FIFTH SECTION
 
 
 
 
 
 
CASE OF D.L. v. AUSTRIA
 
(Application no. 34999/16)
 
 
 
 
 
 
 
 
 
 
JUDGMENT
 
 
STRASBOURG
 
7 December 2017
 
 
 
FINAL
 
09/04/2018
 
This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision. In the case of D.L. v. Austria,
The European Court of Human Rights (Fifth Section), sitting as a Chamber composed of:
 Angelika Nußberger, President,
 Erik Møse,
 André Potocki,
 Síofra O’Leary,
 Mārtiņš Mits,
 Gabriele Kucsko-Stadlmayer,
 Lәtif Hüseynov, judges,
and Milan Blaško, Deputy Section Registrar,
Having deliberated in private on 14 November 2017,
Delivers the following judgment, which was adopted on that date:
PROCEDURE
1. The case originated in an application (no. 34999/16) against the Republic of Austria lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Serbian national, Mr D.L. (“the applicant”), on 20 June 2016. 2. The applicant was represented by Mr O. Dietrich, a lawyer practising in Vienna. The Austrian Government (“the Government”) were represented by their Agent, Mr H. Tichy, Head of the International Law Department at the Federal Ministry for Europe, Integration and Foreign Affairs. 3. The applicant complained under Articles 2 and 3 of the Convention that he would run risk of torture, inhuman or degrading treatment or even death if he were extradited to Kosovo[1]. 4. On 22 June 2016 the Vice-President of the Section to which the case had been allocated decided to apply Rule 39 of the Rules of Court, indicating to the Government that the applicant should not be extradited to Kosovo for the duration of the proceedings before the Court, and granted priority to the application under Rule 41 of the Rules of Court. 5. On 5 September 2016 the complaints concerning Articles 2 and 3 of the Convention were communicated to the Government and the remainder of the application was declared inadmissible pursuant to Rule 54 § 3 of the Rules of Court. At the same time, the President of the Section granted anonymity to the applicant under Rule 47 § 4 and decided that the case file be treated confidentially (Rule 33). 6. The parties submitted observations in writing and subsequently replied to each other’s observations. In addition, third-party comments were received from the Serbian Government, having exercised their right to intervene (Article 36 § 1 of the Convention and Rule 44 § 1 of the Rules of Court). The parties replied to those comments. THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
7. The applicant was born in 1973, lives in Austria since 2001 and is currently in detention pending extradition at Vienna-Josefstadt Prison. 8. The application concerns proceedings for extradition from Austria to Kosovo, which have the following background:
9. S.Lu. is the former husband of the applicant’s sister, T.L. In the course of an argument on 9 October 2001, S.Lu. stabbed the applicant in the chest. On 27 May 2002 S.Lu. was convicted in Austria of attempted intentional homicide (versuchter Totschlag) committed in a comprehensible state of emotion (in einer allgemein begreiflichen heftigen Gemütsbewegung) under Articles 15 and 76 of the Criminal Code (Strafgesetzbuch) and sentenced to five years’ imprisonment. The applicant testified as a witness during that trial. 10. After S.Lu. was released from prison in 2005, the applicant’s sister reported him to the police for having repeatedly raped her during their marriage, and for threatening to kill her and her family. Out of fear of her husband, she changed her and her children’s names. An order to determine S.Lu.’s whereabouts (Ausschreibung zur Aufenthaltsbestimmung) was issued by the Vienna public prosecutor’s office in 2008 and is in effect until 2 February 2018. 11. On the basis of an international arrest warrant issued by the Mitrovica District Court (Kosovo) on 26 November 2010 and 6 May 2011, the applicant was apprehended and taken into detention pending extradition by a decision of the Vienna Regional Criminal Court (Straflandesgericht Wien – hereinafter “the Criminal Court”) of 15 January 2016. On 20 January 2016 the Ministry of Justice of Kosovo requested the applicant’s extradition. According to the arrest warrant, the applicant was suspected of aggravated murder under Article 147 § 7 in conjunction with Article 24 of the Kosovo Criminal Code. He had allegedly ordered L.Q. in July 2010 to murder S.Lu. (his former brother-in-law) for a payment of 30,000 euros (EUR). On 3 August 2010 L.Q. fired gunshots at a car in the vicinity of the intended victim S.Lu., but instead killed N.Lu., S.Lu.’s cousin. 12. During the extradition proceedings, the applicant alleged that he had nothing to do with the murder in Kosovo. He claimed that the accusations had been invented by S.Lu. as revenge for the applicant’s having testified against him during the criminal proceedings in Austria. Furthermore, the “Lu. clan” (the family of S.Lu.) was very influential in Kosovo and had connections to the highest Government officials and the justice authorities there, which is why the applicant could not expect a fair trial in that jurisdiction. In addition, the conditions of detention in Kosovo prisons were deplorable and would amount to torture, inhuman and degrading treatment. Because of the threat emanating from S.Lu. and his family, the applicant would have to fear for his life there. They could easily get to him in prison by using their connections. 13. On 24 February 2016, after having held an oral hearing, the Criminal Court declared the applicant’s extradition to Kosovo permissible. It held that during the extradition proceedings, the court was not called on to examine whether the applicant was guilty or innocent, but merely to assess whether there was enough evidence to raise suspicions against him, which according to the documents submitted by the Kosovo authorities was the case. None of the evidence offered by the applicant had been capable of dispelling these suspicions immediately and without doubt, as would have been required by section 33(2) of the Extradition and Legal Aid Act (Auslieferungs- und Rechtshilfegesetz – hereinafter “the Extradition Act”). The fact that S.Lu. had been convicted of attempted intentional homicide in 2002 and the allegation that he wanted to take revenge on the applicant did not dispell the suspicion either. Furthermore, the court remarked that S.Lu.’s cousin had actually been killed, which called into question the applicant’s theory of that being a contrived story. It could equally be argued that the applicant had wanted to take revenge on S.Lu. for stabbing him. Concerning the applicant’s fear for his life in Kosovo, the court stated that the mere possibility of inhuman or degrading treatment did not suffice. The applicant had failed to adduce specific evidence of an actual, individual threat of treatment contrary to Article 3 of the Convention. Furthermore, in case of extradition to a member state of the Convention, the responsibility of the extraditing state was limited, as the person concerned could seek protection against a violation of the Convention in the receiving state. 14. On 24 March 2016 the applicant appealed. He submitted that if extradited to Kosovo, he risked treatment contrary to Article 3, because Lu. Clan wished to take revenge on him. In fact, Sm. Lu., a very influential member of that clan, was detained at Mitrovica prison and following extradition to Kosovo, he would be detained at that prison as well. Security in prison in Kosovo was a problem, as prisoners became frequently victims of aggression, and he would therefore also risk to become the victim of an assault. 15. On 31 May 2016 the Vienna Court of Appeal (Oberlandesgericht Wien ‑ hereinafter “the Court of Appeal”) dismissed the applicant’s appeal. It confirmed the Criminal Court’s finding that the applicant had failed to substantiate a real and individual risk of being subjected to torture, inhuman or degrading treatment, or that the Kosovo authorities would not be able to protect him from third, private parties. Furthermore, members of the allegedly influential Lu. clan were themselves imprisoned in Kosovo. In particular, on 21 January 2008 S.Lu. was convicted in Kosovo for issuing a dangerous threat against the applicant, which demonstrated that the Kosovo authorities were indeed capable of taking adequate measures to protect the applicant. Moreover, the Lu. clan could not be that influential if it was not capable of keeping its own members out of prison. Concerning the conditions of detention, the court held that the report on Kosovo by the Committee for the Prevention of Torture (hereinafter “the CPT”) of 2011 (see paragraph 30 below) did not state that ill-treatment was the rule in Kosovo prisons, but that there were merely sporadic incidents of violence. The mere possibility of ill-treatment by prison officers did not suffice to stop the applicant’s extradition. In relation to the material conditions of detention in Mitrovica Detention Centre, where the applicant alleged he would most likely be held if extradited, the Court of Appeal again quoted the above-mentioned CPT report of 2011, where it was found that inmates were able to move freely within that facility during the day and could exercise outside on a daily basis for three and a half hours, and that fitness and computer rooms have recently been installed. 16. On 13 June 2016 the Austrian Federal Minister of Justice (Justizminister) approved the applicant’s extradition to Kosovo. 17. On 20 June 2016 the applicant requested that the Court indicate to the Austrian Government to stay his extradition to Kosovo under Rule 39 of the Rules of Court. He complained under Articles 2 and 3 of the Convention that he would run the risk of torture, inhuman or degrading treatment or even death, as the Lu. clan wanted to take revenge on him and the Kosovo authorities were not willing or able to afford him protection. 18. On 22 June 2016 the Court granted the applicant’s request. 19. On 17 June 2016 the applicant lodged applications for the reopening (Wiederaufnahme) of the extradition proceedings and a stay of the extradition with the Criminal Court. He produced a certified declaration by L.Q., who had retracted his previous confession to the police that the applicant had ordered the murder of S.Lu. He asserted that he had been tortured by the Kosovo police during his questioning and had been pressured into blaming the applicant for ordering the murder. L.Q. alleged that he had fallen unconscious several times because of the “mental and physical torture”. L.Q. averred that he did not even know the applicant in person. The applicant further submitted into evidence several sworn statements from family members and friends, who attested that his life was in danger in Kosovo because of threats from S.Lu. and his clan. 20. On 23 June 2016 the Criminal Court dismissed the applicant’s applications. It held that in accordance with section 33(2) of the Extradition Act, the applicant had failed to adduce evidence which would have been capable of immediately dispelling the suspicion against him raised in the extradition request. L.Q.’s declaration did not constitute objective evidence and did not indicate any violations in Kosovo of the applicant’s rights under the Convention either. The applicant appealed. 21. On 18 July 2016 the applicant lodged an application for a renewal (Erneuerung) of the extradition proceedings with the Supreme Court under Article 363a of the Code of Criminal Procedure (Strafprozessordnung – hereinafter “the CCP”), requesting suspensive effect at the same time. 22. On 6 September 2016 the Supreme Court rejected the applicant’s application. It found that the new evidence the applicant had produced in the proceedings before it were a matter for the pending reopening proceedings, not for requesting a renewal of the extradition proceedings. In relation to the alleged violations of Articles 2 and 3 of the Convention in the event of his extradition, the Supreme Court found that mere allegations referencing general reports on the human rights situation were not capable of substantiating a real and immediate risk to the applicant under these provisions. Furthermore, the Supreme Court held that the applicant did not have a right under the law to request suspensive effect, which is why that request had to be rejected. 23. On 24 January 2017 the Court of Appeal dismissed the applicant’s appeal against the Criminal Court’s decision of 23 June 2016 (see paragraph 20 above). The court found that the applicant had failed to produce objective evidence which would have indicated a real and immediate risk of treatment contrary to Article 3 of the Convention if extradited to Kosovo and therefore would have warranted a reopening of the extradition proceedings. While the sworn statement by L.Q. in principle raised doubts in relation to the suspicions against the applicant, it had not constituted the only evidence against him. More pertinent had been the fact that, during the criminal proceedings against L.Q. in Kosovo, a microcassette had been put into evidence by S.Lu. which had allegedly contained a conversation confirming his statements that the applicant had been to blame for the murder. In addition, L.Q.’s initial incriminating statements against the applicant had been made in the presence of his lawyer. Moreover, L.Q. had not specified what exactly the police had allegedly done to him, which had made it impossible to evaluate whether the alleged treatment had actually amounted to torture, inhuman or degrading treatment. The Court of Appeal reiterated that it was in any event for the Kosovo courts to evaluate the evidence against the applicant. In sum, it confirmed that the statement by L.Q. was not capable of immediately dispelling the suspicion against the applicant on which the extradition request was based. Lastly, the Court of Appeal found that despite not being a State Party to the Convention or the Council of Europe, Article 22 of the Constitution of Kosovo granted the Convention direct effect under and superiority to national law, therefore domestic law equally offered protection from violations of the Convention. The Court of Appeal’s decision to dismiss the applicant’s appeal was served on his counsel on 30 January 2017. II. RELEVANT DOMESTIC AND INTERNATIONAL LAW AND PRACTICE
A. Domestic law
24. Following an exchange of diplomatic communiqués between Kosovo (which is recognised by Austria as a subject of international law) and Austria, the bilateral agreement on extradition between the Republic of Austria and the Socialist Federal Republic of Yugoslavia (Federal Law Gazette no. 546/83) continues to apply between them. Article 4 § 2 of that agreement provides that an extradition shall not be granted if incompatible with the obligations of the requesting State stemming from multilateral agreements. 25. Section 19 of the Extradition Act stipulates that extradition is not permissible:
“if it is to be feared that
1. the criminal proceedings in the requesting State will not be or have not been in compliance with the principles of Articles 3 and 6 of the Convention ...,
2. the penalty or preventive measure imposed or expected in the requesting State will be executed in a manner not in compliance with the requirements of Article 3 of the Convention ..., or
3. the person to be extradited will be subjected to persecution because of his or her origin, race, religion or affiliation with a particular ethnic or social group, nationality or political views, or owing to one of these reasons will have to expect severe repercussions (extradition asylum).”
26. Section 33 § 2 of the Extradition Act provides as follows:
“It is to be examined only whether the person concerned is sufficiently suspected of having committed the offence he or she is accused of according to the extradition request where there are serious doubts in that respect, in particular where evidence is available or offered which would be capable of dispelling the suspicion without delay.”
In examining the permissibility of an extradition, section 33 (3) of the Extradition Act requires the courts to take into account all possible obstacles emanating from inter-State obligations and constitutional requirements, including the Convention and the Additional Protocols thereto in accordance with the Court’s case-law. 27. Under the heading “Renewal of criminal proceedings” (Erneuerung des Strafverfahrens), Article 363a of the CCP provides, in so far as relevant:
“1.

Outcome for Article 3: no_violation