Denial of extradition because of the impossibility to guarantee a fair trial at a time of war
Full text (anonymised):
Hearing of the Grenoble Court of Appeal, Investigating Chamber, held in open court on September 7, 2024, deliberations of May 15, 2024.
The court was composed, during the hearings and deliberations, of:
Mr. Azema, President of the Investigating Chamber,
Ms. Riffard and Ms. Pfender, judges,
appointed to these positions, in accordance with Article 191 of the Code of Criminal Procedure.
The Public Prosecutor’s Office was represented, during the hearings, by Ms. Ratel, Advocate General,
Assisted by Ms. Dreuille, Clerk,
In the presence of Ms. Albaladejo, Russian interpreter, who took an oath,
BETWEEN:
The Attorney General, pursuing the execution of an extradition request issued on April 5 2024 by the Ukrainian judicial authorities, in this case the Shevchenkivskyi District Court,
AND:
X. Y.
appearing
Born on XXX
Nationalities: Russian, Ukrainian, and Israeli
Occupation: XXX
Residing at XXX
under judicial supervision,
– Represented by attorney Mr. ARNAUD, of the Paris Bar, who was present at the hearing,
Having regard to the extradition request issued on April 5, 2024, by the Ukrainian judicial authorities, in this case the Shevchenkivskyi District Court;
Having regard to Articles 696 et seq. of the Code of Criminal Procedure;
Having regard to the written indictment of the Advocate General dated May 2, 2024;
Having regard to the emails and registered letters sent by the Advocate General to the parties and their attorneys on May 3, 2024, in accordance with the provisions of Article 197, paragraphs 1 and 2, of the Code of Criminal Procedure;
Having regard to the filing of the case file with the registry of the investigating chamber, where it was made available to the parties’ lawyers, in accordance with the provisions of Article 197, paragraph 3, of the Code of Criminal Procedure;
Having regard to the brief received electronically by the registry of the investigating chamber on May 6, 2024, at 12:05 p.m., filed by Mr. ARNAUD, lawyer for X. Y.;
At the hearing of May 7, 2024, held in open court, the investigating chamber, in the composition mentioned above, heard:
– Ms. Albaladejo take the oath,
– Thierry Azema, presiding judge, present his report,
– X. Y., heard through an interpreter,
– the Public Prosecutor’s Office present its submissions,
– Mr. Arnaud present his plea for X. Y.,
– X. Y., heard through an interpreter,
the lawyer for X. Y., through an interpreter, having been given the last word;
THE INVESTIGATING CHAMBER:
After deliberating in accordance with Article 200 of the Code of Criminal Procedure, in the absence of the public prosecutor, the clerk, the parties, and their counsel, with the same composition, rendered its decision on May 15, 2024.
In a public hearing, in the presence of the public prosecutor and the clerk, the following judgment was read by the presiding judge:
Whereas the following elements emerge from the proceedings submitted to the court:
• FACTS
On August 17, 2023, the Shevchenkivskyi District Court of Kyiv issued an arrest warrant for X. Y., which was circulated internationally.
On December 29, 2023, Interpol published, at the request of Ukraine, a Red Notice concerning X. Y.. As a result, the Ukrainian authorities accused X. Y., born on XXX, in a public hearing, in the presence of the public prosecutor and the clerk, of the following:
The presiding judge read the following:
Whereas the following elements emerge from the proceedings submitted to the court:
FACTS
On August 17, 2023, the Shevchenkivskyi District Court of Kyiv issued an arrest warrant for X. Y., which was circulated internationally.
On December 29, 2023, Interpol published, at the request of Ukraine, a Red Notice concerning X. Y. As a result, the Ukrainian authorities accused X. Y., born on XXX, of fraud involving particularly large sums of money, committed by an organized group in 2010 and 2011, offenses provided for and punishable under Article 190, paragraph 4 of the Ukrainian Criminal Code.
On March 16, 2024, X. Y. was stopped by customs at the Saint-Étienne-de-Saint-Geoirs airport. Subject to an international arrest warrant, he was arrested and handed over to the gendarmerie. He was in possession of three passports issued by Russian, Ukrainian, and Israeli authorities. While in custody, X. Y. stated that he was separated and had seven children. He claimed to reside in XXX and XXX, to be a sugar production engineer, and also a consultant, and to travel to several sugar-producing countries. On March 18, 2024, X. Y. was brought before the public prosecutor. He was notified of the request for provisional arrest for the purpose of extradition from the Ukrainian authorities, with the aim of prosecuting him for the aforementioned offenses. On this occasion, he declared: “all these facts are a lie, I cannot even prove anything concerning these matters since there is no signed document concerning these facts.”
On the same day, he was brought before the presiding judge appointed by the First President of the Court of Appeal, who decided to place him in extradition custody.
By declaration filed with the clerk of the investigating chamber on March 21, 2024, X. Y.’s counsel requested his release.
By order of March 29, 2024, the investigating chamber:
-granted X. Y.’s request for release,
-ordered X. Y. to be placed under judicial supervision, if he is not detained for another reason, with the following obligations:
1° to establish his residence at XXX;
2° to report once a week to the Fayence gendarmerie brigade (83440), and for the first time on Wednesday, April 3, 2024;
3. Not to leave French territory and to surrender to the gendarmerie brigade in Fayence their identity documents, including their three passports, against a receipt on April 3, 2024.
4. Providing bail in the amount of 500,000 (five hundred thousand) euros, to be paid in a single instalment before April 10, 2024. This bail guarantees the person’s appearance at all stages of the proceedings.
***
REQUEST
The formal extradition request submitted by the Ukrainian authorities on April 5, 2024, reached the French Ministry of Justice on April 23, 2024, and then the Grenoble Public Prosecutor’s Office on May 3, 2024.
On May 2, 2024, X. Y. was formally notified of the extradition request by the Public Prosecutor. The latter acknowledged that the decision applied to him, and refused to consent to his extradition and to waive the principle of specialty.
By requisitions dated May 2, 2024, the Attorney General at the Court of Appeal of Grenoble referred the matter to the investigating chamber of Grenoble to request the Ukrainian authorities:
“-to specify whether “the false information given about his business activities and the prosperity of his company” was verbal or made by the delivery of accounting or financial documents or any other document
-to produce the receipt for obtaining a loan given on June 1, 2011 to the two victims, in which X. Y. had indicated the repayment deadline for the debt and the obligation to develop land belonging to him in the Obukhivsky district, Kyiv region or failing that to specify what this timeframe was
-To specify the date on which the two victims filed their complaints
-To specify whether any investigative actions were carried out between December 2013 and March 2015 and between January 2014 and March 2015
-To clarify what the notion of “authorized agent” encompasses (status, appointment procedures in particular), and to refer to Articles 208 and 211 of the Code of Criminal Procedure.”
On May 3, 2024, the Grenoble Public Prosecutor’s Office received the documents produced by the Ukrainian authorities in support of their extradition request, as well as a letter providing general guarantees from Ukraine.
By memorandum received by the registry via RPVA on May 6, 2024, at 12:05 PM, the lawyer for X. Y. requested that the investigating chamber issue an unfavorable opinion on the extradition request.
It is argued, firstly, that the statute of limitations has expired under French law, a mandatory ground for refusal of extradition according to Article 10 of the applicable Extradition Convention and Article 696-4 of the Code of Criminal Procedure; secondly, that extradition is requested on the basis of the 1957 Extradition Convention, which Ukraine has stated it cannot respect due to the aggression it is suffering, and lastly, the examination of X. Y.’s specific situation compels us to conclude that the clear risk of violation of the following fundamental rights precludes his extradition: the right to a fair trial (Article 6 ECHR), the right to life (Article 2 ECHR), the prohibition of torture and dignity in detention (Article 3 ECHR), the right to liberty and security (Article 5 ECHR), the right to respect for private and family life (Article 8 ECHR), and the right to an effective remedy (Article 13 ECHR).
At the hearing on May 7, 2024, after being informed that his consent was irrevocable, X. Y., assisted by an interpreter, stated that he refused his surrender and would not waive the principle of specialty. The prosecutor general supported his written submissions. X. Y.’s lawyer presented his brief.
X. Y. was given the last word.
***
THE COURT, HAVING OBSERVED:
After questioning X. Y., who acknowledged that the aforementioned extradition request did indeed apply to him, it is appropriate to note that he does not consent to his surrender and that he does not waive the principle of specialty.
Pursuant to Article 696 of the Code of Criminal Procedure, in the absence of an international convention stipulating otherwise, the conditions, procedure, and effects of extradition are governed by Articles 696-1 to 696-47 of the Code of Criminal Procedure. These provisions also apply to matters not regulated by international conventions.
In this case, France and Ukraine are parties to the European Convention on Extradition of 13 December 1957 and its Second, Third, and Fourth Additional Protocols. Subject to the aforementioned provisions, it is this Convention that applies.
Pursuant to Article 2 of the Convention, extradition shall give rise to offenses punishable under the laws of both the requesting and requested parties by a term of imprisonment or a security measure involving deprivation of liberty of a maximum term of at least one year or a more severe penalty. When a sentence has been handed down or a security measure imposed in the territory of the requesting party, the sentence imposed must be for a period of at least four months. Articles 3 to 10 stipulate that extradition may or must be refused if one of the following conditions is not met:
– if the offense for which extradition is requested is considered by the requested party to be a political offense or an act connected with such an offense, or if the requested party has serious grounds to believe that the extradition request based on a common law offense was made for the purpose of prosecuting or punishing an individual on the grounds of race, religion, nationality, or political opinion, or that the individual’s situation is likely to be aggravated for any of these reasons;
– if the offense is a military offense or a tax offense for which no decision has been made by the Contracting States;
– if the person whose extradition is requested is a national of the requested State;
– if the offense was committed, in whole or in part, in the territory of the requested State or in a place considered to be its territory;
– if the individual is being prosecuted by the requested State for the offense(s) for which extradition is requested;
– when the individual sought has been definitively tried by the competent authorities of the requested Party for the offense(s) for which extradition is requested, or if the competent authorities of the requested Party have decided not to prosecute or to discontinue proceedings they have initiated for the same offense(s) (double jeopardy rule);
– if the statute of limitations for the action or the penalty has expired under the legislation of either the requesting party or the party being prosecuted.
The resolution of the Main Directorate of the National Police in the Kyiv region of July 13, 2013, and the resolution on behalf of Ukraine of the investigating judge of the Shevchenkivskyi District Court of Kyiv, concerning, among the actions attributed to X. Y., the conclusion of a contract on July 15, 2014, it cannot be argued that no act interrupting the statute of limitations occurred between February 2011 and March 2015 and that the facts are time-barred under French law.
By note verbale of 18 April 2022, the Permanent Representation of Ukraine to the Council of Europe solemnly declared to the Treaty Office:
“The Permanent Representation of Ukraine to the Council of Europe presents its compliments to the Secretary General of the Council of Europe and has the honour to transmit hereby, on behalf of the Government of Ukraine, the list of international treaties concerning international cooperation within the Council of Europe, signed/ratified by Ukraine, and to inform her of the impossibility of guaranteeing the full implementation by the Ukrainian side of its obligations under the aforementioned international treaties during the period of the armed aggression by the Russian Federation against Ukraine and the imposition of martial law on the territory of Ukraine, until the complete cessation of the attack on the sovereignty, territorial integrity, and inviolability of Ukraine’s borders.
(-)
– European Convention on Extradition (ETS No. 24)
– Additional Protocol to the European Convention on Extradition (ETS No. 86)
– Second Additional Protocol to the European Convention on Extradition (ETS No. 209)
– Third Additional Protocol to the European Convention on Extradition (ETS No. 212)
(…)”.
The declaration attached to the extradition request submitted by the Prosecutor General’s Office of Ukraine against X. Y. does not guarantee the application of this text and is insufficient to call into question the scope of the solemn declaration, made without reservation, by the Permanent Representation of Ukraine to the Council of Europe, which concerns the entire territory of Ukraine.
Restrictions on the right to a fair trial and the rights of the defense have led to an amendment of Article 615 of the Code of Criminal Procedure. This provision now allows for detention without a decision from the investigating judge or the court, but rather by an “authorized agent,” as well as for the suspension of investigations until the end of martial law, based on a reasoned decision by the prosecutor, who is then required to rule on the extension of pretrial detention. Consequently, X. Y.’s pretrial detention will depend on an “authorized agent,” and its extension on the prosecuting authority will depend on the duration of martial law and the war. These restrictions apply to the entire territory of Ukraine, not just the area occupied by Russian military forces.
In light of the recommendations published by the Council of Judges of Ukraine on the activity of courts during martial law, which advocate postponing the examination of non-urgent matters, the destruction of judicial buildings, and the fact that participants in judicial proceedings are victims of hostilities, holding a trial within a reasonable time is not guaranteed.
It follows that the requesting State is unable to guarantee that X. Y. will be tried by a court ensuring fundamental guarantees of due process and protection of the rights of the defense.
It thus appears that, notwithstanding the guarantees given in support of the request, there are serious and substantiated grounds for believing that X. Y. would be exposed to a real risk of a flagrant denial of justice, given the current provisions relating to pre-trial detention resulting from martial law and the armed conflict in Ukraine, which is likely to profoundly disrupt the judicial system and prevent the progress of proceedings (Crim., 7 November 2023, n°23-82.220).
It is therefore appropriate to issue an unfavorable opinion regarding the extradition of X. Y. submitted by the Ukrainian authorities on April 23, 2024, without any further information appearing necessary.
FOR THESE REASONS,
The investigating chamber of the Grenoble Court of Appeal, sitting in public session, after deliberating in accordance with the law,
Having regard to the European Convention on Extradition of 13 December 1957,
Having regard to Articles 696 et seq. of the Code of Criminal Procedure,
Notes that X. Y. does not consent to his surrender and that he does not waive the principle of specialty,
Rejects the request for further information submitted by the Attorney General,
Issuing an unfavorable opinion regarding the extradition of X. Y. submitted by the Ukrainian authorities on 23 April 2024,
Orders that, at the request of the Attorney General, the case file shall be sent to the Minister of Justice, along with an authenticated copy of this judgment,
And this judgment was signed after being read by the presiding judge and Ms. SONGVILAY, acting as clerk.