Published on 10 January 2022

SECOND SECTION

Application no. 35246/21 Kristijan KRSTIĆ and Ksenija Fej ATILANO KRSTIĆ against Serbia and 6 other applications (see list appended) communicated on 16 December 2021

STATEMENT OF FACTS

1. A list of the applicants is set out in the appendix, as are the applicants’ personal details, the date of introduction of their applications before the Court and the information regarding their legal counsel and complaints, respectively.

2. The facts of the cases, as submitted by the applicants, may be summarised as follows.

3. All applicants have been indicted as co-conspirators, alongside several others, by a Dallas-based federal grand jury (Northern District of Texas) on charges of one count of conspiracy to commit wire fraud and, all, except the fifth and ninth applicants, of one count of conspiracy to commit money-laundering ( zavera u izvršenju prevare koja uključuje elektronsku komunikaciju i pranje novca ), allegedly having duped investors worldwide out of more than $70 million . They are accused of, from their home bases in China, Serbia and elsewhere, between 2014 and 2020, targeted investors around the globe – including several in north Texas – soliciting “investments” in binary options platforms and cryptocurrency mining.

4. On 14 July 2020, the authorities of the United States (hereinafter “U.S.”) transmitted a request to the Serbian authorities for the applicants’ provisional arrest with a view to their extradition, pursuant to the relevant provisions of the 2019 U.S.-Serbia Extradition Treaty (see paragraph 18 below), by which the two contracting States agreed to extradite to each other persons, regardless of their nationality, sought for prosecution, or for imposition or execution of a sentence. The Serbian police arrested the applicants and the Belgrade High Court subsequently ordered the applicants’ detention or house arrest with electronic supervision, respectively.

5. The extradition request, sent by the U.S. on 21 July 2020 by email, and supplementary request with additional necessary submissions sent by a diplomatic note on 18 September 2020, were considered by the Serbian courts at two instances. The U.S. authorities submitted to them the relevant sections of the U.S. Criminal Code, which include information on all criminal acts allegedly committed by all the applicants and the statutory sentence range (from 0 to 20 years of imprisonment on each count).

6 . In the course of the extradition proceedings, including at the oral hearing of 30 September 2020, the applicants objected to the extradition for various reasons, referring to their nationality, a lack of U.S. jurisdiction ratione territoriae , the uncorroborated request based only on assumptions and a violation of their presumption of innocence. They further argued, inter alia , that they would be subjected to violations of human rights. In particular, the applicants expressed concern and uncertainty at being exposed to a different and unfamiliar legal system and cumulative sentencing, biased trials, lack of legal aid. They questioned the conditions of detention in the event of extradition to the U.S., including the general conditions and the COVID-19 pandemic, and claimed that they would be deported to a country where they had no ties and would not have the support of family or visits by their children (some of them being babies/toddlers), and that they would be exposed to an alien, more hostile, prison environment in view of long-lasting antagonism between the two States in question.

7. In the meantime, one of the co-accused voluntarily consented to simplified extradition proceedings, which were completed in cooperation with the FBI by February 2021. Another alleged conspirator of Chinese nationality with residence in the U.S. has also been arrested.

8. After a remittal in March 2021, on the ground of missing documents and evidence, the competent court requested further information and the U.S. Government supplemented their request, adding, inter alia , the testimonies of the two above-mentioned co-accused in the course of plea bargaining and other evidence.

9. On 13 April 2021, the Belgrade High Court established that all formal statutory requirements for the extradition of the applicants had been fulfilled. The court did not enter into an examination of the applicants’ above-mentioned objections or their personal and family circumstances (see paragraph 6 above), nor did it analyse the type of sentence the applicants might be facing, its potential length or the possibility of being released on parole. The decision was based on formal criteria – the extradition agreement, existence of reciprocity between Serbia and the U.S. and the ratione territoriae criterion which prevailed in respect of the U.S. courts’ jurisdiction.

10. On 25 June 2021, the Belgrade Appellate Court upheld on appeal the reasoning of the Belgrade High Court, stating briefly that the personal and family circumstances of the applicants did not affect the extradition decision.

11. When the maximum statutory length of extradition detention of one year expired on 24 July 2021, the competent authorities instead imposed on the applicants certain supervision measures, such as a ban on leaving their residence and regular reporting to the police until further notice.

12. The applicants submitted a request for the protection of legality to the Supreme Court of Cassation and a constitutional appeal, requesting the courts also to adopt an interim measure preventing their extradition. Both proceedings are pending.

13. The applicants are facing extradition to the U.S., pending the adoption of an extradition order by the Minister of Justice (see paragraph 16 below).

14. In a subsequent letter of 26 April 2021, the U.S. Government informed the Serbian Government that the first applicant had also been charged in the Eastern District of New York on one count each of (a) conspiracy to commit securities fraud ( maximum term of imprisonment of 5 years ); (b) securities fraud (maximum term of imprisonment of 20 years); (c) conspiracy to commit wire fraud (maximum term of imprisonment of 20 years); and (d) conspiracy to commit money-laundering (maximum term of imprisonment of 20 years).

15. The relevant provisions on extradition in Serbia are prescribed by the Law on mutual legal assistance in criminal matters and the Criminal Procedure Code. The former provides that Serbian nationality should be an obstacle to extradition. The latter provides that extradition of defendants or sentenced persons should be conducted in accordance with the provisions of international treaties, including the European Convention on Extradition and the European Convention on Human Rights. If there is no international treaty or the international treaty does not regulate certain issues, extradition shall be conducted in accordance with the Code.

16 . The domestic courts at two instances are vested with the authority to establish whether the statutory preconditions for the extradition have been met, focusing on procedural issues. Following these decisions, the Minister of Justice issues a final decision allowing the extradition or not. The Minister shall not allow the extradition of a person who was granted asylum in Serbia or for whom it can be presumed that, in case of extradition, he would be subjected to persecution or punishment for political crimes or on the grounds of his race, religion, nationality, being a member of a certain social group or his political convictions, or his position would be aggravated due to any of these reasons.

17. Lastly, the Ministry of Interior shall enforce the Justice Minister’s decision permitting extradition. The Ministry of Interior shall agree with the competent authority of the requesting State on the place, the time and the manner of surrender of the defendant or the convicted person.

2. Extradition arrangements between the Republic of Serbia and the U.S. – 2019 Extradition Treaty

18 . On 14 February 2019, the National Assembly of the Republic of Serbia adopted the Law on the Confirmation of the Treaty on Extradition between the Government of the Republic of Serbia and the Government of the U.S. (published in the Official Gazette – International Treaties No. 2/2019 dated 18 February 2019). The objective of the Treaty is to ensure more effective cooperation between the two countries in the fight against crime. The contracting parties undertook the obligation to extradite to the other State persons sought by the Requesting State for prosecution. Article 1 of the Treaty obligates each State to extradite to the other State persons sought by the Requesting State for prosecution or for imposition or service of a sentence for an extraditable offence (non-political offences). According to the Treaty, the nationality of the person whose extradition is requested is not of importance, which means that extradition is possible for both nationals of the contracting parties and non-nationals. The extradition shall be carried out only for the criminal offence for which the extradition was requested if the prescribed sentence is more than one year in both contracting parties.

19. If the criminal offence for which the extradition is sought is sanctioned by the death penalty of the requesting State, but not within the deporting State, the deporting State may refuse extradition unless the requesting State grants it a guarantee that the death penalty will not be imposed.

PROCEDURE BEFORE THE COURT

20. Between 13 and 21 July 2021, the Court (the duty judge) decided, following the applicants’ requests under Rule 39 of the Rules of Court, to provisionally indicate to the Government of Serbia that they should not be extradited from Serbia to the U.S. until 16 and 19 August 2021, respectively.

21. Following a provisional prolongation of the interim measure on 16 August, on 29 September 2021 the duty judge decided not to prolong the interim measure, adding that the Court’s decision should not be read so as to allow the Serbian Government to extradite the applicants if they have knowledge of circumstances indicating that indeed there exist substantial grounds for believing that the applicants would be exposed to a real risk of treatment contrary to Article 3.

22. The Court also decided to grant the cases priority under Rule 41 of the Rules of Court.

COMPLAINTS

The applicants complain, under Article 3 of the Convention, that, if convicted for the crimes charged with, they may be sentenced to a disproportionate sentence which would be equivalent to de facto life imprisonment, in view of their age, and without the possibility of parole, particularly given the practice of cumulation and the consequent enforcement of sentences in the U.S. legal system. In this respect, they further complain that the respondent Government failed to seek information or assurances, regardless of their statutory duty to do so, that the U.S. authorities would not impose de facto life imprisonment on the applicants or charge them for any additional criminal offences, which is particularly inconclusive in the case of the first applicant, who is also wanted by the New York State.

All applicants allege that, if extradited, they would be subjected to treatment in breach of Article 3 of the Convention as a result of exposure to severe, substandard conditions in the Texas jails and prisons while awaiting sentence or serving it, particularly taking into an account the current number of COVID-19 infected people in the State of Texas and among the inmates.

The applicants further claim, referring to both Articles 3 and/or 8 of the Convention, that they would face indefinite family separation and irreparable harm, since their minor children or family members, for various reasons, would not be able to travel to the U.S. for the purposes of maintaining contact and family relationship. The second applicant also relies on her current mental disorder due to threatened separation from her minor children, including her newborn baby. In addition, referring to the Convention on the Transfer of Sentenced Persons, the applicants argue that the respondent State should prosecute them in Serbia in order to strike a fair balance between the right to family life and the necessity to prosecute the alleged crimes.

Lastly, all applicants complain, explicitly or implicitly, under Article 13 of the Convention, of the lack of an effective legal remedy for the above-mentioned alleged violations.

COMMON QUESTIONS AND REQUEST FOR INFORMATION

1. Which national authority has been vested with a general statutory obligation to examine the compatibility of the intended extraditions with the Convention, in particular in case of extradition of Serbian nationals? What is the scope of such an examination, in particular if a requested person is a national of the requested State? The Government are requested to submit, in support of their response, documentary evidence, concerning both the applicable legal framework and the practice of the national authorities in this respect.

2. Has the Minister of Justice of the Republic of Serbia, in the meantime, rendered an extradition order in respect of the applicants? In addition, which national authority is competent to inform the defendants and their legal representatives about a final decision of the Minister of Justice in extradition proceedings and at which moment? Are they informed, in practice, some time before the extradition has been carried out or only afterwards by ordinary mail?

3. Before deciding on the applicants’ extradition, did the competent courts consider the applicants’ claims that they could be exposed to the risk of being subjected to treatment contrary to Article 3 of the Convention if extradited to the United States (hereinafter “U.S.”)? In particular, could the State authorities be considered to have complied with their procedural obligations if the applicants were to be extradited to the U.S. (see, for example, Čalovskis v. Latvia , no. 22205/13, 24 July 2014)?

4. In the light of the applicants’ allegations, if they were to be extradited to the U.S., would they face a real risk of being subjected to inhuman and degrading punishment through the imposition, under U.S. criminal law, in respect of the relevant charge, of any (cumulative) sentence which would de facto equate to life imprisonment, without possibility of early release or release on parole de jure and de facto (see Findikoglu v. Germany, no. 20672/15, § 36, 7 June 2016, and Čalovskis v. Latvia , cited above, § 145 )? If so, would their extradition, in these circumstances, be compatible with the requirements of Article 3 of the Convention (see, for example, Kafkaris v. Cyprus [GC], no. 21906/04, ECHR 2008; Vinter and Others v. the United Kingdom [GC], nos. 66069/09, 130/10 and 3896/10, ECHR 2013 (extracts) and Trabelsi v. Belgium , no. 140/10, ECHR 2014 (extracts))?

In particular,

(a) what are the exact offences that the applicants have been charged with and what is the advisory sentencing range for each of them? Having regard to the relevant provisions of the 2019 Extradition Treaty and the domestic decisions, could the applicants be prosecuted in the U.S. for other crimes than those specified in the 2020 extradition request and the domestic decisions? Specifically, can the first applicant be prosecuted for the offences that he has been charged with by the Eastern District of New York?

(b) what are the relevant mitigating and aggravating factors that could be taken into account by U.S. courts in order to decide the sentence within the context of the present cases (see López Elorza v. Spain , no. 30614/15, 12 December 2017)? Also, the Government are requested to provide official information on sentencing policy, according to the criteria formulated in the U.S. Sentencing Guidelines and practice of domestic courts, in respect of conspiracy to commit cyber-related frauds and money-laundering in the U.S.

(c) what is the outcome of cooperation and/or plea bargaining by the applicants’ alleged co-conspirators? In particular, have they already been convicted and sentenced for related criminal offences?

(d) could the applicants be sentenced to a “grossly disproportionate sentence” or a sentence which may amount to a “time span exceeding the applicants’ lives” for the offences they are charged with?

(e) assuming that a de facto life sentence is imposed on the applicants, can such a sentence be qualified as reducible for the purposes of Article 3 of the Convention?

(f) did the Serbian authorities request the U.S. authorities to provide adequate assurances that, should the applicants be convicted of all/some of the offences listed in the indictment, a sentence amounting to a de facto life imprisonment will be avoided? Does the letter of the U.S. Trial Attorney of the Justice Ministry, dated 20 July 2021 and sent in reply to the Court’s questions posed to the Serbian Government, suggesting that the applicants would not be sentenced to life imprisonment, fulfil the conditions of adequate assurances, as required by the case-law of the Court (see Allanazarova v. Russia , no. 46721/15, 14 February 2017).

5. Where and under which concrete conditions would the applicants be incarcerated in the U.S.? Have the national authorities or the Serbian Government requested or received from the U.S. authorities any specific information in this respect?

6. As regards all applicants, if they were to be extradited, would there be a real risk of a breach of Article 3 of the Convention on account of the material conditions of detention they would face on arrival, or prison conditions in general, having particular regard to the ongoing Covid-19 pandemic and alleged unsatisfactory sanitary conditions? What relevance, if any, is to be attached to the second applicant’s allegations about her mental disorder/health that has allegedly deteriorated since January 2021?

7. Have the applicants been vaccinated against COVID-19?

8. Would there be an interference with the applicants’ right to respect for their private and family life by the intended extradition and its consequences, within the meaning of Article 8 § 1 of the Convention? If so, would that interference be in accordance with the law and necessary in terms of Article 8 § 2 (compare and contrast King v. the United Kingdom (dec.), no. 9742/07, § 29, 26 January 2010; Babar Ahmad and Others v. the United Kingdom , nos. 24027/07 and 4 others, § 252, 10 April 2012; and Trabelsi , cited above, § 170; see, also, albeit in the context of prisoners’ rights to communicate with their families, Polyakova and Others v. Russia , nos. 35090/09 and 3 others, § § 84-89, 7 March 2017, with further references; and Khoroshenko v. Russia [GC], no. 41418/04, ECHR 2015)?

In particular,

(a) are there any exceptional circumstances in the applicants’ private or family life in a Contracting State which can outweigh the legitimate aim pursued by their respective extraditions;

(b) have the Government taken or envisaged to take any measure, or obtained assurances from the U.S. Government, in order to assist the applicants maintaining contacts with their families in order to prevent any alleged irreparable harm on account of the separation of the parent applicants and their children, in particular concerning visiting rights?

(c) have the Government taken or envisaged to take any care measures in respect of the applicants’ children, in particular in application no. 35246/21, in which the minor children may remain without any parental care?

9. Have the Government obtained or envisaged to obtain assurances from the U.S. Government on the likely sentence range, the material conditions in the jail/prison the applicants would be placed in and/or family visiting in order to protect the rights of the individual applicants, some of whom are also the State’s nationals? Would the State authorities adequately ascertain that the conditions awaiting the applicants in the receiving State, according to the information obtained from the U.S. Trial Attorney following the Court’s involvement, are in full accord with Article 3 of the Convention? How will the Serbian Government verify that the given “information” provided is complied with?

10. Have the Government envisaged to obtain any guarantee that the surrender may be subject to the condition that the requested persons be returned, after being heard, to serve their detention order or a final sentence in Serbia?

11. Do the applicants have at their disposal an effective domestic remedy for their complaints under Articles 3 and/or 8 of the Convention, as required by Article 13 of the Convention?

The Government are requested to provide documentary evidence in support of their answers, as well as a copy of any new correspondence with the U.S. authorities concerning the applicants.

APPENDIX

No.

Application no.

Lodged on

Applicant name

Date of birth

Place of residence

Nationality

Represented by

Articles

Family status

35246/21

12/07/2021

Kristijan KRSTIĆ

10/01/1976

Niš

(the first applicant)

Ksenija Fej ATILANO KRSTIĆ

1977Niš

(the second applicant)

Serbian

Philippine

Radomir KOJIĆ

Article 3

Article 6*

Article 7*

Article 8

Article 13

The first applicant has seven children, including three with the second applicant, being a custodial parent of four minors born in 2020, 2016, 2010 and 2006

35477/21

13/07/2021

Nenad KRSTIĆ

18/11/1992

Niš

(the third applicant)

Miloš MITIĆ

1984Niš

(the fourth applicant)

Serbian

Serbian

Ljubomir IVANOVIĆ

Article 3

Article 6*

Article 8

Article 13

The third applicant lives with his wife and two children (3 years and 8 months), while the fourth applicant lives his mother and long-term partner.

35661/21

13/07/2021

Nikola DIMITRIJEVIĆ

02/08/1989

Niš

(the fifth applicant)

Serbian

Dalibor LAZOVIĆ

Article 3

Article 6*

Article 7*

Article 8

Article 13

Article 14*

Article 17*

The fifth applicant lives with his long-term partner who is about to give birth to their first child.

35672/21

14/07/2021

Uroš SELAKOVIĆ

07/12/1988

Niš

(the sixth applicant)

Serbian

Miloš PETROVIĆ

Article 3

Article 6*

Article 7*

Article 8

Article 13

The sixth applicant lives with his wife and twins born in 2019.

35701/21

15/07/2021

Andrija SELAKOVIĆ

23/02/1993

Niš

(the seventh applicant)

Serbian

Miloš PETROVIĆ

Article 3

Article 6*

Article 7*

Article 8

Article 13

The seventh applicant lives with his long-term partner and their 7 years old child.

36032/21

16/07/2021

Marko PAVLOVIĆ

15/02/1986

Niš

(the eight applicant)

Serbian

Radomir KOJIĆ

Article 3

Article 6*

Article 7*

Article 8

Article 13

The eight applicant lives with his long-term partner.

36634/21

21/07/2021

Blažo RADULOVIĆ

20/11/1987

Niš

(the ninth applicant)

Montenegrin

Marko TEŠIĆ

Article 3

Article 6*

Article 8

Article 13

The ninth applicant lives with his wife and two children born in 2018 and 2020.