Human Rights Committee

Decision adopted by the Committee under the Optional Protocol, concerning communication No. 2989/2017 * , **

Communication submitted by:I. A. (represented by counsel Stanislovas Tomas)

A lleged victim:The author

State party:Lithuania

Date of communication:7 June 2017 (initial submission)

Document references:Decision taken pursuant to rule 97 of the Committee’s rules of procedure (now rule 92) transmitted to the State party on 12 June 2017 (not issued in document form)

Date of adoption of Views:26 July 2019

Subject matter:Extradition to Belarus

Procedural issues: Exhaustion of domestic remedies; substantiation of claims; abuse of the right to submission

Substantive issues: Cruel, inhuman or degrading treatment or punishment; conditions of detention; effective remedy; fair trial; family rights; voting and election

Articles of the Covenant: 2 (3) (1); 7; 10 (1); 14 (1); 17 and 25 (b)

Articles of the Optional Protocol:2, 3 and 5 (2) (b)

1.1The author of the communication is I. A., a citizen of Belarus born in 1982. He claims that Lithuania will violate his rights under articles 2 (3) (1), 7, 10 (1), 14 (1), 17 and 25 (b) of the Covenant if it proceeds with his extradition to Belarus. The author is represented by counsel. The Optional Protocol entered into force for Lithuania on 20 February 1992.

1.2On 12 June 2017, pursuant to rule 92 of its rules of procedure (now rule 94), the Committee, acting through its Special Rapporteur on new communications and interim measures, decided to grant the author’s request for interim measures and requested the State party not to extradite him to Belarus pending consideration of the communication by the Committee.

1.3On 12 July 2017, the State party requested the Committee to consider the admissibility of the communication separately from the merits and to lift the request for interim measures. On 3 August 2017, the Special Rapporteur on new communications and interim measures, acting on behalf of the Committee, decided to suspend consideration of the communication in view of non-exhaustion of domestic remedies and to lift the request for interim measures.

1.4On 29 December 2017, the Committee, acting through its Special Rapporteur on new communications and interim measures, decided to renew consideration of the communication and to reinstate the request for interim measures in view of new developments in the case.

Factual background

2.1The author was a director of a private company in Belarus. On 8 June 2009, he was charged under articles 210 (3) and (4) of the Criminal Code of Belarus (appropriation of property in large and particularly large amounts by an abuse of office). On 10 June 2009, an investigator of the department of interior of the Moscow district in Minsk ordered the author’s pretrial detention in SIZO No. 1 in Minsk, which was approved by the Moscow district prosecutor’s office in Minsk. The author left Belarus on an unspecified date in 2009. On 23 June 2009, a national arrest warrant was issued for him. Also in 2009 an inter-state warrant was issued for him and in April 2014, an international arrest warrant was issued. On 16 October 2013, the charges against the author were modified under articles 209 (3) and (4) of the Criminal Code of Belarus (fraud with appropriation of assets of large or particularly large amounts committed through an abuse of office).

2.2In 2012, the author arrived in Lithuania. In December 2013, he obtained a temporary residence permit there. On 11 November 2014, the author was detained by the Vilnius police department. On 12 November 2014, he was released on bail on condition of regular registration with the police. On 17 November 2014, the Office of the Prosecutor General of Lithuania received an extradition request from the Office of the Prosecutor General of Belarus. The request was based on the 1992 agreement between Lithuania and Belarus on legal assistance and legal relations in civil, family and criminal cases.

2.3On 23 December 2014, the author applied for asylum and subsidiary protection with the Migration Department of the Lithuanian Ministry of the Interior. The main claim in his application was persecution by the Belarusian authorities, owing to his business activities between 2007 and 2009, and renewed persecution in 2014. He claimed that the criminal charges against him were fabricated and that he belonged to a social group of entrepreneurs who were widely persecuted in Belarus. The Migration Department rejected his request on 27 October 2016 having found no grounds to consider that the criminal prosecution of the author was based on political motives or that there was a general threat of persecution of businessmen in Belarus.

2.4The author appealed to the Vilnius regional administrative court on 15 November 2016. He alleged that the Migration Department had failed to assess his claims, in particular whether he would have a fair trial if returned to his country of origin and whether the conditions of detention in Belarus were humane. On 3 February 2017, the Vilnius regional administrative court rejected his appeal. The Court noted, inter alia, that in his initial interview on 31 December 2009, the author had mentioned that he left Belarus to do business in Lithuania and that according to border records, he returned to Belarus after 2009 on numerous occasions. The Court found that the author had failed to establish a personal risk of torture, inhuman or degrading treatment, which he claimed he would be subjected to on the grounds of being a businessman. It also observed that the criminal investigation in the author’s case did not reveal signs of being disproportionate or discriminatory and that the Lithuanian law provided similar sanctions for the criminal offence in question.

2.5On 16 February 2017, the author filed an appeal to the Supreme Administrative Court. He clarified that he wanted to do business in Lithuania because he considered it a safe country, but that he left Belarus because of the threats and avoiding a crackdown. He returned to Belarus on several occasions only to obtain new visas for Lithuania. He had not been back to his country of origin since 2013, when he received his residence permit for Lithuania. On 17 May 2017, the Supreme Administrative Court rejected the author’s appeal in a final judgment. The author claimed that after his request for asylum and subsidiary protection was rejected, he would be extradited to Belarus.

2.6On an unspecified date the author submitted a complaint to the European Court of Human Rights. On an unspecified date, the Court rejected the author’s request for interim measures and the author withdrew his application.

2.7The author refers to several reports by Belarusian non-governmental organizations (NGOs) alleging inhuman conditions of detention in SIZO No. 1 in Minsk, where he would be placed after his extradition to Belarus. According to the reports, the size of an average cell in this facility is 15 m2 and holds at times 15 to 18 persons. Fifteen people receive five spoons for 30 minutes to allow them to eat. In winter there is ice on the walls and in summer they are wet and covered with fungi. Once every two days detainees are allowed to go out into the fresh air for 30 minutes. SIZO No.1 offers poor medical care. The author has been diagnosed with rheumatoid arthritis and was operated on in Lithuania due to streptococcus pneumoniae bacteria. The author submits that SIZO No. 1 does not have the infrastructure for detainees to have physical contact with their families and therefore he will not be able to have intimate relations with his wife. He claims that according to the NGO Viasna, only one out of 540 persons accused is acquitted in Belarus. On that basis the author alleges that he does not have chances to have a fair trial in case of extradition to Belarus. The author also submits that prisoners in Belarus are not allowed to vote.

The complaint

3.1The author claims that the decision of the Supreme Administrative Court of Lithuania to deny him subsidiary protection, allowing his extradition to Belarus and ensuing detention in SIZO No.1, violates his rights under articles 7 and 10 (1) of the Covenant in view of the conditions of detention in that facility.

3.2The author further claims that his extradition will violate article 14 (1) of the Covenant since the Belarusian public servants have already tried to extract bribes from him. He submits that the Supreme Administrative Court of Lithuania has not ordered Lithuanian diplomats to follow his trial and that the Views of the Committee are not implemented by Belarus.

3.3The author further claims that in view of impossibility of having intimate relations with his wife, since there is no such possibility in SIZO No.1 or in any other Belarusian detention facility, the State party will violate his rights to privacy and to family life under article 17 of the Covenant, should he be extradited.

3.4Lastly, the author claims that the State party will violate his right to vote under article 25 (b) of the Covenant, since Belarusian law does not recognize the right of prisoners to vote.

3.5The author requests the Committee to find a violation of his rights under the above-mentioned articles of the Covenant and to ask the State party to stop his extradition while the communication is pending before the Committee, re-open his case and compensate him for related costs and damages.

State party’s observations on admissibility

4.1By note verbale of 11 July 2016, the State party submitted its observations arguing that the communication is inadmissible as it is unsubstantiated under articles 3 and 5 (2) (b) of the Optional Protocol and asked the Committee to lift its request for interim measures. The State party submits in addition that the author has failed to exhaust available and effective domestic remedies and is misleading the Committee as to the domestic remedies available to him.

4.2On 17 November 2014, a request for the author’s extradition was submitted by the Office of the Prosecutor General of Belarus. On 19 October 2015, the Office of the Prosecutor General of Lithuania sent the request to extradite the author to Belarus to the Vilnius regional court. The author’s extradition case, however, were suspended in view of the ongoing proceedings regarding the author’s request for asylum. On 30 May 2017, after the asylum-related proceedings finished, the Vilnius regional court resumed proceedings, sent a summons to the author and informed his lawyer that the hearing was scheduled for 14 June 2017. In view of the Committee’s request for interim measures dated 12 June 2017, which the author’s counsel presented in the court on 14 June 2017, the Court postponed the hearing to 30 August 2017.

4.3The State party explains that the administrative proceedings related to the author’s asylum application, the proceedings in courts of general jurisdiction related to his extradition are separate venues and the only link between them is the fact that ongoing asylum proceedings lead to the extradition process being suspended. The decision of the Vilnius regional court in extradition cases may be appealed. There are clear criteria in the Lithuanian Criminal Code (article 9 (3)) to be assessed by the courts in extradition cases. Such criteria differ from those examined in asylum cases. The asylum proceedings have not touched upon the matter of the extradition of the author to Belarus.

4.4The State party submits that the European Convention on Human Rights and the European Court of Human Rights case law are directly applicable in Lithuanian courts. The domestic courts apply the standards of article 3 of the Convention to cases of degrading treatment of inmates in Lithuanian prisons. Article 3 covers situations, such as that of the author, therefore the domestic courts are obliged to assess whether the person will be subjected to treatment prohibited by article 3 of the Convention upon extradition.

4.5In view of the information above, the State party submits that the author’s communication is misleading since he failed to mention the proceedings in the court of first instance in his extradition case. The domestic proceedings in extradition cases have a suspensive effect. The author’s submission was most probably aimed at protracting the domestic proceedings in his extradition case, given the premature application for interim measures.

Author’s comments on the State party’s observations

5.1On 25 July 2017, the author submitted his comments to the State party’s observations, insisting that the interim measures should be maintained. On the matter of exhaustion of domestic remedies, the author claims that there is no formal obligation to exhaust all domestic remedies in the context of extradition. The threshold of imminence, however, requires making use of domestic remedies capable of suspending a removal. The author insists, however, that he has exhausted the available domestic remedies.

5.2The author submits that the courts of general jurisdiction which consider his extradition case will not be able to contradict the final judgment of the Supreme Administrative Court, which found no grounds to provide subsidiary protection to the author on the grounds of the conditions of detention in SIZO No. 1 and the lack of fair trial in Belarus. The State party has not shown a single case where the courts of general jurisdiction took a decision not to extradite an applicant whose asylum application was unsuccessful.

5.3The only useful effect of the proceedings before the courts of general jurisdiction is the fact that they suspend the removal.

5.4The author submits that one of the main principles of the interim measures is that the respective request shall be made in good time and as soon as possible. There is no need to wait for the final extradition decision, especially since the author has already raised the matter of degrading conditions of detention and an unfair trial in Belarus before the administrative courts. If a final court decision on his extradition has already been adopted, the author would have been extradited and would not have possibility to submit a request for interim measures. The Committee would not have had sufficient time to process such request.

Additional submissions by the parties

Author

6.On 21 August 2017, the author repeated his request for interim measures. He claims that he does not possess any documents permitting his stay in Lithuania since his asylum application has been rejected.

State party

7.On 1 September 2017, the State party responded to the additional information provided by the author, maintaining its position that the asylum and extradition proceedings are separate and independent procedures. The State submits that the author will not be extradited while his communication is being considered by the Committee. It adds that the legal status of the author may be reconsidered based on the reasoning and factual evaluation of the courts in his extradition case.

Author

8.1On 28 December 2017, the author submitted new information about the exhaustion of domestic remedies in the expulsion proceedings. On 6 November 2017, the Vilnius regional court adopted a decision to extradite the author to Belarus. On 15 December 2017, the Lithuanian Appeals Court rejected the author’s appeal and maintained the decision of the Vilnius regional court. The author requested the Committee to reinstate the request for interim measures.

8.2The courts found that the extradition criteria had been met and that there were no grounds for rejecting the extradition request of Belarussian authorities. The courts referred to the finding of the administrative courts in the author’s asylum case that there was no basis to consider the criminal prosecution of the author as politically motivated or discriminatory. The Courts dismissed the author’s claims about the risk of violation of his rights under articles 7, 10 (1), 14 (1), 17 and 25 (b) of the Covenant if he was extradited to Belarus. They stated that the extradition was regulated by a bilateral agreement between Lithuania and Belarus, and was based on the principle of mutual trust that the foreign State would implement its international obligations. The Lithuanian courts are not able to verify the allegations of the author. In particular, the courts are not in a position to evaluate the conditions of detention in a foreign country and even less are they able to find that they violate an international treaty to which the requesting State is a party. The domestic courts did not find grounds to conclude that Belarus would fail to protect the author’s fundamental rights and freedoms.

State party’s observations on the merits

9.1In a note verbale dated 18 May 2018, the State party provided its observations on the merits of the communication, stating that the author’s allegations should be considered inadmissible under article 2 of the Optional Protocol, considering their abstract nature and the fact that the national authorities had examined his case on the basis of safeguards established under national law.

9.2The State party submits that after resuming examination of the author’s extradition case, which had been suspended in view of the request of interim measures granted by the Committee, the Vilnius regional court held hearings on 30 August, 19 September and 9 October 2017. The Court took into account the author’s allegations that his extradition would be in violation of article 3 of the European Convention on Human Rights on account of the conditions of detention in Belarus prisons. The Court noted that the remand measure indicated by the author was based on the ongoing criminal investigation and the author’s absence from Belarus, and therefore it was not possible to predict whether, after the author’s extradition, it would be applied at all. The State party submits that Belarusian legislation provides for the possibility to appeal the order for detention on remand. Once the author is extradited, there is a possibility that the detention would be replaced with a lighter remand measure.

9.3On 6 November 2017, the Vilnius regional court granted the Prosecutor General’s request to extradite the author. In considering the author’s allegations, the court took due account of the findings of the administrative courts in his asylum case, as well as the fact that he had returned to Belarus from time to time after 2009. The final decision in the author’s extradition case was made by the Lithuanian Court of Appeal on 15 December 2017. On 4 January 2018, the Office of the Prosecutor General suspended the extradition of the author until the final deliberation of the case by the Committee.

9.4The State party submits that the relevant national legislation obliges the domestic authorities to ensure that a person is not subject to extradition if there are substantial grounds to believe that there is a real risk of irreparable harm in the requesting country. Article 9 (3) (8) of the Criminal Code and article 71 (3) (8) of the Criminal Procedure Code establish that extradition cannot take place if there exist other grounds provided for by the treaties to which the Republic of Lithuania is a party. The Covenant is among such treaties. The European Convention, with its article 3 applicable to the author’s case, is also one such treaty and has direct effect in Lithuania. National courts dealing with extradition cases are bound by the principles established in the European Convention. The State party refers to two cases in which extradition requests were denied based on the successful asylum claim of the applicants and the principle of non-refoulement.

9.5In his allegations, the author refers to general conditions of detention in Belarus, claiming that he will be placed in SIZO No. 1 in Minsk. The State party submits that the author’s allegations are vague and abstract in nature, and that the national courts could not consider them seriously when examining his extradition case. The State party refers to the case-law of the European Court of Human Rights in similar extradition cases, in which the Court did not find a violation, stating that “reference to a general problem concerning human rights observance in a particular country cannot alone serve as a basis for refusal of extradition” and that “there is no indication that the human rights situation in Belarus is serious enough to call for [a] total ban on extradition to that country”) and that the applicant did not “refer to any individual circumstances which could substantiate his fears of ill-treatment and unfair trial”. The State party concludes that the author refers to conditions in Belarus prisons in a general and unsubstantiated manner and does not indicate any individual risks related to his person, given the substance of his extradition case. Following the jurisprudence of the European Court, the domestic courts are not in a position to assess the general prison conditions in another country, in the absence of sufficient material from the author.

9.6According to the State party, the author’s allegations about the lack of a fair trial on the basis that Belarusian public servants have already tried to extract bribes from him, are general and unsubstantiated and not linked to any individual circumstances. The State party abstained from comments on further hypothetical consequences of the author’s possible detention, considering their uncertain nature.

9.7In conclusion, the State party states that allowing such vague references to possible human rights violations in extradition cases, such as the author’s case, to be used would severely impede the system of extradition between States. The current case is an example of the possibility of delaying extradition in cases without any sufficient material as to the individual threat against the person to be extradited. That poses a risk to the effectiveness of criminal investigations, especially when a suspect is hiding in a foreign country.

Author’s further comments to the State party’s observations

10.1In his comments dated 18 July 2018, the author raises two additional claims under articles 2 (3) (1) and 14 (1) of the Covenant, on account of the failure of the domestic courts of the State party to evaluate in substance his claims and thus their failure to provide him with an effective remedy in his extradition case.

10.2The author states that the State party should not extradite him to Belarus because the latter has not implemented the Views of the Committee or the 2018 concluding observations of the Committee against Torture (CAT/C/BLR/CO/5). The author refers in particular to paragraphs 21 and 22 of the concluding observations of the Committee against Torture in which the Committee notes the deplorable conditions of places of deprivation of liberty in Belarus.

10.3The author claims that the NGO reports provided by him in his initial submission describe the situation in Belarus detention facilities, among them SIZO No.1 in Minsk. Having the status of a remand prisoner in SIZO No.1 makes his allegations about the conditions of detention there feel personal. The burden of proof is on the State party to provide evidence that detention compatible with articles 7 and 10 of the Covenant is possible.

10.4The author clarifies that he does not claim that there should be a total ban on extradition to Belarus. However, in cases where an extradition request concerns the death penalty or life imprisonment, the State party makes an arrangement with the requesting party that the death penalty will not be applied and that the individual concerned be released on parole after 20 years in prison. By analogy, the State party should make an arrangement with Belarus that the author will not be detained or imprisoned and that the sanction will be limited to a fine or house arrest.

10.5Replying to the State party’s allegation that the author returned to Belarus in 2009, the author clarifies that he stopped going there after he found out about the detention order dated 10 June 2006.

10.6According to the author, the State party’s statement that his pretrial detention could be substituted for a less restrictive measure is a speculation without any supporting evidence.

10.7The author repeats his claims under articles 7, 10 (1), 14 (1), 17 and 25 (b), asks the Committee for compensation of non-pecuniary damages in the amount of 10,000 euros and for compensation of the costs of the proceedings.

Issues and proceedings before the Committee

Consideration of admissibility

11.1Before considering any claim contained in a communication, the Committee must decide, in accordance with rule 97 of its rules of procedure, whether the communication is admissible under the Optional Protocol.

11.2As required under article 5 (2) (a) of the Optional Protocol, the Committee has ascertained that the same matter is not being examined under another procedure of international investigation or settlement.

11.3The Committee notes the State party’s claim that the author has failed to exhaust domestic remedies and abused the right to submission by misleading the Committee on the matter. The Committee also notes the author’s argument that the domestic remedies in the expulsion proceedings were not effective and that the decision of the Supreme Administrative Court of Lithuania of 17 May 2017 rejecting his asylum claim was the final effective remedy. The Committee also notes the author’s allegation that there is no formal obligation to exhaust all domestic remedies in the context of extradition. The threshold of imminence, however, requires that domestic remedies capable of suspending a removal are utilized.

11.4Referring to the author’s argument that there is no obligation to exhaust domestic remedies in the context of extradition, the Committee recalls its jurisprudence that, although there is no obligation to exhaust domestic remedies if they have no chance of being successful, authors of communications must exercise due diligence in the pursuit of available remedies and that mere doubts or assumptions about their effectiveness do not absolve the authors from exhausting them.

11.5At the same time, the Committee notes that the author did pursue domestic remedies in his extradition case and they did have suspensive effect, which made them effective as regards the principal matter of the author’s request for interim measures, i.e. suspension of the extradition. The Committee notes that on 30 May 2017, the author was notified of the Vilnius district administrative court hearing in his extradition case, scheduled for 14 June 2017. On 7 June 2017, the author submitted a request for interim measures to the Committee without mentioning the ongoing expulsion proceedings. That prompted the Committee into issuing an interim measures request prematurely. The postponement of the hearing at the Vilnius district administrative court to 30 August 2017 resulted in the domestic proceedings in the case being protracted. In those circumstances, the intentional concealing of essential information from the Committee by the author, represented by counsel, concerning the domestic remedies available, is viewed by the Committee as an abuse of the right to submission as regards the author’s request for interim measures.

11.6The Committee further notes that the author’s failure to inform the Committee about the ongoing proceedings in his extradition case led to a suspension of the consideration of his communication until the exhaustion of domestic remedies and to the lifting of the request for interim measures. At present, domestic remedies have been exhausted and the requirement of article 5 (2) (b) of the Optional Protocol have therefore been met.

11.7The Committee notes the author’s complaint that his rights under articles 7 and 10 (1) of the Covenant will be violated should he be extradited to Belarus, in view of the conditions of detention in SIZO No.1. The Committee also notes the State party’s argument that the author’s allegations concerning the conditions of detention in Belarus are of a general nature and that the author has failed to indicate any individual risks in order to substantiate his claims.

11.8The Committee notes that the author invokes both article 7 and article 10 (1) of the Covenant, on the basis of the conditions of detention in Belarus. The Committee notes that although these provisions complement each other, their purpose and scope is not identical. While article 10 (1) deals specifically with persons deprived of their liberty and encompasses for such persons the elements set out in article 7, article 7 concerns serious forms of ill-treatment whereby the individual, including persons deprived of their liberty, is singled out for specific attacks. In the present case, the author has not sufficiently substantiated any individual risk of ill-treatment that would run contrary to article 7 of the Covenant. The Committee thus finds his claims under article 7 unsubstantiated and inadmissible under article 2 of the Optional Protocol.

11.9The Committee further notes that the author’s claims under article 10 (1) relate to general conditions of detention, similar to those of all other detainees, but without providing any evidence or explanation of a specific risk of irreparable harm such as that contemplated in article 7 of the Covenant. The Committee therefore finds this claim insufficiently substantiated and inadmissible under article 2 of the Optional Protocol.

11.10The Committee takes note of the author’s additional claims under articles 2 (3) (1) and (14) (1) of the Covenant that the Lithuanian courts did not properly consider his claims concerning the risk of violation of his rights if he was extradited to Belarus and thus failed to provide him with an effective remedy in his extradition case. The Committee recalls that, even when decided by a court, the consideration of an extradition request does not amount to the determination of a criminal charge or fall within the ambit of a determination of “rights and obligations in a suit at law” in the meaning of article 14 of the Covenant. While article 14 (1), does not as such give persons subject to extradition access to a court or tribunal, nevertheless, whenever domestic law entrusts a judicial body with a judicial task, the first sentence of article 14 (1) guarantees in general terms the right to equality before courts and tribunals and thus the principles of impartiality, fairness and equality, as enshrined in that provision, must be respected.

11.11In the present case, the Committee notes that the author has not alleged lack of impartiality, fairness or equality of the domestic courts but that his claims stem from mere disagreement with the outcome of the proceedings. The Committee thus finds the author’s claims under articles 2 (3) (1) and 14 (1) of the Covenant insufficiently substantiated and inadmissible under article 2 of the Optional Protocol.

11.12The Committee takes notes of the author’s claims under articles 17, 14 (1) (related to lack of a fair trial in Belarus) and 25 (b) of the Covenant. The Committee considers that these claims are insufficiently substantiated and inadmissible under article 2 of the Optional Protocol.

12.In light of the above considerations, the Committee concludes that the present communication is inadmissible under article 2 of the Optional Protocol.

13.The Committee therefore decides:

(a)That the communication is inadmissible under article 2 of the Optional Protocol;

(b)That this decision shall be communicated to the author and to the State party.