CEDH · PRESS;CHAMBERJUDGMENTS;ENG — 18 février 2010

.s800EAC49 { font-size:12pt } .sF514A5EC { margin-top:0pt; margin-left:396pt; margin-bottom:0pt; text-indent:36pt; font-size:11pt } .s29100277 { font-family:Arial; font-weight:bold } .sA678F94A { margin-top:0pt; margin-bottom:0pt; text-align:right; font-size:11pt } .s598389F8 { margin-top:0pt; margin-bottom:0pt; text-align:center; font-size:11pt } .s7ED160F0 { text-decoration:none } .s2F5E426D { font-family:Arial; font-size:6pt; font-weight:bold; vertical-align:super; color:#0069d6 } .sFE10DC93 { margin-top:0pt; margin-bottom:0pt; text-align:center } .sE202B2ED { font-family:Arial; font-size:11pt; font-weight:bold; font-style:italic; text-decoration:underline; color:#0069d6 } .s3DC36BA9 { font-family:Arial; text-decoration:underline; color:#0069d6 } .s1F6AC3E7 { font-family:Arial; font-size:11pt; font-style:italic } .s2E932ED2 { margin-top:0pt; margin-bottom:0pt; font-size:11pt } .sA36B60A1 { font-family:Arial; font-style:italic } .s4DDA3AA3 { font-family:Arial; font-weight:bold; font-style:italic } .sBB9EE52A { font-family:Arial } .s1F92486D { font-family:Arial; color:#ff6600 } .s99A63BFE { margin-top:0pt; margin-bottom:0pt; text-align:left; font-size:11pt } .sFA23A319 { margin-top:0pt; margin-bottom:0pt; page-break-after:avoid; font-size:11pt } .s11AD46B1 { font-family:Arial; font-size:7.33pt; vertical-align:super; color:#0069d6 } .s32563E28 { margin-top:0pt; margin-bottom:0pt } .s4BAE41EE { font-family:Arial; font-size:11pt } .sBACB3E60 { font-family:Arial; font-size:11pt; text-decoration:underline; color:#800080 } .sC7EAD8B { font-family:Arial; font-weight:bold; text-decoration:underline } .s9FE28126 { margin-top:0pt; margin-right:42.5pt; margin-bottom:0pt; text-align:left; font-size:11pt } .sF6A12959 { width:33%; height:1px; text-align:left } .s2EB42ED2 { margin-top:0pt; margin-bottom:0pt; font-size:10pt } .s653E6C45 { font-family:Arial; font-size:6.67pt; vertical-align:super; color:#0069d6 } .sB853CD26 { font-family:Arial; font-size:8pt } .sD66075BF { font-family:Arial; font-size:8pt; font-style:italic }   136 18.02.2010     Press release issued by the Registrar   Chamber judgment [1] Baysakov and Others v. Ukraine (application no. 54131/08)   KAZAKH OPPOSITION ACTIVISTS WOULD BE AT RISK OF ILL-TREATMENT IF EXTRADITED TO THEIR HOME COUNTRY   Unanimously   Applicants’ extradition would be in violation of Article 3 (prohibition of torture and inhuman treatment) of the European Convention on Human Rights   Violation of Article 13 (right to an effective remedy) of the Convention        Principal facts   The applicants, Yesentay Baysakov, Zhumbai Baysakov, Arman Zhekebayev, and Sergei Gorbenko, are Kazakhstani nationals, born in 1962, 1960, 1971 and 1963 respectively. They currently live in Kyiv. Participants in the activities of an opposition group in Kazakhstan, they left the country in 2002 after the leaders of that group had been arrested and the authorities had instituted criminal proceedings against the applicants on a number of charges and had annulled the broadcasting licence of the television company owned by two of the applicants. The applicants have lived in Ukraine since 2005 and were granted refugee status in March 2006 on the grounds that there were legitimate reasons to fear that they would risk political persecution in Kazakhstan for their opposition activities.   By four requests between September 2007 and May 2008, the General Prosecutor of Kazakhstan requested the applicants’ extradition for prosecution on charges of, respectively, organised crime and conspiracy to murder, in the case of the first applicant, tax evasion and money laundering, in the case of the second and third applicants, and abuse of power, in the case of the fourth applicant. A subsequent request by the Ukrainian Deputy Prosecutor General for the applicants’ refugee status to be annulled was rejected by the competent authority. Two administrative claims lodged with the same aim and seeking to suspend the refugee status were dismissed by the district administrative court, a decision that was upheld by the administrative court of appeal in January 2009. The General Prosecutor’s office subsequently lodged an appeal with the higher administrative court, which is still pending.   Complaints, procedure and composition of the Court   Relying on Article 3, the applicants complained that if extradited to Kazakhstan they would face a risk of being subjected to torture and ill-treatment by the authorities and unacceptable conditions of detention. They further maintained that in Kazakhstan they would face an unfair trial, in violation of Article 6 (right to a fair trial). They also complained that there were no effective remedies to prevent their extradition, in violation of Article 13.   The application was lodged with the European Court of Human Rights on 12 November 2008. On the following day, the Court indicated that, as an interim measure under Rule 39 of the Rules of Court, the applicants should not be extradited until the Court had the opportunity to further consider the case. The Ukrainian Government assured that no decision on an extradition would be taken before the Court had considered the case.   Judgment was given by a Chamber of seven judges, composed as follows:   Peer Lorenzen (Denmark), President, Renate Jaeger (Germany), Karel Jungwiert (Czech Republic), Mark Villiger (Liechtenstein), Mirjana Lazarova Trajkovska (“The former Yugoslav Republic of Macedonia”), Zdravka Kalaydjieva (Bulgaria), judges, Mykhaylo Buromenskiy (Ukraine), ad hoc judge,   and also Claudia Westerdiek, Section Registrar.   Decision of the Court   Article 3   The Court observed that according to information obtained from the UN Committee Against Torture, Human Rights Watch and Amnesty International, there were numerous credible reports of torture, ill-treatment of detainees, routine beatings and the use of force against criminal suspects by the Kazakh law-enforcement authorities to obtain confessions. The reports also noted very poor prison conditions, including overcrowding, poor nutrition and untreated diseases. It appeared that persons associated with then political opposition were subjected to various forms of pressure by the authorities. The Court did not doubt the credibility of this information. It further observed in this context that the Ukrainian authorities’ decision to grant the applicants refugee status had confirmed their allegations of political persecution in Kazakhstan.   As the Court had found in another case [2] , the assurances given by the Kazakh prosecutors that detainees would not be ill-treated could not be relied on. In particular, it was not established that the prosecutors were empowered to provide such assurances on behalf of the State and, given the lack of an effective system of torture prevention, it would be difficult to see whether such assurances would be respected.   The Court therefore unanimously held that the applicants extradition to Kazakhstan would give rise to a violation of Article 3. It further found that it was not necessary to examine separately the applicants’ complaints under Article 6.         Article 13   The Court first noted that, given the irreversible nature of the harm which might occur in cases of torture or ill-treatment, the notion of an effective remedy under Article 13 required in particular a rigorous scrutiny of a claim that there was a real risk of such treatment in the event of the applicants’ expulsion and a remedy with automatic suspensive effect.   As regards the prosecutors’ procedural regulations for the consideration of extradition requests submitted by the Ukrainian Government, the Court noted that they did not provide for a thorough and independent assessment of any complaints of a risk of ill-treatment. Neither did they provide for a time-limit by which the person concerned was to be notified of an extradition decision or a possibility of suspending extradition pending a court’s consideration of a complaint against it.   The Court further noted that the possibility of challenging extradition decisions before the administrative courts in principle constituted an effective remedy. However, such a remedy would only be effective if it had an automatic suspensive effect. The Court observed that under the relevant provisions of Ukrainian law, an application to the administrative courts seeking the annulment of an extradition decision did not have such an effect.   The Court therefore unanimously held that there had been a violation of Article 13.     *** The judgment is available only in English. This press release is a document produced by the Registry. It does not bind the Court. The judgments are available on its   website ( http://www.echr.coe.int ).     Press contacts Nina Salomon (tel: + 33 (0)3 90 21 49 79) or Stefano Piedimonte (tel: + 33 (0)3 90 21 42 04) Tracey Turner-Tretz (tel: + 33 (0)3 88 41 35 30) Kristina Pencheva-Malinowski (tel: + 33 (0)3 88 41 35 70) Céline Menu-Lange (tel: + 33 (0)3 90 21 58 77) Frédéric Dolt (tel: + 33 (0)3 90 21 53 39)   The European Court of Human Rights was set up in Strasbourg by the Council of Europe Member States in 1959 to deal with alleged violations of the 1950 European Convention on Human Rights. [1] Under Article 43 of the Convention, within three months from the date of a Chamber judgment, any party to the case may, in exceptional cases, request that the case be referred to the 17 ‑ member Grand Chamber of the Court. In that event, a panel of five judges considers whether the case raises a serious question affecting the interpretation or application of the Convention or its protocols, or a serious issue of general importance, in which case the Grand Chamber will deliver a final judgment. If no such question or issue arises, the panel will reject the request, at which point the judgment becomes final. Otherwise Chamber judgments become final on the expiry of the three-month period or earlier if the parties declare that they do not intend to make a request to refer. [2] Soldatenko v. Ukraine (no. 2440/07, 23 October 2008)