CEDH · CASELAW;COMMUNICATEDCASES;ENG — 28 octobre 2024

.s800EAC49 { font-size:12pt } .s379BC09C { margin-top:36pt; margin-bottom:0pt; text-align:right } .sBB9EE52A { font-family:Arial } .s10950C61 { margin-top:0pt; margin-bottom:0pt; text-indent:14.2pt; text-align:justify } .s5E1364CA { margin-top:0pt; margin-bottom:12pt; text-align:center; page-break-inside:avoid; page-break-after:avoid; font-size:14pt } .s339D85E6 { margin-top:0pt; margin-bottom:14pt; text-align:center; page-break-inside:avoid; page-break-after:avoid } .s665E407E { margin-top:66pt; margin-bottom:14pt; text-align:center; page-break-inside:avoid; page-break-after:avoid } .s29100277 { font-family:Arial; font-weight:bold } .sA36B60A1 { font-family:Arial; font-style:italic } .s7ED160F0 { text-decoration:none } .s33165EBA { font-family:Arial; font-size:8pt; vertical-align:super; color:#0069d6 } .sF6A12959 { width:33%; height:1px; text-align:left } .s85226119 { margin-top:0pt; margin-bottom:0pt; text-align:justify; font-size:10pt } .s653E6C45 { font-family:Arial; font-size:6.67pt; vertical-align:super; color:#0069d6 } .s3DC36BA9 { font-family:Arial; text-decoration:underline; color:#0069d6 } Published on 18 November 2024   FIFTH SECTION Application no. 19395/24 Swapnil Bhalchandra MULUNDKAR against Ukraine lodged on 12 July 2024 communicated on 28 October 2024 SUBJECT MATTER OF THE CASE The application concerns the planned extradition of the applicant, an Indian national, to Kuwait, to serve a prison sentence imposed on him there. He complains that it would be in breach of Article 3 of the Convention. The applicant lived and worked in Kuwait from 2014 to 2015 when he left for India. On 4 May 2017 a first-instance court in Kuwait convicted him in absentia of breach of trust and misappropriation committed against his former employer in Kuwait (a restaurant) and sentenced him to two years’ imprisonment, combined with labour. In August 2018 the applicant was arrested on arrival in Ukraine, based on an Interpol red notice from Kuwait. The applicant was subsequently released and remained in Ukraine. The Kuwaiti authorities requested the applicant’s extradition to serve his sentence. According to the applicant, from June 2023 to March 2024 his lawyer submitted to the Ministry of Justice of Ukraine ("the Ministry”) six sets of objections to extradition, combined with requests to examine additional issues and request assurances from Kuwaiti authorities. The submissions mostly focused on various technical objections to extradition supposedly based on Ukrainian law and allegedly unfounded nature of the extradition request and of conviction in Kuwait. In her submissions of 19 September 2023 the lawyer also submitted that the provision of the Kuwaiti Penal Code under which the applicant was convicted did not provide for compulsory labour as part of the punishment and therefore extradition would be in breach of Article 4 of the Convention. On 12 October 2023 the Ministry requested additional information and undertakings from the Kuwaiti authorities, in particular it asked for information on whether the applicant had been sentenced to forced labour. Responding to the request, the Public Prosecutor of International Cooperation Prosecution of Kuwait provided assurances concerning the applicant’s trial rights and explained that the applicant was sentenced to imprisonment combined with labour as relevant provisions of the Kuwaiti Penal Code provided that all imprisonment of six month or more had to be combined with labour. The labour in question was simple and craft work that did not undermine the humanity of the convict, did not violate his dignity and was not considered hard labour. On 5 March 2024 the Ministry ordered the applicant’s extradition. The applicant challenged the decision before the domestic courts. He reiterated his objections to extradition raised before the Ministry and in particular repeated his arguments to the effect that labour ordered under the judgment of the Kuwaiti court would be in breach of Article 4 of the Convention. He added that the Ministry failed to request more detailed information from the Kuwait authorities about the nature of the work he would be required to perform. Quoting a report on the situation in Kuwait published in 2019 by Americans for Democracy and Human Rights in Bahrein, an NGO, [1] he stated that the “Prison conditions in Kuwait fail to meet Red Cross standards, indicating they require improvement. There is arbitrary use of torture and the punishment for torture is disproportionately light.” On 3 June 2024 the Kyiv Pecherskyy District Court upheld the extradition decision, considering that it was lawful and there were no barriers to extradition. On 11 July 2024 the Kyiv City Court of Appeal upheld that decision. QUESTIONS TO THE PARTIES 1. Has the applicant exhausted all effective domestic remedies, as required by Article   35 §   1 of the Convention?   2.     In the light of the applicant’s claims and the documents which have been submitted, would he face a risk of being subjected to treatment in breach of Article   3 of the Convention if the extradition decision were enforced, on account in particular of conditions of detention he would be subject to in Kuwait (see, for example, F.G. v. Sweden [GC], no.   43611/11, §§   111-27, 23   March 2016, Liu v. Poland , no.   37610/18, §§ 81-84, 6 October 2022, and Bivolaru and Moldovan v. France , nos.   40324/16 et 12623/17, §§   122-126, 25   March 2021)? In what facility or facilities would the applicant serve his sentence, what conditions of detention would he face there, in particular how much personal space he would dispose of? What work would he be required to perform in detention? Have the domestic authorities assessed the assurances provided by the State of Kuwait, in particular in respect of the above-mentioned matters under Article 3 of the Convention, by reference to criteria set down by the Court in Othman (Abu Qatada) v. the United Kingdom (no. 8139/09, §§   187-89, ECHR   2012 (extracts))? [1] Available at https://www.adhrb.org/2019/09/18523/#pll_switcher (last accessed on 19   September 2024).