AS TO THE ADMISSIBILITY OF

                      Application No. 25342/94

                      by Alla RAIDL

                      against Austria

     The European Commission of Human Rights sitting in private on

4 September 1995, the following members being present:

           MM.   S. TRECHSEL, President

                 H. DANELIUS

                 C.L. ROZAKIS

                 E. BUSUTTIL

                 G. JÖRUNDSSON

                 A.S. GÖZÜBÜYÜK

                 A. WEITZEL

                 J.-C. SOYER

                 H.G. SCHERMERS

           Mrs.  G.H. THUNE

           Mr.   F. MARTINEZ

           Mrs.  J. LIDDY

           MM.   L. LOUCAIDES

                 J.-C. GEUS

                 M.P. PELLONPÄÄ

                 G.B. REFFI

                 M.A. NOWICKI

                 I. CABRAL BARRETO

                 B. CONFORTI

                 N. BRATZA

                 I. BÉKÉS

                 J. MUCHA

                 E. KONSTANTINOV

                 D. SVÁBY

                 G. RESS

                 A. PERENIC

                 P. LORENZEN

           Mr.   H.C. KRÜGER, Secretary to the Commission

     Having regard to Article 25 of the Convention for the Protection

of Human Rights and Fundamental Freedoms;

     Having regard to the application introduced on 20 September 1994

by Alla RAIDL against Austria and registered on 28 September 1994 under

file No. 25342/94;

     Having regard to the report provided for in Rule 47 of the Rules

of Procedure of the Commission;

     Having deliberated;

     Decides as follows:

THE FACTS

     The facts of the case, as submitted by the applicant, may be

summarised as follows.

     The applicant, born in 1969, is a Russian national. She was held

in provisional detention at the Wels Regional Court (Landesgericht).

On 27 September 1994 she was extradited to the Russian Federation,

where she is currently detained at Severodvinsk prison. In the

proceedings before the Commission, she is represented by

Dr. J. Lachmann, a lawyer practising in Vienna.

A.   The particular circumstances of the case

     In December 1991 the applicant came to Austria, where she

requested asylum. Her request was subsequently rejected.

     On 5 June 1992 the authorities of the Russian Federation

transmitted an international warrant of arrest of 29 March 1992 to the

Austrian authorities. It had been issued by the Prosecutor General of

Severodvinsk, Russian Federation, and stated that the applicant was

suspected of having, on 7 January 1991, in Severodvinsk, together with

two accomplices, killed the manager of a firm, whose position she

allegedly wanted to acquire.

     On 9 June 1992 the applicant was arrested.

     On 10 June 1992 the Wels Regional Court ordered the applicant's

provisional detention (Auslieferungshaft). On the same day, she was

heard by the investigating judge (Untersuchungsrichter). She submitted

in particular that she had been in Moscow in January 1991, that she did

not know D. and S., who had allegedly been her accomplices. Nor did she

know P., the victim.

     On 24 August 1992 the embassy of the Russian Federation formally

requested the Austrian authorities to extradite the applicant on the

suspicion of having committed murder under SS. 17 and 103 of the Penal

Code of the Russian Federation, together with two accomplices, namely

D. and S.

     On 16 September 1992 the applicant was again heard by the

investigating judge at the Wels Regional Court. She stated that she

herself as well as D. and S. and the victim P. had worked at the firm

at issue. She had seen P. for the last time in the morning of

7 January 1991. However, she had nothing to do with the murder, and had

only learned from D. on 16 January 1991 that P. was dead. D. had

threatened her and ordered her to remain silent. In August 1991 she was

heard by the police in connection with the murder. Subsequently, she

left Russia, as she was afraid of D. and S.

     On 17 November 1992 the applicant married an Austrian national,

who is a businessman by profession.

     On 4 December 1992 the embassy of the Russian Federation

submitted a number of documents in support of the request to extradite

the applicant. They contained in particular a judgment of the People's

Court of Severodvinsk of 9 October 1992, convicting D. and S. of murder

under S. 103 of the Penal Code of the Russian Federation and sentencing

them to nine years' and eight years' imprisonment respectively. The

said court found that they had killed P. on 7 January 1991. The

judgment also mentions the role of the applicant, who according to the

court's findings helped D. and S. in that she asked P. to come to the

office and later assisted them in disfiguring and hiding the corpse.

The documents further contained minutes of the questioning of several

witnesses.

     On 29 December 1992 the Linz Court of Appeal (Oberlandesgericht),

declared that the applicant's extradition was permitted under the

Austrian Extradition Act (Auslieferungs- und Rechtshilfegesetz) inter

alia under the condition that the death penalty should not be applied.

     The Court referred to the warrant of arrest of 29 March 1992 and

noted that a copy of SS. 17 and 103 of the Penal Code of the Russian

Federation had been attached to it. According to these provisions,

murder was punishable with three to ten years' imprisonment. Therefore,

the applicant's fear of being subjected to the death penalty was

unfounded. The Court noted that the applicant had not made a

confession. However, she had confirmed that she was the person

described in the warrant of arrest. The Court found that there were no

objections against the suspicion as described in the warrant and other

documents submitted by the Procurator General of the Russian Federation

in support of the request for extradition. According to these

documents, two witnesses had made statements incriminating the

applicant.

     The Court also considered that the applicant's extradition would

not constitute undue hardship within the meaning of S. 22 of the

Extradition Act. In view of the seriousness of the crime at issue, her

extradition was necessary, notwithstanding the fact that she was

married to an Austrian national. Finally, the Court stated that it had

no reasons to fear that the criminal proceedings in the Russian

Federation would not comply with the requirements of Articles 3 and 6

of the Convention or that a penalty which would fall within the scope

of Article 3 would be imposed or executed.

     Prior to this decision the Court of Appeal had held two hearings

on 15 and 29 December 1992 in the presence of the applicant and her

counsel. At the end of the second hearing the above decision was read

out, and the main reasons were given orally. The decision and its

reasons were also translated into Russian.

     Also on 29 December 1992, after the Court's decision had been

taken, the applicant attempted suicide.

     On 5 January 1993 the Austrian Minister of Justice (Bundes-

minister für Justiz) gave his approval for the applicant's extradition

subject to the condition that the death penalty must not be applied.

Further, should it turn out that the act she was suspected of

constituted another crime than the one she was extradited for, she

could only be tried if extradition would also be admissible with regard

to the latter crime. It appears that the Minister, in accordance with

S. 34 para. 4 of the Extradition Act, informed the Linz Court of Appeal

of his decision. By note of 14 January 1993 this Court in turn informed

the Wels Regional Court of the decision. However, the decision was not

served on the applicant or her counsel.

     On 12 January 1993 the Linz District Court (Bezirksgericht),

after having heard the applicant and having regard to a psychiatric

expert opinion, ordered the applicant's detention in the

W.-J. psychiatric hospital in Linz.

     The psychiatric expert, Dr. S., in his opinion filed on

9 January 1993, stated that the applicant suffered from a serious

mental disturbance. In the situation of her detention and her imminent

return to Russia, a suicidal tendency had evolved and had resulted in

her attempted suicide, which had to be regarded as genuine. He

concluded that the applicant's disturbance constituted a mental illness

and that there was still a serious risk of further suicide attempts.

     The Court, referring to the expert opinion, found that the

applicant suffered from a mental illness and that the continuing

suicide risk warranted her detention in a psychiatric hospital. Her

detention was originally ordered for a month and was later prolonged.

     On 5 February 1993 the Wels Regional Court, on the applicant's

request, decided to stay her extradition in accordance with S. 37 of

the Extradition Act. The Court, referring to a further expert opinion,

which had confirmed that the applicant suffered from a depressive

reaction with suicidal tendencies and that she needed psychiatric

treatment for five or six weeks, found that she was not fit for

transport.

     On 1 March 1993 the Linz Court of Appeal dismissed the

applicant's request of 15 January 1993 for reopening of the extradition

proceedings, referring to the danger of suicide, her marriage and the

fear that the death penalty would be imposed.

     The Court of Appeal had regard to the expert opinion, filed by

Dr. M. on 4 February 1993, according to which the applicant suffered

from a depressive syndrome. He noted that, according to the applicant

and the file of the W.-J. psychiatric hospital, her previous medical

history did not show any particularities. Although her depression also

had a hereditary and a personality-dependent element, the reactive

element was decisive, as the syndrome had been caused by the strain the

current situation put on her. Her suicidal tendencies, which subsisted,

were also caused by this situation. The Court, referring to this expert

opinion, found that the applicant suffered from a depression which had

been intensified by the difficult circumstances. Further, her suicidal

tendency subsisted. The Court noted that the Senior Public Prosecutor's

Office, in view of the applicant's problems of mental health, had

supported her request.

     However, a reopening of the extradition proceedings was only

possible in case new facts had arisen. The applicant's attempted

suicide, which was her reaction to the decision to extradite her, did

not constitute a new fact within the meaning of the Extradition Act.

Further, the question whether her extradition would constitute undue

hardship within the meaning of S. 22 of the Extradition Act had already

been examined in the preceding extradition proceedings. The Court

repeated that the applicant was suspected of a capital crime and,

although she was married to an Austrian, had not been resident in

Austria for a long time.

     On 2 April 1993 the applicant escaped from the W.-J. psychiatric

hospital. Subsequently, she stayed with her husband in various places,

mainly in Italy and Slovenia. In the summer of 1994 she came back with

her husband to Austria.

     On 23 July 1994 the applicant was rearrested and was subsequently

taken into provisional detention at the Wels Regional Court.

     On 24 July 1994 the applicant was again admitted to the W.-J.

psychiatric hospital. According to a file note prepared by the

investigating judge at the Wels Regional Court on 26 July 1994, the

following happened on that day: Officers of the Regional Court's prison

tried to take the applicant back to the Court's prison. However, the

applicant resisted and finally had to be given tranquillizers. The

competent doctor, Dr. A., was called. According to her diagnosis, which

she gave on the telephone, the applicant did not suffer from a

psychosis. Rather her conduct was a reaction to the detention and

constituted a learned and deliberate behaviour on her part. Dr. A also

announced that the applicant would be examined by a commission of

doctors. However, her further detention at the psychiatric hospital

would probably not be justified.

     By letter of 28 July 1994 the psychiatric hospital informed the

Wels Regional Court that the applicant had been examined by Dr. C.  and

that her further detention at the psychiatric hospital was not

justified.

     On 3 August 1994 the applicant again requested the Linz Court of

Appeal to reopen the extradition proceedings. She submitted that

meanwhile a much stronger relationship had evolved between her and her

husband. In particular, S. 22 of the Extradition Act had to be

interpreted in the light of Article 8 of the Convention. Her

extradition was not necessary for the prevention of disorder or crime,

as she would have to be put to trial in Austria in accordance with

S. 65 para. 1 of the Penal Code (Strafgesetzbuch). Further, her husband

could hardly be expected to follow her to Siberia.

     On the same day, she also requested the Linz Court of Appeal to

serve its decision of 29 December 1992 concerning her extradition on

her.

     On 5 September 1994 the Linz Court of Appeal, after having heard

the applicant and her husband, dismissed the applicant's request.

     The Court found that the development of a much closer

relationship between her and her husband might be regarded as a new

fact. However, it was not sufficient to raise doubts as to the

correctness of the decision to extradite her. In this context, the

Court noted that the question whether the applicant's extradition would

constitute undue hardship within the meaning of S. 22 of the

Extradition Act. S. 22 of the said Act required weighing the particular

circumstances invoked by the person to be extradited against the

seriousness of the crime. Given that the applicant was suspected of one

of the most serious crimes, i.e. of murder, the decision had to be in

favour of her extradition.

     Moreover, the Court considered that only the applicant's

absconding from the psychiatric hospital had given her and her husband

the possibility to live together. However, they had no normal married

life, in particular they had not shared a common household. They had

seen each other frequently, albeit always in fear of being detected.

Their relationship did not constitute family life within the meaning

of Article 8. In any case, given the seriousness of the crime at issue,

an interference would be justified within the meaning of the second

paragraph of this Article.

     On 23 September 1994 the authorities of the Russian Federation

informed the Austrian authorities that they were ready to take over the

applicant on 27 September 1994 at the Vienna airport.

     On 26 September 1994 the decision of 29 December 1992 by the Linz

Court of Appeal was served on the applicant's counsel. In a letter

accompanying this decision, the Wels Regional Court informed the

applicant that a copy of the decision by the Minister of Justice of

5 January 1993 was not in the file. However, the Court attached a note

of 14 January 1993, in which the Linz Court of Appeal had informed it

of the said decision and briefly summarised its contents.

     Also on 26 September 1994 the investigating judge at the Wels

Regional Court made the necessary arrangements for handing the

applicant over to the Russian authorities.

     In the evening of 26 September 1994 the applicant made a further

attempt to commit suicide by taking an overdose of tranquillizers. She

was first admitted to a hospital where measures to prevent the

intoxication were taken. Then she was again brought to the W.-J.

psychiatric hospital. According to a file note of 27 September 1994 by

the investigating judge at the Wels Regional Court, the doctor on duty

at the psychiatric hospital informed him in the evening of

26 September 1994 by telephone that the applicant was kept under

surveillance on account of the overdose she had taken but that there

was nothing militating against handing her over to the Russian

authorities.

     On 27 September 1994 at 10 a.m. the applicant was transported to

Vienna airport by an ambulance. In view of her resistance at the

departure, she had to be given tranquillizers. She was accompanied by

a doctor and two officers of the Wels Regional Court's prison. She left

Vienna by plane at 1.30 p.m.

     On 10 October 1994 the applicant's counsel filed a complaint

(Beschwerde) with the Wels Regional Court. He submitted in particular

that the decision of 5 February 1993 to stay the applicant's

extradition on account of her state of mental health had been taken

without any time-limit and was therefore still valid. No decision to

the contrary had been taken. Moreover, the circumstances of the

applicant's extradition, which had taken place only a few hours after

her attempt to commit suicide and involved her transport to the airport

by an ambulance under the influence of tranquillizers, violated

Article 3 of the Convention.

     On 28 October 1994 the Review Chamber (Ratskammer) of the Wels

Regional Court dismissed the applicant's complaint. It considered that

the decision of 5 February 1993 to stay the applicant's expulsion had

relied on an expert opinion, according to which the applicant was not

fit for transport and needed psychiatric treatment for a period of five

to six weeks. Thus, the decision had to be understood as staying the

applicant's expulsion for that period. Moreover, on 2 April 1993 the

applicant had fled from the psychiatric hospital and thus proved fit

for transport. As regards the complaint about the circumstances of her

extradition, the Review Chamber found that they were not in breach of

Article 3. It referred to the opinion of the doctor on duty, as

reflected in the file note of 27 September 1994, namely that there was

nothing militating against handing the applicant over to the Russian

authorities. Moreover, a doctor had accompanied her on the way to the

airport.

     On 24 January 1995 the Austrian Consul General visited the

applicant at the prison in Severodvinsk. He reported that she shared

a cell with ten to twelve other persons, that she lived on vegetarian

food, the supply of which was rather modest and that she complained

about rheumatism and kidney trouble. The Consul General had also

invited the Russian authorities to report on the applicant's state of

health.

     By letter of 15 March 1995, the Ministry for Foreign Affairs of

the Russian Federation informed the Austrian authorities that the

competent court had twice dismissed the applicant's requests for

release. The applicant had also pointed out that her state of health

was deteriorating and thereupon she had been examined by a specialist,

who found that she did not need to be hospitalised. However, she was

regularly receiving medical treatment.

B.   Relevant law and practice

I.   Austrian law

     If, as in the present case, there is no extradition treaty

between Austria and the requesting State the Austrian Extradition Act,

as amended in 1992 (Auslieferungs- und Rechtshilfegesetz, idF BGBl

1992/756), applies. Its provisions, as in force at the relevant time,

may be summarised as follows.

     According to S. 9, the provisions of the Code of Criminal

Procedure (Strafprozeßordnung) apply to the extradition proceedings,

if not stated otherwise.

     According to S. 10 extradition is admissible, on the request of

another State, inter alia, if a person shall be prosecuted for a

criminal offence. The criminal offence must be punishable with more

than one year's imprisonment according to the law of the requesting

State (S. 11).

     Extradition has to be refused if there are reasons to fear that

the criminal proceedings in the requesting State will not meet the

requirements of Articles 3 and 6 of the Convention or that the penalty

or its execution will be contrary to Article 3 of the Convention

(S. 19).

     An extradition for the prosecution of a crime punishable by the

death penalty according to the law of the requesting State, may only

be permitted if it is guaranteed that the death penalty will not be

imposed (S. 20).

     According to S. 22, extradition may not be permitted if it would,

taking the seriousness of the crime into account, constitute undue

hardship for the person concerned, on the ground that he or she had

been resident in Austria for a long time or for other personal reasons.

     According to S. 33 the court of second instance has to decide

whether the extradition is to be permitted. The court sits in private

unless the Senior Public Prosecutor's Office or the person concerned

requests a public hearing (para. 1). At the hearing, the person to be

extradited has to be represented by counsel (para. 2). The court

decides by a formal decision, which shall be reasoned. It shall be

pronounced orally by the presiding judge. There is no appeal from the

decision (para. 5). The court of second instance has to transmit its

decision as well as the file to the Minister of Justice (para. 6).

     According to S. 34, the final decision on a request for

extradition lies with the Minister of Justice. However, he may not

permit an extradition if the court of second instance has found against

it. The Minister has to take the interests of Austria into account, its

obligations under international law, in particular as regards asylum

law, and the protection of human dignity (para. 1). He shall

communicate his decision to the requesting State, and to the court of

second instance, which shall, through the court of first instance,

ensure that the person concerned, and his or her counsel, are informed

of this decision (para. 4).

     The investigating judge at the court of first instance has to

make the necessary arrangements for the extradition (S. 36 para. 1).

     According to S. 37 para. 1, an extradition has to be stayed,

inter alia, if the person concerned is not fit for transport, or in

case of reopening of the proceedings.

     The court of second instance has to quash its decision permitting

an extradition if new facts are submitted, which, alone or in

connection with the documents already submitted in support of the

request for extradition, raise serious doubts as to the correctness of

this decision (S. 39).

     S. 65 para. 1  of the Penal Code (Strafgesetzbuch) provides that

the Austrian penal laws apply with regard to crimes which are

punishable under the law of the State where they were committed, if the

offender is a national of another country, has been arrested in Austria

and cannot be extradited for a reason other than the type or quality

of the offence.

II.  Law of the Russian Federation

     S. 102 of the Penal Code of the Russian Federation provides that

murder, i.e. premeditated killing of a person, committed under

aggravating circumstances, (e.g. for motives of self-interest, or with

particular cruelty) is punishable by eight to fifteen years'

imprisonment, with or without banishment, or by the death penalty.

     According to the Amnesty International Report 1994, S. 102 is

still in force; however, there were amendments in April 1993, according

to which women are exempted from the death penalty.

     S. 103 provides that murder, committed without aggravating

circumstances within the meaning of S. 102, is punishable by three to

ten years' imprisonment.

     According to S. 17 each accomplice shall be punished with regard

to his or her contribution to the crime.

COMPLAINTS

1.   The applicant complains under Article 2 of the Convention and

Protocol No. 6 that her extradition puts her at the risk of being

sentenced to death in the Russian Federation. She further submits that

there is no guarantee that capital punishment will not be applied, as

referred to in the decision by the Minister of Justice of

5 January 1993.

2.   The applicant complains under Article 3 of the Convention that

her extradition amounts to inhuman and degrading treatment. She refers

to her mental illness, which already caused her to attempt suicide.

Further, she submits that she would not have access to the necessary

medical treatment in a prison in Severodvinsk, Siberia. In her

situation, she would particularly suffer from the permanent fear of

being sentenced to death.

her extradition violates her right to respect for her private and

family life. In particular, she submits that her extradition is likely

to terminate her relationship with her husband, who could not possibly

follow her to Siberia. Moreover, given her state of mental health, her

extradition exposes her to the risk of committing further attempts of

suicide.

decisions in the extradition proceedings were not served on her or her

counsel, i.e. the decision by the Minister of Justice of 5 January

1993, or only very late, i.e. the decision of the Linz Court of Appeal

of 29 December 1992.

PROCEEDINGS BEFORE THE COMMISSION

     The application was introduced on 20 September 1994 and

registered on 28 September 1994.

     On 17 October 1994 the Commission decided to communicate the

application to the respondent Government, pursuant to Rule 48 para. 2

(b) of the Rules of Procedure.

     The Government's written observations were submitted on

17 February 1995 after an extension of the time-limit fixed for that

purpose.  The applicant replied on 6 April 1995.

THE LAW

     The applicant complains about various aspects of her extradition

to the Russian Federation. She invokes Article 2 (Art. 2) of the

Convention and Protocol No. 6 (P6), as well as Articles 3, 6 and 8

(Art. 3, 6, 8) of the Convention.

     a.    Preliminary question under Article 26 (Art. 26) of the

     Convention

     The Government submit that the applicant failed to introduce her

complaint within the six-months' period laid down in Article 26

(Art. 26) of the Convention. They argue that the decision by the Linz

Court of Appeal of 29 December 1992 has to be regarded as the final

domestic decision within the meaning of this provision. This decision,

including its translation into Russian, was announced orally to the

applicant and her counsel on the day it was taken. According to S. 33

para. 5 of the Austrian Extradition Act, there was no need to serve a

written version of the decision on them, as there were no remedies

available against it. Moreover, in accordance with S. 34 para. 4 of the

said Act, there was no need to serve the decision of 5 January 1993 by

the Minister of Justice on her. Finally, according to the Government,

the applicant's requests for reopening of the proceedings are

irrelevant under Article 26 (Art. 26), as they cannot be considered as

an effective remedy.

     The applicant contests the Government's view. She submits in

particular that, contrary to S. 34 para. 4 of the Extradition Act, the

decision of 5 January 1993 by the Ministry of Justice was never served

on her. Furthermore, she points out that her present application

relates mainly to facts which did not even exist when the decision of

the Linz Court of Appeal was taken on 29 December 1992, namely her

state of mental health following her attempt to commit suicide and her

married life. At that time, she would thus not have been able to raise

the complaints she is now bringing before the Commission. She argues

that in the particular circumstances of her case, 5 September 1994,

i.e. the date when her request for reopening of the proceedings was

dismissed, should, therefore, be taken as the starting point for the

calculation of the six-months' period under Article 26 (Art. 26).

     The Commission does not have to resolve the question whether the

applicant has complied with the six-months' rule, as her complaints are

in any case inadmissible for the reasons set out below.

     b.    Article 2 (Art. 2) of the Convention and Protocol No. 6

           (P6)

     The applicant complains under Article 2 (Art. 2) of the

Convention and under Protocol No. 6 (P6) that her extradition puts her

at the risk of being sentenced to death in the Russian Federation.

     The Government submit that the approval of the applicant's

extradition was subject to the condition that the death penalty should

not be applied and that the authorities of the Russian Federation had

not objected to this condition. Moreover, the Government note that

murder is, according to S. 103 of the Penal Code of the Russian

Federation, punishable by three to ten years' imprisonment and that the

applicant's alleged accomplices have actually been sentenced to up to

nine years' imprisonment.

     According to the applicant, the fact that the Government of the

Russian Federation have not objected to the conditions attached to her

extradition is not a sufficient guarantee. In particular, there is

nothing to prevent the courts from convicting her of murder with

aggravating circumstances under S. 102 of the Penal Code of the Russian

Federation, which may carry a death sentence.

     The Commission recalls that Article 2 (Art. 2) of the Convention

does not prohibit capital punishment. However, Article 1 of Protocol

No. 6 (P6-1) provides that the death penalty shall be abolished and

that no one shall be condemned to such a penalty or executed. Thus, the

question arises whether this provision, like Article 3 (Art. 3) of the

Convention, engages the responsibility of a Contracting State where,

upon extradition, the person concerned faces a real risk of being

subjected to the death penalty in the receiving State. However, the

Commission need not resolve this issue, since the complaint is in any

event manifestly ill-founded.

     In the present case the Linz Court of Appeal, in its decision of

29 December 1992, noted that the applicant was suspected of murder

committed together with two accomplices under SS. 17 and 103 of the

Penal Code of the Russian Federation, which provides for three to ten

years' imprisonment. The Commission has also had regard to the fact

that the applicant's co-accused were convicted under S. 103 of the said

Penal Code and sentenced to up to nine years' imprisonment. It is true

that S. 102 of the Penal Code of the Russian Federation, concerning

murder under aggravating circumstances, provides for the death penalty.

However, there are no indications that S. 102 would be applied in the

applicant's case. Moreover, amendments were made to the Penal Code of

the Russian Federation in April 1993, exempting women from the death

penalty.

     In these circumstances, the Commission finds that there are no

substantial grounds for believing that the applicant faces a real risk

of being subjected to the death penalty in the Russian Federation.

     It follows that this part of the application is manifestly ill-

founded within the meaning of Article 27 para. 2 (Art. 27-2) of the

Convention.

     c. Article 3 (Art. 3) of the Convention

     The applicant also complains under Article 3 (Art. 3) of the

Convention that her extradition amounts to inhuman and degrading

treatment, in particular on account of her state of mental health.

     Article 3 (Art. 3) reads as follows:

     "No one shall be subjected to torture or to inhuman or degrading

     treatment or punishment."

     The Government submit that the applicant, following her rearrest,

was again brought to a psychiatric hospital on 24 July 1994 having

regard to the expert opinion of February 1993. The doctors found that

she was not suffering from a psychosis but that her reaction to her

imprisonment constituted learned and deliberate behaviour to avoid her

extradition. Subsequently, the psychiatric hospital refused to hold

her. Thus, the applicant was no longer suffering from a mental illness

making her extradition inadmissible. Further, her suicide attempt of

26 September 1994 did not represent the symptom of an illness but was

intended to prevent her lawful extradition. Thus, the fact that she

was, after long and complex extradition proceedings, actually handed

over to the Russian authorities on 27 September 1994, cannot be

regarded as a violation of Article 3 (Art. 3). Finally, as regards the

prison conditions in Severodvinsk the Government point out that the

Austrian Consul General visited the applicant in prison on 24 January

1995 and that the Russian authorities were invited to report on her

state of health.

     The applicant refers in particular to the expert opinions which

were filed in early 1993 and showed that she suffered from a mental

illness, i.e. a depressive syndrome with suicidal tendencies.

Furthermore, she submits that none of the recent information, on which

the Government rely, supports the conclusion that she no longer suffers

from that mental illness. In her application, which was introduced

before her extradition, the applicant also submitted that she would not

have access to the necessary medical treatment in a prison in

Severodvinsk, Siberia, and that she would particularly suffer from the

permanent fear of being sentenced to death. Finally, she points out

that her state of mental health was such that her transport to the

airport on 27 September 1994, following her further attempt to commit

suicide, had to be carried out by an ambulance and in the presence of

a doctor.

     The Commission recalls that an extradition may give rise to an

issue under Article 3 (Art. 3) where substantial grounds have been

shown for believing that the person concerned faces a real risk of

being subjected to torture or to inhuman or degrading treatment or

punishment in the requesting country (Eur. Court H.R., Soering judgment

of 7 July 1989, Series A no. 161, p. 35, para. 91). Further, any ill-

treatment must attain a minimum level of severity to fall within the

scope of Article 3 (Art. 3). In assessing this minimum, regard is to

be had to all the circumstances of the case, including the physical or

mental effects of the treatment or punishment at issue, and in some

instances the sex, age and state of health of the victim (Soering

judgment, loc. cit., p. 39, para. 100, with further references).

     In the above-mentioned Soering judgment, the Court found that the

envisaged extradition of Mr. Soering would be in breach of Article 3

(Art. 3) because of the circumstances relating to the death penalty

which he risked to be sentenced to, namely, inter alia, the "death row

phenomenon" (Soering judgment, loc. cit., pp. 36-45, paras. 92-111).

In the present case the Commission refers to its above finding that the

applicant does not face a real risk of being sentenced to death. What

remains to be examined is the applicant's submission that her state of

mental health was such that her extradition amounted to treatment

contrary to Article 3 (Art. 3).

     The applicant was arrested in June 1992 with a view to her

extradition. The Commission notes that the applicant did not make any

allegations as regards previous mental problems. Following her attempt

of 29 December 1992 to commit suicide, the Austrian courts requested

two psychiatric experts to file written opinions. They found that the

applicant suffered from a mental illness, namely a depressive syndrome,

which was caused by the strain due to her imminent extradition to

Russia and had resulted in her attempted suicide. The applicant was,

therefore, transferred from prison to a psychiatric hospital, from

which she escaped in April 1993.

     Following her rearrest, the applicant was again admitted to the

same psychiatric hospital on 24 July 1994. On this occasion, the

competent doctor, Dr. A., found that she did not suffer from a

psychosis, but that her conduct was a reaction to the detention and

constituted a learned and deliberate behaviour on her part. Only a few

days later the psychiatric hospital informed the competent court that

she had been examined by another doctor, Dr. C., and that her detention

at the psychiatric hospital was no longer justified. When, following

her attempt to commit suicide on 26 September 1994, she was brought to

the psychiatric hospital again, the doctor on duty informed the

investigating judge that there was nothing militating against handing

her over to the Russian authorities. The following day, she was given

tranquillizers in view of her resistance against being brought to

Vienna airport. Finally, her transport was carried out by an ambulance

in the presence of a doctor.

     On the basis of the material before it, the Commission finds that

it is not established that the applicant's mental illness persisted in

1994 when she was rearrested and finally extradited. Given these

findings, the Commission further considers that the circumstances under

which her extradition was carried out did not go beyond the inevitable

element of suffering or humiliation connected with the legitimate

execution of the decision to extradite her (see, mutatis mutandis, Eur.

Court H.R. Tyrer judgment of 25 April 1978, Series A no. 26, pp.14-15,

paras. 29-30).

     Furthermore, the Commission recalls that the existence of the

risk of ill-treatment must be assessed primarily with reference to

those facts which were known or ought to have been known to the

Contracting State at the time of the expulsion. The Convention organs

are not precluded, however, from having regard to information which

comes to light subsequent to the expulsion. This may be of value in

confirming or refuting the appreciation that has been made by the

Contracting Party or the well-foundedness or otherwise of an

applicant's fears (Eur. Court H.R., Vilvarajah and Others judgment of

30 October 1991, Series A no. 215, p. 36, para. 107). In this context,

the Commission notes the report of the Austrian Consul General, who

visited the applicant in prison in Severodvinsk on 24 January 1995, and

the report of 15 March 1995 by the Russian authorities. There is

nothing in these documents to show that the applicant does not receive

the necessary medical treatment or that the general conditions

pertaining in the prison would be inhuman.

     In conclusion, the Commission finds that the treatment complained

of did not go beyond the threshold set by Article 3 (Art. 3) of the

Convention.

     It follows that this complaint is manifestly ill-founded within

the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.

     d. Article 8 (Art. 8) of the Convention

     The applicant complains under Article 8 (Art. 8) that her

extradition violated her right to respect for her private and family

life.

     As far as relevant, Article 8 (Art. 8) reads as follows:

     "1.   Everyone has the right to respect for his private and

     family life ...

     2.    There shall be no interference by a public authority with

     the exercise of this right except such as is in accordance with

     the law and is necessary in a democratic society ..... for the

     prevention of disorder or crime ...."

     The Government submit that the relationship between the applicant

and her husband cannot be regarded as "family life" within the meaning

of Article 8 (Art. 8). In this context, they point out that the

marriage was concluded while the applicant was already in prison. Even

after her escape from prison, the spouses did not live together but

have only seen each other occasionally. However, even assuming that

there was family life, the interference was justified under the second

paragraph of Article 8 (Art. 8), as being necessary for the prevention

of crime. The Government submit in particular that there was a

reasonable suspicion against the applicant of having participated in

the crime, namely murder, in connection with which she was extradited.

The interest in the prosecution of this crime outweighed the

applicant's interest in her family life.

     The applicant contests the Government's view. She submits that

her extradition constituted an interference with her right to respect

for her family life, as it separated her from her husband, who could

not possibly follow her to Siberia. Further, it was not necessary, as

the criminal proceedings against her could also have been conducted in

Austria, in accordance with S. 65 of the Austrian Penal Code. Moreover,

given her state of mental health, her extradition exposed her to the

risk of committing further attempts of suicide.

     The Commission finds that the decision to extradite the applicant

constitutes an interference with her right to respect for her private

and family life.

     Such an interference is in breach of Article 8 (Art. 8), unless

it is justified under paragraph 2 of this Article as being "in

accordance with the law" and "necessary in a democratic society" for

one of the aims set out therein.

     As regards the lawfulness of the measure complained of, the

Commission finds that the decision to extradite the applicant was based

on the Austrian Extradition Act, which permits extradition if a person

it to be prosecuted for a criminal offence punishable by more than one

year's imprisonment. The Linz Court of Appeal and the Minister of

Justice, when taking their decisions of 29 December 1992 and

5 January 1993 respectively, had extensive material submitted by the

authorities of the Russian Federation before them. According to these

documents, the applicant was suspected of having committed murder

together with two accomplices, an offence which is punishable by three

to ten years' imprisonment under Russian law. Therefore, the decision

to extradite the applicant was in accordance with Austrian law.

     Moreover, the Commission finds that the interference served one

of the legitimate aims listed in Article 8 para. 2 (Art. 8-2), namely

the prevention of disorder or crime.

     As regards the question whether the interference was necessary,

the Commission recalls that the notion of necessity implies a pressing

social need and requires that the interference at issue be

proportionate to the legitimate aim pursued (Eur. Court H.R., Beldjoudi

judgment of 26 March 1992, Series A no. 234-A, p. 27, para. 74).

     Firstly, as regards the applicant's submission that the

interference with her private life was not justified, because her

extradition exposed her to a risk of suicide, the Commission takes into

account that a person's "private life" includes his or her physical

integrity (Eur. Court H.R., X and Y v. the Netherlands judgment of

26 March 1985, Series A no. 91, p. 11, para. 22). However, in view of

its findings under Article 3 (Art. 3), the Commission considers that

the applicant was not in such an impaired state of mental health that

her extradition would appear disproportionate.

     Secondly, as regards the interference with the applicant's family

life, the Commission notes that the Linz Court of Appeal, in its

decision of 29 December 1992, had regard to the fact that the applicant

was married to an Austrian national. Having regard to the seriousness

of the crime of which she was suspected, the Court found that her

extradition would not constitute undue hardship within the meaning of

the Austrian Extradition Act. The Court repeated these considerations

in its decisions of 1 March 1993 and 5 September 1994, when dismissing

the applicant's requests for reopening of the extradition proceedings

in which she had also relied on the fact of her marriage to an Austrian

national. The Commission agrees that the interference with the

applicant's family life was proportionate to the legitimate aim

pursued, given the seriousness of the crime, of which the applicant was

suspected even before she contracted marriage in Austria.

     It follows that this part of the application is manifestly ill-

founded within the meaning of Article 27 para. 2 (Art. 27-2) of the

Convention.

     e. Article 6 (Art. 6) of the Convention

     Finally, the applicant complains under Article 6 (Art. 6) that

the most important decisions in the extradition proceedings were not

served on her or her counsel, i.e. the decision by the Minister of

Justice of 5 January 1993, or only very late, i.e. the decision of the

Linz Court of Appeal of 29 December 1992.

     The Commission recalls that extradition proceedings do not fall

within the scope of Article 6 (Art. 6) (No. 13930/88, Dec. 11.3.89,

D.R. 60 p. 272).

     It follows that this part of the application is incompatible

ratione materiae with the provisions of the Convention, within the

meaning of Article 27 para. 2 (Art. 27-2) .

     For these reasons, the Commission, by a majority,

     DECLARES THE APPLICATION INADMISSIBLE.

Secretary to the Commission       President of the Commission

       (H.C. KRÜGER)                     (S. TRECHSEL)