Information Note on the Court’s case-law 28

March 2001

Ismaili v. Germany (dec.) - 58128/00

Decision 15.3.2001 [Section IV]

Article 3

Extradition

Prison conditions in State requesting extradition: inadmissible

Article 1 of Protocol No. 6

Abolition of the death penalty

Extradition of an accused risking the death penalty: inadmissible

The applicant was a Moroccan national. He was suspected in Morocco of involvement in the murder of a policeman in 1997. The Moroccan courts issued a warrant for his arrest in January 1998. In 1997 the applicant travelled to Germany where he lodged an application for political asylum. His application was dismissed by the F ederal Office for Refugees which ordered him to leave German territory or face expulsion. In October 1997 he was arrested. He remained in detention thereafter awaiting expulsion. He lodged an appeal against the decision of the Federal Office for Refugees. That decision was set aside in so far as it required him to leave German territory, as the Court considered that the Moroccan authorities had not given an assurance that there was no danger of the applicant receiving the death sentence or being executed fo r the alleged offence. The Federal Office for Refugees then made a new order for his expulsion. The applicant’s appeals against that order were dismissed, as the courts considered that the Moroccan authorities had in the meantime furnished assurances that the offence for which the applicant was wanted did not carry the death sentence, that in any event the death sentence would not be carried out and that there was no reason to fear that he would be subjected to inhuman treatment (the assurances were confirm ed by recent information from German diplomatic sources and by an examination of the German case-law in similar cases). The applicant produced decisions of German courts in which extradition to Morocco had been refused owing to the conditions in Moroccan p risons. However, he was unable to point to recent authorities showing that that situation persisted. The applicant informed the Court in a letter that a co-accused wanted for the same offences by the Moroccan authorities had been sentenced to twenty years’ imprisonment after being extradited by Germany.

Inadmissible under Article 1 of Protocol No. 6: the existence of a serious risk of being subjected to capital punishment in the event of extradition had to be supported by prima facie evidence. In the case b efore the Court, the Moroccan authorities had declared to the German authorities that the offence for which the applicant was wanted did not carry the death sentence and that the death sentence would therefore not be requested or carried out. In authorisin g the applicant’s extradition, the German courts had also taken into consideration other sources which bore out those assurances. Lastly, the applicant himself had informed the Court that a co-accused, who had been tried in Morocco for the same offence, ha d not been sentenced to death. The extradition order made by the German authorities did not therefore entail a real danger for the applicant’s life: manifestly ill-founded.

Inadmissible under Article 3: The existence of a genuine danger of being subjected to treatment contrary to Article 3 in the country that had made the request for extradition had to be supported by prima facie evidence. A mere possibility of ill-treatment due to instability in a country did not in itself entail a violation of Article 3. In the case before the Court, the German courts had carefully examined the evidence furnished by the applicant before holding that it was not enough to make extradition impossible. They had also relied on other reliable sources, including judicial decision s, in order to show why extradition was possible. Therefore, no serious grounds had been made out for supposing that the applicant would be exposed to a real danger of inhuman and degrading treatment if extradited: manifestly ill-founded.

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