ECtHR - Baysakov and others v. Ukraine, Application no. 54131/08, 18 may 2010

Facts:

Four Kazakhstani citizens left their country of origin allegedly because of political persecution by the authorities.

They arrived in Ukraine in 2005.

On 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.

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),  tax  evasion  and  money  laundering  (second  and  third applicants), and abuse of power (fourth applicant)

Pursuant to Article 96 of the Criminal Code of the Republic of Kazakhstan, murder could be punishable by detention (up to life imprisonment) or by death penalty. As to the other crimes which the applicants were accused 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, that they would not be ill-treated, and that he would not request the domestic courts to sentence the first applicant to death for the crimes for which he was wanted.

The Deputy Prosecutor General sought annulment of the Committee’s decision granting asylum firstly before the Committee itself, and then before the Kyiv Administrative District Court  and  Court of Appeal, also requesting the provisional suspension of the contested decision. The Deputy Prosecutor’s objections were dismissed. 

On  11  February  2009  the  Office  of  the  General  Prosecutor  of Ukraine  lodged  an  appeal  in  Cassation  with  the  Higher  Administrative Court . The General  Prosecutor of  Ukraine ensured  that  no  decision  on  the applicants’ extradition would be taken before the Court had considered the case.

Decision & reasoning:

Preliminary Issues

The Court held that applicants had not lost their victim status insomuch as they were still under threat of extradition, notwithstanding their refugee status.

Indeed the Court firstly observed that the extradition  proceedings  against  the applicants  had  not  been discontinued.

Secondly the Court noted that, given the relevant provisions of the Prosecution Service Act and the position of the Plenary  Higher  Administrative  Court,  it  could  not  be  excluded  that  the introduction of an administrative claim by the prosecutors had a suspensive effect  on  any  contested  decision, in particular with regards to the refugee status of the applicants.

Thirdly, the Court recognised that the refugee status did not exclude the possibility to be extradited, as demonstrated in Kuznetsov v. Ukraine, no. 35502/07 pending before the Court at that time.

Substantial issues

1) The Court concluded that  the  applicants’  fears  of possible ill-treatment in Kazakhstan were well-founded and held that their extradition to that country would give rise to a violation of Article 3 of the Convention.

To argue its conclusion, the Court highlighted that, according to reliable information obtained  from  the UN Committee  Against  Torture,  Human  Rights  Watch  and  Amnesty International ,  torture and ill-treatment of detainees also committed in order to obtain confessions, and very poor prison conditions characterised detention in Kazakhstan.

Moreover, the Court acknowledged that  people  associated  with  the  political opposition  in  Kazakhstan  were  and  continue  to  be  subjected  to  various forms of pressure and punishments, as confirmed by the Ukrainian authorities in the decision whereby  the applicants had been granted refugee status. In this respect, the assurances  that  the  applicants would not be ill-treated given by the Kazakh prosecutors could not be relied on because it was not established that the First Deputy Prosecutor General of  Kazakhstan was  empowered  to provide  legally binding  assurances  on  behalf  of  the  State (see also Soldatenko v.  Ukraine  no.  2440/07, 23 October 2008).  Moreover, given the lack of an effective system preventing torture, it would be difficult to see whether such assurances would have been respected.

2) The Court held that the applicants were  not  afforded  an  effective  and  accessible  remedy  within  the  meaning  of  Article  13 in  relation  to  their complaints under Article 3 of the Convention.

The Court recalled that, given the irreversible and particular serious nature of the harm which might occur if the alleged risk of torture or ill-treatment materialises, an effective remedy to avoid such harm under art. 13 requires both an independent and rigorous scrutiny of a claim, and a remedy with automatic suspensive effect (see for instance Muminov  v.  Russia,  no. 42502/06; and Gebremedhin v. France, no. 25389/05).

Nevertheless, as to the case under analysis, the Court firstly noted that the procedure in Ukraine for  considering  extradition requests to be followed by  prosecution  bodies, did not specifically provide for a thorough and independent assessment of any complaints of a risk of ill-treatment in case of extradition; neither did the prosecutor have the possibility of suspending extradition in the event of a judicial complaint against such a decision.

Secondly, as regards the possibility under Ukraine law of challenging extradition decisions before the administrative courts, on the one hand the Court observed that judicial review proceedings can constitute, in principle, an effective remedy within the meaning of art. 13. It also acknowledged that unlike in Soldatenko v.  Ukraine (no.  2440/07), in the present case the Government had supported its claim of the existence of an effective remedy by submitting proof of previous  successful judicial challenges of an extradition decision.  On the other hand, the Court highlighted that an  application  to  the administrative courts seeking  the  annulment  of  an  extradition  decision  did  not  automatically suspend the decision of extradition. Instead this was contingent on the discretion of the appeal Court. .

3) The Court rejected as manifestly ill-founded the first applicant’s allegation of a potential violation of Art. 2 of the Convention..

Indeed the Court observed that the Constitution of the Republic of Kazakhstan reduced the application of the capital punishment to serious crimes of terrorism and “exceptionally  grave”  crimes  committed  during  times  of  war, that a moratorium on executions were in force, and that in fact no death penalty had been executed for almost 2 years between 2007 and 2008. 4) Finally, the Court declared admissible the  applicants’  complaint  under Article 6 of the Convention however found that it was not necessary to examine the merit of this complaint as their extradition had already been held to be contrary  to  Article  3  of  the  Convention.

Outcome:

The Court held that  the  applicants’  extradition  to  Kazakhstan  would  be  in violation of Article 3 of the Convention; and that there had been a violation of Article 13 of the Convention (right to an effective remedy) in  relation  to  their complaints under Article 3 of the Convention.

The Court held that there was no reason to examine the complaint under art. 6. 

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