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In the Westminster Magistrates' Court

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In the Westminster Magistrates' Court IN THE WESTMINSTER MAGISTRATES’ COURT BETWEEN THE GOVERNMENT OF THE REPUBLIC OF RWANDA Requesting State - V - VINCENT BROWN (AKA VINCENT BAJINYA), CHARLES MUN- YAZEZA, EMMANUEL NTEZIRYAYO, CELESTIN UGIRASHEBUJA AND CELESTIN MUTABARUKA Requested Persons INDEX TO JUDGMENT Introduction Page 4 Paragraph 1 Representation Paragraph 3 Course of proceedings Paragraph 4 Evidence & submissions Page 5 Paragraph 7 GoR’s case Page 6 Paragraph 11 Defence case Page 9 Paragraph 33 Background Page 11 Paragraph 37 Anonymous evidence Page 13 Paragraph 41 Allegations against RPs Page 14 Paragraph 43 Preliminary matters Page 16 Paragraph 53 Contested issues Paragraph 57 Double jeopardy Page 17 Paragraph 58 Discharge of CMU Page 19 Paragraph 70 Extraneous considerations Page 20 Paragraph 78 Passage of time Page 23 Paragraph 97 Prima facie case Page 25 Paragraph 104 (i) Dr Brown Paragraph 110 (ii) Mr Munyaneza Page 26 Paragraph 112 (iii) Mr Nteziryayo Page 28 Paragraph 123 1 (iv) Mr Ugirashebuja Paragraphs 126 (v) Mr Mutabaruka Page 29 Paragraphs 133 Section 87 Human Rights Paragraph 134 (i) Article 3 Page 30 Paragraph 135 Conclusion Page 32 Paragraph 144 (ii) Article 6 Page 33 Paragraph 147 Brown & others Page 34 Paragraph 154 Cases up to 2009 Page 36 Paragraph 160 Defence case – summary Paragraph 163 Political situation Page 37 Paragraph 165 Tables Paragraph 169 Osman warnings Page 42 Paragraph 194 Experts’ politics Page 44 Paragraph 202 Conclusions Page 46 Paragraph 218 Evidence of trials Page 47 Paragraph 221 Ingabire’s trial Page 48 Paragraph 228 Conclusions Page 53 Paragraph 260 Mutabazi’s trial Page 55 Paragraph 268 Five transfers Paragraph 270 Ahurogeze Page 56 Paragraph 273 Uwinkindi Page 57 Paragraph 282 In Rwanda Page 60 Paragraph 295 Findings Page 71 Paragraph 359 Bandora Page 73 Paragraph 379 In Rwanda Page 74 Paragraph 380 Findings Page 78 Paragraph 402 Munyagishari Paragraph 403 In Rwanda Page 81 Paragraph 416 Findings Page 84 Paragraph 436 Mugesera Page 85 Paragraph 440 In Rwanda Paragraph 442 Findings Page 88 Paragraph 457 Mbarushimana Page 89 Paragraph 462 In Rwanda Paragraph 463 Findings Paragraph 465 Defence evidence – Art.6 Page 90 Paragraph 467 Defence experts Page 94 Paragraph 493 Prosecution evidence Page 96 Paragraph 504 Prosecution experts Paragraph 505 Conclusions judiciary Page 99 Paragraph 519 Defence witness evidence Page 104 Paragraph 546 Conclusions witnesses Page 113 Paragraph 593 2 Defence lawyers & investigations Page 114 Paragraph 600 Conclusions lawyers Page 118 Paragraph 619 (iii) Article 8 Page 121 Paragraph 632 Conclusion Page 123 Paragraph 643 Forum Page 124 Paragraph 644 Abuse of process Page 125 Paragraph 649 CONCLUSION Page 128 Paragraph 665 Glossary Bourgmestre Government representative in the communes KBA Kigali Bar Association NPPA Public Prosecution Service of Rwanda RBA Rwandan Bar Association WPU Witness Protection Unit ran by the Registrars of the High Court and Supreme Court WVSU Witness and Victims Support Unit 3 Introduction 1. This is a request by the Government of the Republic of Rwanda (“GoR”) for the extradition of Vincent Brown, Charles Munyaneza, Emmanuel Nteziryayo, Celestin Ugirashebuja and Celeste Mutabaruka. The request is set out in the Affidavit of Martin Ngoga in Support of Extradition Requests, who was at the date of the affidavit the Prosecutor General of the Republic of Rwanda. 2. Vincent Brown (aka Vincent Bajinya (“VB”) but called Brown in this judg- ment), Charles Munyaneza (“CM”), Emmanuel Nteziryayo (“EN”), Celestin Ugirashebuja (“CU”) and Celeste Mutabaruka (“CMU”) face eight similar charges. The charges are the following: genocide; conspiracy to commit genocide; complicity in genocide; crimes against humanity; premeditated mur- der and conspiracy to commit murder; inciting, aiding or abetting public dis- order; participation in acts of devastation, massacres and looting and finally formation, membership, leadership and participation in an association of a criminal gang whose purpose and existence was to do harm to people or their property. Representation 3. The representation is as follows: the GoR is represented by James Lewis QC, John Jones QC, Ben Brandon and Gemma Lindfield. Dr Vincent Brown is represented by Alun Jones QC and Sam Blom-Cooper, Charles Munyaneza by Tim Moloney QC and Ian Edwards, Emmanuel Nteziryayo by Diana Ellis QC and Joanna Evans, Celestin Ugirashebuja by Edward Fitzgerald QC and Ra- chel Kapila then Kate O’Raghallaigh and Celestin Mutabaruka by Helen Mal- colm QC and Mark Weeks. I am very grateful to all counsel in this case who have very effectively placed all arguments and relevant evidence before me. Course of the proceedings – 2009 and 2015 4. The GoR sought the extradition of four of the five Requested Persons (“RPs”), VB, CM, EN and CU in 2008. On 6th June 2008 District Judge Anthony Ev- ans ordered their extradition finding the relevant provisions of the Extradition Act 2003 (“EA”) had been met. The RPs appealed and on 8th April 2009 the Divisional Court discharged the four men on the basis that they “would suffer a real risk of a flagrant denial of justice by reason of their likely inability to adduce the evidence of supporting witnesses”. (Paragraph 66, Brown and others v The Government of Rwanda [2009] EWHC 770 (Admin)). 5. The Divisional Court also considered whether a court would be independent and impartial and concluded that the question could not be answered without considering the qualities of the political framework. Neither Rwanda’s polity nor the problems they had found in relation to defence witnesses promised “well for the judiciary’s impartiality and independence”. They concluded that the RPs if returned would be at real risk of suffering a flagrant denial of justice (Paragraph 121 of the judgment). 4 6. Celestin Mutabaruka (“CMU”) is a new requested person joined with the other four who were the RPs in 2008 and 2009. Evidence and submissions 7. There is a large amount of material in the files that I have been provided with and I do not refer to all of it in this judgment. I have counted 59 files without the submissions and over 23,000 pages of evidence. I have picked out what I consider to be some of the important evidence that I have to consider to enable me to make a decision. As it is, I am conscious of the length of this judgment which has to deal with a number of detailed issues raised by the defence. 8. After preliminary applications the GoR opened their case on 3rd March 2014, evidence was heard on 63 days spread over 16 months, with an adjournment of six months in 2014 whilst first the Divisional Court, then the Supreme Court considered an interim ruling I gave in relation to anonymous witnesses. There were delays caused too because of the time it took for the legal aid agency to give advance permission for certain investigation expenses. This was understandable as the investigators instructed by the defence spent a number of weeks in Rwanda, first of all identifying witnesses and then inter- viewing them before in some cases marshalling them to a place from which they could give evidence, usually confidentially, to this court. Finally it was difficult to find dates when counsel and the court were available. The final day of evidence was 30th July 2015. 9. Written submissions subsequently were received in this order: from the RPs on or about 19th August 2015, from the GoR on 15th September 2015, on 5th October 2015, the GoR at my invitation provided further written submissions in relation to issues that they had failed to deal with in their original submis- sions and the RPs replied to the GoR’s further submissions on various dates ending 15th October 2015. On 22nd October the ICTR MICT Trial Chamber brought out an important decision in the transfer case of Uwinkindi. I was sent at my request the Rwandan Chief Justice’s new practice direction in rela- tion to defence applications for funds for investigation. I requested and was sent a response to the decision of the MICT in Uwinkindi from all RPs on 11th November 2015 and then adjourned for judgment. The submissions totalled about 1500 pages. 10. The advantage of the time that this case has taken in the magistrates’ court is that it has been possible to see how some transferred defendants are being tried in the Specialised Chamber of the High Court in Kigali, the Court where these accused, if extradited, would be tried. I have had the advantage too of reading the ICTR monitoring reports in relation to the transfer cases of Uwinkindi and Munyagishari and of hearing the GoR’s expert, Judge Wit- teveen’s, view of the trials of the transferred defendants. None of that impor- tant evidence would have been available if these proceedings had been com- pleted in 2014. 5 The GoR’s case in the current proceedings ‘sea change’ 11. The GoR in these current proceedings rely on what they have called a sea change in the international courts’ approach to Rwandan cases from 2009 on- wards. The GoR points out that since 2009 no court has refused to extradite, transfer or deport to Rwanda those accused of genocide related charges. 12. There is an exception to this approach, on 27th November 2015, as I was com- pleting this judgment, a Dutch court in the Hague refused to extradite a Rwan- dan, Mr Iyamiremye, accused of genocide related offences, on the grounds that to return him to Rwanda would be a flagrant breach of his Article 6 rights. I received the English translation of the judgment on 10th December 2015 which made it clear the Dutch court was relying on the evidence Mr Witteveen gave in these extradition proceedings. I am told the judgment is subject to ap- peal.
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