Published: 09 June 2020 Author: Stefan Talmon
On 27 May 2020, the Higher Regional Court of Oldenburg rejected a request by the Ukrainian judicial authorities to extradite Oleksandr Onyshchenko, a former member of the Verkhovna Rada, the Ukrainian Parliament, who was wanted in Ukraine for allegedly organising a €100M fraud scheme in the country’s natural gas sector. Mr. Onyshchenko, a former Olympian and multi-millionaire, had fled the country in July 2016, on the eve of the lifting of his parliamentary immunity. Since then, he had been living in Spain, the United Kingdom and Germany, where he was arrested on 28 November 2019 at the request of the National Anti-corruption Bureau of Ukraine and the Specialised Anti-corruption Prosecutor’s Office.
The Ukrainian authorities requested the extradition of Oleksandr Onyshchenko under the 1957 European Convention on Extradition, to which both Ukraine and Germany are parties. In the Convention, the parties undertake to surrender to each other all persons against whom the competent authorities of the requesting party are proceeding for an offence, or who are wanted by the said authorities for the carrying out of a sentence or detention order. Extradition shall not be granted, however, if the offence in respect of which it is requested is regarded by the requested party as a political offence or as an offence connected with a political offence.
Mr. Onyshchenko fought his extradition to Ukraine, claiming that his prosecution was politically motivated and that the conditions of detention in Ukraine were not in conformity with the requirements of Article 3 of the European Convention on Human Rights (ECHR).
The Court held that it was currently not possible to ascertain that the criminal prosecution in Ukraine was politically motivated. However, extradition was not permitted because there were specific indications that the binding international minimum standard of human rights protection was not being observed. It was to be expected that the conditions of detention in the pre-trial detention centre in Kiev, where – according to the Ukrainian court – the person was to be detained after extradition, did not meet the requirements of the ECHR.
The Court examined whether the extradition and its underlying acts were compatible with the international minimum standard that was applicable in the Federal Republic of Germany based on Article 25 of the Basic Law. Extradition is not permitted if it is contrary to the binding international minimum standard of human rights protection. This is the case if there are clear indications that the person prosecuted would be exposed to torture or inhuman or degrading treatment or punishment. The Court found that if Mr. Onyshchenko was extradited to Ukraine it was to be expected that he would be detained there under conditions that did not meet the requirements of Article 3 ECHR.
The Court based its finding on a 2018 report of the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (CPT) which had visited detention establishments in Ukraine, including the remand centre where Mr. Onyshchenko was to be detained after extradition. The CPT, which has been established under the European Convention for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment, is empowered to visit all places where persons are deprived of their liberty by a public authority and shall, by means of visits, examine the treatment of persons deprived of their liberty with a view to strengthening, if necessary, the protection of such persons from torture and from inhuman or degrading treatment or punishment.
The CPT had found the material conditions at the relevant detention centre to be “generally poor or even appalling”. With regard to one detention centre, the CPT had stated that detention conditions “could easily be considered as inhuman and degrading.” The Committee had found that the detention facilities were severely overcrowded (even according to the national norm of 2.5 m² of living space per remand prisoner) and that there were some cells with more inmates than beds, obliging prisoners to sleep in shifts. Cells were poorly lit, poorly ventilated and often extremely dilapidated and dirty and with the whole infrastructure (electricity, water, sewage) close to total breakdown. In addition, remand prisoners are still generally not offered any out-of-cell activities other than outdoor exercise for one hour per day in small, oppressive and dilapidated yards. The Court stated:
“It is clear from the findings of the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (CPT) that the applicable international minimum standards were not complied with in the relevant detention centre at that time. Even considering the efforts of the Ukrainian authorities to improve the conditions of detention, it must be feared that this still continues to be the case.
Against the background of these findings, it is therefore to be assumed, among other things, that even today a remand prisoner in the [relevant] remand centre is allocated only 2.5 m² of personal space (leaving aside the problem of overcrowding). In order to meet the requirements of Article 3 of the ECHR, however, a minimum of 3 m² of personal space must be is available to every detainee.
If the personal space of a detainee in multi-occupancy accommodation falls below 3 m² there is a strong presumption of a violation of Article 3 of the ECHR.”
The Court noted that the conditions described in the CPT report concerned the situation in 2018 and that it could not automatically be assumed that these conditions prevailed today. The Court continued:
“Internationally binding assurances given by the requesting State in extradition proceedings can be an adequate means to remove any concerns regarding the permissibility of extradition unless it is to be expected in individual cases that the assurance will not be met. Such assurances, however, do not release the Court, which has to decide on the permissibility of extradition, from the obligation to make its own risk forecast first, in order to be able to assess the situation in the destination country and thus the reliability of an assurance.”
The Court therefore addressed a request for information to the Ukrainian authorities, asking for information on the specific conditions during remand detention, the place of detention, and the detention conditions in the event of conviction. In particular, the Court asked for a description of cells; the total number of detainees; the number, size and physical conditions of the cells (including information on windows, ventilation and heating); the number of detainees per cell; the sanitary conditions in the detention facility; catering arrangements; and the provision and conditions of access to medical assistance.
In response to this request for specific information, the Ukrainian authorities simply declared that detention was conducted in accordance with the principle of strict compliance with the Universal Declaration of Human Rights of 10 December 1948 and other international legal norms and standards ratified by Ukraine. It was not associated with deliberate acts that cause psychological or moral suffering or violate human dignity. This led the Court to conclude:
“In view of the CPT’s findings, these general assurances are not sufficient. […] Considering [the lack of detailed information], there is a considerable likelihood that the international minimum standards relating to prison conditions in Ukraine are (still) not being observed.”
Consequently, the Court rejected the extradition request and ordered the release of Mr. Onyshchenko.
The Court’s decision probably did not come as a surprise to Ukraine. The European Court of Human Rights (ECtHR) has frequently found a violation of Article 3 of the ECHR by Ukraine because detainees were subjected to inhuman and degrading treatment on account of the inadequate conditions of their detention. In its 2018 report, the CPT stated:
“[T]he CPT is very concerned to note that, after its 7th periodic visit to Ukraine (and 14 visits altogether), little or no action has been taken to implement several of its long-standing recommendations concerning in particular the prison system, especially as regards material conditions, the legal norm of living space for remand prisoners, the regime for remand prisoners.”
Against this background, the Higher Regional Court of Oldenburg could not have ordered the extradition of Mr. Onyshchenko to Ukraine without engaging the international responsibility of Germany for itself violating Article 3 of the ECHR. It is the settled case-law of the ECtHR that extradition by a Contracting State may give rise to an issue under Article 3 where substantial grounds have been shown for believing that the person in question would, if extradited, face a real risk of being subjected to inhuman or degrading treatment in the receiving country. As the ECtHR pointed out: “It would hardly be compatible with the ‘common heritage of political traditions, ideals, freedom and the rule of law’ to which the Preamble refers, were a Contracting State knowingly to surrender a person to another State where there were substantial grounds for believing that he would be in danger of being subjected to torture or inhuman or degrading treatment or punishment.”
Category: Human Rights