I have set out in full Miss Ellis’ arguments and evidence in the appendix to this judgment. I find that the witnesses are undermined to a lesser or greater extent but should be cross examined to determine how much weight a court should attach to their evidence. The defence evidence is strong and should be put before a court. I do not find the prosecution evidence is worthless (subject to what I have said in the appendix in relation to named prosecution witnesses). I find in short there is a prima facie case.”

“71. …. EN was convicted and sentenced in Tare I Gacaca proceedings on 30th October 2008. He was charged with the massacre of Tutsi at Nyamigina, setting up of roadblocks, inciting people to commit genocide and issuing identity papers on the basis of ethnicity. He was convicted of talking people into killing in different places, chairing meetings aimed at committing genocide and setting up roadblocks. 72. The Tare I decision was set aside by the Gacaca Appeal Court on 22nd December 2008 on the basis that the court “did not have jurisdiction to hear the case” (Ngoga’s Affidavit Bundle 1 Paragraph 207). 73. A second case was heard in Tare II which ended in his acquittal on 23rd October 2008 for lack of sufficient evidence to suggest he committed the alleged crimes (Paragraph 208 ibid). This too was appealed and the acquittal was annulled on the basis that Tare II a trial “had already commenced in another jurisdiction” and “the Gacaca Court of Appeal has orders that the verdict given by the Sector Gacaca Court be annulled, with the case to follow the normal process in the prosecutor’s office that had started to prosecute it”. 74. In December 2008, five of the judges in Tare II were interviewed as to how they had acquitted EN and to find out who had leaked the verdict of the court. The judges were held in custody whilst they were being questioned. 75. Miss Ellis makes the point in her submissions that the records of these Gacaca hearings are incomplete and contradictory. I accept she is right. I have concerns about all Gacaca proceedings on the basis that they are clearly not Article 6 compliant, a position that the GoR also adopts. I find there is no evidence however that the conviction and acquittal have not been annulled lawfully. His extradition is not barred in relation to these proceedings.”

“146. Towards the end of the hearing evidence emerged that CU and EN had been tried in their absence before gacaca courts. In the case of CU an acquittal was declared by the relevant Gacaca Appeal Court to be a nullity on the ground of lack of jurisdiction. In the case of EN there had been a conviction of certain offences at one Gacaca Court, and an acquittal of other apparently similar offences in another Gacaca Court. The evidence was still emerging as the hearing before us concluded. Professor Schabas told the judge that there was no possibility whatsoever that the appellants could be tried by the gacaca courts. It is not clear whether this surprising turn of events was simply a case of the left hand not knowing what the right was doing, or an indication of something more sinister. Had we been minded to reach a different conclusion on the fair trial issue it would have been necessary to explore the implications of these gacaca proceedings in more detail. 147. Further material relating to the gacaca proceedings and also to a number of other issues that had been raised during the hearing was supplied to us after the hearing had concluded. It is unnecessary to refer to that material since none of it casts any doubt on our conclusions … in respect of the principal issue in the appeals.”

“After considering that the Defendant is being prosecuted in the ordinary jurisdiction, the Gacaca Court of Appeal has orders that the verdict given by the Sector Gacaca Court be annulled, with the case to follow the normal process in the ordinary jurisdiction that had started to prosecute it.” 22 December 2008: gacaca court of appeal for Tare I annuls the conviction, the following reason being given: “After considering that the Defendant is being prosecuted in the ordinary jurisdiction, the Gacaca Court of Appeal has ordered that the verdict given by the Sector Gacaca Court be annulled, with the case to follow the normal process in the ordinary jurisdiction that had started to prosecute it.”

“had it not come to the attention of [the Divisional Court] in December 2008 that the gacaca proceedings had taken place, then, had the extradition application been successful, Nteziryayo would have been taken to prison on his return as a convicted prisoner.”

“Notwithstanding any other law to the contrary, the High Court of the Republic shall be the competent court to conduct on the first instance the trial of cases transferred to Rwanda as provided for by this organic law ….”

“Article 8: Trial of an Extradited Person Sentenced by Gacaca Courts A person extradited to be tried in Rwanda and who has been sentenced by Gacaca Courts should be tried by a competent courthouse provided by this organic law. However, the decision of the Gacaca Courts shall first be nullified by that Court.”

“On 13th November 2007, CMU was acquitted in relation to events in Gatare but that acquittal was overturned by the Gacaca Court of Appeal on 22nd January 2009. At another Gacaca court in Bisesero, between the acquittal and appeal in relation to the Gatare events, CMU was convicted and sentenced to 30 years’ imprisonment on 21st January 2008. Both sets of proceedings are in relation to offences for which his extradition is sought....”

“…the case against CMU is caught by Section 80 and the rule against double jeopardy and he is entitled to be discharged in relation to this extradition request.”

“(5) 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 the relevant question differently; (c) if he had decided the question in that way, he would not have been required to order the person’s discharge.”

“resulted in the entire conduct for which CMU is sought being barred by reason of double jeopardy.”

“Article 8: Trial of an Extradited Person Sentenced by Gacaca Courts A person extradited to be tried in Rwanda and who has been sentenced by Gacaca Courts should be tried by a competent court as provided by this organic law. However, the decision of the Gacaca Courts shall first be nullified by that Court.”

“A matter for the High Court to quash the Gacaca conviction because the Gacaca jurisdiction no longer operates. The High Court will be in a position to quash the conviction when they are seized of CMU’s case, i.e., following his surrender to Rwanda.”

“(4) … must decide whether – … (b) each offence specified in the request is an extradition offence:”

“79(3) If the judge decides any of the questions in subsection (1) in the affirmative in relation to any offence, he must order the person's discharge in relation to that offence only.”

“18. In summary the authorities establish two circumstance in English law that offend the principle of double jeopardy: i) Following an acquittal or conviction for an offence, which is the same in fact and law – autrefois acquit or convict; and ii) following a trial for any offence which was founded on “the same or substantially the same facts”, where the court would normally consider it right to stay the prosecution as an abuse of process and/or unless the prosecution can show “special circumstances” why another trial should take place. 19. In Connelly, their Lordships reached this position in practical, though not unanimously in formal, terms by, in the main, confining the notion of double jeopardy to the narrow pleas in bar of autrefois acquit or convict, but allowing for a wider discretionary bar through the medium of the protection afforded by the court’s jurisdiction to stay a prosecution as an abuse of process. In Humphreys, where their Lordships sanctioned a prosecution for perjury based on the same facts plus evidence of perjury by the defendant at an earlier failed prosecution for a driving offence, Lord Hailsham of St Marylebone indicated the second broader discretionary bar in the following passage at 41D-E: “(10) Except where the formal pleas of autrefois acquit or convict are admissible, when it is the practice to empanel a jury, it is the duty of the court to examine the facts of the first trial in case of any dispute, and in any case it is the duty of the court to rule as a matter of law on the legal consequences deriving from such facts. In any case it is, therefore, for the court to determine whether on the facts found there is as a matter of law, a double jeopardy involved in the later proceedings and to direct a jury accordingly.”” i) Following an acquittal or conviction for an offence, which is the same in fact and law – autrefois acquit or convict; and ii) following a trial for any offence which was founded on “the same or substantially the same facts”, where the court would normally consider it right to stay the prosecution as an abuse of process and/or unless the prosecution can show “special circumstances” why another trial should take place. “(10) Except where the formal pleas of autrefois acquit or convict are admissible, when it is the practice to empanel a jury, it is the duty of the court to examine the facts of the first trial in case of any dispute, and in any case it is the duty of the court to rule as a matter of law on the legal consequences deriving from such facts. In any case it is, therefore, for the court to determine whether on the facts found there is as a matter of law, a double jeopardy involved in the later proceedings and to direct a jury accordingly.””

“But if they are examined then they bear out that this assurance is effective. Othman is at A2/Tab 31. As to the criteria: (a) the assurance has been disclosed to the Court; (b) the assurance is specific; (c) the Prosecutor General can bind the receiving state (see above); (d) it has been issued by the central government; (e) the proposed treatment is legal in Rwanda; (f) Rwanda has no track record of not abiding by assurances given. In relation to Mr Mudahinyuka’s case, the assurances were given for the purposes of an extradition request which never materialised because he was deported, and so they ceased to have effect; (g) compliance can be objectively verified.”