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KLEIN v. RUSSIA - 24268/08 [2010] ECHR 443 (1 April 2010)
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[2010] ECHR 443
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FIRST
SECTION
CASE OF KLEIN v. RUSSIA
(Application
no. 24268/08)
JUDGMENT
STRASBOURG
1
April 2010
This
judgment will become final in the circumstances set out in Article 44
§ 2 of the Convention. It may be subject to editorial
revision.
In the case of Klein v. Russia,
The
European Court of Human Rights (First Section), sitting as a Chamber
composed of:
Christos Rozakis, President,
Nina
Vajić,
Anatoly Kovler,
Elisabeth
Steiner,
Khanlar Hajiyev,
Dean
Spielmann,
Sverre Erik Jebens, judges,
and
André Wampach, Deputy
Section Registrar,
Having
deliberated in private on 11 March 2010,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
The
case originated in an application (no. 24268/08) against the Russian
Federation lodged with the Court under Article 34 of the Convention
for the Protection of Human Rights and Fundamental Freedoms (“the
Convention”) by an Israeli national, Mr Gal Yair Klein (“the
applicant”), on 26 May 2008.
The
applicant was represented by Mr D. Yampolskiy, a lawyer
practicing in Moscow, and by Mr M. Tzivin, Mr M. Levin and
Mr N. Tzivin, lawyers practising in Tel-Aviv.
The Russian Government (“the Government”) were
represented by Mr
G. Matyushkin, Representative
of the Russian Federation at the European Court of Human Rights.
On 27 May 2008 the President of the Chamber decided to
apply Rule 39 of the Rules of Court, indicating to the
Government that the applicant should not be
extradited to Colombia until further notice.
On
3 July 2008 the Court decided to apply Rule 41
of the Rules of Court and to grant priority treatment to the
application.
On
4 September 2008 the Court decided to
give notice of the application to the Government. It was also decided
to examine the merits of the application at the same time as its
admissibility (Article 29 § 3).
The
Government objected to the joint examination of the admissibility and
merits of the application. Having considered the Government's
objection, the Court dismissed it.
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
The
applicant was born in 1943 and lives in Tel-Aviv. He is currently
detained in remand prison IZ-77/4 in Moscow.
On
23 February 2001 the Criminal Court of the Manizales District,
Colombia (“Juzgado Penal del Circuito de Manizales”)
convicted the applicant of a crime provided for by Article 15 of
Decree no. 180 (1988), acknowledged as permanent law of Colombia by
Extraordinary Decree no. 2266 (1991), (“instruction in and
teaching of military and terrorist tactics, techniques and methods,
committed with mercenaries and accomplices”) and sentenced him
to fourteen years' imprisonment.
On
22 June 2001 the Superior Court of the Manizales District, Colombia
(“Tribunal Superior de Manizales”)
reduced the applicant's sentence on appeal to ten years and eight
months' imprisonment, combined with a fine.
On
28 February 2001 the Criminal Court of the Manizales District issued
an arrest warrant against the applicant on the basis of his
conviction.
On
28 March 2007 Interpol issued Red Notice No. A-666/3-2007 for the
applicant's provisional arrest with a view to extradition.
At
6.40 p.m. on 27 August 2007 a group of servicemen of the Russian
Ministry of the Interior, assisted by Interpol officers, arrested the
applicant in Domodedovo Airport, Moscow.
On
28 August 2007 the Moscow prosecutor's office with responsibility for
supervision of the implementation of laws on marine and air-borne
transport ordered the applicant's placement in custody, pursuant to
Article 466 of the Russian Code of Criminal Procedure (“CCP”),
until his transfer to the country which had requested extradition.
The decision gave the following reasons for application of a measure
of restraint:
“Gal Klein Yair is a national of a third State,
has no permanent place of residence and employment on the territory
of the Russian Federation, and his extradition for the purpose of
serving the sentence imposed by the judgment of the District Special
Criminal Court of Manizales would be impossible without ensuring
[his] placement in custody”.
On
31 August 2007 Rossiyskaya Gazeta («Российская
газета»),
a federal newspaper, published an article on its website entitled
“The Mafia's Teacher Awaits Extradition” («Учитель
мафии
ждет
экстрадиции»),
covering the applicant's story. The article read, in particular:
“Having learned of the wanted mercenary's arrest
in Moscow, the Vice-President of Colombia Francisco Santos Calderon,
stated that 'it should be ensured that this gentleman rots in jail
for [his] participation in the training of armed groups'”.
The
article did not
contain any reference to the source of the information on the
Vice-President's statement.
On
28 September 2007 the Ambassador of the Russian Federation in Bogota
informed the Colombian Ministry of Foreign Affairs that the Russian
Prosecutor General's Office had been examining the possibility of
extraditing the applicant, on condition that they be provided with a
copy of the judgment against the applicant and with certain
guarantees.
On 4 October 2007 the Colombian Ministry of Foreign
Affairs informed the Russian Minister of Foreign Affairs of the
following:
“Henceforth Colombia, acting on the basis of the
reciprocity principle, shall transfer persons wanted by Russian law
enforcement agencies to Russia for relevant criminal prosecution or
execution of sentences against such persons. Mr Yair Gal Klein shall
be provided with an opportunity to appeal against his conviction by
the Colombian judicial bodies; Mr Yair Gal Klein shall not be
subjected to capital punishment or tortures, inhuman or degrading
treatment or punishment; Mr Yair Gal Klein shall be indicted only in
respect of the acts mentioned in the [extradition] request.”
On
29 January 2008 the Prosecutor General's Office of Russia ordered the
applicant's extradition to Colombia. It was mentioned that the acts
for which the applicant had been sentenced were punishable under
Russian law and corresponded to the crime provided for by Article 205
§ 1 of the Russian Criminal Code (“assistance to terrorist
activities”). The sanction established for that crime
stipulated imprisonment for a term exceeding one year. The statute of
limitations for the execution of sentences established by both
Russian and Colombian legislation had not expired. The differences in
classification of the crime in the two countries could not be a
reason for a refusal to extradite. The applicant had not obtained
Russian nationality. The Colombian Government guaranteed that the
applicant would not be subjected to ill-treatment.
On 6 February 2008 the applicant appealed to the
Moscow City Court against the order of 29 January 2008. He
contended that, once in Colombia, he might be subjected to
ill-treatment. In support of this assertion he stated as follows:
“[A]ccording to the UN General Assembly
Resolution of 15 March 2006, the human rights situation in Colombia
remains extremely tense. As it is stated during the hearing of the UN
Human Rights Committee of 20 October 2005, there is a serious
escalation of violence directly linked to actions of members of
governmental forces. The report contains allegations of those
violations by [the] State prosecutor's office”.
He
also referred to the unstable internal situation in Colombia, caused
by the civil war, and claimed that, as a result, the guarantees given
by the Colombian Government were insufficient; that the five-year
statute of limitation for the execution of sentences under Colombian
law, as well as the ten-year statute of limitations for criminal
prosecution established by Russian law, had expired in his case; that
the Prosecutor General's Office wrongfully relied on the Russian
Criminal Code of 1996, which had not been in force at the time of the
crime in question; and that there was no extradition agreement
between Russia and Colombia. No copies of the General Assembly's
Resolution or minutes of the Human Rights Committee's meeting were
enclosed with the appeal submissions.
On 11 March 2008 the Moscow City Court dismissed the
applicant's complaint and upheld the order of 29 January 2008. The
ruling stated that the applicant had not been convicted of political
crimes and that the statute of limitation under both Russian and
Colombian laws had not expired. It was also stated that the Colombian
Government had guaranteed that the applicant would have a right to
appeal against his conviction and would not be transferred to a third
country without the Russian authorities' consent or subjected to
ill-treatment. The in absentia criminal proceedings against
the applicant had been carried out respecting the principle of a fair
trial. Despite the absence of an extradition agreement between the
two States, the applicant could have been transferred to the
Colombian authorities on the basis of the reciprocity principle. As
to the alleged risk of ill-treatment in Colombia, the ruling stated:
“It follows from the materials submitted by the
requesting State that the crime the applicant had been convicted of
is not included in the category of political crimes and that he [the
applicant] has not been persecuted for political reasons.
Therefore, [the applicant's] allegations that he has
been persecuted for political reasons, are unsubstantiated.”
On 17 March 2008 the applicant appealed to the Supreme
Court of Russia against the first-instance ruling, on the grounds
that that the statutes of limitations had expired, that the Russian
law had been wrongfully interpreted and that there was no extradition
agreement between Russia and Colombia. He also referred to a media
statement by the Colombian Vice President in which he had
suggested that the sentence against the applicant had been too mild
and thus “shameful”, and that it had to be ensured that
the applicant would rot in jail. The applicant further alleged that
the civil war in Colombia had been ongoing since 1948 and that it had
caused widespread violations of human rights, including those of
prisoners. He did not provide any details of the alleged violations.
The applicant also claimed that the purpose of his extradition was to
have him rot in jail.
On 22 May 2008 the Supreme Court of Russia dismissed
the appeal for the following reasons. The Colombian Government had
given diplomatic assurances that the applicant would not be
ill-treated if extradited. They had also stated that conditions of
detention in Colombian penitentiary institutions were decent and that
Russian officials would have a right to visit those institutions for
regular checks. There were no grounds to suspect that the applicant
would be ill-treated if extradited. The applicant had not been
persecuted on political grounds. According to the Colombian Embassy,
officials' media statements could not affect decisions already taken
by the judiciary. The Colombian Vice-President was not a hierarchical
superior of the judiciary, the Ministry of Justice or the
penitentiary service. The applicant's actions were punishable under
Russian law in force in 1989 90, which laid down a severer
sanction than Article 205 § 1 of the Russian Criminal Code. The
appeal ruling read, in particular:
“There are no grounds to believe that in the event
of extradition Gal Klein Yair would be subjected to torture in
Colombia and that the guarantees established by law, including
Article 14 of the ICCPR, would not be respected in respect of him.
It follows from the materials of an extradition inquiry
carried out by the Russian Prosecutor General's Office that no facts
of application to Gal Klein Yair of cruel, inhuman or degrading
treatment in the requesting State have been established. There is no
basis to suppose that the person to be extradited would be subjected
to such treatment or punishment in Colombia in the future or that he
would be subjected to the death penalty.
... The [applicant's] allegations that he was persecuted
on political grounds were justifiably considered by [the Moscow City
Court] as unsubstantiated.”
The
appeal ruling of 29 January 2008 became final on the same date.
On
26 May 2008 the applicant requested the Court, under Rule 39 of
the Rules of Court, to prevent his expulsion to Colombia. He alleged
that he would face a serious risk of ill-treatment if he were
extradited.
On
27 May 2008 the Court indicated to the Russian Government under Rule
39 that the applicant should not be extradited to Colombia until
further notice.
On
5 June 2008 the Reuters news agency reported that “Colombia
[had] attacked as insulting and flippant on Thursday a decision by
the European Court of Human Rights to block the extradition of an
Israeli ex army officer convicted of training illegal
paramilitaries.”
II. RELEVANT DOMESTIC LAW
A. Russian Constitution
No one may be subjected to torture, violence or any
other inhuman or degrading treatment or punishment (Article 21 §
2). The decisions and actions (or inaction) of State authorities,
local self-government, non governmental associations and public
officials may be challenged in a court of law (Article 46 §
2). In conformity with the international treaties of the Russian
Federation, everyone has the right to turn to inter-State organs
concerned with the protection of human rights and liberties after all
domestic remedies have been exhausted (Article 46 § 3).
B. Russian Code of Criminal Procedure
The
Russian Federation can extradite a foreign national or a stateless
person to a foreign State on the basis of either a treaty or the
reciprocity principle for standing trial or serving a sentence for a
crime punishable under Russian legislation and the laws of the
requesting State. An extradition on the basis of the reciprocity
principle implies that the requesting State assures the Russian
authorities that under similar circumstances they would grant a
Russian request for extradition (Article 462 §§ 1 and
2).
Extradition
can take place where (i) the actions in question are punishable by
more than one year's imprisonment or a more severe sentence; (ii) the
requested individual has been sentenced to six month' imprisonment or
a more severe punishment; and (iii) the requesting State guarantees
that the individual in question would be prosecuted only for the
crime mentioned in the extradition request, that upon completion of
the criminal proceedings and serving a sentence he or she would be
able to leave the territory of the requesting State freely and that
he or she would not be expelled or extradited to a third State
without the permission of the Russian authorities (Article 462 §
3).
The
Russian Prosecutor General or his or her Deputy decides upon the
extradition request (Article 462 § 4). The decision by the
Russian Prosecutor General or his or her Deputy may be appealed
against before a regional court within ten days of receipt of the
notification of that decision (Article 463 § 1).
The
regional court, sitting in a composition of three judges, verifies
the lawfulness and well-foundedness of the extradition decision
within one month of the receipt of the appeal, in a public hearing at
which the prosecutor, the person whose extradition is sought and his
or her counsel (if the latter has participated in the earlier
proceedings) may participate (Article 463 § 4). The court
does not examine issues of the individual's guilt and is limited to
verifying the compatibility of the extradition decision with Russian
laws and treaties (Article 463 § 6). The court decides either to
declare the extradition decision unlawful and to quash it or to
dismiss the appeal (Article 463 § 7). The regional court's
decision can be appealed against before the Russian Supreme Court
within seven days of its delivery (Article 463 § 9).
III. RELEVANT INTERNATIONAL MATERIALS
The Conclusions and Recommendations of the Committee
Against Torture with regard to Colombia (CTAS/C/CR/31/1), dated
4 February 2004, read as follows:
“7. The Committee reiterates its concern at the
numerous acts of torture and ill treatment reported widely and
systematically committed by the State security forces and organs in
the State party both during and outside armed operations. It also
expresses its concern at the high number of forced disappearances and
arbitrary executions,..
8. The Committee expresses its concerns that measures
adopted or being adopted by the State party against terrorism and
illegal armed groups could encourage the practice of torture...
9. The Committee also expresses its concern at ... (a)
the climate of impunity that surrounds human rights violations by
State security forces and organs and, in particular, the absence of
prompt, impartial and thorough investigation of the numerous acts of
torture or other cruel, inhuman or degrading treatment or punishment
and the absence of redress and adequate compensation for the victims;
... (e) the overcrowding and poor conditions in penal establishments,
which could be considered inhuman or degrading treatment.”
The
Concluding Observations of the Human Rights Committee: Colombia
(CCPR/CO/80/COL), of 26 May 2004, read as follows:
“11. The Committee is concerned about the fact
that a significant number of arbitrary detentions, abductions, forced
disappearances, cases of torture, extrajudicial executions and
murders continue to occur in the State party... The Committee is also
disturbed about the participation of agents of the State party in the
commission of such acts, and the apparent impunity enjoyed by their
perpetrators.”
On 29 November 1996 a mandate for activities of a
field office of the UN High Commissioner for Human Rights (OHCHR) in
Colombia was established by an agreement between the Government of
Colombia and the ONCHR. On 9 September 2007 the parties agreed to
extend the mandate, in its entirety, until 30 October 2010. The
Report of the UN High Commissioner for Human Rights on the situation
of human rights in Colombia (A/HRC/7/39), dated 29 February 2008,
reads as follows:
“4. ...[I]t must be recognized that Colombia has
made progress in restoring security throughout the country in recent
years, and the
visibility given to human rights in the public agenda is a solid
achievement.
...
31. The office [of the OHCHR] in Colombia has received
information on cases of torture, cruel, inhuman and degrading
treatment and the excessive use of force by members of the security
forces. ... [I]n some extrajudicial executions attributed to Army
personnel, the victims had been tortured.
...
34. Complaints were made about illegal or arbitrary
detentions in which warrants were exclusively based on the testimony
of former guerrillas, which was not properly corroborated by other
evidence...
35. Some judicial decisions have questioned the
impartiality of witnesses, such as former guerrillas or
paramilitaries who receive economic benefits for their testimonies...
36. According to official data, overcrowding in prisons
has reached an average of 20.6 per cent, and the situation is much
worse in some establishments... The current situation requires
additional efforts and measures to meet the basic needs of prisoners,
such as health, food, sanitation, legal advice and expert
assistance...”
The Annual Report of the UN High Commissioner for
Human Rights on the situation of human rights in Colombia
(A/HRC/10/32), of 9 March 2009, reads as follows:
“The High Commissioner acknowledges the spirit of
cooperation existing between the Government and her Office in
Colombia. She also notes the openness of the Government to addressing
human rights challenges, as demonstrated during the universal
periodic review process.
...
2. ...In compliance with [its] mandate, OHCHR Colombia
continues to assist the authorities in developing policies and
programmes to promote and protect human rights, to advise civil
society on human rights issues, to observe the situation of human
rights and international humanitarian law in the context of the
internal armed conflict, and to submit its reports and analyses to
the High Commissioner.
...
3. The High Commissioner visited Colombia from 27
October to 1 November 2008. She met with the President, ministers,
and senior public officials in charge of protecting and promoting
human rights. She also met with representatives of civil society
organizations, including human rights and women's NGOs, victims'
associations and trade unions. The High Commissioner travelled to
Arauca, where she learnt about the regional human rights challenges,
meeting with community leaders and civilian and military authorities.
The High Commissioner expressed to all her interlocutors her
gratitude for the support that OHCHR Colombia has been receiving. She
also highlighted the Government's efforts to promote accountability
and respect for human rights within the Armed Forces and to
demobilize paramilitary groups. While the High Commissioner noted the
increased attention given to victims' right to truth, justice and
reparation, she also expressed concern at the persistence of
entrenched human rights challenges.
4. The Special Representative of the Secretary-General
for Children and Armed Conflict visited Colombia from 12 to 14 May
2008. The Working Group on Arbitrary Detention also visited the
country from 1 to 10 October 2008.
5. On 10 December, Colombia was reviewed by the United
Nations Human Rights Council, in the context of the universal
periodic review.
...
10. ...[T]he President initiated discussions with
senior military commanders to address complaints of extrajudicial
executions.
11. However, the number of complaints about
extrajudicial executions and the number of victims reported
showed that institutional policies adopted by the Ministry
of Defence and the army High Command to combat this practice have
not, as of October 2008, led to a significant decrease in such
violations. Renewed efforts are needed to guarantee the effectiveness
of and strict compliance with institutional policies to prevent and
punish extrajudicial executions.
12. By late November 2008, the Attorney-General's Office
had initiated investigations into 112 cases of alleged extrajudicial
executions which occurred in 2008.
In addition, 473 additional cases, most of which occurred
in 2006 and 2007, were referred to the Attorney-General's National
Human Rights and International Humanitarian Law Unit in 2008. This
Unit is currently investigating nearly 716 cases related to over
1,100 victims. These figures confirm that extrajudicial executions
are not isolated events, but a widespread practice committed by a
large number of military units throughout the country...
...
18. OHCHR Colombia was informed of cases of cruel,
inhuman and degrading treatment or punishment attributed to members
of the security forces in Antioquia, Cauca and Chocó...
...
20. In early 2008 OHCHR Colombia noted cases of serious
inhuman and degrading treatment of inmates at the prison of
Valledupar (Cesar), as well as excessive use of force by prison
guards to put down protests.”
2008 Country Reports on Human Rights Practices –
Colombia, issued by the United States Department of State on 25
February 2009, reads as follows:
“Colombia is a constitutional,
multiparty democracy... In May 2006 independent presidential
candidate Alvaro Uribe was reelected in elections that were
considered generally free and fair. The 44-year internal armed
conflict continued between the government and terrorist
organizations, particularly the Revolutionary Armed Forces of
Colombia (FARC) and the National Liberation Army (ELN). While
civilian authorities generally maintained effective control of the
security forces, there were instances in which elements of the
security forces acted in violation of state policy.
Although problems remained, the
government's respect for human rights continued to improve, which was
particularly evidenced by progress in implementing the Justice and
Peace Law.
...
Torture
and Other Cruel, Inhuman, or Degrading Treatment or Punishment
Although the law prohibits such practices, there were
reports that the police, military, and prison guards sometimes
mistreated and tortured detainees. Members of the military and police
accused of torture were tried in civilian rather than military
courts. CINEP asserted that, during the first six months of the year,
government security forces were involved in 74 incidents of torture,
a 46 percent increase compared with the first six months of 2007.
CINEP also reported that, during the first six months of the year,
there were 66 victims of torture by the armed forces.
...
Prison
and Detention Center Conditions
With the exception of new facilities, prison conditions
were poor, particularly for prisoners without significant outside
support. The National Prison Institute (INPEC) runs the country's 139
national prisons and is responsible for inspecting municipal jails.
Overcrowding, lack of security, corruption, and an
insufficient budget remained serious problems in the prison system.
As of year's end, more than 69,000 prisoners were held in facilities
designed to hold fewer than 50,000; overcrowding rates exceeded 27
percent in 139 installations. Many of INPEC's 13,000 prison guards
and administrative staff were poorly trained. The NGO Committee in
Solidarity with Political Prisoners noted that improved training,
increased supervision, and more accountability for prison guards has
helped, but expressed fear that greater privatization of the prisons
system may lead to further corruption.
Constrained budgets adversely affected prison
conditions. INPEC spent 4,941 pesos ($2.00) per day on each inmate
for food. Private sources continued to supplement food rations of
many prisoners.
INPEC reported that during the year there were 40
violent deaths among inmates related to fighting and riots. From
January to September 30, there were 14 riots at various penal
institutions. The Prosecutor General's Office continued to
investigate allegations that some prison guards routinely used
excessive force and treated inmates brutally. According to the
Superior Judicial Council (CSJ), there were four judgments for
excessive force made against prison guards during the year.
...
Political
Prisoners
The government stated that it did not hold political
prisoners. Some human rights advocacy groups characterized as
political detainees some detainees held on charges of rebellion or
terrorism in what the groups claimed were harassment tactics by the
government against human rights advocates. During the year there were
3,336 prisoners accused of rebellion or aiding and abetting
insurgence, 2,263 of whom were accused of supporting the FARC. The
government provided the ICRC access to these prisoners.”
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION
The
applicant complained that if extradited to Colombia, he would most
probably be subjected to ill-treatment contrary to Article 3 of the
Convention, which provides:
“No one shall be subjected to torture or to
inhuman or degrading treatment or punishment.”
The
Government contested that argument. They claimed that Colombia was
party to the majority of international legal human rights
instruments, including the International Covenant on Civil and
Political Rights and its Optional Protocol, as well as the UN
Convention Against Torture. The Colombian authorities had provided
written assurances that the applicant would not be subjected to the
death penalty or ill-treatment, that he would be punished only for
the crime referred to in the extradition request, that he would not
be persecuted on the grounds of his race, ethnic origin, religion,
nationality or political views and that upon serving his sentence he
would be free to leave Colombia and would not be expelled or
extradited to a third State without the Russian authorities' consent.
The Colombian penitentiary facilities allowed for decent conditions
of detention. The statement by the Colombian Vice-President referred
to by the applicant could not be regarded as the official position of
the Colombian Government. An inquiry carried out by the Russian
Prosecutor General's Office had not obtained from Colombian official
sources any information on possible ill treatment of the
applicant. Media statements by public officials could not affect
judgments already adopted by the judiciary.
In
sum, the Government insisted that the applicant would not be
subjected to any ill-treatment or punishment contrary to Article 3 of
the Convention if extradited to Colombia.
The
applicant submitted that recent reports by the UN Committee Against
Torture, the UN Human Rights Committee, the UN High Commissioner for
Human Rights, the U.S. State Department and Amnesty International
showed a questionable human rights situation in Colombia and provided
“compelling evidence about overcrowding, insecurity,
corruption, and insufficient budget in the prison system and
detention conditions, and deadly violence amongst inmates as well as
excessive force and brutality by prison guards. Torture and other
cruel, inhuman, or degrading treatment or punishment by police,
military and prison guards continued to be reported.”
In
the applicant's submissions, “according to the International
Relations and Security Network website, Vice-President Santos was
quoted by local papers as stating: 'Hopefully they'll hand Klein over
to us so [that] he can rot in jail for all the damage he's caused
[to] Colombia'”. He claimed that the statement in question
illustrated the serious risk of ill-treatment that he would face once
extradited, given that the Vice-President was the second most
influential official of the executive branch. The applicant further
asserted that diplomatic assurances given by the Colombian Government
did not suffice to guarantee him against such risk.
Lastly,
the applicant emphasised that the Russian authorities had not
conducted a serious investigation into possible ill-treatment.
A. Admissibility
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. General principles
The
Court reiterates at the outset that in order to fall within the scope
of Article 3 ill-treatment must attain a minimum level of severity.
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, its physical or mental effects and, in
some instances, the sex, age and state of health of the victim (see
T. v. the United Kingdom [GC], no. 24724/94, § 68,
16 December 1999). Allegations of ill-treatment must be supported by
appropriate evidence. To assess this evidence, the Court adopts the
standard of proof “beyond reasonable doubt” but adds that
such proof may follow from the coexistence of sufficiently strong,
clear and concordant inferences or of similar unrebutted presumptions
of fact (see Jalloh v. Germany [GC], no. 54810/00, § 67,
ECHR 2006 IX).
The Court further reiterates 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 of the Convention
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 (see Soering
v. the United Kingdom, 7 July 1989, § 91, Series A no. 161).
In
determining whether it has been shown that the applicant runs a real
risk, if extradited, of suffering treatment proscribed by Article 3,
the Court will assess the issue in the light of all the material
placed before it or, if necessary, material obtained proprio motu
(see H.L.R. v. France, 29 April 1997, § 37,
Reports of Judgments and Decisions 1997-III). Since the
nature of the Contracting States' responsibility under Article 3 in
cases of this kind lies in the act of exposing an individual to the
risk of ill-treatment, the existence of the risk must be assessed
primarily with reference to those facts which were known or ought to
have been known to the Contracting State at the time of the
extradition (see Cruz Varas and Others v. Sweden, 20 March
1991, §§ 75-76, Series A no. 201, and Vilvarajah
and Others v. the United Kingdom, 30 October 1991, § 107,
Series A no. 215). However, if the applicant has not been extradited
or deported when the Court examines the case, the relevant time will
be that of the proceedings before the Court (see Chahal v. the
United Kingdom, 15 November 1996, §§ 85-86,
Reports 1996-V).
In order to determine whether there is a risk of
ill-treatment, the Court must examine the foreseeable consequences of
sending the applicant to the receiving country, bearing in mind the
general situation there and his personal circumstances (see
Vilvarajah and Others, cited above, § 108 in
fine). It is in principle for the applicant to adduce evidence
capable of proving that there are substantial grounds for believing
that, if the measure complained of were to be implemented, he would
be exposed to a real risk of being subjected to treatment contrary to
Article 3 (see N. v. Finland, no. 38885/02, § 167,
26 July 2005). Where such evidence is adduced, it is for the
Government to dispel any doubts about it (see Ryabikin v. Russia,
no. 8320/04, § 112, 19 June 2008).
As
regards the general situation in a particular country, the Court
considers that it can attach certain importance to the information
contained in recent reports from independent international
human-rights-protection associations such as Amnesty International,
or governmental sources, including the US State Department (see, for
example, Chahal, cited above, §§ 99-100, Müslim
v. Turkey, no. 53566/99, § 67, 26 April 2005, Said
v. the Netherlands, no. 2345/02, § 54, 5 July
2005, and Al-Moayad v. Germany (dec.), no. 35865/03, §§
65-66, 20 February 2007). At the same time, the mere possibility
of ill-treatment on account of an unsettled situation in the
receiving country does not in itself give rise to a breach of Article
3 (see Vilvarajah and Others, cited above, § 111,
and Fatgan Katani and Others v. Germany (dec.), no.
67679/01, 31 May 2001). Where the sources available to the Court
describe a general situation, an applicant's specific allegations in
a particular case require corroboration by other evidence (see
Mamatkulov and Askarov v. Turkey [GC], nos. 46827/99 and
46951/99, § 73, ECHR 2005 I).
2. Application of the above principles to the present
case
In
line with its case-law cited above, it is necessary to examine
whether the foreseeable consequences of the applicant's extradition
to Colombia are such as to bring Article 3 of the Convention into
play. Since he has not yet been extradited, owing to an indication by
the Court of an interim measure under Rule 39 of the Rules of Court,
the material date for the assessment of that risk is that of the
Court's consideration of the case.
In
the applicant's submissions, his fears of possible ill-treatment in
Colombia are justified by two factors. First, referring to a number
of reports, the applicant argues that the general human rights
situation in the receiving country is deplorable. Secondly, he claims
that he personally would run an even greater risk of ill-treatment
than any other person serving a sentence in Colombia since the
Vice-President had publicly threatened to have him “rot in
jail”.
The Court will therefore first consider whether the
general political climate in Colombia could give reasons to assume
that the applicant would be subjected to ill-treatment in the
receiving country. It notes in this respect that, in the Government's
submissions, Colombia, a party to major international treaties,
respected basic human rights. Reiterating that in cases
concerning aliens facing expulsion or extradition the Court is
entitled to compare materials made available by the Government with
materials from other reliable and objective sources (see Salah
Sheekh v. the Netherlands, no. 1948/04, § 136,
ECHR 2007-... (extracts), and Saadi v. Italy [GC],
no. 37201/06, § 131, 28 February 2008), it
observes that in 2009 the UN High Commissioner for Human Rights and
the U.S. Department of State reported a considerable number of human
rights violations that have recently taken place in Colombia (see
paragraphs 33 - 35 above).
The
information from various reliable sources, including those referred
to by the applicant (see paragraphs 31-35 above), undoubtedly
illustrates that the overall human-rights situation in Colombia is
far from perfect. For instance, State agents are presumed liable for
a number of extrajudicial killings of civilians, forced
disappearances and arbitrary detentions.
The
findings above that attest to the general situation in the country of
destination should be supported by specific allegations and require
collaboration by other evidence (see Mamatkulov and Askarov,
cited above, § 73). In the same context, the Court should
examine whether the authorities assessed the risks of ill-treatment
prior to taking the decision on extradition (see Ryabikin,
cited above, § 117).
The
main argument raised by the applicant under Article 3 is the
danger of ill-treatment in Colombia, exacerbated by the nature of the
crime that he had been convicted of. The Court observes in this
respect that the Committee Against Torture expressed its concerns
that measures adopted or being adopted by Colombia against terrorism
and illegal armed groups could encourage the practice of torture (see
paragraph 31 above). The Court further notes that the evidence before
it demonstrates that problems still persist in Colombia in connection
with the ill-treatment of detainees.
Furthermore,
turning to the applicant's personal situation, the Court observes
that the applicant fears that he would be singled out as a target of
ill-treatment when in Colombia because Vice-President Santos
reportedly stated that the applicant should “rot in jail”.
It considers that, regrettably, it is unable to assess fully the
nature of the statement and the connotations it might have had in the
original language, i.e. Spanish, since the applicant has not
indicated the source of the information concerning the statement in
question. However, it appears that the statement expressing the wish
of a high-ranking executive official to have a convicted prisoner
“rot in jail” may be regarded as an indication that the
person in question runs a serious risk of being subjected to
ill-treatment while in detention.
The
Court notes that the Government invoked assurances from the Colombian
Ministry of Foreign Affairs to the effect that the applicant would
not be subjected to ill-treatment there (see paragraph 16 above).
However, the Court observes that the assurances in question were
rather vague and lacked precision; hence, it is bound to question
their value. The Court also reiterates that diplomatic assurances are
not in themselves sufficient to ensure adequate protection against
the risk of ill-treatment where reliable sources have reported
practices resorted to or tolerated by the authorities which are
manifestly contrary to the principles of the Convention (see Saadi,
cited above, §§ 147-148).
Lastly, the Court will examine the applicant's
argument that the Russian authorities did not conduct a serious
investigation into possible ill treatment in the receiving
country. It notes in this respect that the applicant informed the
Russian courts about poor human-rights situation in Colombia
referring to the fact that there had been a lengthy internal armed
conflict between State forces and paramilitaries and citing the UN
General Assembly's Resolution and the materials of the meeting of the
Human Rights Committee (see paragraph 18 above). Furthermore, the
applicant brought to the authorities' attention the fact that the
Colombian Vice President had threatened to have him rot in jail.
The Supreme Court of Russia limited its assessment of the alleged
individualised risk of ill treatment deriving from
Vice-President Santos's statement to a mere observation that the
Colombian judiciary were independent from the executive branch of
power and thus could not be affected by the statement in question
(see paragraph 21 above). The Court is therefore unable to
conclude that the Russian authorities duly addressed the applicant's
concerns with regard to Article 3 in the domestic extradition
proceedings.
The Court finds therefore that, in the particular
circumstances of the present case, implementation of the extradition
order against the applicant would breach Article 3 of the Convention.
II. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE
CONVENTION
58. The
applicant complained that in Colombia he would not have
a fair trial, which would amount to a flagrant denial of justice. He
relied on Article 6 § 1 of the
Convention, which, in so far as relevant, provides:
“In the
determination of ... any criminal charge against him, everyone is
entitled to a fair ... hearing ... by [a] ... tribunal...”
A. The parties'
submissions
59. The
Government submitted that the Colombian authorities had guaranteed
that the applicant would have an opportunity to appeal against the
judgment in his criminal case. Furthermore, the criminal proceedings
against the applicant had been carried out in compliance with the
Colombian constitutional and legal safeguards.
60. The
applicant maintained his complaint and claimed that the Colombian
judicial system was overburdened and inefficient.
B. The Court's
assessment
The
Court recalls its finding that the extradition of the applicant to
Colombia would constitute a violation of Article 3 of the Convention
(see paragraph 57 above). Having no reason to doubt that the
respondent Government will comply with the present judgment, it
considers that, whilst the complaint under Article 6 of the
Convention is admissible, it is not necessary to decide the
hypothetical question whether, in the event of extradition to
Colombia, there would also be a violation of Article 6 of the
Convention (see Saadi, cited above, § 160).
III. ALLEGED VIOLATION OF ARTICLE 13 OF THE CONVENTION
The
applicant complained that Russian law provided no effective remedies
in relation to his complaint of the risk of ill-treatment in the
event of his extradition to Colombia. He relied on Article 13 of the
Convention, which provides:
“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.”
The
Government contested that argument and insisted that the applicant
had had effective remedies available to him and had made use of them
when challenging the lawfulness of the extradition decision before
the Russian courts, pursuant to Article 463 of the CCP.
The
applicant reiterated his complaint.
The Court observes that the complaint made by the
applicant under this Article has already been examined in the context
of Article 3 of the Convention in paragraph 56 above. In such
circumstances the Court considers that, whilst the complaint under
Article 13 taken in conjunction with Article 3 is admissible,
there is no need to make a separate examination of this complaint on
its merits (see, mutatis mutandis, Shaipova and Others v.
Russia, no. 10796/04, § 124, 6 November 2008; Makaratzis
v. Greece [GC], no. 50385/99, §§ 84-86, ECHR
2004-XI; and Anık and Others v. Turkey,
no. 63758/00, § 86, 5 June 2007).
IV. OTHER ALLEGED VIOLATIONS OF THE CONVENTION
In
his application form of 23 July 2008 the applicant relied on Article
2, rephrasing in substance his complaint under Article 3 of the
Convention, and on Article 7, complaining that he had been convicted
of a crime which, at the time it was committed, had not been
punishable under both Russian and Colombian law.
In
his observations on the admissibility and merits of the case of
18 March 2009 the applicant merely referred to Article 5 of the
Convention, without making any complaints under this head. He also
alleged that the Vice-President's statement that he should rot in
jail, as well as the Reuters news report that Colombian authorities
regarded the indication of interim measures as “insulting and
flippant” were in breach of Article 6 § 2 of the
Convention.
Having
regard to all the material in its possession, the Court finds that
they do not disclose any appearance of violations of the rights and
freedoms set out in the Convention or its Protocols. It follows that
this part of the application must be rejected as being manifestly
ill-founded, pursuant to Article 35 §§ 3 and 4 of the
Convention.
V. APPLICATION OF ARTICLE 41 OF THE CONVENTION
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.”
A. Damage
The
applicant claimed 10,000 euros (EUR) in respect of non pecuniary
damage.
The
Government considered the amount claimed to be excessive.
The
Court considers that its finding that the applicant's extradition to
Colombia, if carried out, would breach Article 3 of the Convention
constitutes sufficient just satisfaction (see Saadi, cited
above, § 188).
B. Costs and expenses
The
applicant claimed reimbursement of EUR 160,000 for costs and
expenses incurred in the proceedings before domestic authorities and
before this Court. He submitted a note stipulating that Mr D.
Yampolskiy had received in fees 2,401,180 Russian roubles
(approximately EUR 53,450) and a note stating that Mr M. Tzivin had
received 125,000 United States dollars and EUR 60,000 in fees for
fees of four attorneys, travel costs, translation costs and advisors'
fees. No further documents justifying the costs and expenses claims
were submitted.
The
Government questioned the reasonableness and justification of the
expenses claimed.
The
Court reiterates that in order for costs and expenses to be included
in an award under Article 41, it must be established that they were
actually and necessarily incurred in order to prevent or obtain
redress for the matter found to constitute a violation of the
Convention and were reasonable as to quantum (see, for example,
Nielsen and Johnson v. Norway [GC], no. 23118/93, § 43,
ECHR 1999-VIII). It observes that the expenses allegedly incurred by
the applicant in connection with the Strasbourg proceedings were not
itemised or supported by any documentary evidence except for two
notes of a general nature. In the absence of any itemised bill it is
difficult to assess the reasonableness and necessity of the costs
made by the applicant. In such circumstances the Court dismisses the
applicant's claims under this head in total.
VI. RULE 39 OF THE RULES OF COURT
The
Court reiterates that, in accordance with Article 44 § 2 of the
Convention, the present judgment will not become final until (a) the
parties declare that they will not request that the case be referred
to the Grand Chamber; or (b) three months after the date of the
judgment, if reference of the case to the Grand Chamber has not been
requested; or (c) the Panel of the Grand Chamber rejects any request
to refer under Article 43 of the Convention.
It
considers that the indication made to the Government under Rule 39
of the Rules of Court (see paragraph 3 above) must continue in force
until the present judgment becomes final or until the Panel of the
Grand Chamber of the Court accepts any request by one or both of the
parties to refer the case to the Grand Chamber under Article 43 of
the Convention (see F.H. v. Sweden, no.
32621/06, § 107, 20 January 2009).
FOR THESE REASONS, THE COURT:
Declares unanimously the complaints under
Articles 3 and 13 of the Convention, as well as the complaint under
Article 6 § 1 of the Convention regarding flagrant denial of
justice in Colombia admissible and the remainder of the application
inadmissible;
Holds by five votes to two that implementation
of the extradition order against the applicant would give rise to a
violation of Article 3 of the Convention;
Holds by five votes to two that it is not
necessary to examine whether, in the event of extradition to
Colombia, there would also be a violation of Article 6 of the
Convention;
Holds by five votes to two that there is no need
to make a separate examination of the complaint under Article 13 of
the Convention on its merits;
Holds unanimously that the finding of a
violation constitutes sufficient just satisfaction for the
non-pecuniary damage sustained by the applicant;
Dismisses unanimously the remainder of the
applicant's claim for just satisfaction;
Decides
unanimously to continue
to indicate to the Government under Rule 39 of the Rules of Court
that it is desirable in the interests of the proper conduct of the
proceedings not to extradite the applicant until such time as the
present judgment becomes final or further order.
Done in English, and notified in writing on 1 April 2010, pursuant to
Rule 77 §§ 2 and 3 of the Rules of Court.
André Wampach Christos Rozakis
Deputy Registrar President
In
accordance with Article 45 § 2 f the Convention and Rule 74 §
2 of the Rules of Court, the joint dissenting opinion of Mr Kovler
and Mr Hajiyev is annexed to this judgment.
C.L.R.
A.W.
JOINT DISSENTING OPINION OF JUDGES KOVLER AND HAJIYEV
We
cannot agree with the conclusion of the Court that the implementation
of the extradition order against the applicant would give rise to a
violation of Article 3 of the Convention. We share the general
approach of the Court concerning this delicate matter of extraditions
on the basis of respect for the elementary rights of extradited
persons. It is significant that the Court concludes that “the
mere possibility of ill-treatment on account of an unsettled
situation in the receiving country does not in itself give rise to a
breach of Article 3 ... Where the sources available to the Court
describe a general situation, an applicant's specific allegations in
a particular case require corroboration by other evidence” (see
paragraph 47 of the judgment).
We
agree that the information from various reliable sources, including
those referred to by the applicant (see paragraphs 31-35),
undoubtedly illustrates that the overall situation in Colombia is far
from perfect. At the same time we could not find in these reports any
indication of the existence of a situation comparable to that of the
applicant. It is improbable that the applicant would be subjected to
coercion in order to make a self incriminating statement after
his conviction. Given that he would presumably be detained in order
to serve his sentence once in Colombia, the risks of his being killed
by the military under the pretence of a fight with paramilitaries
would be virtually non-existent. The applicant has never claimed to
be a member of any targeted group such as human-rights advocates.
Moreover, he did not apply for refugee status on account of his
alleged persecution on political or any other grounds, as is the case
in many other applications to the Strasbourg Court. The materials
before the Court do not provide accounts of instances of
ill-treatment of persons convicted by a court of terrorism-related
activities. Although on 4 February 2004 the Committee against
Torture expressed its concerns that measures adopted or being adopted
by Colombia against terrorism and illegal armed groups could
encourage the practice of torture, no further details describing such
practices were given either in the Committee's Conclusions and
Recommendations of that date or in any other reports.
In
our view, the applicant has not submitted evidence permitting the
unequivocal conclusion that he would be serving his sentence in an
overcrowded cell or otherwise poor conditions. Nor, on the basis of
the evidence at its disposal, can it conclude that this is a case
where “extremely poor conditions of detention, as well as
ill-treatment and torture, remain a great concern for all observers
of the situation” (see Ryabikin v. Russia, no. 8320/04,
§ 116, 19 June 2008). Lastly, the Colombian authorities have not
refused to allow monitoring of places of detention of persons
convicted of terrorism-related activities. Therefore, the Court could
have considered that the mere risk of the applicant's being detained
in poor conditions, in the event of his extradition to Colombia,
would not in itself reach the minimum level of severity.
Turning
to the applicant's personal situation, the Court observes in its
judgment that the reason why he fears that he would be singled out as
a target of ill-treatment when in Colombia is that Vice-President
Santos reportedly stated that the applicant should “rot in
jail”. But the applicant has not indicated the source of the
information concerning the statement in question! The Russian
newspaper article, a copy of which was submitted by the applicant,
merely cited the Colombian Vice-President without any reference to
the circumstances under which the statement in question had been
made. Furthermore, the applicant has not provided the Court with any
evidence from the International Relations and Security Network
website, which allegedly reproduced the statement in question. In
such circumstances the Court is usually unable to assess fully the
nature of the statement and the connotations it might have had in the
original language. In any event, we are not prepared to conclude that
a statement expressing the wish of an executive official to have a
convicted prisoner “rot in jail” could in itself amount
to a serious threat of ill-treatment, given its vague and hyperbolic
wording. Thus, we consider that the applicant has failed to
demonstrate any individualised risk of ill-treatment to which he
would be subjected in Colombia if extradited.
Further,
the Colombian authorities provided their Russian counterparts with
diplomatic assurances stating, in particular, that the applicant
would not be subjected to ill-treatment (see paragraph 16 of the
judgment). In examining the lawfulness of the extradition decision,
the Russian courts relied on those assurances (see paragraphs 19 and
21). However, the Court observes that the assurances in question
“were rather vague and lacked precision; hence, it is bound to
question their value” (see paragraph 55).
The
Court examines whether diplomatic assurances in expulsion and
extradition cases provide, in their practical application, a
sufficient guarantee that the applicant would be protected against
the risk of treatment prohibited by the Convention (see Chahal v.
the United Kingdom, 15 November 1996, § 105, Reports
of Judgments and Decisions 1996-V). The weight to be given to
assurances from the receiving State depends, in each case, on the
circumstances prevailing at the material time (see Saadi v. Italy
[GC], no. 37291/06, § 148, ECHR 2008-...). We note that Colombia
is a party to the International Covenant on Civil and Political
Rights (ICCPR) and voluntarily cooperates with international human
rights institutions (see paragraph 34 of the judgment). A field
office of the United Nations High Commissioner for Human Rights
(UNHCHR) operates in the country. The Government of Colombia allows
access by international observers to the country, in particular, to
places of detention (see paragraph 35 of the judgment). Accordingly,
fulfilment of the diplomatic assurances that the applicant would not
be subjected to torture or other ill-treatment could be subject to
independent and objective monitoring.
The
Court does not have valid reasons to foresee with any degree of
certainty that Colombia would fail to comply with its obligations
arising from international law (see, mutatis mutandis, Einhorn
v. France (dec.), no. 71555/01, § 33, ECHR 2001 XI).
In
such circumstances the Court is not in a position to conclude that
the diplomatic assurances given by the Colombian authorities
concerning the applicant's freedom from ill-treatment should be
disregarded on the ground that they provide insufficient guarantees
of protection against treatment proscribed by Article 3.
As to
the applicant's argument that the Russian authorities did not conduct
a serious investigation into possible ill-treatment, his allegations
to the Russian courts about the risk of ill-treatment were rather
vague. He did not inform the Russian courts of the particular grounds
on which he feared ill-treatment, merely referring to the fact that
there had been a lengthy internal armed conflict between State forces
and paramilitaries. His references to the General Assembly's
Resolution and the meeting of the Human Rights Committee were not
supported by copies of the documents in question (see paragraph 18 of
the judgment). Furthermore, the applicant only indirectly
implied that his personal situation as a prisoner would be
deplorable. The vague reference to widespread violations of
prisoners' rights (see paragraph 20), unsupported by any evidence,
was hardly sufficient.
Having
regard to all of the above, we conclude that substantial grounds for
believing that the applicant would be exposed to a real risk of being
subjected to treatment contrary to Article 3 of the Convention if
extradited to Colombia have not been shown in the present case.
Accordingly, the implementation of the extradition order against the
applicant would not give rise to a violation of Article 3 of the
Convention.
