FIFTH SECTION

Application no. 33235/12 Zdravko TESKERA against Slovenia lodged on 4 June 2012

STATEMENT OF FACTS

The applicant, Mr Zdravko Teskera , is a Montenegrin national, who was born in 1984 and lives in Tivat . He is represented before the Court by Mr R. Sevšek , a lawyer practising in Koper .

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

On 17 December 2009 the applicant was arrested at a border crossing between Croatia and Slovenia , pursuant to an Interpol notice issued by the Oriental Republic of Uruguay for illicit trafficking of narcotics.

On the same day, the investigating judge of the Koper District Court ordered the applicant to be placed in detention with a view to extradition. The applicant ’ s appeals against the detention order were dismissed.

On 22 January 2010 the Uruguayan authorities made an official request for the applicant ’ s extradition.

On 16 February 2010 the Koper District Court established that the conditions for extradition were met. The applicant appealed before the Koper Higher Court , which on 3 March 2010 dismissed his appeal and upheld the decision of the lower court.

On 1 December 2010 the Slovenian Minister of Justice adopted the decision allowing the applicant ’ s extradition to Uruguay . In view of the reports of concerning prison conditions in Uruguay , he had requested additional information regarding the general conditions of accommodation of detainees and prisoners and the particular circumstances of the applicant ’ s accommodation. The Uruguayan authorities had explained that all detainees and prisoners charged with or sentenced for any unlawful act regarding the trafficking of narcotics were placed in the “Libertad” Penitentiary. They had subsequently also given assurances that the applicant would be placed in the main building, in which the maximum security facilities were located. According to the Uruguayan authorities, that part of the prison was not overcrowded, the facilities met the minimum standards of safety, and the detainees were provided with sufficient meals, had the possibility of recreation and could receive visitors, letters and packages. The Minister had also examined a number of reports of international bodies concerned with the human rights situation, and in particular the prison conditions in Uruguay , as well as the report by the Ministry of Foreign Affairs, which explicitly advised against the applicant ’ s extradition due to the poor prison conditions and violations of the basic principles of criminal procedure. Having regard to all these documents, the Minister of Justice concluded that even though the prison conditions did not meet the relevant international standards, they nevertheless did not reach the threshold of severity sufficient to trigger the application of Article 3 of the Convention in a case of extradition. He also referred to several measures adopted by the Uruguayan authorities in the past years to improve the prison conditions situation and concluded that in his view, the competent Uruguayan authorities were capable of ensuring the safety of detainees as required by a number of international instruments.

The applicant appealed against this decision before the Administrative Court and requested a stay of extradition.

On 29 December 2010 the Administrative Court granted the applicant ’ s request for a stay of extradition.

On 6 July 2011 the Administrative Court also granted the applicant ’ s appeal, having established that the decision of the Minister of Justice was flawed by a procedural error. Namely, the Minister of Justice failed to inform the applicant about the assurances provided by the Uruguayan authorities and thus deprived the applicant of his right to be heard on issues relevant to proceedings.

On 26 August 2011 the Minister of Justice rendered another decision allowing the extradition of the applicant to Uruguay . The Minister of Justice dismissed the applicant ’ s allegations that his extradition would amount to a violation of Articles 3 and 5 the Convention, in support of which the applicant presented the Annex to Press Release 76/11 on the Preliminary Observations on the Visit to Uruguay by the Office of the Rapporteur on the Rights of Persons Deprived of Liberty (IACHR) and numerous articles depicting the situation in the Uruguayan penitentiary institutions.

The applicant appealed against this decision before the Administrative Court and requested a stay of extradition.

On 7 October 2011 the Administrative Court granted a stay of extradition until the conclusion of proceedings.

On 29 February 2012 the Administrative Court dismissed the applicant ’ s appeal and upheld the Minister ’ s decision, concluding that the applicant had failed to demonstrate a concrete risk of inhuman treatment or torture which existed for him personally in the event of his extradition to Uruguay . The court was of the view that generally deplorable prison conditions did not suffice to establish a concrete risk of inhuman or degrading treatment. The applicant also complained that his extradition would be contrary to Article 6 of the Convention, as the Uruguayan criminal legislation provided no limitation on the length of pre-trial detention. In this respect he invoked the case of A.M. who had at the time already been detained in Uruguay for more than two years without any charges being brought against him. However, the Administrative Court held that there was no indication that the absence of provisions on a maximum length of detention would automatically violate the applicant ’ s right to a trial within a reasonable time.

The applicant lodged an appeal on points of law before the Supreme Court.

On 26 April 2012 the Supreme Court dismissed his appeal. It rejected the applicant ’ s argument that the extradition should not proceed due to the prison conditions in the “Libertad” Penitentiary. The Supreme Court, while acknowledging various problematic issues related to the conditions in this prison, relied on the assurances provided by the Uruguayan authorities to conclude that the applicant did not face a concrete risk of being subjected to an inhuman or degrading treatment. Notwithstanding the international reports and other sources indicating poor prison conditions in Uruguay , the court held that these sources did not sufficiently corroborate the applicant ’ s submissions that his extradition to Uruguay would amount to a violation of Article 3 of the Convention. The court also dismissed the applicant ’ s complaint that he would be denied a fair trial in Uruguay , reiterating that the absence of a maximum length of detention was not to be automatically interpreted as a violation of the right to a trial within a reasonable time.

The applicant lodged a constitutional complaint against the Supreme Court judgment.

On 5 June 2012 the Constitutional Court refused to accept the applicant ’ s constitutional complaint for consideration.

COMPLAINTS

The applicant complains under Article 3 of the Convention that in the event of his extradition to Uruguay , he faces the risk of being detained in inhuman and degrading conditions. In particular, he invokes the inadequate facilities, lack of proper sanitation and lack of health-care services . He further complains under Articles 5 and 6 of the Convention that his extradition would expose him to a flagrant denial of justice, as the Uruguayan criminal procedure permits unlimited pre-trial detention and is of purely inquisitorial nature.

QUESTIONS TO THE PARTIES

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

2. Would the applicant face a real risk of a flagrant violation of Article 5 and a flagrant denial of justice in the event of his extradition to Uruguay (see Othman (Abu Qatada ) v. the United Kingdom , no. 8139/09 , §§ 233 and 258, 17 January 2012)?