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):
The Public Prosecutor at the Court of Appeal of Chambéry has lodged an appeal against the judgment of the Investigating Chamber of that Court of Appeal, dated 30 March 2023, which, in the extradition proceedings brought against Mr X. Y. at the request of the Ukrainian Government, issued an adverse opinion.
Written submissions were filed by both the applicant and the respondent.
On the report of Ms Thomas, Judge, the observations of the law firm SCP Sevaux et Mathonnet, counsel for Mr X.Y., and the submissions of Mr Croizier, Advocate General, following the hearing at the public sitting of 3 October 2023, at which were present Mr Bonnal, President, Ms Thomas, Reporting Judge, Ms Labrousse, Judge of the Chamber, and Ms Sommier, Chamber Registrar, the Criminal Chamber of the Court of Cassation, composed in accordance with Article 567-1-1 of the Code of Criminal Procedure, of the aforementioned President and Judges aforementioned, having deliberated in accordance with the law, has delivered the present judgment.
Facts and proceedings
1. It appears from the contested judgment and the documents in the case file that:
2. By request of 30 December 2022, the Ukrainian authorities sought the extradition of Mr X. Y., a Ukrainian national, for the purposes of criminal proceedings on charges of aggravated embezzlement and money laundering, offences committed in 2007 and on 20 June 2013 in Ukraine.
3. The person concerned did not consent to his surrender.
4. By judgment of 19 January 2023, the Investigating Chamber ordered further information.
Examination of the grounds
On the first, second and third grounds
Statement of the grounds
5. The first ground challenges the contested judgment in that it issued an adverse opinion on extradition, in breach of the European Convention on Extradition of 13 December 1957, as well as its 2nd, 3 and 4 additional protocols, the European Convention on Human Rights and Articles 696-4, 696-15, 591 and 593 of the Code of Criminal Procedure, whereas, notwithstanding the assurances given by the regarding respect for the right to a fair trial and Mr X. Y.’s rights of defence, and the procedural details provided, the investigating chamber ruled in abstracto, without specifically examining whether, in practice, the person concerned would benefit from such guarantees, thereby depriving its decision of the essential conditions for its legal validity.
6. The second ground of appeal criticises the contested judgment in that it issued an adverse opinion on extradition, in breach of the Vienna Convention on the Law of Treaties of 23 May 1969, the Vienna Convention on the Law of Treaties between States and International Organisations or between international organisations of 21 March 1986, the Statute of the Council of Europe of 5 May 1949, the European Convention on Extradition
of 13 December 1957, as well as its 2nd, 3rd and 4th, 3rd and 4th additional protocols, the European Convention on Human Rights and sections 696-4, 696-15, 591 and 593 of the Code of Criminal Procedure, whereas, from declarations made by Ukraine to the Council of Europe derogating from its obligations under international treaties, the investigating chamber erroneously concluded that these restrictions regarding the right to a fair trial and respect for the rights of the defence were applicable throughout the entire territory of Ukraine and not merely in the part occupied by Russian military forces, and that it failed to address the argument that the requesting State is irrevocably bound towards the requested State and the person sought by the guarantee of a
fair trial given in support of the extradition request, thereby depriving its decision of the essential conditions for its legal validity.
7. The third ground of appeal criticises the contested judgment in that it issued an adverse opinion on extradition, in breach of the European Convention on Extradition of 13 December 1957, as well as its 2nd, 3rd and 4th, 3 and 4 additional protocols, the European Convention on Human Rights, the Ukrainian Code of Criminal Procedure, in particular Articles 193, 197, 201, 211 and 615 thereof, and Articles 696-4, 696-15, 591 and 593 of the Code of Criminal Procedure, whereas the Investigating Chamber misinterpreted Article 615 of the Ukrainian Code of Criminal Procedure by considering that the duration of Mr X. Y.’s pre-trial detention would not depend on a judge’s decision for the duration of martial law, that Mr X. Y. would be subject to the judicial authorities in Kyiv, where the courts are functioning normally, and that it is clear from the evidence provided that only a judge may rule on pre-trial detention following extradition and its extension, such that it deprived its decision of the essential conditions for its legal validity.
The Court’s response
8. The grounds are well founded.
9. In order to issue an unfavourable opinion on extradition, the contested judgment states that, whilst the Office of the Prosecutor General of Ukraine specifies that the martial law imposed due to the entry of Russian armed forces into the national territory cannot derogate from various constitutionally protected rights and freedoms, none of these constitutional principles protects the right to a fair trial.
10. The judges note that, on the other hand, Ukraine has exercised its right to derogate from the obligations arising from the treaties it has ratified, in particular the obligations under Articles 5, 6, 8 and 13 of the European Convention on Human Rights, and that the Prosecutor General of Ukraine has drawn up a list of derogations from fundamental rights resulting from martial law.
11. They note that, in particular, the restrictions on the right to a fair trial and the rights of the defence have led to an amendment of Article 615 of the Code of Criminal Procedure, that this provision now permits cases of detention without a decision by the investigating judge or the court, but issued by an ‘authorised officer’, as well as cases of suspension, until the end of martial law, of the investigation, upon a reasoned decision by the public prosecutor, who is then required to rule on the extension of pre-trial detention, and that it follows that the pre-trial detention of Mr X. Y. will depend on an “authorised officer” and its extension on the prosecuting authority, depending on the duration of martial law and the war, these restrictions being applicable throughout Ukrainian territory and not only in the part occupied by Russian military forces.
12. They further consider that, given the recommendations published by the Council of Judges of Ukraine on the functioning of the courts during martial law recommending the postponement of non-urgent cases, the
destruction of court buildings and the fact that participants in judicial proceedings are victims of hostilities, the holding of a trial within a reasonable time is not guaranteed.
13. They conclude that the requesting State is unable to guarantee that Mr X. Y. will be tried by a court ensuring the fundamental procedural guarantees and the protection of the rights of the defence.
14. In reaching its decision on these grounds alone, the investigating chamber did not misapply any of the provisions referred to in the grounds of appeal.
15. Indeed, it follows from the concrete examination of the foreseeable situation of the person sought in the event of surrender, carried out by the investigating chamber following the provision of further information, based on a proper analysis of the information provided as well as grounds free from both insufficiency and contradiction and addressing the key points of the Public Prosecutor’s submission, that, notwithstanding the guarantees provided in support of the application, there are serious and well-founded grounds to believe that this person would be exposed to a real risk of a flagrant denial of justice given the current provisions on pre-trial detention resulting from the martial law in force and the situation of armed conflict prevailing in Ukraine, which are such as to profoundly disrupt the judicial system and prevent the progress of proceedings.
16. The grounds must therefore be dismissed.
17. It follows that the judgment meets, in form, the essential conditions for its legal validity.
18. Furthermore, it was delivered by a competent investigating chamber constituted in accordance with the law, and the procedure is in order.
ON THESE GROUNDS, the Court:
DISMISSES the appeal;
Thus decided and judged by the Court of Cassation, Criminal Chamber, and pronounced by the President in open court on 7 November 2023.