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National extradition


Author: Oleksandr Dementiev, lawyer, Ilyashev & Partners Law Firm
Source: Yurydychna Praktyka

In its case law the European Court of Human Rights (ECtHR) argues that regardless of whether the requesting State is a party to the Convention for the Protection of Human Rights and Fundamental Freedoms (the Convention), the extraditing (sending) state is responsible if there are substantial grounds for believing that the applicant experiences «real risk» of inhuman treatment). For the first time the Court came to the conclusion in 1989 in case, «Soering v. the United Kingdom» (judgment of the European Court of 7 July 1989, application No. 14038/88, § 111). In this case the European Court held that Article 3 of the Convention («Prohibition of torture») will be violated in the event of the applicant’s extradition to the United States in connection with a real risk of falling into the «death row», which, in turn, exceeds the threshold set forth in Article 3.

Not subject to violation

In general, provisions of this Article of the Convention are absolute and not subject to violation under any circumstances, even in the context of the fight against international terrorism. This principle has been permanently enshrined in case law of the European Court following a judgment delivered in 1978 in case «Ireland v. the United Kingdom» (judgment of 18 January 1978, application No. 5310/71, § 79). In case «Saadi v. Italy» (judgment of 28 February 2008, application No. 37201/06) the European Court came to the conclusion that the Italian government will breach Article 3 in respect of the applicant in the event of his deportation to Tunisia, where in 2005 he was in absentia sentenced to 20 years in prison for participating in a terrorist organization.

In determining whether it is established that the applicant, if extradited, faces a real risk of being subjected o treatment prohibited by Article 3 of the Convention, the Court assesses the issue taking into account all the documents before it or documents obtained on own initiative. In such cases, the European Court has to consider the foreseeable consequences of sending the applicant to the requesting state, taking into account the general situation in the country and his personal circumstances. At the same time, the Court points out that the mere possibility of ill-treatment in connection with the uncertain situation in the requesting country does not raise the question of violation of Article 3 of the Convention (judgment «Vilvaradzha and Others v. the United Kingdom» of 30 October 1991, applications Nos. 13163/87, 13164/87, 13165/87, 13447/87 and 13448/87, and «Galeev v. Russia» of 3 June 2010, application No. 19316/09, § 54).

In case «Kamyshev v. Ukraine» and «Puzan v. Ukraine» the applicants complained to the European Court that in the event of extradition to Belarus they will be exposed to ill-treatment contrary to Article 3 of the Convention. In reviewing these cases the European Court examined the reports of international organizations for human rights in Belarus, in particular, government reports on Human Rights Practices of U.S. Department of State, Report of the Special Rapporteur on the situation of human rights in Belarus, Resolution 1671 (2009) of the Parliamentary Assembly of the Council of Europe on the situation in Belarus, report by Amnesty International for 2006, report by the International Helsinki Federation for Human Rights.

Each of the reports testified to the systematic violations of human rights in Belarus. Speakers focused on inadequate conditions of detention of persons in detention centers and prisons. The European Court held that the relevant international documents prove the position of the applicants as to the existence of serious problems with human rights in Belarus, however, categorically stated that the applicants’ general references to the existing problems in the country’s human rights are not sufficient grounds for refusal of extradition (§ 44 of judgment «Kamyshev v. Ukraine» and § 34 of judgment «Puzan v. Ukraine»).

Thus, the European Court, knowing for certain that the applicants in case of extradition will be taken into custody and held in inappropriate conditions, nevertheless held that the existence of such a presumption alone is not enough to refuse extradition.

Extradition to Ukraine

Can the European Court establish a violation of Article 3 of the Convention in case of extradition to Ukraine in the light of the above principles, and the systemic problems that exist in the state?
One of these problems is inadequate detention conditions in detention centers and when serving sentences in correctional facilities. The vast majority of statements, findings and reports of national and international human rights organizations indicate that conditions in penal institutions of Ukraine do not meet the requirements and standards of a modern democratic society.

Accordingly, we can predict that any person in respect of whom criminal proceedings was initiated in Ukraine, leaving the state may seek asylum in any country appealing to him, reasoning that the extraditing state violates his rights under Article 3 of the Convention in light of improper and degrading conditions of detention and serving punishment in SIZOs and colonies in Ukraine.

In this case should the extraditing state refuse granting asylum and deciding whether his extradition to Ukraine is needed for further criminal prosecution, such person has an effective way to appeal the decision. It is about sending a written application to the European Court with a brief description of the alleged violations, and request to suspend the extradition procedure pursuant to Rule 39 of the Rules of the European Court. Practically, the Court responds to such statements quickly and forwards to the appropriate authority of the extraditing state a letter on application of interim measures – ban on extradition of a person, which is valid until the end of the proceedings in the European Court (judgment/decree).

Current situation

In considering violation of Article 3 of the Convention, the Court must take into account current, recent and latest reports (recent reports) on the human rights situation in the country.

Thus, when considering applications of persons to be extradited to Ukraine, the European Court must treat the reports made in respect of our country with extreme caution. The last of them are reports on visits to Ukraine in 2011 by the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment, and government reports on Human Rights Practices by U.S. Department of State for Human Rights, which were prepared in 2012.

It is known that recently Ukraine carried out some reforms in criminal and penal systems, which resulted in positive changes in the situation with human rights guaranteed by Article 3 of the Convention. In this regard, many high-ranking officials voice figures showing the positive impact of the new Code of Criminal Procedure (CCP) of Ukraine on the problematic issue. Thus, the Minister of Justice Oleksandr Lavrynovych at parliamentary hearings on 12 June 2013 reported that as a result of enactment of the Code of Criminal Procedure 2012 they managed to reduce the number of persons in detention centers three times, i.e. by 12,759 persons as compared to 2011.

Pursuant to order of the President of Ukraine dated 8 November 2012 No. 631/2012 the Concept of public policy in reforming the State Penitentiary Service of Ukraine for 2012-2017 was approved, which set out further measures to improve the detention conditions of convicted persons and persons in detention, health care of these individuals, quality of medical care, etc. Officials believe that full implementation of this Concept will permit to eliminate defects in providing the appropriate conditions of convicts and detainees.

Assuming that the European Court, when examining another case on the applicant’s extradition to Ukraine, trusts the above information, while not having other relevant information provided by «international human rights activists», then based on the existing case law it is likely to have no right to prohibit extradition to Ukraine.

It is also expedient to refer to judgment of the European Court dated 5 February 2013 in case «Zokhidov v. Russia.» In this case, the applicant complained that if extradited to Uzbekistan, he will undergo ill-treatment contrary to Article 3 of the Convention. The Court took into account the findings of international organizations for the period 2002-2007 showing the alarming human rights situation in Uzbekistan. After that, the European Court has compared them with the latest conclusions drawn up by other international organizations. The relevant comparison of past and current reports demonstrated serious problems with ill-treatment of detainees in Uzbekistan. Consequently, given the duration of the negative situation with the observance of human rights in Uzbekistan, and the absence of any positive changes in the state in this regard, the Court had stated that the applicant’s deportation to Uzbekistan will violate his rights under Article 3 of the Convention (§ 135 and § 142 of the said judgment).

The Court cannot directly prohibit the State to extradite a person. However, the Court’s decision stating violation of the rights guaranteed by the Convention, in case of extradition a priori has a prejudicial effect to national authorities – not to extradite to the country requesting extradition.

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