Denial of extradition because of the impossibility to guarantee a fair trial at a time of war
European Convention on Extradition of 13 December 1957, in particular Articles 1, 18, 20, 22, 24, 27 and 28
Full text (anonymised):
delivered in open court on 29 October 2025 and giving an opinion on the request for the extradition of:
X. Y.
born XXX
son of XXX
of Ukrainian nationality,
residing XXX
placed under judicial supervision by order of 3 December 2024
represented by Mr Etienne ARNAUD, Ms Jessica FINELLE and Mr François ZIMERAY, barristers at the Paris Bar and Ms KOVAL, a Ukrainian-language interpreter, an adult who took an oath to assist the court in good faith and to the best of her knowledge in accordance with Article 102 of the Code of Criminal Procedure.
COMPOSITION OF THE COURT during the hearing and deliberations.
Y, Presiding Judge
X, Judge
K, Judge
all three appointed in accordance with Article 191 of the Code of Criminal Procedure.
Upon delivery of the judgment, Mr MORGAN, President, read out the judgment in accordance with the provisions of Article 199 of the Code of Criminal Procedure.
REGISTRAR:
X, at the hearing and at the delivery of the judgment
PUBLIC PROSECUTOR’S OFFICE:
represented at the hearing by XXXXXXX, Deputy Public Prosecutor, and at the delivery of the judgment XXXXX, Advocate General
President, in his report
HEARING:
At the public hearing on 9 July 2025, the following were heard:
– X. Y., during his examination in accordance with Articles 696-13 to 696-15 of the Code of Criminal Procedure, the minutes of which were drawn up,
– Mr and Mrs X, Deputy Public Prosecutor, in their closing submissions
– Mr ARNAUD and Mr FINELLE, counsel for the defendant, and the defendant himself, who spoke last, in their submissions.
The defendant was assisted by Ms [name], an adult who took an oath to assist the court in good faith and to the best of her knowledge in accordance with Article 102 of the Code of Criminal Procedure.
The case was reserved for judgment, to be delivered at the hearing on 1 October 2025.
SUMMARY OF THE PROCEEDINGS AND THE FACTS
With regard to the summary of the proceedings and the facts prior to the judgment delivered by the
Court here on 2 April 2025, express reference is made to the terms of that judgment, which ordered further information to be provided so that the Government of Ukraine:
• Regarding the national enforcement order
– provide the decision of the Appeals Chamber of the High Anti-Corruption Court of Ukraine dated 6 September 2024 ruling on the appeal lodged against the decision of Thor L. STROHYI, investigating judge of the High Anti-Corruption Court of Ukraine, dated 10 July 2024;
• Regarding the facts forming the subject of the formal extradition request
— taking into account the principle of speciality, and in the event of a trial before a trial court, specify the period of prevention: between 10 March 2023 and 15 May 2023 in Ukraine and, as an indivisible whole, abroad, or over a broader period of prevention from 19 January 2023 to 15 May 2023;
• On fundamental procedural guarantees and the protection of the rights of the defence specifies the derogations from Articles 5 and G of the Council of Europe Convention for the safeguarding human rights and fundamental freedoms notified by the Government of Ukraine to the General Secretariat of the Council of Europe and which would still be in force on 2 April 2025;
– specifies, in view of the declarations recorded in verbal notes from the Permanent Representation of Ukraine and registered with the Secretariat General of the Council of Europe, whether these derogations apply throughout the territory of Ukraine, and, if not, to which parts of the Ukrainian territory they apply;
– having regard to the declaration set out in a Note Verbale No. 31011/32-119-9327 from the Permanent Representation of Ukraine, dated 27 January 2025, and registered with the General Secretariat of the Council of Europe on 28 January 2025:
o confirms that Article 615 of the Code of Criminal Procedure of Ukraine is interpreted by the Ukrainian authorities as a measure derogating from Articles 5 and 6 of the European Convention for the Protection of Human Rights and Fundamental Freedoms;
o provides the text currently in force of Article 615 of the Code of Criminal Procedure of Ukraine; If this text refers to other articles of the Code of Criminal Procedure of Ukraine, please also provide those in their currently
applicable versions;
– clarify the division of powers between the investigating judge and the prosecutor, and in particular which of these two judicial officers will rule on the remand in custody of X. Y., the extension of this pre-trial detention measure, any applications for release made by X. Y., the examination of the charges against him, and the possible referral of X. Y. to a trial court;
o for each of these powers, provide the text of the provisions of Ukrainian law assigning them to the investigating judge or to the public prosecutor;
o in the event of the suspension of investigations, due to the current situation of armed conflict, specify which authority will take the decision to suspend the investigations and which authority will then be competent to rule on the continuation of X. Y.’s pre-trial detention;
– specify the effective safeguards that will be provided to X. Y. in the event of extradition to protect his person and guarantee his fundamental right to a fair trial in accordance with Article 6 of the European Convention for the Protection of Human Rights and Fundamental Freedoms, in particular compliance with institutional requirements (the independence and impartiality of the court that will adjudicate the facts, and the text of the law establishing that court and conferring upon it jurisdiction to hear the facts), general requirements (the fairness of the trial, including the effective participation of X. Y. in the proceedings, equality of
arms between the prosecution and X. Y., the adversarial nature of the proceedings, the reasoning behind judicial decisions, compliance with provisions relating to the taking of evidence, the prohibition of incitement to commit an offence, respect for the principle of immediacy, respect for legal certainty, the rules on the public nature of the trial and the requirement for a judgement within a reasonable time) and specific safeguards (the presumption of innocence and respect for the rights of the defence, including the right to remain silent and not to incriminate oneself, the right to a lawyer of one’s choice or a court-appointed lawyer, the system of state legal aid, the right to an interpreter and the rules applicable regarding pre-trial detention); whilst investigations are conducted under the authority of an investigating judge the High Anti-Corruption Court of Ukraine in Kyiv, and concerning acts committed mainly in Kyiv, explains how the letter from the office of the Prosecutor General of Ukraine dated 17 October 2024 (reference: 19/1/2-34175-20) may indicate that these investigations will be
carried out: ‘in territory significantly distant from the zone of: hostilities arising from the large-scale invasion by the Russian Federation of Ukraine on 24 February 2022 ”, and how the rights of the defence will be exercised;
– taking into account the recommendations of the Council of Judges of Ukraine dated 2 March 2022 prescribing the postponement of the examination of non-urgent cases, and in view of the destruction of court buildings, provide effective guarantees regarding the foreseeable timeframe for the completion of the criminal proceedings and of any judgment concerning X. Y. ;
– specify the effective guarantees that will be provided to X. Y. in the event of extradition to protect his person and guarantee his fundamental right not to be subjected to torture, or to inhuman or degrading treatment or punishment, in accordance with Article 3 of the European Convention for the Protection of Human Rights and Fundamental Freedoms, in particular:
o the specific conditions of detention that will be guaranteed to X. Y. once the decision adopting a “preventive measure in the form of detention” dated 10 July 2024, and which came into force on 6 September 2024, issued by Ihor L. STROHYI, investigating judge of the High Anti-Corruption Court of Ukraine, has been enforced, and, where applicable, once he has been definitively convicted, specifying: the name and location of the prison where he will be held, the detention regime to which he will be subject to (solitary confinement or general regime, frequency of access to showers, access to healthcare, frequency and diet, frequency of exercise, access to paid work, sporting and socio-cultural activities, and opportunities for visits with a lawyer or of a nature to
enable the maintenance of family ties), his conditions of confinement (number of people per cell, average cell size, access to running water, lighting, temperature, humidity and hygiene of the cells), as well as the safeguards in place to verify these points (monitoring mechanisms and avenues of appeal);
o specifically regarding the name and location of the prison where he will be detained:
§ state how this prison is designated, particularly in light of the defence’s observations and Articles 32 and 218 of the Code of Criminal Procedure of Ukraine:
§ whether this prison has civil defence shelters against bombardment, specifying their nature;
§ whether this prison has been evacuated since the start of the armed conflict on 24 February 2022;
• the mechanisms for preventing the use of torture by the prison authorities, taking into account the judgments of the European Court of Human Rights handed down in this regard;
By letter dated 13 June 2025, the Prosecutor General of Ukraine responded to the request for further information.
At the public hearing of the Investigating Chamber on 9 July 2025, a further notification was made of the warrant under which the arrest took place as well as the documents submitted in support of the extradition request. On this occasion, X. Y. acknowledged that the extradition request and the supporting documents had been served on him and that the request did indeed apply to him. He did not consent to his surrender.
In accordance with the provisions of Articles 194 and 197 of the Code of Criminal Procedure, the Office of the Prosecutor General filed, on 8 July 2025 before 5.00 pm, its written submissions dated the same day requesting further information from the court so that the Government of Ukraine:
– confirms that Article 615 of the Code of Criminal Procedure of Ukraine is interpreted by the Ukrainian authorities as a measure derogating from Articles 5 and 6 of the ECHR and to specify the other articles of the
Ukrainian Code of Criminal Procedure to which that article might refer;
– to explain how the letter from the Office of the Prosecutor General of Ukraine dated 17 October 2024 can indicate that the investigations will be carried out “in territory significantly distant from the zone of hostilities
arising from the large-scale invasion of Ukraine by the Russian Federation on 24 February 2022”;
– specifies the effective safeguards that will be provided to X. Y. in the event of extradition to protect his person and guarantee his fundamental right to a fair trial under Article 6 of the ECHR, and in particular with regard to equality of arms between the prosecution and the defendant, the reasoning behind judicial decisions, compliance with the provisions relating to the taking of evidence, respect for the principle of immediacy
and the right to remain silent and not to incriminate oneself.
On 8 July 2025, Mr ARNAUD and FINELLE, solicitors for X. Y., duly filed with the registry of the investigating chamber a supplementary submission, endorsed by the registrar, communicated to the Public Prosecutor’s Office and filed in the case file, in which they again request an unfavourable opinion, arguing:
– new evidence allowing the conclusion that the extradition request is politically motivated, in that X. Y. was targeted by Presidential Decree No. 81/2025 of 12 February 2025 (Exhibit No. 43) “On the application of special personal economic measures and other restrictive (sanctions)”, alongside four other prominent figures who, like
the person concerned, are political opponents; this presidential decree has been denounced by Ukrainian NGOs as an “extrajudicial political reprisal measure” taken in particular against “businessmen from the opposition”; we are witnessing the combined use of sanctions and criminal prosecutions as instruments of economic purging, aimed at redistributing industrial assets in a strategic sector; the media outlet “XX”, owned by X. Y.’s family, is openly critical of the government;
– new evidence establishing that pressure was exerted on the judges handling the X. Y. case, in that, during an
appeal hearing held in camera specifically in the corruption case against Mr X. Y. in Ukraine, concerning the charges against his former lawyer, Mr TKACHENKO, the judges of the appeal chamber formally referred the matter to the Ukrainian High Council of Justice to denounce “interference in the administration of justice”, exercised directly by representatives of the executive branch; the State Bureau of Investigation (DBR), a body under the direct control of the executive, is alleged to have summoned the judges in charge of the case to be heard as witnesses regarding alleged contacts concerning the granting of an undue advantage to the panel of judges because, during the hearings, the existence of similar allegations regarding similar pressure exerted on
third parties involved in the case”, including himself; these facts form part of a general context of the executive branch’s growing influence over the judiciary; In an official statement dated 13 May 2025, the Ukrainian High Council of Justice reported having received, for the period from January to April 2025 alone, “97 reports of interference in the administration of justice”, undermining “the independence of judges” and “the authority of
the judiciary”; in a recent report dated 20 February 2025, GRERO noted that several recommendations sent to Ukraine had been “not implemented or only partially implemented”, particularly with regard to the independence of the judiciary. This results in a clear violation of the requirements of Article 696-4(7) of the Code of Criminal Procedure, as well as Article 6(1) of the European Convention on Human Rights;
– that a further request for information appears unfounded; the responses are not incomplete but simply unsatisfactory;
– regarding the national coercive order, the judgment of the High Anti-Corruption Court has been produced; however, Mr X. Y. was never a fugitive and has always remained at the disposal of the Ukrainian authorities; regarding the date of the events, Ukraine has specified that the period in which the acts for which Mr X. Y. is being prosecuted took place was between 8 March 2023 and 15 May 2023; this period differs from that mentioned in the letter from the Ukrainian Prosecutor’s Office dated 17 October 2024;
– Ukraine continues to be the target of massive attacks across its territory, as evidenced by the one that took place during the night of 3 to 4 July 2025; the French government has therefore classified the entire country
as ‘formally not recommended’ for all travellers in July 2025; the position maintained by the Ukrainian authorities that only the Russian-occupied areas are subject to the application of martial law and the accompanying exemptions contradicts the repeated statements by the Ukrainian authorities, as well as Ukrainian legislation itself;
– regarding Article 615 of the Code of Criminal Procedure, successive statements by the Permanent Representation of Ukraine to the Council of Europe, in particular that of 27 January 2025, confirm that this article is interpreted by the Ukrainian authorities as a measure derogating from Articles 5 and 6 ECHR. 68. This remains the case despite the repeal of paragraph 6 of Article 615, which was deemed unconstitutional;
– with regard to compliance with Article 6 of the ECHR, the guarantees currently offered by the Ukrainian authorities cannot be considered sufficient, given that Mr X. Y.’s right to a fair trial has already been violated during the proceedings against him in Ukraine. Thus, and by way of example:
– the maximum legal time limit set by the Code of Criminal Procedure for the duration of the preliminary investigation has been exceeded by the Ukrainian prosecution service, whilst no court has to date ruled on the
guilt of Mr X. Y., the latter has already been presented as guilty in a plea agreement validated by the
High Anti-Corruption Court on 12 October 2023 concerning one of his alleged accomplices, namely his former lawyer, Mr GORETSKYI;
– the distance of 541 km separating Kyiv, where, as confirmed by the Ukrainian authorities, the proceedings against him before the High Anti-Corruption Court are taking place, and the remand centre in Lviv where Mr X. Y. would be held in pre-trial detention in the event of extradition to Ukraine, fundamentally compromises compliance with the guarantees provided under Article 6 and Article 3 of the ECHR; with regard to compliance with Article 3 of the ECHR, the city of Lviv has been the subject air strikes; serious structural safety deficiencies within the Lviv prison render the assurances given by the Ukrainian authorities ineffective. With the cell providing 14.37 m² of living space for two people, X. Y. will in reality have approximately 7.19 m² of personal space, but it cannot be ruled out that he may be placed in another cell with an area of less than 3 m²; the places where the sentence is being served are subject to air strikes; the facilities are unsanitary; constant video surveillance of prisoners, including within their cells. constitutes a serious interference with their right to respect for private life guaranteed by Article 8 of the ECHR. No information is provided regarding the specific procedures for the use of these devices, their duration, the areas concerned or the mechanisms for independent monitoring. on the mechanisms for the prevention of torture, the Ukrainian authorities deliberately omit to mention other damning findings from the same CPT report of 2023;
DECISION
taken after deliberation in accordance with Article 200 of the Code of Criminal Procedure
IN THE FORM
The prescribed formalities and time limits have been complied with:
– by Articles 12, 22 and 23 of the European Convention on Extradition of the Council of Europe of 13 December 1957, and those of its additional protocols binding the French Republic and Ukraine (Second, Third and Fourth Additional Protocols):
– Articles 696-8 et seq. of the Code of Criminal Procedure relating to the extradition of foreign nationals.
The procedure is therefore in order as to form.
ON THE MERITS
Although it is not for the French authorities, in matters of extradition, to ascertain the reality of the charges against X. Y., it is nevertheless incumbent upon the court to consider the facts set out by the requesting State in order to ensure, on the one hand, compliance with the principle of double criminality and, on the other hand, with the rules of the Convention.
– regarding the national enforcement order
Article 12 of the European Convention on Extradition stipulates that
produced, in support of the request, the original or a certified copy of either an enforceable conviction, an arrest warrant or any other document having the same force, issued in the manner prescribed by the law of the
requesting Party.
The extradition request includes the decision of Ihor L. STROHYI, judge of the High Anti-Corruption Court of Ukraine, dated 10 July 2024, but states, notably in the information certificate issued by the Chief Detective of the National Bureau of the Second Main Detective Subdivision of the first main detective subdivision of the National Anti-Corruption Bureau of Ukraine, Artem Yuriiovych PLIUSHKIN, that it only came into force on 6 September 2024 following the exercise of a right of appeal.
In response to a request for further information on this point, the Ukrainian authorities provided a copy of the decision of the Appeals Chamber of the High Anti-Corruption Court of Ukraine dated 6 September 2024, in Ukrainian along with its translation into French. It appears therefrom that the appeal against the decision of the investigating judge was dismissed and that the arrest warrant was upheld, so that the extradition request is based on a valid enforcement order.
The defendant’s counsel contests the necessity of issuing the arrest warrant, arguing that he was not a fugitive, whereas the decision of the Appeals Chamber indicates that X. Y. was then residing on the territory of the French Republic and, having been duly notified, systematically to the summonses issued by the NABU to participate in the proceedings of the judicial investigation and in the procedural steps as a suspect, which justified
the issue of an arrest warrant.
The matter was therefore settled by the aforementioned appeal decision and it is not for this Court to call it into question. Nor is it for this Court to rule on the validity of the proceedings regarding the alleged failure to comply with the time limit for the preliminary investigation, it being recalled that the same appeal decision of 6 September 2024 rejected this ground of appeal.
– on the facts forming the subject-matter of the formal extradition request
Article 12 of the European Convention on Extradition stipulates that the following must be provided: the nature of the offence, the place where it was committed, the time and place of its commission, its legal classification and references to the applicable legal provisions.
As set out in the judgment of 2 April 2025, these conditions were met, subject, however, to the clarification of the period of commission.
In their response to the request for further information, the requesting authorities specified that the offences forming the subject of the formal extradition request were allegedly committed between 8 March 2023 and 15 May 2023.
The offences forming the subject of the formal extradition request allegedly began on 8 March 2023, when X. Y. allegedly “informed the lawyer O. HORETSKYI of his intention to provide the President of the Supreme Court L. KNIAZEV and other judges of the Grand Chamber of the Supreme Court an illegal benefit‘.
An illegal benefit amounting to $2,700,000 is alleged to have been transferred by X. Y. to the lawyer O. HORETSKYI ’to be subsequently transferred to the President of the Supreme Court, L. KNIAZEV, and to other
judges of the Grand Chamber of the Supreme Court” between 13 March 2023 and 7 April 2023.
Part of this illegal benefit, amounting to $1,800,000, was allegedly transferred directly by X. Y. to the President
of the Supreme Court, V. KNIAZEV, on 3 May 2023 and 15 May 2023. The sums transferred are said to have been $1,350,000 and $450,000 dollars respectively.
Furthermore, the requesting authorities stated that the examination of case 110 910/15551/20, in which X. Y.
allegedly provided unlawful benefits to the President of the Supreme Court, V. KNIALEV and other judges of the Grand Chamber of the Supreme Court in order to secure a favourable ruling in his favour, was conducted by the Grand Chamber of the Supreme Court from 19 January 2023 to 19 April 2023.
The requesting authorities have in fact indicated that the Grand Chamber of the Supreme Court accepted Case No. 110 910/15551/20 for consideration on 19 January 2023 and that it delivered a final decision in that case on 19 April 2023.
It is therefore clear from the reply to the request for further information provided by the Ukrainian authorities that the offences forming the subject of the formal extradition request were allegedly committed between 8 March 2023 and 15 May 2023.
– on dual criminality
Under Article 2(1) of the European Convention on Extradition of 13 December 1957, “shall give rise to extradition the offences punishable under the laws of the requesting Party and the requested Party (…)”. These offences are criminalised in France under the heading of “active corruption of a judicial officer”, an offence provided for in Article 434-9 of the Criminal Code.
The condition of dual criminality is therefore met.
– on the limitation period for criminal proceedings
Article 10 of the European Convention on Extradition stipulates that extradition shall not be granted if the limitation period for the offence or the sentence has expired under the legislation of either the requesting Party or the requested Party.
The rules regarding the limitation period for criminal proceedings under Ukrainian law were set out in the extradition request, stating that the limitation period for criminal proceedings had not expired by reference to the provisions of Articles 12 and 49 of the Criminal Code of Ukraine, all of which were provided. In this regard, the Government of Ukraine stated, in a document entitled: “ Information on the limitation period for criminal proceedings against X. Y. in the context of criminal proceedings”, that:
– the limitation period for criminal proceedings is ten years “from the date of the commission of the offence”;
– indeed, Article 12(5) of the Criminal Code of Ukraine establishes the principle that any offence punishable by law with a term of imprisonment of ten years or less but strictly more than five years is classified as a serious crime, which is the case for the offence provided for in Article 369 paragraph 4 of the Criminal Code of Ukraine, punishable by a term of imprisonment of five to ten years;
– however, the limitation period for criminal proceedings in respect of serious crimes is ten years ‘from the date of the commission of the offence’, in accordance with Article 49(4) of the Criminal Code of Ukraine; all this without prejudice to the grounds for suspension or interruption of the limitation period for criminal proceedings referred to in Article 49(2) and (3) of the Criminal Code of Ukraine, one of which is deemed applicable by the Ukrainian authorities.
Under French law, the offence of active corruption of a judicial officer, as provided for in Article 34-9 of the Criminal Code, is subject to a six-year limitation period. Public prosecution for the alleged offences is therefore not time-barred under either Ukrainian or French law.
– regarding the place of the offence and the nationality of the person concerned
Under the terms of the European Convention on Extradition of 13 December 1957, extradition may be refused where the offence was committed wholly or partly on the territory of the requested Party (Article 7) and any State has the right to refuse the extradition of its nationals (Article 6(1)).
In this case, the offences were committed entirely on the territory of the requesting State and the person concerned, a Ukrainian national, does not hold French nationality.
These criteria are therefore met.
– regarding the severity of the penalty incurred
Under Article 2(1) of the European Convention on Extradition of 13 December 1957, “offences punishable under the laws of the requesting Party and the requested Party by a custodial sentence or a detention measure of at least one year or a more severe penalty. Where a sentence has been imposed or a detention measure has been imposed on the territory of the requesting Party, the penalty imposed must be for a period of at least four months ‘
Under the terms of the French reservation set out in the instrument of ratification, deposited on 10 February 1986, “with regard to persons being prosecuted, extradition shall be granted only for offences punishable under French law and under the law of the State of at least two years”. In the present case, the penalty incurred is ten years’ imprisonment.
The condition relating to the severity of the penalty incurred is therefore met.
– on the risk of infringement of the rights guaranteed by Article 6 of the European Convention for the Protection of Human Rights and Fundamental Freedoms
The initial extradition request states: “the right to a fair trial in criminal proceedings will be guaranteed to X. Y., as well as the right to legal protection and the assistance of a lawyer.” A letter from the former Ukrainian Minister of Justice, Denys MALIUSKA, states that:
– “by the note verbale from the Permanent Representation of Ukraine to the Council of Europe dated 18 April 2022, registered with the Secretariat General of the Council of Europe on 19 April 2022, the Ukrainian side
informed that it was impossible to guarantee full compliance with its obligations under Ukraine’s international treaties during the period of military aggression by the Russian Federation against Ukraine and the imposition of martial law on the territory of Ukraine until the complete cessation of the infringement of sovereignty”; the imposition of martial law, like the derogations from the application of certain international treaties, are nevertheless described, subsequently, as limited to certain parts of the territory of Ukraine (page 2 of the said letter) ; however, on the one hand, “the powers of the courts, bodies and institutions of the judicial system provided for by the Constitution of Ukraine may not be restricted under the legal regime of martial law. // Thus, today, judges of all courts, with the exception of those who have temporarily ceased work in combat zones,
conduct judicial proceedings in accordance with the procedures established by law”;
on the other hand, Article 8 of the Constitution of Ukraine provides that the rule of law is recognised and applies in Ukraine and that several constitutionally guaranteed rights and freedoms cannot be restricted, even following the imposition of martial law (the right to information regarding the nature and cause of the accused, the right to professional legal assistance, the presumption of innocence, the right not to incriminate oneself, the principle of equality before the law, the ne bis in idem principle, etc.);
On the specific issue of the consequences arising from the entry into force of martial law on the rules of criminal procedure, a document drafted by the Prosecutor of the Extradition Division of the Department of Mutual Legal Assistance and Extradition within the Directorate of International Cooperation of the Office of the Prosecutor General of Ukraine, Ivan CHYZHEVSKYI, undated, entitled: ‘EXTRACT from the Code of Criminal Procedure of Ukraine’, which detailed the provisions of Article 615 of that Code (procedural simplification of the pre-trial investigation, delegation or reassignment of the investigating judge’s powers, rules governing pre-trial detention or referral to the trial court trial court, trial procedure, modes of evidence and court proceedings before the trial court).
With specific regard to martial law, the counsel for the person concerned refers in particular to Law No. 2201-IX of 14 April 2022 amending Article 615 of the Code of Criminal Procedure of Ukraine and conferring broad powers on the prosecutor, including for the extension of pre-trial detention and the conduct of certain investigative acts (pages 16 to 18 of the submission), with a broad territorial scope of application as it covers the entire territory of Ukraine, as evidenced by the notifications made by the Government of Ukraine to the Council of Europe (page 19 of the submission); none of these factors can outweigh the aforementioned safeguards put forward by the Ukrainian authorities.
In response to the request for further information, the Ukrainian authorities stated: “According to the explanations provided by the Ministry of Justice of Ukraine (letter No. 18900/19/80-/-23/12.3.1 of 16 February 2023), which is the principal authority within the system of central executive authorities responsible for the formulation and implementation of the State’s legal policy, the inability to ensure the full fulfilment of obligations arising from international treaties by the Ukrainian side must be understood as the inability to fulfil these obligations in the territories of Ukraine temporarily occupied by the Russian Federation: Throughout the territory controlled by the government of Ukraine, compliance with international obligations and the protection of human rights are fully ensured. (…)
In other words, this partial derogation applies only to the temporarily occupied territories of Ukraine and not to the entire territory of the State. In particular, the restrictions on the right to a fair trial and the right to the right to a defence are linked to the specific features of criminal proceedings under martial law.
These restrictions are reflected in the amendments to the Code of Criminal Procedure of Ukraine regarding the detailed procedure for the conduct of criminal proceedings under the conditions of the imposition of martial law in Ukraine or in certain regions of Ukraine.
(.. ) The aforementioned provisions of criminal procedure legislation were adopted in response to the large-scale armed aggression by the Russian Federation, which made it objectively impossible for the judicial system to function properly, in particular to ensure a prompt and effective investigation of crimes committed in areas of active hostilities or in the immediate vicinity of such areas.
(…) On 29 April 2024, the Permanent Mission of Ukraine to the Council of Europe submitted to the Secretary General of the Council of Europe, on behalf of the Ukrainian Government, updated information on the measures
allowing for a derogation from its obligations under international treaties.
In the updated information, in particular, the list of articles under which the derogation was made has been reduced. Thus, the derogation from Articles 3(3), 9, 13, 20, 22, 24, 26 and 27 of the International Covenant on Civil and Political Rights and Articles 4, 9, 13, 14 and 16 of the European Convention for the Protection of Human Rights and Fundamental Freedoms has been withdrawn.
Derogations from Articles 5 and 6 of the European Convention for the Protection of Human Rights and Fundamental Freedoms are maintained, but without prejudice to the fundamental principles of a fair trial and legal protection, as they apply only in areas of active hostilities or in the territories immediately adjacent to them.
Furthermore, by the decision of the Constitutional Court of Ukraine in the case of 18 July 2024, Part 6 of Article 615 of the Code of Criminal Procedure of Ukraine (hereinafter the CCP of Ukraine) was declared unconstitutional as it contradicts the provisions of Article 29 of the Constitution of Ukraine (right to liberty and personal integrity), Article 55 of the Constitution of Ukraine (right to legal defence), Article 62 of the Constitution of Ukraine (presumption of innocence) and Article 63 of the Constitution of Ukraine (the accused’s right to defence) . Part six of Article 615 ceased to be in force three months after the date of adoption of this decision.
This is evident from the statement contained in Verbal Note No. 31011/32-119-9327 from the Permanent Representation of Ukraine, dated 27 January 2025, that:
“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 submit to him, on behalf of the Government of Ukraine,
updated information on the measures derogating from its obligations under Article 2, paragraph 3, Articles 9, 14 and 17 of the International Covenant on Civil and Political Rights and Articles 5, 6, 8 and 13 of the Convention
for the Protection of Human Rights and Fundamental Freedoms.
The possibility of applying the aforementioned current provisions set out in Article 615 of the Code of Criminal Procedure necessitates the continuation of derogations from Ukraine’s obligations under Article 2(3), Articles 9, 14 and 17 of the International Covenant on Civil and Political Rights and Articles 5, 6, 8 and 13 of the Convention for the Protection of Human Rights and Fundamental Freedoms, without prejudice to the fundamental principles of a fair trial and legal protection, including the ne bis in idem principle.”
The Prosecutor General of Ukraine stated:
“As Ukraine is a party to the specified Convention and International Covenant, it has exercised its right to derogate from the obligations arising from the specified international treaties.
In particular, the restrictions on the right to a fair trial and the right to a defence are linked to the specific nature of conducting criminal proceedings under the circumstances of martial law. These restrictions are reflected in the amendments made to the Code of Criminal Procedure of Ukraine.
Thus, following the adoption of Ukrainian Law No. 2201-IX dated 14 April 2022 “On Amendments to the Code of Criminal Procedure of Ukraine concerning the improvement of certain provisions of the preliminary investigation under martial law”, the Secretary General of the Council of Europe was informed of certain restrictive measures relating to Ukraine’s exercise of its right to derogate from its obligations under Articles 5, 6, 8 and 13 of the Convention for the Protection of Human Rights and Fundamental Freedoms, Articles 2 (paragraph 3), 9, 14 and 17 of the International Covenant on Civil and Political Rights.
The Secretary-General of the United Nations has also been informed of specific measures (the text of notification C.N. 159.2022.TREATIES-IV.4 dated 27 June 2022 is attached). The aforementioned Law No. 2201-IX of 14 April 2022 set out the specific regime for criminal proceedings under martial law (extract attached).
With regard to the time and territory covered by the derogation from obligations, it should be noted that Law No. 2201 came into force on 1 September 2022 and remains in force during martial law, which was imposed across the entire territory of Ukraine from 05:30 on 24 February 2022.
It should also be noted that under Law of Ukraine No. 2462-IX dated 27 July 2022 ‘On Amendments to the Code of Criminal Procedure of Ukraine concerning the improvement of certain provisions of the preliminary investigation under martial law’, paragraph 6 of Part 1 of Article 615 of the Code of Criminal Procedure of Ukraine is set out in a new version (extract attached).”
It therefore follows from these elements that martial law remains in force throughout the territory of Ukraine and that the Ukrainian government has notified the Council of Europe and the United Nations that it continues to derogate from Ukraine’s obligations under paragraph 3 of Article 2, Articles 9, 14 and 17 of the International Covenant on Civil and Political Rights and Articles 5, 6, 8 and 13 of the Convention for the Protection of Human Rights and Fundamental Freedoms, without prejudice to the fundamental principles of a fair trial and legal protection, including the ne bis in idem principle.
Contrary to the arguments put forward by the Ukrainian authorities, it does not appear from the international notifications made by Ukraine that these derogations, notably from Article 6 of the ECHR, would apply only in areas of active hostilities or in the territories immediately adjacent to them, as the Ukrainian Ministry of Justice maintains, and the reservation “without prejudice to the fundamental principles of a fair trial” is too vague to constitute a sufficient guarantee of the preservation of the right to a fair trial.
The concept of an “area of active hostilities” also appears to be constantly subject to change, given that Russian air strikes are extending not only to eastern Ukraine but also to Kyiv and Lviv, such that the Ukrainian Government could, notwithstanding the current safeguards, consider at any time that the central and western regions of the territory also constitute zones of active hostilities subject to derogations from the provisions of the Convention.
Furthermore, Article 615 of the Code of Criminal Procedure, in its most recent version as amended and transmitted, and applicable throughout Ukrainian territory, includes, in particular, the following provisions:
“The special regime for criminal proceedings under martial law:
In the event of the imposition of martial law and if:
2) there is no objective possibility for the investigating judge to exercise the powers provided for in Articles 140, 163, 167, 170, 173, 206, 219, 232, 233, 234, 235, 245–248, 250 and 294 of this Code, these powers shall be exercised by the head of the competent public prosecutor’s office at the request of the public prosecutor or at the request of the investigator agreed with the public prosecutor, (…)
3) there is no objective possibility of further proceedings, the completion of the preliminary investigation and the referral of the case to the court with an indictment, a request for the application of coercive measures of a
medical or educational measures, a request to release a person from criminal liability; the duration of the preliminary investigation within the framework of criminal proceedings is determined on the basis of a reasoned decision by the prosecutor setting out the relevant circumstances and may be renewed if the grounds for suspension no longer exist. Before terminating the pre-trial investigation, the public prosecutor is obliged to resolve the issue of extending detention; (…)
6) there are cases of a person being detained without a warrant from an investigating judge or a court, as defined by Article 208 of this Code, or there are reasonable circumstances giving grounds to consider that that the person suspected of a crime may attempt to escape in order to evade criminal liability, an authorised official has the right to detain such a person without a decision by an investigating judge or a court.
The duration of a person’s detention without a decision by an investigating judge or a court may not exceed the duration defined by Article 211 of this Code.
The period of validity of the investigating judge’s detention order or the detention order issued by the head of the public prosecutor’s office, adopted in accordance with the requirements and taking into account the circumstances provided for in this Article, may be extended up to one month by the head of the competent public prosecutor’s office at the request of the public prosecutor or at the request of the investigator agreed with the public prosecutor. The duration of detention may be extended several times within the timeframe of
the preliminary investigation.”
These provisions therefore appear to provide that decisions to place or remain in detention may be taken either by a public prosecutor, or by an authorised official, that is to say by decision-makers who do not meet the requirements of independence and impartiality laid down by the European Convention on Human Rights.
Furthermore, as highlighted by the individual’s counsel, on 2 March 2022, the Council of Judges of Ukraine published its “recommendations on the work of courts under martial law”, advising that courts “where possible
postpone the hearing of cases (with the exception of urgent legal proceedings) and remove them from the docket”. In its amicus curiae of 30 December 2022, the Kharkiv Human Rights Defence Group noted that these
recommendations were being implemented: the majority of court cases are essentially not being heard and decisions are not being made, and this is the case throughout Ukraine.
In these circumstances, and given the ongoing hostilities, even in the Kyiv region, the holding of a trial for the person concerned within a reasonable time cannot be guaranteed.
The Court can therefore only conclude that the requesting State is not in a position to guarantee that K. Y. will be tried by a court ensuring the fundamental guarantees of due process and the protection of the rights of the defence.
Consequently, a negative opinion must be issued regarding the extradition request. without it being necessary to examine the other grounds raised or to order further information.
ON THESE GROUNDS
THE COURT
Having regard to Articles 696 to 696-24 of the Code of Criminal Procedure;
Having regard to the European Convention on Extradition of 13 December 1957, in particular Articles 1, 18, 20, 22, 24, 27 and 28,
ISSUES AN UNFAVOURABLE OPINION on the extradition request made by the Government of Ukraine against:
X. Y.
born on XXX
son of XXX,
a Ukrainian national,
residing at XXX,
placed under judicial supervision by order of 3 December 2024
ORDERS the lifting of the judicial supervision;
DECLARES that, at the request of the Public Prosecutor, the file shall be sent to the Minister for Justice, together with a certified copy of this judgment.
NOTES that this decision was notified verbally today to the interested party through an interpreter, pursuant to Articles 803-3 and D594-6 of the Code of Criminal Procedure;