FIRST SECTION

Application no . 20696/12 Igor Anatolyevich KULEVSKIY against Russia lodged on 6 April 2012

STATEMENT OF FACTS

THE FACTS

In 2004 the applicant left Belarus for Russia allegedly as a result of his persecutions by the Belarusian law enforcement authorities for his disagreement with the political regime and participation in rallies and demonstrations. He had allegedly been detained more than once and tortured.

In 2010 he was detained in Russia with a view to his extradition to Belarus in connection with a criminal case against him, while he had allegedly never committed any crime.

On 23 May 2011 the Prosecutor General of the Russian Federation granted a request by the Prosecutor General of Belarus of 16 August 2010 for the applicant ’ s extradition for his prosecution on the charges of banditry, aggravated murder of five persons in 1994, murder with particular cruelty of three more persons in 1995 (under Article 100 of the 1960 Criminal Code of Belarus) and arms-related offences.

From 28 October 2010 to 14 September 2011 the applicant served a sentence of imprisonment after his conviction of forgery of a Russian passport with which he had lived on the territory of Russia under a false name.

From 14 September 2011 he is detained pending extradition, currently until 22 September 2012.

On 6 March 2012 Tula Regional Court examined the applicant ’ s appeal against the decision for his extradition and dismissed it for the following reasons:

- The applicant ’ s prosecution was not time-barred. The crimes of which he was accused were also punishable under the Russian law.

- The assurances given by Belarus were sufficient in the circumstances of the case to guarantee that the applicant, if extradited, would not be subjected to treatment contrary to Article 3 of the Convention and that he would not be sentenced to capital punishment if convicted:

Thus, on 16 August 2010 the Prosecutor General ’ s Office of Belarus guaranteed that the applicant would only be prosecuted for crimes as stated in the request for extradition, that after serving his sentence, if convicted, he would be free to leave Belarus and he would not be transferred to a third state without the Russian Federation ’ s consent. They stated that the request for extradition did not pursue the aim of the applicant ’ s persecution on the ground of his political views, religion, nationality or race.

On 8 July 2011 the Prosecutor General ’ s Office of Belarus provided additional assurances that the applicant would not be subjected to torture, inhuman or degrading treatment or punishment contrary to Article 3 of the Convention. If convicted, he would not be sentenced to a death penalty. He would be provided with a fair trial and, if necessary, with requisite medical treatment.

The Regional Court noted that under Article 494 § 4 of the Code of Criminal Procedure of Belarus, the Prosecutor General ’ s Office was the only state body authorised to give an undertaking on behalf of the Republic of Belarus that a death penalty would not be applied to a person whose extradition was requested by another state, if such an assurance was a pre ‑ condition for extradition.

According to a note by the Belarus Embassy in Russia , the assurances by the Prosecutor General had a binding force and were subject to rigorous observance. The assurances would be examined by a trial court and taken into account as an obligation of the Republic of Belarus not to apply a death penalty to the applicant.

- Belarus had ratified the International Covenant on Civil and Political Rights, as well as the UN Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment.

- Principles governing the functioning of Belarusian courts included their independence from legislative and executive authorities and other fair trial guarantees.

- The applicant ’ s allegations of his persecution in Belarus were incoherent and unfounded. No evidence of his detentions, ill-treatment or his complaints was provided. According to Prosecutor General ’ s Office, the applicant had only been subject to administrative liability for traffic violations. Political motives for leaving his home country had for the first time been raised before the Regional Court at the last hearing without providing any details. He had stated to the court previously that the reason for him leaving Belarus had been his search of a job. He admitted at the hearing that he had not been a member of any political, religious or non ‑ governmental organisation, had never distributed agitation materials or appeals. He had made the same statements when detained with a view to extradition. His wife, daughter and sister were Belarusian nationals, resided in Belarus and had never been persecuted. Upon arrival to Russia he had not applied for a refugee status but had lived on the basis of a forged Russian passport.

- The reference to a general problem concerning human rights observance in a particular country cannot alone serve as a basis for refusal of extradition, as confirmed by the Convention case-law.

- There were no grounds to believe that the applicant would be subjected to treatment dangerous for his health or life, or that his trial would not comply with the guarantees of Article 14 of the International Covenant on Civil and Political Rights.

- The applicant ’ s state of health did not require his stay in Russia on humanitarian grounds.

The applicant ’ s appeal against the Tula Regional Court ’ s judgment will be examined by the Supreme Court of the Russian Federation on 26 April 2012.

On 11 January 2012 Moscow Basmanniy District Court dismissed the applicant ’ s appeal against the Federal Mi gration Service ’ s decision of 5 October, as upheld on 29 November 2011, rejecting his request for a refugee status as groundless. It appears that the applicant did not appeal against the Moscow City Court ’ s decision upholding the District Court ’ s decision.

On 14 March 2012 the applicant brought asylum proceedings.

COMPLAINT S

The applicant complains that the Russian Federation Prosecutor General ’ s decision of 23 May 2011 to extradite him, as well as other decisions by the Russian authorities in his case, were allegedly taken in breach of Articles 2 and 3 of the Convention. He would be tortured to make him confess and then sentenced to death, if extradited. Thus, three leaders of a gang, of which he is alleged to have been a member, were detained in Belarus in 2004, convicted, sentenced to death and executed.

QUESTIONS TO THE PARTIES

1. W ould the applicant run a real risk of a death sentence, if extradited to Belarus, in breach of Articles 2 and 3 of the Convention (see Soering v. the United Kingdom, 7 July 1989, Series A no. 161; and Al ‑ Saadoon and Mufdhi v. the United Kingdom, no. 61498/08, §§ 100-144, ECHR 2010 (extracts))?

2. Did the assurances by the Belarusian Prosecutor General ’ s Office provide, in their practical application, a sufficient guarantee that the applicant would not be sentenced to a death penalty, if extradited (see Babar Ahmad and Others v. the United Kingdom ( dec .), n o. 24027/07, 6 July 2010; Othman (Abu Qatada ) v. the United Kingdom, no. 8139/09, §§ 160-207, 17 January 2012, not final; and Koktysh v. Ukraine, no. 43707/07, §§ 43- 66 , 10 December 2009)? In particular:

(a) Are they sufficiently specific and unequivocal?

(b) Do they bind the Belarusian courts according to the Belarusian relevant domestic law and practice (please submit, in particular, a representative review of court judgments in individual cases)?

(c) What are the legal and practical extradition arrangements between the Russian Federation and Belarus ?

(d) How does the Russian Federation monitor the observance of assurances given by Belarus in the context of extradition requests not to impose a death penalty? How the observance of those assurances can be secured? What are diplomatic or other monitoring mechanisms which allow for objective verification of compliance with the assurances? Are there publicly accessible records of each case of imposition and execution of a death sentence?

(e) Has there been a breach of an assurance by Belarus that has been given to the Russian Federation in the context of an extradition request, in particular, of an assurance not to impose or execute a death penalty?

The Government are requested to provide statistics concerning extradition requests by Belarus in cases involving charges carrying a death penalty as a possible punishment and observance of assurances given. The Government are also requested to submit to the Court a Note by the Belarus Embassy in Russia (concerning the Prosecutor General ’ s assurances) referred to on page 5 of the Tula Regional Court ’ s judgment of 6 March 2012, the Russian Federation Supreme Court ’ s judgment on the applicant ’ s appeal against the Tula Regional Court ’ s judgment of 6 March 2012, as well as any other relevant information and documents concerning the Russian authorities ’ assessment of the risk of capital punishment in the applicant ’ s case and the assurances provided by the Belarusian authorities in the extradition proceedings.