Communicated on 5 September 2016

FOURTH SECTION

Application no. 34999/16 D.L . against Austria lodged on 20 June 2016

STATEMENT OF FACTS

The applicant, Mr D.L., is a Serbian national, who is currently in detention pending extradition at the Vienna Josefstadt Penitentiary. He is represented before the Court by Mr O. Dietrich, a lawyer practising in Vienna.

A. The circumstances of the case

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

On the basis of an international arrest warrant issued by the Mitrovice District Court on 6 May 2011, the applicant was apprehended and taken into detention pending extradition by decision of the Vienna Regional Criminal Court ( Straflandesgericht Wien ) of 15 January 2016. On 20 January 2016 the Ministry of Justice of Kosovo [1] requested the applicant ’ s extradition. According to the arrest warrant, the applicant was suspected of aggravated murder pursuant to section 147 § 7 in conjunction with section 24 of the Kosovar Criminal Code. He allegedly had ordered L.Q. in July 2010 to murder S.L. against the 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.L., but by mistake killed N.L., the cousin of S.L.

S.L. is the former husband of the applicant ’ s sister T.L. In the course of an argument with the applicant on 9 October 2001, S.L. stabbed him in the chest. S.L. was convicted in Austria of attempted manslaughter and sentenced to five years ’ imprisonment. The applicant testified as a witness during that trial. After S.L. was released from prison in 2005, the applicant ’ s sister reported him to the police for repeatedly having raped her during their marriage, and for threatening to kill her and her family. T.L. ’ s fear was so great that she changed her and her childrens ’ name. An order to determine S.L. ’ s whereabouts ( Ausschreibung zur Aufenthaltsbestimmung ) issued by the Vienna Public Prosecutor ’ s Office is in force until 2 February 2018.

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 construed by S.L. to take revenge for having testified against him during the criminal proceedings in Austria. Furthermore, the “L.-Clan” (the family of S.L.) was very influential in Kosovo and had connections to the highest Governmental officials and justice authorities in Kosovo, which is why the applicant could not expect a fair trial there. In addition, the conditions of detention in the Kosovo prisons were deplorable and would amount to torture, inhuman and degrading treatment. Because of the threat emanating from S.L. 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.

On 24 February 2016, after having held an oral hearing, the Vienna Regional Criminal Court declared the applicant ’ s extradition to Kosovo admissible. It held that during the extradition proceedings, the court was not called 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 clearly the case. None of the evidence offered by the applicant had been capable of dispersing these suspicions immediately and without doubt, as required by the law. The fact that S.L. had been convicted of attempted manslaughter and the allegation that he wanted to take revenge against the applicant did not disperse the suspicion either. Further, the court considered it remarkable that S.L. ’ s cousin was actually killed, which spoke against the applicant ’ s theory. It could also be argued that the applicant had wanted to take revenge against S.L. 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 concrete evidence of an actual, individual threat of treatment contrary to Article 3 of the Convention. Furthermore, the court held that Kosovo was a State Party to the Convention and therefore Austria ’ s responsibility was limited, as the applicant could avail himself of the protection of the Convention there. Consequently, he could also expect to have a fair trial in Kosovo, even if one assumed that the L.-Clan had a certain level of influence there.

On 31 May 2016 the Vienna Court of Appeal ( Oberlandesgericht Wien ) dismissed the applicant ’ s appeal. It held that the applicant had failed to substantiate why he would run risk of torture, inhuman or degrading treatment, and why the Kosovo authorities would not be able to protect him from third parties. Furthermore, members of the allegedly influential L. ‑ Clan were imprisoned themselves in Kosovo. Even S.L. had been convicted in Kosovo of dangerous threat against the applicant, which demonstrated that the Kosovo authorities were indeed capable of taking adequate measures to protect the applicant. Moreover, the L.-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 (“the CPT”) of 2011 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, as such isolated incidents could even happen in Austria.

On 13 June 2016 the Austrian Federal Minister of Justice approved the applicant ’ s extradition to Kosovo.

On 20 June 2016 the applicant requested the Court under Rule 39 of the Rules of Court to indicate to the Austrian Government to stay his extradition to Kosovo. He complained under Articles 2 and 3 of the Convention that he would run risk of torture, inhuman or degrading treatment or even death, as the L.-Clan wanted to take revenge on him and the Kosovo authorities were not willing or able to afford him protection.

On 22 June 2016 the Court granted the applicant ’ s request under Rule 39.

On 17 June 2016 the applicant lodged a request for the reopening of the extradition proceedings and a stay of the extradition with the Vienna Regional Criminal Court. He produced a certified declaration by L.Q., who had revoked his previous confession to the police that the applicant had ordered the murder of S.L. L.Q. stated that he had been pressured by the police into blaming the applicant.

On 23 June 2016 the Vienna Regional Criminal Court dismissed the applicant ’ s requests. An appeal against this decision is currently pending.

On 18 July 2016 the applicant lodged a request for a renewal of the extradition proceedings with the Supreme Court under section 363a of the Code of Criminal Procedure, requesting suspensive effect at the same time. These proceedings are also currently pending.

B. International reports on Kosovo

1. Conditions of detention

(a) Committee for the Prevention of Torture (CPT) Report to the United Nations Mission in Kosovo (UNMIK), 6 October 2011 (CPT/ Inf (2011) 26)

“37. Contrary to the situation found in 2007, some allegations of physical ill ‑ treatment (such as slaps and/or punches to the head or face) by custodial staff were received at the detention centres in Mitrovica / Mitrovicë , Prishtinë / PriÅ¡tina and Prizren . ...

At Dubrava Prison, the delegation once again received many consistent and persistent allegations of physical ill-treatment and/or excessive use of force (slaps, kicks, punches, and blows with batons, etc.) by members of the establishment ’ s special intervention group. Allegedly, such incidents often occurred during cell-search operations at night. The delegation also heard allegations that certain prisoners had “hired” members of the establishment ’ s special intervention group to physically assault other prisoners who were causing them trouble.

Moreover, in contrast to the situation found in 2007, a number of allegations were heard about physical ill-treatment of prisoners by custodial staff at Dubrava Prison. Several prisoners also affirmed to the delegation that they had been warned by prison officers not to complain to (or have any contact with) EULEX monitors.

To sum up, the situation seems to have deteriorated since the 2007 visit both at Dubrava Prison and elsewhere.”

(b) German Federal Office for Migration and Refugees, Kosovo country report, May 2015, page 23 (unofficial translation from German)

“Nevertheless, the judiciary is the weakest of all institutions and still has significant flaws, despite some progress. In addition to insufficient resources and skills of the staff, they often lack the willingness for law enforcement and anti-corruption measures. Salaries and social security of the staff are poor. The strong network of traditional clan and extended family structures means that officials are often exposed to strong social pressure and bribery attempts. According to the recent progress report of the EU of October 2014, the rule of law, including an independent judiciary, and limited results in combating crime and corruption are still a major problem. The Constitution states that the judiciary is independent. The local judicial organs are, however, exposed to external influences and a fair trial is not always ensured. There are constantly reports of corruption, political interference and lack of efficiency in the judiciary. The fight against crime is still in need of improvement.”

(c) United States Department of State, Country Reports on Human Rights Practices for 2015, Kosovo, page 7

“ Prison and Detention Center Conditions

Prison and detention center conditions generally met international standards, but significant problems persisted in deficient physical facilities, prisoner-on-prisoner violence, corruption, and substandard medical care.

Physical Conditions : According to the [Kosovo Rehabilitation Center for Torture Victims] KRCT, physical and living conditions remained substandard in some facilities in the Dubrava Prison, which held the largest number of prisoners. Deficiencies at Dubrava included poor lighting and ventilation in some cells, dilapidated kitchens and toilets, lack of hot water, and inadequate or no bedding.

KRCT received 10 complaints from prisoners that correctional staff verbally, and in some cases physically, abused them in the Dubrava Prison and, in two cases, at the High Security Prison.

Due to corruption and political interference, authorities did not always exercise control over the facilities or their inmates. According to the KRCT, inmates complained that officials at the Dubrava and the Smrekovnica prisons unlawfully granted furloughs and additional yard time due to nepotism or bribery.”

2. Blood feuds

The following are extracts from a report of the Immigration and Refugee Board of Canada titled “Kosovo: Blood feuds and availability of state protection” [2] .

“1. Historical Overview

Blood feuds ... are part of a centuries-old tradition in Kosovo .... They trace back to the Dukagjin code [also known as the Kanun or Code] ..., a set of customary laws dating back to at least the fifteenth Century. According to the Kanun , if a man ’ s honour is deeply affronted, his family has the right to kill the person who insulted him. However, after such a killing, the victim ’ s family can avenge the death by targeting male members of the killer ’ s family, possibly setting off a pattern of reprisal killings between the families. ...

2. Prevalence of Blood Feuds

...

Statistics on blood feuds during 2010-2013 could not be found among the sources consulted by the Research Directorate. The Professor said that, to his knowledge, neither the government nor other organizations keep statistics about blood feuds in Kosovo (Professor 18 Sept. 2013). He was aware of at least 10 cases of blood feuds between 2010 and 2013, but also indicated that some of these may have traced back to murders committed in earlier years (ibid.). He noted that because there are no statistics, it is hard to know the full extent of the blood feud problem (ibid.). ...

In contrast, both the Ombudsperson and Partners Kosova expressed the opinion that there has not been an increase in the number of blood feuds (Kosovo 12 Sept. 2013; Partners Kosova 12 Sept. 2013). The Mediation Manager at Partners Kosova Centre for Conflict Management ... said that blood feuds are "not a large-scale problem," but that there are still a few cases each year (Partners Kosova 13 Sept. 2013).

...

3. Causes

Sources indicate that current triggers to blood feuds in Kosovo include: property disputes (Kosovo 13 Sept. 2013; Partners Kosova 13 Sept. 2013; Professor 18 Sept. 2013); moral disputes (Kosovo 13 Sept. 2013); and issues related to family honour (Partners Kosova 13 Sept. 2013).

...

6. Legislation

Sources state that there is no legislation that specifically addresses the issue of blood feuds (Kosovo 13 Sept. 2013; Partners Kosova 13 Sept. 2013; Professor 13 Sept. 2013). However, the Ombudsperson explained that the practice of blood feuds is "implicitly forbidden by the Constitution and legislation in force in Kosovo" and noted that law enforcement authorities are obliged to provide protection to individuals who are threatened (Kosovo 13 Sept. 2013). He further stated that "[b] lood feud, as a deed, is banned by law. No one is entitled to take justice into his/her hands" (Kosovo 13 Sept. 2013).

Article 178 of Kosovo ’ s criminal code prescribes a minimum punishment of 5 years imprisonment for murder, and Article 179 prescribes a minimum punishment of 10 years for "aggravated murder," which includes murder that "deprives another person of his or her life because of unscrupulous revenge" (2012a, Art. 178-179). In correspondence with the Research Directorate, the spokesperson for the Organization for Security and Cooperation in Europe (OSCE) ’ s mission in Kosovo said blood feud ‑ motivated crimes are not listed as separate offenses in the criminal code, but the blood feud motive is considered an aggravating circumstance when courts determine the punishment (OSCE 16 Sept. 2013).

...

7. State Protection

The spokesperson for the OSCE mission in Kosovo said that there are no institutions that deal with the issue of blood feuds (16 Sept. 2013). Similarly, both the Professor and the Mediation Manager at Partners Kosova said that they are unaware of any state programs or special protection for people involved in blood feuds (Partner Kosova 13 Sept. 2013; Professor 18 Sept. 2013).

The Ombudsperson indicated that in the two cases reported to its institution between 2010 and 2013, state authorities did not "react properly and in compliance with the law" (Kosovo 13 Sept. 2013). In particular, threats from victims ’ families to perpetrators ’ families "are not taken seriously and accordingly" (ibid.).

The Mediation Manager said that someone who feels threatened by a blood feud can go to the police, and that the police may patrol the area more frequently, but that there is no protective custody and the police are unable to guard people "24 hours" a day (Partners Kosova 13 Sept. 2013). The Professor said that the police generally have a "fairly good reputation," but often do not want to get involved in blood feuds "due to personal safety issues" (18 Sept. 2013). ...”

COMPLAINTS

The applicant complains under Articles 2 and 3 of the Convention that he would run risk of torture, inhuman or degrading treatment or even death if extradited to Kosovo, as the authorities there were not willing or able to afford him protection from the rival clan, and the conditions of detention fell short of Article 3 standards.

QUESTIONS TO THE PARTIES

1. Would the applicant ’ s extradition to Kosovo put his life at risk, contrary to Article 2 of the Convention, in the view of the alleged threat emanating from S.L. and his clan (compare H.L.R. v. France , 29 April 1997, §§ 39-40, Reports of Judgments and Decisions 1997 ‑ III)?

2. Did the authorities thoroughly consider the applicant ’ s claim that he would be exposed to a risk of being subjected to inhuman treatment if extradited to Kosovo, contrary to Article 3 of the Convention, against the background that they had wrongly assumed that the European Convention on Human Rights was in force in Kosovo?

3. In the light of the applicant ’ s claims and the documents which have been submitted, would he face a risk of being subjected to treatment in breach of Article 3 of the Convention if the extradition order were enforced?

4. Have the Austrian authorities obtained assurances from the Kosovo authorities in relation to the applicant ’ s extradition, in particular concerning the alleged threat emanating from S.L. and his clan, as well as the conditions of detention where the applicant would be transferred to?

5. Has the applicant ’ s request for a renewal of the extradition proceedings with the Supreme Court under section 363a of the Code of Criminal Procedure been granted suspensive effect? The parties are requested to inform the Court of the outcome of these proceedings, once they have been terminated.

[1] . All references to Kosovo, whether the territory, institutions or population, in this text shall be understood in full compliance with United Nation’s Security Council Resolution 1244 and without prejudice to the status of Kosovo.

[2] . 10 October 2013, KOS104577.E, available at: http://www.refworld.org/docid/527b53c44.html [accessed 2 August 2016]