Baysakov and Others v Ukraine

Forum: European Court of Human Rights
INTERIGHTS' role: Third party interveners
Keywords: Extradition, Fair hearing, torture, inhuman and degrading treatment

On 18 February 2010 the European Court of Human Rights handed down judgment in this case. The judgment was confirmed as final on 18 May 2010. The four applicants in the case had been involved in a political opposition group in Kazakhstan. After the group’s leaders were arrested and criminal cases opened against the applicants, they fled to Ukraine where they were granted refugee status. The Kazakh authorities sought their extradition on various charges, including organised crime and conspiracy to murder. The applicants argued that the charges were politically motivated and that, if extradited to Kazakhstan, they would be denied a fair trial and subjected to torture. One of the applicants also claimed his extradition would violate his right to life, since the offences he was charged with carried the maximum sentence of the death penalty. The Court held that the extradition of the applicants to Kazakhstan would violate Article 3 of the European Convention. It also found a violation of Article 13, as the applicants did not have access to effective remedies to challenge possible extradition orders. The Court did not consider it necessary to examine the applicants’ claims under Article 6 and declared the complaint under Article 2 inadmissible.

Violation of Article 3
To determine whether there existed ‘a real risk of ill-treatment of the applicants in the event of the extradition to Kazakhstan’, the Court examined the recent concluding observations of the UN Committee against Torture as well as reports of Human Rights Watch and Amnesty International. These materials documented wide-spread practices of torture and other forms of ill-treatment in Kazakhstan and supported the applicants’ claims regarding persecution of persons associated with the political opposition.

The Ukrainian Government argued that they had received ‘sufficient assurances’ from the First Deputy Prosecutor General of Kazakhstan that the applicants would not be subjected to treatment contrary to Article 3. The Court concluded that the assurances could not be relied on for the following reasons: (a) the Court was not satisfied that the official in question or the state entity he represented was empowered to make such assurances on behalf of the Kazakh state; and (b) the lack of an effective system of torture prevention made it difficult to see whether such assurances would have been respected.

The Court concluded the applicants’ fears of ill-treatment were well-founded and held that their extradition ‘would give rise to a violation of Article 3’.  

Violation of Article 13
The applicants complained that they had no effective remedy to challenge their extradition on grounds of facing a risk of ill-treatment. The Government submitted that the applicants had two options at their disposal: they could file a complaint with the prosecutors who are dealing with their extradition, or they could challenge any possible extradition decision in an administrative court. Before examining both of these remedies, the Court recapitulated the essential features a remedy must possess to comply with Article 13 in the light of ‘the irreversible nature of the harm which might occur if the alleged risk of torture or ill-treatment materialised’ and the special importance attached to Article 3. To be effective in this context, a remedy must involve ‘independent and rigorous scrutiny’ of a person’s claims that their expulsion would expose them to a real risk of treatment incompatible with Article 3. It also must have ‘automatic suspensive effect’.  The Court also observed that while a judicial review would, in principle, constitute an effective remedy under Article 13 in the context of extradition and expulsion, the courts must be enabled to effectively review the legality of executive decisions on substantive and procedural grounds and quash them as appropriate.

In its evaluation of the complaint procedure established by the prosecutors’ internal regulations, the Court noted that it did not specifically provide for a thorough and independent assessment of claims of a risk of ill-treatment, lacked a time-limit for notifying the person concerned about an extradition decision, and did not provide a possibility of suspending extradition pending a court’s review of its legality. 

As regards the applicants’ ability to contest their extradition before the administrative courts, the Court pointed out that while an administrative judge had the discretionary power to issue a staying order, the initiation of such review proceedings would not lead to the automatic suspension of the disputed decision. This alone sufficed to prevent this judicial remedy from being effective for purposes of extradition in the face of a risk of ill-treatment.

The Court concluded that the applicants were not afforded an effective and accessible remedy to contest their extradition on Article 3 grounds and therefore found a violation of Article 13. 

Non-examination of Article 6
The applicants further claimed that their criminal prosecution in Kazakhstan was politically motivated and that, if extradited, they would not receive a fair trial. INTERIGHTS submitted a third party intervention which focused specifically on this issue, namely, the right not to be extradited to face a flagrant denial of justice. INTERIGHTS pointed out that while the Court had already recognised that the principle of non-refoulement may be invoked in the context of Article 6, it was yet to decide a case on this basis. INTERIGHTS’ intervention argued that the European Convention on Human Rights, considered in light of international and comparative law standards, prohibits transfer where there is a real risk of 'a flagrant denial of justice.' It went on to discuss the nature of a flagrant denial of justice, and indicators that in European and international jurisprudence such a denial would include issues  relevant to the case, namely, politically motivated prosecutions, lack of access to an independent and impartial tribunal, and lack of access to counsel.

The Court declared this part of the applicants’ complaints admissible, confirming 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’. Nevertheless, as the applicants’ extradition had been held to be contrary to Article 3, the Court found it was ‘not necessary’ to examine the issues arising out of Article 6.

No violation of Article 2
One of the applicants argued that his extradition would also violate his right to life, as one of the charges against him (conspiracy to murder) carries the maximum punishment of the death penalty. In apparent contradiction to the logic adopted in respect of Article 6, the Court did not outright decline to examine this claim, although the applicant’s extradition was already barred by Article 3. The Court referred to the evidence that Kazakhstan reduced the scope of application of the death penalty to crimes of terrorism and exceptionally grave war crimes. It also noted there was a lasting moratorium on executions. Unlike in the context of ill-treatment, the Court was also satisfied with the assurances of the Kazakh Office of the Prosecutor General that the prosecutors would not request the death penalty for the applicant in question.  Therefore, the Court was ‘not persuaded’ that there was a real risk of the death penalty in case of his extradition to Kazakhstan. The Court went on to explain that 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’. In consequence, it rejected the complaint as manifestly ill-founded.

Click here to read INTERIGHTS' third party intervention

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