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An extradition to Belarus (Republic of Belarus) is in principle possible, although there is no extradition agreement with Germany.
But in my opinion, extradition to Belarus should not be carried out because there is a worrying human rights situation in Belarus. The United Nations report of June 2018 expresses concern that Belarus still does not allow independent monitoring of human rights, that prisoners in Belarus are still unable to obtain medical examinations despite repeated reports of torture and ill-treatment, and that access to medical treatment in prisons in Belarus is at the discretion of law enforcement officials.
The United Nations report on the situation in Belarus continues to be seriously concerned by allegations that State party law enforcement officials frequently use torture and ill-treatment to obtain confessions from suspects detained in pre-trial detention facilities and temporary detention facilities, and that in many cases where accused persons have alleged torture in court, presiding judges have not ordered investigations or declared their confessions inadmissible. The United Nations report of June 2018 also regrets that Belarus has not provided information on several cases in which this has allegedly happened, despite the Committee's request.
The United Nations report of June 2018 notes a widespread practice of torture and ill-treatment which Belarus does not pursue and continues to state that prison space sizes are still too small and the United Nations report repeatedly reprimands torture and ill-treatment by law enforcement officials and criticises the lack of numbers and training of health workers:
Finally, the United Nations report of 7 June 2018 deplores the fact that only inadequate means of independent monitoring of detention conditions are being provided, namely that Belarus claims to have set up its own public monitoring commissions with the possibility of visiting prisons and questioning detainees. But there is concern that these commissions and their ability to prevent torture and ill-treatment in places of detention remain limited. The Committee is particularly concerned that the commissions set up, according to the Belarus authorities, cannot visit all prisons without prior notice, that their composition is under the control of the Ministry of Justice, that they do not have access to temporary detention facilities, psychiatric hospitals, labour treatment facilities and police cells, and that they have no right to visit all areas of prisons or to speak confidentially with prisoners.
Many German court decisions now explicitly speak of the "continuing grievances with regard to the human rights situation in Belarus", so that defence against extradition requests from Belarus is increasingly promising.
Palatine Higher Regional Court Zweibrücken: "Because of the continuing grievances in the Republic of Belarus with regard to the fairness of criminal proceedings and the human rights-compliant treatment of prisoners, the extradition of a persecuted person to that country is inadmissible if doubts about the resilience of the promises made by the Belarusian authorities in this respect have not been dispelled" (Palatine Higher Regional Court Zweibrücken, decision of 29 April 2008).
The Higher Regional Court of Hamm has rejected a request for an order for provisional arrest for extradition. On the one hand, the Senate already had doubts as to whether the act of "severe hooliganism" accused of by the persecuted person had been sufficiently substantiated in view of the incomplete information in the Belarusian search and arrest request. The application for provisional extradition detention was also to be rejected due to the lack of a reason for detention. In the opinion of the Senate, in particular the reason for detention for the danger of flight did not exist (OLG Hamm, decision of 03.03.2009).
The Higher Regional Court of Rostock: "Pursuant to Article 46 of the Criminal Code of the Republic of Belarus 1960, a decision on the question of the statute of limitations of the charge of an offence is exclusively incumbent upon the court making the decision and is to be made within the framework of criminal proceedings to be conducted in the obligatory presence of the person being prosecuted. For extradition to be admissible, it is sufficient that the question of limitation does not currently prevent criminal proceedings against the person being prosecuted in the Republic of Belarus. This may result from the assessments of the Prosecutor General's Office of the Republic of Belarus". OLG Rostock, decision of 30.08.2011).
The Higher Regional Court of Dresden: "The continuing abuses with regard to the human rights situation in the Republic of Belarus do not make legal assistance in extradition traffic inadmissible from the outset (see OLG Köln OLGSt. IRG § 29 No. 1). The fact that the person being prosecuted is also threatened with the imposition of the death penalty on account of the acts accused of him if it is assured in a viable manner that the death penalty will not be imposed in the present case does not currently stand in the way of admissibility of extradition". OLG Dresden, Decision of 17.04.2008 - 12 Ausl 33/08
The Higher Regional Court of Dresden: The extradition of the persecuted person to the Republic of Belarus for criminal prosecution is permissible, § 8 IRG does not preclude this. The Prosecutor General's Office of the Republic of Belarus has declared that, under the legislation of the Republic of Belarus, it is the competent authority in the field of international judicial assistance in criminal matters and guarantees that the death penalty will not be applied against the person being prosecuted.The mandatory examination in the admissibility proceedings as to whether there are well-founded doubts as to the observance of such an assurance because any doubts would preclude extradition (Schomburg/Lagodny/Gleß/Hackner, IRG, 4th ed. § 8 para. 16) has shown that the declaration of the Public Prosecutor's Office of the Republic of Belarus is to be regarded as a sufficient assurance within the meaning of § 8 IRG. OLG Dresden, Resolution of 29.09.2008 - OLG Ausl 33/08
The Higher Regional Court of Cologne: "1. The continuing abuses with regard to the human rights situation in Belarus do not make legal assistance in extradition traffic inadmissible from the outset. (2) Extradition to Belarus is permissible if an assurance is given that the persecuted person will be treated in accordance with human rights by the authorities there". OLG Cologne, decision of 01.06.2007 - 6 AuslA. 95/06
The Higher Regional Court of Hamm: "The persecuted person applied for a stay of extradition pursuant to § 33 (4) IRG, which was granted by the Senate in its decision of 8 July 2004. The applicant asserts, inter alia by submitting a report by Amnesty International (Kogruppe/Belarus) from 2002, that the extradition is inadmissible under the provisions of Article 3 of the European Convention on Human Rights in conjunction with Article 73 of the IRG, since there are well-founded indications that the detention conditions in the Belarusian prisons are "extremely inhuman" and that he is in danger of being treated in violation of human rights in the requesting state. According to Article 3 ECHR and § 73 IRG, extradition is inadmissible if there are well-founded indications that the persecuted person in the requesting state is in danger of being tortured or otherwise treated in a manner contrary to human rights (see BVerfG NStZ 2001, 100 f.; KG v. 04. September 2000 and 22. January 2001 - (4) Ausl. A. 855/99 (158/99). Pursuant to § 33 (4) IRG, the suspension was therefore to be ordered until a new decision on the admissibility of the extradition was reached. After a preliminary assessment, it cannot be ruled out that the extradition may be inadmissible for the reasons set out by the person persecuted (see Lagodny in Schomburg/Lagodny, loc.cit., § 33 IRG, marginal no. 34, w. Nachw.).
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Rechtsanwälte Dr. Martin Rademacher & Lars Horst, LL. M. - Germany