FIFTH SECTION     CASE OF KOKTYSH v. UKRAINE (Application no. 43707/07)        JUDGMENT   STRASBOURG  10 December 2009 FINAL 10/03/2010 This judgment will become final in the circumstances set out in Article 44 § 2 of the Convention. It may be subject to editorial revision.In the case of Koktysh v. Ukraine,The European Court of Human Rights (Fifth Section), sitting as a Chamber composed of: Peer Lorenzen, President, Renate Jaeger, Karel Jungwiert, Rait Maruste, Isabelle Berro-Lefèvre, Zdravka Kalaydjieva, judges, Mykhaylo Buromenskiy, ad hoc judge, and Claudia Westerdiek, Section Registrar.Having deliberated in private on 17 November 2009,Delivers the following judgment, which was adopted on that date:PROCEDURE1. The case originated in an application (no. 43707/07) against Ukraine lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Belarusian national, Mr Igor Gennadievich Koktysh (“the applicant”), on 8 October 2007.2. The applicant, who had been granted legal aid, was represented by Ms A. Mukanova, a Kazakh lawyer. The Ukrainian Government (“the Government”) were represented by their Agent, Mr Y. Zaytsev, of the Ministry of Justice of Ukraine.3. The applicant alleged that in the event of his extradition to Belarus he would face the risk of torture and of an unfair trial, the outcome of which was likely to be the death penalty. He further alleged that his detention pending extradition had been unlawful. The applicant lastly alleged that he was not able to challenge his arrest, subsequent detention and the decision on his extradition before the national courts, and that he had no right to compensation for his detention.4. On 11 September 2008 the President of the Fifth Section decided to give notice of the application to the Government. Questions were put under Articles 2 and 3 (risk on extradition to Belarus), 3 and 13 (conditions of detention and transport), 6 (risk of unfair trial in Belarus if the applicant were extradited) and 5 (compatibility of the detention with the provision, and related procedural issues) of the Convention. It was also decided to examine the merits of the application at the same time as its admissibility (Article 29 § 3). The case was given priority under Rule 41 of the Rules of Court.THE FACTSI. THE CIRCUMSTANCES OF THE CASE5. The applicant, who was born in 1980, is a Belarusian youth activist and musician. He is currently detained in the Pre-Trial Detention Centre no. 15 (hereinafter, “the SIZO”) in Simferopol (Сімферопольський слідчий ізолятор), Ukraine.A. Background to the case and the extradition proceedings6. In 2001 the applicant and R. were charged with the murder (under Article 139 § 2 of the Belarusian Criminal Code) and robbery of M. According to the above Article, the death penalty is foreseen, inter alia, as a sanction for murder.7. On 7 December 2001 the Brestskiy Regional Court of Belarus acquitted the applicant and R. In particular, the court emphasised that during their interrogations the applicant and R. had been subjected to physical and psychological pressure and had been forced to confess, and therefore their confessions during the pre-trial investigation could not be taken into consideration.8. On 1 February 2002 the Supreme Court of Belarus upheld this decision.9. On 18 May 2002 these decisions were quashed by the Presidium of the Supreme Court of Belarus under the extraordinary review procedure upon an application (“protest”) lodged by a prosecutor, and the criminal proceedings were resumed.10. In June 2002 the applicant moved to Ukraine, where he was registered by the Zhytomyr passport service. He travelled several times to Poland and married in 2003. Therefore, according to the applicant, he has not been hiding from justice.11. On 28 June 2002 the Brestskiy Regional Court stayed the criminal proceedings since the applicant’s whereabouts were unknown.12. On 9 July 2002 the Brestskiy Regional Prosecutor decided to search for the applicant.13. On an unspecified date an international search warrant for the applicant was issued.14. On 25 June 2007 the applicant was arrested in Sevastopol, Ukraine. The applicant stated that during his arrest the policemen had fired several shots in order to intimidate him and that he had been subjected to physical and psychological pressure.15. On 27 June 2007 the Balaklava District Court of Sevastopol ordered the applicant’s detention for forty days with a view to his extradition to Belarus.16. On 9 July 2007 the General Prosecutor’s Office of Belarus requested the General Prosecutor’s Office of Ukraine (hereinafter, “the GPO”) to extradite the applicant. In its request the General Prosecutor’s Office of Belarus indicated that “Koktysh I.G. would be tried only for the crimes he was extradited for, and he would not be sentenced to the death penalty”.17. On 3 August 2007 the Balaklava Local Court decided that the applicant should remain in detention pending extradition.18. On 10 October 2007, under Rule 39 of the Rules of Court, the President of the Court’s Fifth Section indicated to the Government of Ukraine that the applicant should not be extradited to Belarus.19. On 15 October 2007 the General Prosecutor’s Office of Belarus informed the GPO that in the event of the applicant’s extradition he would not be tortured, ill-treated or discriminated against and would be given a fair trial. If necessary, he would be provided with medical assistance and treatment.20. On 19 May 2008 the Balaklava District Court informed the applicant that his request for release could not be considered as the current legislation did not foresee the possibility of challenging detention pending extradition.21. On 3 June and 7 July 2009 the Balaklava District Court rejected the applicant’s further requests for release since the law in force did not foresee the possibility of replacing his detention pending extradition by another non-custodial preventive measure.B. Conditions of the applicant’s detention as presented by the applicant22. From 26 June to 5 July 2007 the applicant was detained in the Sevastopol Temporary Detention Centre in cell no. 1 (Севастопольський ізолятор тимчасового утримання) (hereinafter, “the ITT”). He submitted that in his cell, which measured 4 x 8 metres, around 20 persons had been detained, while it had been equipped with only two sleeping places. There were no sheets, pillows or blankets but only a couple of dirty mattresses. The cell was very dirty, without ventilation or proper lighting, and infested with different insects. Nearly all of the detainees smoked and this caused the applicant intense suffering since he has bronchial asthma. The ITT did not contain a shower and the detainees could not go for a walk. The applicant stated that the daily food had been limited to a piece of bread, a plate of poor-quality soup and water. The applicant was not provided with any medical assistance in spite of suffering from asthma. On 2-5 August 2007 the applicant was detained in cell no. 2 with similar conditions of detention.23. From 6 July 2007 to date the applicant has been detained in the SIZO. The applicant submitted that during his transportation from the ITT to the SIZO he had been placed in a special van together with 12 other people while there had been space available for only 6. The temperature in the van reached 600C and there was neither drinking water nor ventilation.24. In the SIZO, according to the applicant, he is detained in a 2 x 4 metre cell together with 9 other detainees. The cell has no ventilation or sufficient lighting and all of the detainees smoke apart from the applicant. The detainees can shower only once a week. The applicant stated that the medical assistance he received in the SIZO was inadequate.C. Conditions of the applicant’s detention as presented by the Government1. The ITT25. On 25 June 2007 the applicant arrived at the ITT. He was questioned about his state of health by the officer on duty but the applicant did not complain about his health problems. During his stay in the ITT (25 June-5 July 2007 and 2-5 August 2007) the applicant did not complain about his health problems either.26. From 26 June 2007 until 5 July 2007 the applicant was detained in cell no. 1. The cell measured 19.3 sq. m. At the material time from 16 to 21 persons were detained there.27. From 2 August 2007 until 5 August 2007 the applicant was detained in cell no. 2, which measured 17.4 sq. m. 11 other persons were detained at that time together with the applicant.28. Every cell was equipped with a WC and a wash-basin. The detainees were provided with bed sheets and were served hot food three times a day. The cells are regularly cleaned and disinfected. The detainees take a hot shower at the week-end or during the week if they so wish.29. The ITT has a ventilation system which functions non-stop. The detainees also have a daily one-hour walk in two specially equipped yards.30. The cells are equipped with two electric light-bulbs and the detainees also have access to daylight.2. The SIZO31. During the applicant’s stay in the SIZO, since 5 July 2007, he has been detained in three different cells (nos. 57, 60 and 68), which measure between 12.4 sq. m and 13.2 sq. m. Together with him, from 4 to 9 persons have been detained during different periods of time.32. The cells are equipped with the necessary number of sleeping places, sufficient electric and natural light, separated WCs, wash basins, tables and chairs. There is ventilation and the conditions of the applicant’s detention have complied with the sanitary standards. The applicant has been able to take a shower once a week.33. On the day of his arrival the applicant was examined in the SIZO hospital wing and diagnosed with asthma. During his stay in the SIZO the applicant has been further examined and treated on numerous occasions.3. Conditions of transportation34. On 5 July the applicant was transported from the ITT to the SIZO and on 2 August 2007 he was returned to the ITT. On 5 August 2007 he was again taken to the SIZO.35. Specially equipped vehicles and railway carriages were used for the transportation. Every vehicle can carry up to 22 persons and every railway carriage up to 80. The special police forces in charge of the transportation of prisoners transported the applicant in compliance with the requirements of the national legislation.II. RELEVANT LAW AND PRACTICEA. Relevant international and domestic law and practice concerning extradition36. The relevant international and domestic law and practice in respect of the applicant’s extradition are summarised in the Soldatenko v. Ukraine (no. 2440/07, §§ 21-29 and § 31, 23 October 2008) and Svetlorusov v. Ukraine (no. 2929/05, §§ 32-34, 12 March 2009) judgments.B. Relevant domestic law concerning conditions of detention and transportationPre-Trial Detention Act 1993 (“the Act”)37. Under Article 11, detainees must be provided with everyday conditions that meet sanitary and hygiene requirements. The cell area for one person may not be less than 2.5 sq. m.C. Relevant international materials concerning the situation of human rights in Belarus1. Resolution 1606 (2008) of the Parliamentary Assembly of the Council of Europe on abuse of the criminal justice system in Belarus“... 2. Such abuses take different forms, including:2.4. the continued use of the death penalty and the particularly cruel, secretive method of execution by gunshot, without informing the condemned persons themselves or their families until the last moment. Belarus is the last country on the European continent that still implements the death penalty. The existence of the death penalty excludes the extradition to Belarus of any person accused of a capital offence by member states of the Council of Europe...”2. Resolution 1671 (2009) of the Parliamentary Assembly of the Council of Europe on the situation in Belarus“...17. The Assembly regrets that capital executions can still be carried out in Belarus, despite the reduction of the categories of crimes for which they can be inflicted, a decrease in the number of death sentences handed down in such cases and the fact that no executions have been carried out since October 2008 according to official statements. The Assembly recalls that, in the current Constitution, the death penalty is considered as a transitional measure and that no legal impediment prevents either the President or the Parliament from introducing a moratorium on executions...”3. UN Human Rights Council: Report of the Special Rapporteur on the Situation of Human Rights in Belarus, 15 January 2007, A/HRC/4/16“...The Special Rapporteur regrets that the Government of Belarus, in 2006 as in 2004 and 2005, has not responded favourably to his request to visit the country and has in general not cooperated with him in the fulfilment of his mandate......13. Since his last report, the Special Rapporteur has remained concerned that Belarus is the last country in Europe to apply the death penalty. The situation in the country is still characterized by harsh conditions of pre-trial detention, the practice of torture and other inhuman treatment, and excessive use of force by the police...”4. UN General Assembly, Situation of human rights in Belarus : resolution / adopted by the General Assembly, 20 March 2008, A/RES/62/169“...The situation of human rights in Belarus in 2007 continued to significantly deteriorate, as documented in the reports of the Office for Democratic Institutions and Human Rights of the Organization for Security and Cooperation in Europe and the report of the Special Rapporteur on the situation of human rights in Belarus, which found that systematic violations of human rights continue to take place in Belarus......1. [The Assembly] expresses deep concern:(a) About the continued use of the criminal justice system to silence political opposition and human rights defenders, including through arbitrary detention, lack of due process and closed political trials of leading opposition figures and human rights defenders;(b) About the failure of the Government of Belarus to cooperate fully with all the mechanisms of the Human Rights Council, in particular with the Special Rapporteurs on the situation of human rights in Belarus, while noting the serious concern relating to the continued and systematic violations of human rights in Belarus...”5. The Country Report on Human Rights Practices by the US Department of State38. The Country Report on Human Rights Practices of the US Department of State (hereafter “the Reports”) for 2008, released on 25 February 2009, noted with respect to Belarus:“The government’s human rights record remained very poor as government authorities continued to commit frequent serious abuses......Prison conditions remained extremely poor, and reports of abuse of prisoners and detainees continued. Arbitrary arrests, detentions, and imprisonment of citizens for political reasons, criticizing officials, or for participating in demonstrations also continued...c. Torture and Other Cruel, Inhuman, or Degrading Treatment or PunishmentThe law prohibits such practices; however, the Belarusian Committee for State Security (BKGB), the Special Purpose Detachment riot police (OMON), and other special forces continued to beat detainees and demonstrators......Police also beat individuals during arrests and in detention for organizing or participating in demonstrations or other opposition activities......On September 2, 2008, the International Federation of Human Rights (FIDH) in cooperation with the domestic human rights NGO "Vyasna" released a joint report, Conditions of Detention in Belarus, based on interviews with more than 30 persons. The report noted "substantial evidence" of the use of torture and mistreatment of suspects during criminal and administrative investigations...e. Denial of Fair Public TrialThe constitution provides for an independent judiciary; however, the government did not respect judicial independence in practice. Corruption, inefficiency, and political interference were prevalent in the judiciary.There was evidence that prosecutors and courts convicted individuals on false and politically motivated charges, and that executive and local authorities dictated the outcomes of trials...”6. Amnesty International Report on Human Rights 2009“...Death penalty...According to media reports, four people were executed during the year......In December, Belarus abstained on a UN General Assembly resolution calling for a worldwide moratorium on executions...” D. Relevant international and domestic materials concerning conditions of detention and transportation1. Recommendation Rec(2006)2 of the Committee of Ministers to member states on the European Prison Rules39. The relevant extracts from the European Prison Rules read as follows:“4. Prison conditions that infringe prisoners’ human rights are not justified by lack of resources....10.1 The European Prison Rules apply to persons who have been remanded in custody by a judicial authority or who have been deprived of their liberty following conviction....18.1 The accommodation provided for prisoners, and in particular all sleeping accommodation, shall respect human dignity and, as far as possible, privacy, and meet the requirements of health and hygiene, due regard being paid to climatic conditions and especially to floor space, cubic content of air, lighting, heating and ventilation.18.2 In all buildings where prisoners are required to live, work or congregate:a.  the windows shall be large enough to enable the prisoners to read or work by natural light in normal conditions and shall allow the entrance of fresh air except where there is an adequate air conditioning system;b.  artificial light shall satisfy recognised technical standards; and...18.3 Specific minimum requirements in respect of the matters referred to in paragraphs 1 and 2 shall be set in national law.18.4 National law shall provide mechanisms for ensuring that these minimum requirements are not breached by the overcrowding of prisons....19.3 Prisoners shall have ready access to sanitary facilities that are hygienic and respect privacy.19.4 Adequate facilities shall be provided so that every prisoner may have a bath or shower, at a temperature suitable to the climate, if possible daily but at least twice a week (or more frequently if necessary) in the interest of general hygiene....21. Every prisoner shall be provided with a separate bed and separate and appropriate bedding, which shall be kept in good order and changed often enough to ensure its cleanliness.22.1 Prisoners shall be provided with a nutritious diet that takes into account their age, health, physical condition, religion, culture and the nature of their work.22.2 The requirements of a nutritious diet, including its minimum energy and protein content, shall be prescribed in national law.22.3 Food shall be prepared and served hygienically.22.4 There shall be three meals a day with reasonable intervals between them....27.1 Every prisoner shall be provided with the opportunity of at least one hour of exercise every day in the open air, if the weather permits....32.2 The transport of prisoners in conveyances with inadequate ventilation or light, or which would subject them in any way to unnecessary physical hardship or indignity, shall be prohibited.”2. European Committee for the Prevention of Torture and Inhuman and Degrading Treatment and Punishment (“the CPT”)40. Relevant extracts from the reports of the Committee for the Prevention of Torture following the Committee’s visits to Ukraine in 1998 – 2002 can be found in the judgment in the case of Yakovenko v. Ukraine, (no. 15825/06, §§ 56-61).3. The Ukrainian Parliament Commissioner for Human Rights41. On 14 January 2004 the Ukrainian Parliament Commissioner for Human Rights, after her visit to the penitentiary institutions of the Autonomous Republic of Crimea (hereinafter, “the ARC”), in her address to the members of the Verkhovna Rada of the ARC, published on the Ukrainian Parliament Commissioner’s Internet site, mentioned the overcrowding in the Simferopol SIZO, lack of daylight in the cells, the absence of outside walks and insufficient nutrition. In the majority of the ITTs visited by her, the detainees were provided with food only once a day. In the Sevastopol ITT there were 206 persons detained while there were only 82 places.42. On 11 August 2008 the press service of the Ukrainian Parliament Commissioner for Human Rights published a press release on the Commissioner’s further visit to the penitentiary institutions of the ARC. The Sevastopol ITT was described as the worst. The cells were dirty, without sufficient daylight and ventilation, and outside walks were not regular. The detainees were not provided with mattresses, covers or bed linen. The cells were overcrowded and the detainees slept in turns. The conditions of transportation between the Sevastopol ITT and the Simferopol SIZO were unbearable. In particular, on 9 June 2008, 34 detainees were taken to the Sevastopol ITT but after spending 6 hours locked in the vehicle were sent back to the Simferopol SIZO because of overcrowding in the ITT. The trip lasted 14 hours and the detainees were practically not allowed to use the toilet and were not provided with water or food.THE LAWI. ALLEGED VIOLATIONS OF ARTICLES 2, 3 AND 6 OF THE CONVENTION IN RESPECT OF THE APPLICANT’S EXTRADITION TO BELARUS43. The applicant complained that if extradited to Belarus he could be subjected to capital punishment contrary to Article 2 of the Convention. He further complained under Article 3 of the Convention that there was a risk of his being subjected to torture and inhuman and degrading treatment by the Belarusian law-enforcement authorities. In particular, the applicant complained that the prospect of possible capital punishment caused him intense moral suffering. The applicant also complained under Article 6 of the Convention that if extradited to Belarus he would face an unfair trial.The invoked Articles, in so far as relevant, read as follows:Article 2“Everyone’s right to life shall be protected by law. No one shall be deprived of his life intentionally save in the execution of a sentence of a court following his conviction of a crime for which this penalty is provided by law ....”Article 3“No one shall be subjected to torture or to inhuman or degrading treatment or punishment.”Article 6“ In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law ...”A. Admissibility44. The Government noted that as there had been no decision to extradite the applicant he could not claim to be a victim of the alleged violations. The Government further indicated that no decision on extradition would be taken until this Court took further decision concerning the application of interim measures or decided on the merits of the applicant’s complaint.45. The applicant submitted that, although there had been no formal decision on his extradition, his prolonged detention could not be explained by any other reason than by an intention to extradite him. Therefore, even in the absence of any formal decision taken by the Ukrainian authorities, he could still be regarded as a victim of the alleged violations.46. The Court notes that the applicant was arrested in June 2007 on the basis of an international warrant. Subsequently, the Prosecutor General’s Office of Belarus requested the applicant’s extradition. The applicant’s detention pending extradition was authorised by the Balaklava Local Court on 3 August 2007, without setting a time-limit for that detention and in circumstances under which domestic law does not impose a time-limit. In the absence of any other domestic decision authorising the applicant’s continuing detention, which is still continuing two years and nearly five months after it began, the Court is of the opinion that the applicant’s detention is still “pending extradition”, even though no decision on extradition has been adopted. The Court would note that its indication under Rule 39 of the Rules of Court related to the applicant’s extradition and not to his detention. The Court is of the opinion that the applicant is still under a threat of extradition and has not lost his victim status.47. The Court notes that the applicant’s complaints are not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. It further notes that they are not inadmissible on any other grounds. They must therefore be declared admissible.B. Merits1. The parties’ submissions(a) The Government48. The Government argued that the application of Rule 39 of the Rules of Court had prevented the GPO from taking any decision on the applicant’s extradition and thus from assessing the potential risks the applicant would face in Belarus. Therefore, in the absence of any decision, the Court was not in a position to decide whether there had been any violation of the applicant’s rights, since the State’s actions had so far been of a “preparatory” nature and did not indicate their “official” position.49. The Government further pointed out that the Prosecutor General of Belarus had provided sufficient assurances against any treatment contrary to Articles 2 and 3 of the Convention and against an unfair trial in the applicant’s criminal case. The Government stated that the applicant’s allegations about his possible ill-treatment were unsubstantiated since he had been wanted because of the criminal case pending against him and not because of his involvement in opposition activities such as the foundation of a youth organisation or a rock music group. The Government further indicated that there was no evidence in support of the applicant’s allegations that these activities had been regarded as subversive or had been banned.50. The Government lastly submitted that although in the past the Court had not excluded that an issue might exceptionally be raised under Article 6 of the Convention by an extradition decision in circumstances where the fugitive had suffered or risked suffering a flagrant denial of a fair trial in the requesting country, the facts of the present case did not disclose such a risk. In particular, there were no grounds to question the reasonableness and lawfulness of the decision of the Supreme Court of Belarus of 18 May 2002 and the applicant’s statements about the risk of an unfair trial were explained by his unwillingness to stand trial. The Government further referred to the provisions of the Code of Criminal Procedure of Belarus on the presumption of innocence and indicated that this provision was a sufficient guarantee against an unfair trial in the applicant’s criminal case.(b) The applicant51. The applicant believed that the application of Rule 39 of the Rules of Court did not prevent the Government from taking decisions within their jurisdiction but had been aimed at stopping the execution of such decisions. The applicant further referred to the Soldatenko v. Ukraine case (cited above) and indicated that the General Prosecutor’s Office of Belarus was not empowered to give diplomatic assurances and, moreover, that the Government of Ukraine were not in a position to review compliance by the Government of Belarus with the assurances provided. In particular, the Prosecutor General of Belarus could not sufficiently guarantee that the death penalty would not be imposed in the applicant’s case since it was the court alone which decided on the punishment and the prosecutor being a party to the proceedings could not influence it.52. Furthermore, the Republic of Belarus had failed to cooperate with international organisations on different levels, did not submit regular reports under the International Covenant on Civil and Political Rights and the Convention against Torture, and ignored recommendations of the relevant UN Committees. Moreover, in 2005-2007 on a number of occasions the Belarusian authorities had refused entry to the country to a number of representatives of the relevant international organisations; among others, the Rapporteur of the Committee on Legal Affairs and Human Rights of the Parliamentary Assembly of the Council of Europe and the UN Special Rapporteur. The applicant further pointed out that the reliability of the information provided by the Belarusian authorities was very low and that the Government of Ukraine should have demonstrated the special means at their disposal by which they were intending to obtain reliable information about the implementation of the assurances provided.53. The applicant believed that in the event of extradition he would run a real risk of being ill-treated and tortured in order to extort his confession. In particular, the applicant stated that he had already been ill-treated by the police during the pre-trial investigation into his criminal case in 2001. Moreover, significant evidence collected by the international bodies confirmed that the practice of torture and ill-treatment in order to extract a confession or to intimidate political opponents and activists was widespread in Belarus.2. The Court’s assessment(a)  The relevant principles54. The Court observes at the outset that the Contracting States have the right, as a matter of well-established international law and subject to their treaty obligations, including the Convention, to control the entry, residence and expulsion of aliens. However, the Court has not in earlier cases excluded the possibility that a Contracting State’s responsibility might be engaged under Article 2 of the Convention or Article 1 of Protocol No. 6 where an alien is deported to a country where he or she is seriously at risk of being executed, as a result of the imposition of the death penalty or otherwise (see, Soering v. the United Kingdom, 7 July 1989, Series A no. 161). The Court also notes that there had to be a “near-certainty” of loss of life to make expulsion an “intentional deprivation of life” prohibited by Article 2 (see Dougoz v. Greece (dec.), no. 40907/98, 8 February 2000).55. In Öcalan v. Turkey ([GC], no. 46221/99, ECHR 2005-IV), the Grand Chamber of the Court noted that the territories encompassed by the member States of the Council of Europe had become a zone free of capital punishment and that it could be said that capital punishment in peacetime, having regard, inter alia, to the fact that all member States had signed Protocol No. 6 and almost all had ratified it, had come to be regarded as an unacceptable form of punishment which was no longer permissible under Article 2 of the Convention (ibid., § 163; for a survey on the Council of Europe’s stance regarding capital punishment, see Öcalan, §§ 58 and 59). The Court, however, abstained from reaching any firm conclusion as to whether Article 2 of the Convention could be considered to have been amended so as to prohibit the death penalty in all circumstances (ibid., § 165) but concluded that it would be contrary to the Convention, even if Article 2 were to be construed as still permitting the death penalty, to implement a death sentence following an unfair trial, as an arbitrary deprivation of life was prohibited (Öcalan v. Turkey [GC], no. 46221/99, § 166, ECHR 2005‑IV). The Court also found that to impose a death sentence on a person after an unfair trial would generate, in circumstances where there existed a real possibility that the sentence would be enforced, a significant degree of human anguish and fear, bringing the treatment within the scope of Article 3 of the Convention (ibid., §§ 168‑169).56. Consequently, an issue may arise under Articles 2 and 3 of the Convention if a Contracting State deports an alien who has suffered or risks suffering a flagrant denial of a fair trial in the receiving State, the outcome of which was or is likely to be the death penalty (see Bader and Kanbor v. Sweden, no. 13284/04, § 42, ECHR 2005‑XI).57. Furthermore, the expulsion of an alien by a Contracting State may give rise to an issue under Article 3, and hence engage the responsibility of that State under the Convention, where substantial grounds have been shown for believing that the person in question, if deported, would face a real risk of being subjected to treatment contrary to Article 3 in the receiving country. In these circumstances, Article 3 implies an obligation not to deport the person in question to that country (see, among other authorities, Saadi v. Italy [GC], no. 37201/06, §§ 124-125, ECHR 2008-...). The establishment of such responsibility inevitably involves an assessment of conditions in the receiving country against the standards of Article 3 of the Convention. Nonetheless, there is no question of adjudicating on or establishing the responsibility of the receiving country, whether under general international law, under the Convention or otherwise. In so far as any liability under the Convention is or may be incurred, it is liability incurred by the Contracting State which deports or, as in the present case, extradites an individual, by reason of its having taken action which has as a direct consequence the exposure of that individual to proscribed ill-treatment (see Soering v. the United Kingdom, 7 July 1989, §§ 89-91, Series A no. 161, and Garabayev v. Russia, no. 38411/02, § 73, 7 June 2007, ECHR 2007‑VII (extracts)).58. In determining whether it has been shown that the applicant runs a real risk, if deported or extradited, of suffering treatment proscribed by Article 3, the Court will assess the issue in the light of all the material placed before it, or, if necessary, material obtained proprio motu. In cases such as the present the Court must examine the foreseeable consequences of sending the applicant to the receiving country, bearing in mind the general situation there and his personal circumstances (see Vilvarajah and Others v. the United Kingdom, 30 October 1991, § 108 in fine, Series A no. 215). To that end, as regards the general situation in a particular country, the Court has often attached importance to the information contained in recent reports from independent international human-rights-protection associations such as Amnesty International, or governmental sources, including the US State Department (see, for example, Chahal v. the United Kingdom, 15 November 1996, §§ 99-100, Reports 1996‑V; Müslim v. Turkey, no.o53566/99, § 67, 26 April 2005; Said v. the Netherlands, no. 2345/02, § 54, 5 July 2005; Al‑Moayad v. Germany (dec.), no.o35865/03, §§ 65-66, 20 February 2007; and Saadi v. Italy [GC], cited above, §§ 143-146).59. Furthermore, even if diplomatic assurances have been given, the Court is not absolved from the obligation to examine whether such assurances provided, in their practical application, a sufficient guarantee that the applicant would be protected against the risk of treatment prohibited by the Convention (see Chahal, cited above, § 105, and Saadi v. Italy [GC], cited above, § 148).(b)  Application of the above principles to the present case60. Referring to its findings above, the Court reiterates that, given the Ukrainian court’s decision to detain the applicant pending his extradition, his lengthy detention and the refusals to release him, and in the absence of any formal refusal to extradite the applicant, he can still be regarded at present as running a risk of extradition in view of a criminal case pending against him in Belarus.61. The Court notes that in 2001 the applicant was charged with murder and robbery but acquitted by the courts at two instances. In less than four months these decisions were quashed under the extraordinary review procedure by the Presidium of the Supreme Court of Belarus and the case was remitted for fresh consideration. Without pre-judging the merits of the applicant’s complaint under Article 6 of the Convention, the Court notes that in a number of cases a similar procedure has been found not to be in compliance with the guarantees of a fair trial (see, for example, concerning civil proceedings, Brumărescu v. Romania [GC], no. 28342/95, ECHR 1999‑VII). At present, the criminal proceedings against the applicant are pending anew and one of the charges against him carries the death penalty as a possible punishment.62. The Court cannot speculate on the possible outcome of the applicant’s criminal case. However, the mere possibility of the imposition of capital punishment together with the prospect of an unfair trial, given the quashing of a final decision in the applicant’s case, is sufficient in the Court’s view to conclude that such situation generates for the applicant a sufficient anguish and mental suffering to fall within the ambit of Article 3 of the Convention.63. The Court further notes that despite the assurances provided by the Belarusian authorities, the international human rights reports show serious problems as regards the international cooperation of the Belarusian authorities in the field of human rights and particularly with respect to the abolition of the death penalty and the Ukrainian Government did not specify how in view of these difficulties they intended to monitor the implementation of the provided assurances.64. The Court also notes that both reports of the international and nongovernmental bodies refer to violations of human rights in Belarus and, in particular, to ill-treatment and torture. Although the reference to a general situation concerning human rights observance in a particular country cannot on its own serve a basis for refusal of extradition, there is an evidence in the present case, confirmed by the findings of the Belarusian courts, that the applicant has been already ill-treated by the Belarusian authorities. The Government did not show that the situation in respect to the applicant had changed to the extent which enables any possibility of ill-treatment in the future. Therefore, the Court cannot agree with the Government that the assurances given in the present case would suffice to guarantee against the serious risk of ill-treatment in the event of the applicant’s extradition (see Soldatenko v. Ukraine, cited above, §§ 73-74).65.

Article of the Convention at issue: Article 5
Outcome: violation