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18.02.2010

European Court acknowledges that refugee status in Ukraine is no guarantee against extradition

   

On 18 February the European Court of Human Rights issued its judgment in the case of Baysakov and Others v. Ukraine. The Court found that Ukraine would be violating Article 3 of the European Convention if it extradited the four applicants to Kazakstan.

The Government had asserted that the applicants did not have the status of “victim” as per Article 35 of the Convention since they had received refugee status and the extradition procedure had been halted as a result of the applying by the Court of Rule 39.

The Court found that the risk of extradition remained despite their refugee status. It pointed out that “The Court further observes that there is no clarity in the national law or the practice of its application as regards the legal effect of challenges by the prosecutors to decisions granting refugee status. In particular, given the relevant provisions of the Prosecution Service Act and the position of the Plenary Higher Administrative Court, it may not be excluded that the introduction of an administrative claim by the prosecutors has a suspensive effect on any contested decision, including a decision granting refugee status (see paragraphs 24 and 27 above). Moreover, the Government did not contest the applicants’ submission concerning the removal from Ukraine of an applicant in another case pending before the Court, despite his refugee status.(41)”

The Court also referred to the case of Oleg Kuznetsov “currently pending before the Court, Kuznetsov v. Ukraine,no. 35502/07, in which the Ukrainian prosecutors dealing with extradition matters had removed a person from Ukraine despite his refugee status”.

Despite the applicants’ strong position as regards possible violation of Article 6 of the Convention if extradited and serious argument presented by Interights (London), acting as a third party in the case, the Court unfortunately once again avoided this issue, considering that there was no need to consider it since a violation of Article 3 of the Convention had been established. The Court also saw no grounds for believing that one of the applicants could face a violation of Article 2 of the Convention (the right to life) if extradited.

Arkady Bushchenko

 

The key parts of the Judgment are below – it can be found in full at:

http://cmiskp.echr.coe.int/tkp197/view.asp?action=html&documentId=863074&portal=hbkm&source=externalbydocnumber&table=F69A27FD8FB86142BF01C1166DEA398649

 

In the case of Baysakov and Others v. Ukraine,

 

PROCEDURE

1.  The case originated in an application (no. 54131/08) against Ukraine lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by four Kazakhstani nationals, Mr Yesentay Daribayevich Baysakov (the first applicant), Mr Zhumbai Deribayevich Baysakov (the second applicant), Mr Arman Vladimirovich Zhekebayev (the third applicant), and Mr Sergei Leonidovich Gorbenko (fourth applicant), on 12 November 2008.

2.  The applicants were represented before the Court by Mr A. Bushchenko, a lawyer practising in Kharkiv. The Ukrainian Government (“the Government”) were represented by their Agent, Mr I. Zaitsev, of the Ministry of Justice.

3.  On 13 November 2008 the Vice-President of the Fifth Section indicated to the respondent Government that the applicant should not be extradited to Kazakhstan unless and until the Court has had the opportunity further to consider the case (Rule 39 of the Rules of Court). He granted priority to the application on the same date (Rule 41).

4.  On 31 March 2009 the President of the Fifth Section decided to give notice of the application to the Government. It was also decided to maintain the application of Rules 39 and 41 until further notice and to examine the merits of the application at the same time as its admissibility (Article 29 § 3).

5.  Written submissions were received from Interights, the International Centre for the Legal Protection of Human Rights, which had been granted leave by the President to intervene as a third party (Article 36 § 2 of the Convention and Rule 44 § 2 of the Rules of Court).

THE FACTS

I.  THE CIRCUMSTANCES OF THE CASE

6.  The applicants were born in 1962, 1960, 1971 and 1963 respectively and currently live in Kyiv.

7.  At the end of 2002 the applicants left Kazakhstan, allegedly because of political persecution by the authorities. They arrived in Ukraine in 2005 and have remained there.

8.  By four separate decisions of 28 March 2006, the Ukrainian State Committee on Nationalities and Migration granted the applicants’ requests for refugee status, finding that there were legitimate grounds to fear that the applicants would risk political persecution in Kazakhstan for their activities in 2001-02. In particular, the Committee noted that in November 2001 several top political and business figures in Kazakhstan had formed the opposition group Democratic Choice of Kazakhstan. The applicants took part in the activities of that group, mainly by providing it with financial and technical support, particularly through a television company owned by the first and second applicants. The fourth applicant held posts in the governing body (political council) of that group. Shortly afterwards, the Kazakh authorities arrested the leaders of the group. The authorities also instituted criminal proceedings against the applicants on various charges, including conspiracy to murder, abuse of power and fraud, annulled the broadcasting licence of their television company, and blocked the activities of their other companies. As pressure from the authorities mounted, the applicants fled the country.

9.  By four separate requests issued in September 2007 and April and May 2008, the Office of the General Prosecutor of the Republic of Kazakhstan requested the applicants’ extradition with a view to criminal prosecution for organised crime and conspiracy to murder (first applicant, Articles 28, 96 and 237 of the Criminal Code of the Republic of Kazakhstan), tax evasion and money laundering (second and third applicants, Articles 193 and 222 of the Criminal Code) and abuse of power (fourth applicant, Articles 307 and 308 of the Criminal Code). Pursuant to Article 96 of the Criminal Code of the Republic of Kazakhstan, murder was punishable by deprivation of liberty for a term of from ten to twenty years or by the death penalty, or by life imprisonment with or without confiscation of property. As regards other crimes of which the applicants were accused, the relevant provision of the Criminal Code provided for punishment not exceeding ten years’ imprisonment. The Kazakh prosecutors provided assurances that the criminal prosecution of the applicants was not related to their political views, race, nationality or religion, and that the prosecutors would not request the domestic courts to sentence the first applicant to death for the crimes for which he was wanted.

10.  On 19 and 21 May 2008 the Deputy Prosecutor General lodged objections (protests) with the State Committee on Nationalities and Religion (the former State Committee on Nationalities and Migration) seeking reconsideration and subsequent annulment of its decisions of 28 March 2006. She submitted that the applicants were wanted by the Kazakh authorities on charges of “grave” crimes and that the Office of the General Prosecutor of the Republic of Kazakhstan guaranteed that the criminal prosecution of the applicants was not related to their political views, race, nationality or religion.

11.  On 30 May 2008 the Committee rejected the objections and confirmed its previous findings.

12.  On 17 June 2008 the Deputy General Prosecutor lodged two separate administrative claims with the District Administrative Court of Kyiv seeking annulment of the Committee’s decisions of 28 March 2006. The prosecutor also requested the court to suspend the contested decisions. On 4 July 2008 the court opened the proceedings and informed that it would decide on the prosecutor’s request for suspension of the Committee’s decisions at one of its next hearings.

13.  On 24 November 2008 the court dismissed the prosecutor’s claims. On 22 January 2009 the Kyiv Administrative Court of Appeal upheld the first-instance court’s decision. No copies of the decisions were provided by the parties.

14.  On 11 February 2009 the Office of the General Prosecutor of Ukraine lodged an appeal in cassation with the Higher Administrative Court, the outcome of which is unknown.

15.  By a letter of 25 May 2009, the First Deputy General Prosecutor of the Republic of Kazakhstan sent the Deputy General Prosecutor of Ukraine assurances that in accordance with the UN Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment of 1984, if extradited to Kazakhstan the applicants would not be subjected to ill-treatment, that they would receive a fair trial, and that if necessary they would be provided with adequate medical aid and treatment.

16.  The Government submitted that they had received assurances from the Office of the General Prosecutor of Ukraine that no decision on the applicants’ extradition would be taken before the Court had considered the case.

 

2.  The Court’s assessment

61.  The Court reiterates 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 (see Soering, cited above). In this context, the Court notes that in cases raising issues similar to those in the present case it did not find it necessary to examine complaints of the risk of a flagrant denial of justice in case of extradition, if such extradition has already been held to be contrary to Article 3 of the Convention (see, for instance, Saadi v. Italy [GC], no. 37201/06, § 160, ECHR 2008-...; Ismoilov and Others v. Russia, no. 2947/06, § 156, 24 April 2008; and Sellem v. Italy, no. 12584/08, § 47, 5 May 2009).

62.  In the instant case the Court has already held that the applicants’ extradition to Kazakhstan would give rise to a violation of Article 3 of the Convention (see paragraph 52 above). It discerns no exceptional circumstances justifying a departure from its previous case-law.

63.  Accordingly, the Court declares the applicants’ complaint under Article 6 of the Convention admissible and finds that it is not necessary to examine it separately.

IV.  ALLEGED VIOLATION OF ARTICLE 13 OF THE CONVENTION

64.  The applicants complained that they had no effective remedies to prevent or challenge their extradition on the ground of the risk of ill-treatment. They relied on Article 13 of the Convention, which reads as follows:

“Everyone whose rights and freedoms as set forth in [the] Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.”

A.  Admissibility

65.  The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.

B.  Merits

1.  Submissions by the parties

66.  The applicants submitted, relying on the Court’s findings in Soldatenko (cited above, §§ 82-83), that the domestic legal system did not provide for an effective remedy to prevent or challenge a decision on extradition on the ground of a risk of ill-treatment. They also argued that the Instruction on the procedure of consideration of extradition requests by the prosecution bodies, to which the Government referred in their submissions, had not been published in accordance with the domestic rules and was not accessible to the public for the purposes of Article 13 of the Convention.

67.  The Government stated that the applicants had effective domestic remedies in respect of their complaints under Article 3 of the Convention, but had failed to make use of them.

68.  In particular, the Government submitted that the applicants could lodge such complaints with the prosecutors dealing with their extradition requests, who would examine them under paragraph 3.1 of the Instruction on the procedure of consideration of extradition requests by the prosecution bodies, approved by the Prosecutor General on 23 May 2007 (see paragraph 28 above). According to the Government, this instruction was published on the Verkhovna Rada’s website.

69.  The Government further argued that Article 2 of the Code of Administrative Justice made it possible to challenge before the courts any possible decision on the applicants’ extradition and to raise allegations of a risk of being subjected to the treatment contrary to Article 3 of the Convention in case of extradition, the courts having been under the obligation to consider such allegations. In support of the latter argument, the Government submitted a copy of the resolution of the Kyiv Administrative Court of 2 July 2008, by which the prosecutors’ decision to extradite a national of that State to the Russian Federation had been annulled on the ground that the prosecutors had failed to take into account the evidence that, given his specific situation, the person faced a real risk of being subjected to ill-treatment in that country. The domestic court also found that the extradition decision had been contrary to Article 3 of the European Convention on Extradition of 1957.

2.  The Court’s assessment

70.  The Court reiterates at the outset that Article 13 guarantees the availability at national level of a remedy to enforce the substance of the Convention rights and freedoms in whatever form they might happen to be secured in the domestic legal order. The effect of this Article is thus to require the provision of a domestic remedy allowing the competent national authority both to deal with the substance of the relevant Convention complaint and to grant appropriate relief, although Contracting States are afforded some discretion as to the manner in which they conform to their obligations under this provision. Moreover, in certain circumstances the aggregate of remedies provided by national law may satisfy the requirements of Article 13 (see Chahal v. the United Kingdom, 15 November 1996, § 145, Reports of Judgments and Decisions 1996-V).

71.  Given the irreversible nature of the harm which might occur if the alleged risk of torture or ill-treatment materialised, and the importance which the Court attaches to Article 3, the notion of an effective remedy under Article 13 requires (i) independent and rigorous scrutiny of a claim that there exist substantial grounds for believing that there was a real risk of treatment contrary to Article 3 in the event of the applicant’s expulsion to the country of destination, and (ii) a remedy with automatic suspensive effect (see, for instance, Muminov v. Russia, no. 42502/06 , § 101, 11 December 2008).

72.  Turning to the parties’ submissions in the present case, the Court notes that it has already dealt with the Government’s similar arguments concerning domestic remedies in extradition matters in Soldatenko (cited above). In that case the Court held that there was no effective domestic remedy, as required by Article 13 of the Convention, by which an extradition decision could be challenged on the ground of a risk of ill-treatment on return. In particular, the Court noted that, although under the provisions of the Code of Administrative Justice the administrative courts could potentially review a decision to extradite in the light of a complaint of a risk of ill-treatment, the Government had failed to give any indication of the powers of the courts in such matters or to submit any examples of cases in which an extradition decision had been reviewed on the merits, while the applicant had submitted court decisions to the contrary.

73.  Unlike in Soldatenko, in the present case the Government submitted in support of its arguments copies of the prosecutors’ internal regulations on the procedure of consideration of extradition requests and of the resolution of the Kyiv Administrative Court concerning a case in which an extradition decision had been successfully challenged on the ground of a risk of ill-treatment.

74.  As regards the prosecutors’ regulations, the Court notes that they do not specifically provide for a thorough and independent assessment of any complaints of a risk of ill-treatment in case of extradition. Moreover, they do not provide for a time-limit by which the person concerned is to be notified of an extradition decision or a possibility of suspending extradition pending a court’s consideration of a complaint against such a decision. Therefore, the Court cannot agree with the Government that the procedure of consideration of extradition requests by the prosecutors constitute an effective domestic remedy, within the meaning of Article 13 of the Convention. In these circumstances, the Court does not find it necessary further to examine whether the regulations were duly made accessible to the public.

75.  As regards the possibility of challenging extradition decisions before the administrative courts, the Court notes that judicial review proceedings constitute, in principle, an effective remedy within the meaning of Article 13 of the Convention in relation to complaints in the context of expulsion and extradition, provided that the courts can effectively review the legality of executive discretion on substantive and procedural grounds and quash decisions as appropriate (see Slivenko v. Latvia (dec.) [GC], no. 48321/99, § 99, ECHR 2002-II). However, where an applicant seeks to prevent his or her removal from a Contracting State, such a remedy will only be effective if it has automatic suspensive effect (see Gebremedhin [Gaberamadhien] v. France, no. 25389/05, § 66, ECHR 2007-V).

76.  In this context, the Court observes that an application to the administrative courts made under Article 2 of the Code of Administrative Justice seeking the annulment of an extradition decision does not have automatic suspensive effect. A specific staying order is required under Article 117 of the Code to suspend a disputed decision. An administrative court has discretionary powers in these matters and may issue such an order at a party’s request or on its own initiative.

77.  Therefore, even assuming that the applicants are served with extradition decisions in due time enabling them to challenge the decisions before the administrative courts and that the latter have jurisdiction over such matters, there are no guarantees that the decisions will not actually be enforced before the courts have had an opportunity to review them. The decision of the Kyiv Administrative Court, a copy of which the Government provided, does not contain information capable of persuading the Court to reach a different conclusion.

78.  In the light of the foregoing, the Court concludes that the applicants were not afforded an effective and accessible remedy in relation to their complaints under Article 3 of the Convention. There has accordingly been a violation of Article 13 of the Convention.

V.  ALLEGED VIOLATION OF ARTICLE 2 OF THE CONVENTION

79.  The first applicant complained under Article 2 of the Convention that, given the charges against him (conspiracy to murder) and the allegedly vague Constitutional provisions on the death penalty, there was a real risk that he would be subjected to capital punishment in Kazakhstan if he was extradited to that country. He also maintained that the moratorium on executions imposed by the President of the Republic of Kazakhstan could be discontinued if the Kazakh Parliament decided that the legislative provisions on the death penalty remained in force.

80.  The Court observes that, according to Amnesty International, the Constitution of the Republic of Kazakhstan reduced the scope of application of the death penalty to crimes of terrorism leading to loss of life and “exceptionally grave” crimes committed during times of war. The moratorium on executions imposed in 2003 remains in force. No death sentences were passed during 2007 and the first ten months of 2008 and all thirty-one prisoners on death row had their sentences commuted to life imprisonment (see paragraph 35 above).

81.  The Court further notes that the Office of the General Prosecutor of the Republic of Kazakhstan provided assurances that the prosecutors would not request the death penalty in the first applicant’s trial.

82.  In these circumstances, the Court is not persuaded that the first applicant risks the death penalty in case of his possible extradition to Kazakhstan. The mere possibility of such a risk because of the alleged ambiguity of the relevant domestic legislation cannot in itself involve a violation of Article 2 of the Convention (see, for instance, Shamayev and Others v. Georgia and Russia, no. 36378/02, § 371, ECHR 2005-III, and, to the contrary, Bader and Kanbor v. Sweden, no. 13284/04, §§ 43-46, ECHR 2005-XI). Accordingly, the Court rejects the complaint as manifestly ill-founded, pursuant to Article 35 §§ 3 and 4 of the Convention.

VI.  APPLICATION OF ARTICLE 41 OF THE CONVENTION

83.  Article 41 of the Convention provides:

“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”

84.  The applicants did not submit a claim for just satisfaction. Accordingly, the Court considers that there is no call to award them any sum on that account.

FOR THESE REASONS, THE COURT UNANIMOUSLY

1.  Declares the complaints under Articles 3, 6, and 13 of the Convention admissible and the remainder of the application inadmissible;

2.  Holds that the applicants’ extradition to Kazakhstan would be in violation of Article 3 of the Convention;

3.  Holds that there is no need to examine whether the applicants’ extradition to Kazakhstan would be in violation of Article 6 of the Convention;

4.  Holds that there has been a violation of Article 13 of the Convention.

Done in English, and notified in writing on 18 February 2010, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

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