extradition to Russia

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You can prevent extradition from Germany to Russia, but it's always a hard piece of work. In one of my longest extradition procedures, for example, it took a full three years until the Higher Regional Court of Cologne in 2018 finally declared the extradition of my client to Russia inadmissible. In the case of the Cologne Higher Regional Court, such a duration of procedure could even have been right for us, because my client in Germany was in freedom for the whole of three years during the extradition procedure.

We discussed the particular problem of extradition requests from Russia in October 2018 at the conference of the European Criminal Bar Association ECBA in Nice and I had the impression that - compared to other European countries - the high standard of judicial extradition proceedings in Germany facilitates the defence against extradition requests from Russia.

Extradition to Russia (Russian Federation) is generally governed by the European Convention on Extradition. German citizens are not extradited to Russia, only foreigners. With regard to foreigners, however, requests for provisional detention can be made by Russia via Interpol. For the defence against arrest warrants and extradition requests from Russia, it is eminently important to prevent any extradition detention in Germany from the outset.

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In my opinion, Germany must not extradite anyone to Russia for the simple reason that the conditions of detention there are inhumane for those who are extradited.

But I have also seen almost all other possible obstacles to extradition in relation to Russia, starting with indecisive factual statements in arrest warrants, via constructed allegations and manipulated evidence, political persecution as an obstacle to extradition to issues of statute of limitations or double jeopardy.

The European Court of Human Rights often criticises structural deficiencies in the judicial system and prison conditions in the Russian Federation as a result of a large number of complaints. In the meantime, the European Court of Human Rights has established a violation of Articles 3 and 13 of the ECHR in more than 80 cases against Russia, and around 250 other cases, which at first sight appear to be justified, were already pending.

Disastrous detention conditions in Russia

Obviously, the conditions of detention are a structural problem. The Russian Government does not deny this. The Court therefore considered it appropriate to apply the pilot procedure (Art. 46 ECHR, Art. 61 VerfO) (cf. ECHR V. Section, Judgment of the Court of First Instance). 10. 1. 2012 - 42525/07 u. 60800/08(Ananyev et al./Russia).

In more than 80 cases, the European Court of Human Rights criticised the excessively long pre-trial detention which was incompatible with the Human Rights Convention and the detention situation contrary to human rights, in particular the chronic overcrowding of the prisons and the lack of equipment in the prisons.

In the Russian prisons there are often cells with drastic overcrowding, the following examples from the decision ECHR V. Section, Judgment v. 10. 1. 2012 - 42525/07 and 60800/08 are examples of this:

- Cell 23 sqm, 10 sleeping places, occupied by 15 persons

- Cell 25 sqm, 10 sleeping places, occupied by 14 persons

- Cell 24 sqm, 12 sleeping places, occupied by 22 persons

- Cell 24 sqm, 12 sleeping places, occupied by 14 persons

- Cell 25 sqm, 12 sleeping places, occupied by 20 persons

- Cell 24 sqm, 10 sleeping places, occupied by an average of 30 persons, on some days by up to 40 persons

- Cell 22 sqm, 10 sleeping places, occupied by 14 persons

- Cell 19 sqm, 6 sleeping places, occupied by 9 persons

Several hundred complainants have referred their case to the European Court of Justice and in particular complained of the violation of Articles 3 and 13 ECHR because they were detained in inhuman and degrading conditions and did not have an effective remedy in Russia. Some complainants had less than 1.25 square metres in a detention cell in Russia and others less than 2 square metres. The European Court of Justice has often condemned Russia to pay damages without abolishing the structural problem of detention conditions contrary to human rights.

The European Court of Justice has also found that detention cells in police stations often lack all sanitary facilities (see e.g. ECHR, judgment of 12 June 2008 - 16074/07, paragraph 89 - Shchebet/Russia), while in prisons and remand prisons the limited space and dormitory is the biggest problem (see ECHR, resolution of 16 September 2004 - 30138/02 - Nurmagomedov/Russia).

When it comes to the fundamental right to protection against inhuman or degrading treatment, preventive remedies must be available in order to be considered effective. The European Court of Justice has confirmed in numerous cases that various domestic remedies under Russian law against inhuman or degrading detention conditionsare not effective in Russia, namely

- Complain to the prison authorities;

- Complaint to the public prosecutor's office;

- Complaint to the Ombudsman;

- Complaint for infringement of rights and freedoms;

- Action for damages,

(see e.g. ECHR, judgment of the Court of Justice of the European Communities). 16. 12. 2010 - 33099/08 - Kozhokar/Russia; ECtHR, judgement v. 7. 10. 2010 - 25432/05 - Skachkov / Russia and others).

The European Court of Human Rights repeatedly concludes that Russian law does not currently have an effective remedy to prevent alleged inhuman or degrading treatment in prisons.

In conclusion, the European Court of Human Rights (ECHR V. Sektion, judgment of 10. 1. 2012 - 42525/07 u. 60800/08) states: "Inappropriate detention conditions are obviously a recurring problem in Russia: since its first ruling in the Kalashnikov case in 2002 (see ECHR, ECR 2002-VI = NVwZ 2005, 303), the Court has found a violation of Articles 3 and 13 ECHR in more than 80 judgments against Russia. It is therefore timely and appropriate to examine the present case under the point of Article 46 ECHR (...)".

The established violations of Art. 3 ECHR have occurred in prisons located in different administrative districts and geographically different regions of the Russian Federation. Nevertheless, the facts were essentially the same: prisoners were subjected to inhuman and degrading treatment due to acute lack of space in their cells, insufficient number of sleeping places, unjustifiably restricted access to daylight and air, and lack of privacy when using sanitary facilities. The violations of Art. 3 ECHR were not due to isolated incidents. The European Court of Human Rights (ECHR V. Sektion, judgment of 10. 1. 2012 - 42525/07 u. 60800/08) states that this is the case: "Rather, this is a widespread problem due to the failure of the Russian prison system and the lack of adequate legal and administrative guarantees against this unlawful treatment. This has affected very many persons who have been in remand prisons throughout Russia and it may continue to affect many (see ECHR [2004-V] ECR 189 = NYW 2005, 2521 [2529] - Broniowski/Poland; ECHR [2006] ECR 229 - Hutten-Czapska/Poland)". 

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