EHRM, 27-10-2011, nr. 37075/09

The applicant claimed that he was suffering from heart problems and would have to undergo heart bypass surgery in a few years. There was a serious risk that he would not be able to get that surgery in Rwanda. He also claimed that he risked persecution because he is a Hutu.

Moreover, the applicant asserted that the conditions in Rwandan detention and imprisonment would violate his rights under Article 3. He would face a real risk of torture and ill-treatment in detention. Further, while the Rwandan authorities had stated that he would serve a possible prison sentence at Mpanga Prison, nothing prevented the Rwandan authorities from placing him in another prison. The Swedish Government would not be able to take any measures against such a change.

The Swedish Government submitted that it had not been substantiated by a medical certificate or any other evidence that the applicant needed to undergo heart bypass surgery. In any event, it had not been shown that his medical condition was serious enough to render an enforcement of the expulsion order contrary to the Convention. The Government further pointed out that the applicant had not invoked any specific circumstances in support of his allegation that he ran the risk of persecution due to his ethnicity. In the Government's view, the general situation in Rwanda did not lend itself to concluding that people of Hutu origin risked being subjected to treatment contrary to Article 3 solely on the basis of their ethnicity.

As regards the prison conditions in Rwanda, the Government referred to the Rwandan arrest warrant of 17 July 2008 and the extradition request of 4 August 2008, in which Rwanda ‘guaranteed’ that, if the applicant were to be arrested, detained or imprisoned following extradition, he would be placed in a prison that met international standards (see paragraph 14 above). They also referred to information from the Swedish Office for Development Cooperation, according to which the conditions in detention centres and prisons for this specific type of arrested or convicted person were assessed as good or very good and that these detainees were the Rwandan Government's highest priority. Rwanda was expected to give these detainees the best possible care due to the great interest from the international community. The Swedish Office for Development Cooperation had also asserted that genocide convicts coming under the Transfer Law would serve their sentences in the newly built Mpanga Prison. Its international section contained 26 individual cells built in accordance with international standards, as confirmed by the ICTR as well as the Special Court for Sierra Leone (which had recently decided to allow eight people convicted of war crimes to serve their sentences at that prison). The Government further submitted that a temporary transfer facility, which also met international standards, had been set up at Kigali Central Prison. Moreover, they pointed out that, following legislative changes, the applicant could not be sentenced to life imprisonment in isolation. Finally, noting that the applicant had only alleged a risk of torture or ill-treatment in general terms, the Government held that their investigation did not point to any facts suggesting the occurrence in Rwanda of systematic or state-sanctioned torture or inhuman treatment of crime suspects or convicted offenders.

The Netherlands Government submitted that, while there had been international criticism of the conditions in the ordinary Rwandan prisons, genocide suspects and convicts were to be detained in the Mpanga Prison, which fully complied with international standards and which currently hosted persons convicted by the Special Court for Sierra Leone.

The Contracting States have the right, as a matter of well-established international law and subject to their treaty obligations, including the Convention, to control the entry, residence and expulsion of aliens (see, among other authorities, Vilvarajah and Others v. the United Kingdom, judgment of 30 October 1991, Series A no. 215, p. 34, § 102).

It is the settled case-law of the Court that extradition by a Contracting State may give rise to an issue under Article 3, and hence engage the responsibility of that State under the Convention, where substantial grounds have been shown for believing that the person in question would, if extradited, face a real risk of being subjected to treatment contrary to Article 3 in the receiving country. The establishment of such responsibility inevitably involves an assessment of conditions in the requesting country against the standards of Article 3 of the Convention. Nonetheless, there is no question of adjudicating on or establishing the responsibility of the receiving country, whether under general international law, under the Convention or otherwise. In so far as any liability under the Convention is or may be incurred, it is liability incurred by the extraditing Contracting State by reason of its having taken action which has — as a direct consequence — the exposure of an individual to proscribed ill-treatment (see Soering v. the United Kingdom, judgment of 7 July 1989, Series A no. 161, pp. 35–36, §§ 89–91, and Mamatkulov and Askarov v. Turkey [GC], nos. 46827/99 and 46951/99, ECHR 2005-I, § 67).

It would hardly be compatible with the ‘common heritage of political traditions, ideals, freedom and the rule of law’ to which the Preamble refers, were a Contracting State knowingly to surrender a person to another State where there were substantial grounds for believing that he would be in danger of being subjected to torture or inhuman or degrading treatment or punishment (see the above-cited Soering, pp. 34–35, § 88, and Mamatkulov and Askarov v. Turkey, § 68).

In determining whether substantial grounds have been shown for believing that a real risk of treatment contrary to Article 3 exists, the Court will assess the issue in the light of all the material placed before it or, if necessary, material obtained proprio motu. If the applicant has not been extradited or deported when the Court examines the case, the relevant time for the assessment of the existence of such a risk will be that of the proceedings before the Court (see Chahal v. the United Kingdom, judgment of 15 November 1996, Reports of Judgments and Decisions 1996-V, p. 1856, §§ 85–86, and Mamatkulov and Askarov v. Turkey, cited above, § 69).

Furthermore, ill-treatment must attain a minimum level of severity if it is to fall within the scope of Article 3. The assessment of this minimum is, in the nature of things, relative; it depends on all the circumstances of the case, such as the nature and context of the treatment or punishment, the manner and method of its execution, its duration and its physical or mental effects (see the above-cited Vilvarajah and Others, p. 36, § 107, and Mamatkulov and Askarov v. Turkey, § 70). Allegations of ill-treatment must be supported by appropriate evidence (see, mutatis mutandis, Klaas v. Germany, judgment of 22 September 1993, Series A no. 269, pp. 17–18, § 30).

Aliens who are subject to removal cannot, in principle, claim any entitlement to remain in the territory of a Contracting State in order to continue to benefit from medical, social or other forms of assistance and services provided by that State. The fact that the applicant's circumstances, including his life expectancy, would be significantly reduced if he were to be removed from the Contracting State is not sufficient in itself to give rise to breach of Article 3. The decision to remove an alien who is suffering from a serious mental or physical illness to a country where the facilities for the treatment of that illness are inferior to those available in the Contracting State may raise an issue under Article 3, but only in a very exceptional case, where the humanitarian grounds against the removal are compelling. In the case of D. v. the United Kingdom (judgment of 2 May 1997, Reports of Judgments and Decisions 1997-III) the very exceptional circumstances were that the applicant was critically ill and appeared to be close to death, could not be guaranteed any nursing or medical care in his country of origin and had no family there willing or able to care for him or provide him with even a basic level of food, shelter or social support (see also N. v. the United Kingdom [GC], no. 26565/05, § 42, 27 May 2008).

The Court notes that the applicant has invoked heart problems, stating that he needs to have bypass surgery in a few years. While it appears that he had bypass surgery some years ago, no medical certificates have been submitted which indicate that he has to undergo such surgery again. In any event, the threshold for a medical condition to raise an issue under Article 3 is, as shown by the case-law referred to above, a very high one. At this moment, the applicant's heart problems cannot be considered so serious as to raise an issue under that Article and there are no compelling humanitarian grounds against his extradition to Rwanda due to his medical condition.

The applicant has further claimed that he would risk persecution in Rwanda because of the fact that he is a Hutu. The Court notes that none of the decisions by the ICTR and national jurisdictions refusing transfer or extradition to Rwanda has been based, even in part, on such considerations. Nor has any evidence been submitted or found which gives reason to conclude that there is a general situation of persecution or ill-treatment of the Hutu population in Rwanda. Moreover, the applicant has not pointed to any particular personal circumstances which would indicate that he risks being subjected to treatment contrary to Article 3 due to his ethnicity.

Turning to the issue of the conditions of detention and imprisonment in Rwanda, the Court first notes that Rwanda's extradition request of 4 August 2008 and the letter of 12 August 2009 from the Rwandan Minister of Justice state that the applicant will be detained and serve a possible prison sentence at the Mpanga Prison and, temporarily during his trial before the High Court, at the Kigali Central Prison. It is true, as pointed out by the applicant, that the Rwandan authorities would be able to place him in a different prison without the Swedish Government having any means to prevent it. However, given the provisions of the Transfer Law and the repeated assurances by the Rwandan authorities, the applicant's observation must be considered as no more than speculative.

The respondent Government have submitted that the two mentioned detention facilities meet international standards. This assessment is shared by, for instance, the ICTR (see § 53 above), the Netherlands Government (§ 82) and the Oslo District Court (which took into account observations made by the Norwegian police following visits to the Mpanga Prison; § 72). The Court has regard also to the fact that the Special Court for Sierra Leone has sent several convicted persons to the Mpanga Prison to serve their sentences there. The Special Court must accordingly have found the conditions in the prison to be satisfactory. Moreover, there is no evidence in the case that the applicant would face a risk of torture or ill-treatment at the Mpanga Prison or the Kigali Central Prison.

The Court further notes that, pursuant to Article 3 of the Death Penalty Abolition Law, as amended in 2008, no persons transferred from other states under the Transfer Law may be sentenced to life imprisonment in isolation.

The Court is mindful of the fact that the ICTR Referral Chamber, in the Uwinkindi case, accorded certain weight to the regular prison visits to be conducted by the appointed monitors of ACHPR and to their immediate reporting should they discover any matter of concern. Although the Rwandan authorities have invited the Swedish Government to monitor the applicant's detention conditions, this mechanism or guarantee has not been formalised in the applicant's case and it is not clear whether the Swedish Government would actually monitor the applicant's situation in Rwanda. However, in the Court's opinion, the monitoring carried out by the ACHPR must be seen as merely an extra safeguard and the fact that the ICTR ordered such monitoring does not change its general finding that the detention conditions, as set out in the Transfer Law, were adequate.

Thus, in the light of the material before it, the Court is not able to conclude that substantial grounds exist for believing that the applicant faces a real risk of treatment proscribed by Article 3.

Consequently, the applicant's extradition to Rwanda would not involve a violation of Article 3 of the Convention.

The applicant maintained that, although Rwanda had introduced legislative changes aimed at improving the rule of law, there was no evidence that these changes had had an effect in practice. For instance, the majority of the applicant's witnesses were living outside Rwanda and were not willing to travel to the country in order to testify. The possibility of examining witnesses via video-link had not solved the problem of witnesses who were too afraid to come forward. Those who were willing to testify via video-link had to sign a statement revealing their residential address and those who had fled Rwanda did not dare to do so. Furthermore, it was not likely that this type of testimony would carry the same weight as testimony given in court.

Another problem facing the applicant if he were to stand trial in Rwanda was the lack of qualified lawyers that could defend him.

Moreover, the applicant asserted that the Rwandan judiciary was not impartial or independent from the executive. According to the Organization for Peace, Justice and Development in Rwanda (‘OPJDR’), a former judge at the Higher Instance Court of Butare-Rwanda had stated that the applicant was on a list of Hutu intellectuals against whom a number of prosecutors, still in service, had been instructed to collect and fabricate accusations.

The applicant's personal situation was further compounded by the fact that he had given testimony for the defence in several cases that had been or were about to be adjudicated by the ICTR. He was therefore of great interest to the Rwandan authorities. Furthermore, as former head of the Rwandan Civil Aviation Authority, the ruling party in Rwanda, FPR, might want to silence the applicant, believing that he has knowledge of the circumstances surrounding the shooting down on 6 April 1994 of the plane carrying President Habyarimana.

On 17 August 2010 the applicant submitted two copies of judgments dated 6 January and 24 May 2008, respectively, allegedly from gacaca courts in Rwanda, in which the applicant had been found guilty of having destroyed and looted other people's property and had been ordered to pay damages. One of the judgments specified that the crimes had been committed during the 1994 genocide. The courts had ordered the seizure and public auction of the applicant's house to cover the damages, which in total equalled about 130,000 US dollars. In the applicant's opinion, these judgments showed that sentences had already been passed against him and that, consequently, he would not get a fair trial in Rwanda.

In regard to the decision of the ICTR Referral Chamber of 28 June 2011 in the case of Uwinkindi, the applicant pointed out that the decision was not final. Moreover, the Referral Chamber had stressed that the nature of extradition and referral proceedings were materially different; whereas the extraditing State had no control over the trial of the extradited person, the ICTR retained the power to revoke its decision and had also ordered the referral pursuant to a stringent monitoring mechanism. In the applicant's view, it was clear that the Referral Chamber had relied heavily on the monitoring programme, which would ensure that detention conditions were satisfactory and evaluate the ability for the accused to present his line of defence. Both these issues being of concern to the applicant, he pointed out that the Swedish Government would not exercise any control over the trial after an extradition. Moreover, even if they were to receive information about violations of his rights, they would not be able take any remedial action.

The Swedish Government submitted that the Rwandan Transfer Law, as amended in 2009, fulfilled the internationally accepted minimum requirements of the rule of law. By amending its legislation, Rwanda had responded directly to the criticism expressed by the ICTR and other countries and international organisations, in particular in regard to its witness protection system. The amendments had been introduced in May 2009, thus after the decision of the Finnish Ministry of Justice and the judgment delivered by the UK High Court, refusing to allow extraditions to Rwanda.

Of decisive importance were the legislative changes adopted which allowed the defence to call and examine witnesses — in Rwanda or elsewhere — under the same conditions as the prosecution, using various alternative means of giving testimony, and without there being a risk that the witnesses would be prosecuted themselves for anything said or done during the trial. In the Government's view, there was no indication that these amendments would not be adhered to in practice. According to the Swedish Office for Development Cooperation, international organisations and foreign missions considered that Rwanda's efforts in witness protection had been successful. The Office had also stated that there were no technical obstacles in Rwanda to the use of video-links. The Government added that testimony via video-link was an accepted and commonly used measure within international legal co-operation in cases where witnesses were unable to travel to a court and was often a natural consequence of the transfer of proceedings to other states. Having regard to the alternative ways of giving testimony and the development of the witness protection system, the Government held that the applicant's claim that his witnesses would not be able to come forward was unsubstantiated.

Moreover, among the guarantees in the Transfer Law was the right to defence counsel, provided for free if the accused had no means to pay for counsel. The Government pointed out that, in their extradition request, Rwanda had stated that all accused persons were informed of their right to counsel of their choice.

The Government further stated that there was no indication that the courts or proceedings in Rwanda would be biased or lack the impartiality or independence required in a case of the present character. Extradited suspects were heard by the High Court of the Republic at first instance, with a possibility to appeal to the Supreme Court which, according to the Rwandan Constitution, sat with three judges. The Constitution guaranteed judicial independence and the judiciary's financial and administrative autonomy. The judges were professional and bound by ethical rules. The Government pointed out that none of the ICTR Prosecutor's requests for referral to Rwanda had been refused due to a lack of independence and impartiality of the Rwandan judiciary. The chambers of the ICTR had noted that no evidence had been found to suggest that there was a significant risk that the Rwandan Government would interfere in transfer cases before the High Court and the Supreme Court.

The Government maintained that, as their extradition decision was not based on guarantees made by Rwanda but, instead, on an assessment that the extradition of the applicant — regardless of guarantees — would be consistent with Article 6, the issue of monitoring commitments was not relevant. However, in the letter of 12 August 2009 (see § 24 above), the Rwandan Minister of Justice had confirmed that Swedish authorities were welcome to monitor and evaluate the conditions of the applicant's detention or imprisonment in Rwanda as well as his trial. While not considering that Sweden had an obligation to do so under international law, the Government stated that, due to the circumstances of the case, Sweden was prepared, if necessary, to take measures to monitor the legal proceedings and the applicant's situation as a detainee.

The Government stressed that, in accordance with the provisions of the Transfer Law and the repeated confirmations by the Rwandan authorities in the applicant's case, the applicant would not be tried in the gacaca courts. The documents from gacaca courts, introduced by the applicant late in the proceedings, concerned damages, and the applicant had not explained the connection, if any, between the acts mentioned in those documents and the criminal acts pertinent to the extradition proceedings. In the Government's view, the documents submitted had no bearing on the present case.

In regard to the decision of the ICTR Referral Chamber in the Uwinkindi case, the Government submitted that it supported their observations regarding the positive developments of the justice system in Rwanda as well as their position that the enforcement of the extradition decision would not violate the applicant's rights under the Convention. They noted that the standard applied by the ICTR (that the accused should receive a fair trial) was more stringent than the standard applied by the Court when determining whether an act of extradition is compatible with the Convention.

The Netherlands Government submitted that, as a strong material supporter of the build-up of the Rwandan justice system after the genocide, they had closely witnessed the developments. Furthermore, the Netherlands had been investigating genocide cases in Rwanda since 2006 and Dutch detectives, prosecutors and investigating magistrates frequently visited Rwanda for this reason. The co-operation of the Rwandan judicial authorities, including on the issue of witness protection, had been exemplary and there were no indications of interference with the investigating teams or with witnesses. The officials never inquired about the witnesses or about the content of their testimonies.

In the opinion of the Netherlands Government, Rwanda had made substantial and fundamental progress in furthering the rule of law. They referred to recent legal amendments as well as changes in judicial and legal practice, including the abolition of the death penalty, the introduction of the possibility to use remote witness testimony in court and the building of the Mpanga Prison. Furthermore, the Rwandan judiciary attached great importance to its impartiality and Rwandan ordinary court judges were generally — also by their European and ICTR peers — considered to be impartial.

The Netherlands Government pointed out that the decisions to refuse transfers and extraditions of genocide suspects preceded the changes in the Rwandan justice system. They further stated, in regard to criticism levelled by, for instance, Human Rights Watch, at the gacaca proceedings, that extradited genocide suspects would not appear before the gacaca courts.

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, §§ 90–91).

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, § 84, ECHR 2006-II).

It should be noted that, in the twenty-two years since the Soering judgment, the Court has never found that an extradition or expulsion would be in violation of Article 6. This indicates that the ‘flagrant denial of justice’ test is a stringent one. A flagrant denial of justice goes beyond mere irregularities or lack of safeguards in the trial procedures such as might result in a breach of Article 6 if occurring within the Contracting State itself. What is required is a breach of the principles of fair trial guaranteed by Article 6 which is so fundamental as to amount to a nullification, or destruction of the very essence, of the right guaranteed by that Article.

In 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, § 129, ECHR 2008-…).

The Court reiterates that, in 2008 and early 2009, the ICTR as well as courts and authorities of several national jurisdictions refused to transfer or extradite genocide suspects to Rwanda due to concerns that the suspects would not receive a fair trial in that country. The decisions mainly focused on the difficulties for the defence to adduce witness testimony, on account of the fears of witnesses to appear for fear of reprisals and the risk that remote defence testimony would not be given the same weight by the courts as evidence for the prosecution given in person. While the ICTR found no reason to criticise the impartiality and independence of the Rwandan judiciary or the composition of the courts, the UK High Court concluded that there was evidence of judicial interference by the Rwandan executive. Several decisions also found that the possibility of life imprisonment in isolation constituted an impediment to transferring the suspects to Rwanda.

Since these decisions were taken, several amendments have been made to the Rwandan legislation. The respondent Government and the third-party intervener have submitted that there have been additional improvements in legal practice. Consequently, it needs to be determined whether these changes are sufficient to conclude that, if the applicant is now extradited to Rwanda, he would not be subjected to a real risk of a flagrant denial of justice.

As noted above in regard to the applicant's complaint under Article 3, he cannot be sentenced to life imprisonment in isolation (see § 93). Thus, this particular issue need not be examined further.

The Court considers that the central issue in the present case is the applicant's ability to adduce witnesses on his behalf and obtain an examination of testimony by the courts that reasonably respect the equality of arms vis-à-vis the prosecution.

As regards the fears of reprisals that the applicant's witnesses may have, it is, as noted by the ICTR in Uwinkindi, not determinative whether those fears are reasonable or well-founded but rather whether there are objective reasons to believe that witnesses would refuse to come forward. In this respect, the Court first notes that, through a May 2009 amendment to Article 13 of the Transfer Law, witnesses — as well as other participants in the proceedings — are afforded immunity from prosecution for statements made or actions taken during a trial. Furthermore, in addition to the witness protection programme previously in existence under the auspices of the Office of the Prosecutor-General (‘VWSU’), Rwanda has recently made arrangements for an additional witness protection unit under the direction of the judiciary (‘WPU’). The Court also takes into account the submissions made by the Netherlands Government, according to which, during Dutch investigations of genocide cases in Rwanda, the Rwandan officials had never inquired about the witnesses or their statements. Similar assessments, recorded in the Oslo District Court's judgment of 11 July 2011, had been made by the Norwegian police after having interviewed 149 witnesses in Rwanda since September 2009.

Furthermore, the introduction of Article 14 bis of the Transfer Law provides for the possibility of witnesses residing outside Rwanda to give testimony through the use of several alternative means, without having to appear in person at a trial. Besides the possibility of making depositions before a judge in Rwanda or abroad, the most important development is perhaps that the law now provides for the hearing of witnesses during the trial via video-link. Already in its first referral case, Munyakazi, the ICTR Appeals Chamber was satisfied that video-link facilities were available and would likely be authorised in cases where witnesses residing abroad genuinely feared to testify in person. In the present case, the respondent Government have submitted that there are no technical obstacles to the use of video-links in Rwanda. In this connection, the Court reiterates that it has previously held that the use of video-link testimony is as such in conformity with Article 6 (see, for instance, Kabwe and Chungu v. the United Kingdom (dec.), nos. 29647/08 and 33269/08, 2 February 2010). Furthermore, in view of the legislative changes providing for alternative ways of giving testimony, the Court cannot find any basis for concluding that statements thus made would be treated by the courts in a manner inconsistent with the respect for the equality of arms.

In conclusion, the Court finds no reason to conclude that the applicant's ability to adduce witness testimony and have such evidence examined by the courts in Rwanda would be circumscribed in a manner inconsistent with the demands of Article 6.

The applicant has further claimed that there were no qualified lawyers able to defend him in Rwanda. The Court finds that this claim is unsubstantiated. It appears that the applicant would be free to appoint foreign defence counsel. More importantly, reference is made to the decision in the Uwinkindi case, where the Referral Chamber noted, inter alia, that many members of the Rwandan Bar had more than five years' experience, that Rwandan lawyers were obliged to provide pro bono services to indigent persons and that there was a legal framework as well as a budgetary provision for legal aid.

Turning to the independence and impartiality of the Rwandan judiciary, the Court takes note of the concerns expressed by some international organisations as well as the UK High Court. However, in its referral cases, the ICTR has concluded that the Rwandan judiciary meets these requirements. In Uwinkindi, the Referral Chamber considered that the judges of the High Court and the Supreme Court were qualified and experienced and in possession of the necessary skills to handle a transferred case. Furthermore, both the ICTR and the respondent Government have pointed to the legal and constitutional guarantees of the judiciary's independence and impartiality. The experience of the Dutch investigative teams and the Norwegian police — that Rwandan authorities had not in any way interfered with their work or with the witnesses they heard — points in the same direction. The Court therefore concludes that there is no sufficient indication that the Rwandan judiciary lacks the requisite independence and impartiality.

As to the applicant's personal situation, the Court finds that it has not been substantiated that his trial would be conducted unfairly because of his having given testimony for the defence in trials before the ICTR or because of his former position as head of the Rwandan Civil Aviation Authority. Furthermore, in regard to the decisions allegedly taken by gacaca courts in 2008, the Court first notes that they were invoked only in August 2010, more than two years after their date of issuance and more than a year after the introduction of the present application. Even assuming that they are genuine, the Court notes that they relate to damages that the applicant had been ordered to pay as compensation for having destroyed and looted property. It has not been shown that there is a connection between the acts for which he was ordered to pay damages and the acts covered by the charges in Rwanda's extradition request. Moreover, according to the provisions of the Transfer Law and the statements made by the Rwandan authorities in connection with the extradition request, extradited genocide suspects — including the applicant — will have their criminal liability tried by the High Court and the Supreme Court and not by the gacaca courts.

The Court has in the foregoing referred to the ICTR Referral Chamber's decision in Uwinkindi. While noting that the decision is not final, the Court nevertheless considers that its conclusions have to be given considerable weight. It is the first transfer decision taken by the ICTR since the legislative changes in Rwanda. The Chamber found that the issues that had led to the decisions in 2008 to refuse transfers had been addressed to such a degree in the intervening period that the Chamber was confident that the accused would be prosecuted in a manner consistent with internationally recognised fair trial standards enshrined in the ICTR Statute and other human rights instruments. While the Chamber also relied on the monitoring it ordered and its ability to revoke the transferred case if necessary, this does not, as noted above in regard to the complaint under Article 3, change the conclusions drawn. In this connection, the Court notes that Sweden has declared itself prepared to monitor the proceedings in Rwanda and the applicant's detention.

It must also be emphasised that the decision to transfer Uwinkindi for trial in Rwanda was made pursuant to Rule 11 bis of the Rules of Procedure and Evidence of the ICTR which, among other things, stipulate that the referring chamber must be satisfied that the person in question will receive a fair trial in the courts of Rwanda. The standard thus established clearly set a higher threshold for transfers than the test for extraditions under Article 6 of the Convention, as interpreted by the Court.

In conclusion, having regard to the above considerations, the Court finds that the applicant, if extradited to stand trial in Rwanda, would not face a real risk of a flagrant denial of justice.

Consequently, the application does not reveal a violation of Article 6 of the Convention.