CONCURRING OPINION OF JUDGE ELÓSEGUI

I have followed the rest of my colleagues in the conclusion of this judgment, which we have adopted unanimously in favour of the applicant ’ s complaints of a violation of Article 5 §§ 1, 4 and 5.

My concurring opinion is merely aimed at going into greater depth on why the Chamber has concluded that the applicant´s extradition to Belarus will not be in breach of Article 3 of the Convention (see paragraph 102 of the judgment). The judgment concludes: “[a] ccordingly , this complaint is manifestly ill-founded and must be rejected in accordance with Article 35 § § 3 (a) and 4 of the Convention”.

Having requested thorough research on the available data given by the parties, I have arrived at the same conclusion as my colleagues.

The Court has in many cases analysed the general principles as regards extradition. More concretely, in the decision of the 3 rd Section case B.T. v. Russia ( dec. ), no. 40755/16, 5 December 2017, the Court examined the general principles and applied them to the above concrete case. The application also concerned an order by the Russian authorities for the extradition of the applicant to Uzbekistan. In the case of B.T. v. Russia the Court concluded as follows: “... beyond a broad reference to ill ‑ treatment in the light of the general practice in the criminal justice system of Uzbekistan, the applicant, both at domestic level and in his submissions before the Court, failed to refer to any individual circumstances and to substantiate his fears of ill-treatment in the event of his extradition to Uzbekistan. He did not refer to any personal experience of ill ‑ treatment at the hands of the Uzbek law ‑ enforcement authorities, neither did he allege that members of his family had been politically or religiously active or persecuted” (see B.T. v. Russia , cited above, § 29). See by contrast, Garayev v. Azerbaijan , no. 53688/08, § 71, 10 June 2010; Mamazhonov v. Russia no. 17239/13, § 141, 23 October 2014; and Ismoilov and Others v. Russia , no. 2947/06, § 121, 24 April 2008.

Moving on to the present case, the Court has applied to it the general principles as set out in B.T. v. Russia , in paragraphs 18-23 of the decision. The present judgment exposes in detail the general situation of Belarus in the context of an extradition case (see §§ 51-57), with the most recent reports issued by the UN Committee against Torture (CAT/C/BLR/CO/5, 7 June 2018).

As has been pointed out, the mere possibility of ill-treatment on account of the situation in the receiving country does not in itself give rise to a breach of Article 3. That is why the Court went on to examine the applicant ’ s specific allegations and the Russian domestic authorities ’ responses to the latter. In my view, it is not only for the applicant to prove the allegations and for the Government to refute them, but it is also the Court ’ s responsibility if the fact of expelling a person to a given country is deemed to entail a risk of ill ‑ treatment or torture.

The Court, after a detailed analysis of all the facts available on the observations of both parties, has reached the conclusion that the applicant has evidenced neither a real risk of ill-treatment in 2010 nor any future possible risk, over thirteen years after the trial in Belarus (see paragraphs 97 and 99 of the judgment).

The applicant has not proved to our Court that he belongs to any political, religious or ethnic group liable to suffer any kind of persecution (see B.T. v. Russia , cited above, §§ 27 and 28). According to the available information he was a civil servant. Moreover, the trial, the charges, and the sentence were all dealt with by the Belarusian courts “for ordinary criminal offences, which did not appear to be related to any particular political context” (see paragraph 96 of the judgment). Similarly, mutatis mutandis , in the case K. v. Russia, no. 69235/11, 23 May 2013, which also concerned a national of Belarus, the Court concluded that “[h] aving regard to the decision of the Russian courts in the course of the extradition proceedings, as well as the material before it, the Court considers that the applicant´s statement concerning his being a victim of political persecution in Belarus lacks substantiation. The Court observes that the applicant is wanted by the Belarusian authorities on charges of aggravated kidnapping, robbery and extortion, which, although grave, are ordinary criminal offences. The decisions by the Belarusian authorities describing the circumstances of the crimes and outlining the suspicions against the applicant are detailed and well-reasoned” ( K. v. Russia , cited above, § 68).

Moreover, and similarly, the applicant has not provided our Court with any proof of his claim that the prosecution in Belarus “fabricated” criminal charges against him as vengeance for his complaints to the authorities (see paragraphs 92 and 83 of the judgment). According to the information given by the applicant and the Russian authorities, the trial in Belarus was based on suspicion of his receiving a bribe of 550 United States dollars and an accusation of forgery of an official document in relation to a bribe (see § 16). Furthermore, there is no proof that he was subjected to any ill ‑ treatment on Belarus, where he was never imprisoned.

In fact, the applicant arrived in Russia in March 2005 and at no stage applied for refugee status or temporary asylum under the Refugees Act (see, paragraph 33 of the judgment). Moreover, “[t]he Court notes that the extradition proceedings in Russia took place in 2009 and 2010. Thereafter, the applicant went into hiding” (see paragraph 75 of the judgment) and it appears that he is still hiding in Russia (see paragraph 76 of the judgment). The Court has said on many occasions that the applicants cannot be protected by the Convention when they have behaved culpably (see Khlaifia and Others v. Italy [GC], no. 16483/12, § 240, 15 December 2016; Hirsi Jamaa and Others v. Italy [GC], no. 27765/09, § 184, ECHR 2012, M.A. v. Cyprus , no. 41872/10, § 247, ECHR 2013 (extracts); Berisha and Haljiti v. the former Yugoslav Republic of Macedonia ( dec. ), no. 18670/03, ECHR 2005 ‑ VIII (extracts); and Dritsas and Others v. Italy ( dec. ), no. 2344/02, 1 February 2011 ) .

In a different connection, the Court usually asks the authorities of the Contracting Parties for guarantees in each concrete case on ensuring respect for the rights set out in the Convention, indicating to them not to expel persons to countries where there are real risks of ill-treatment. In this concrete situation, on the one hand the Russian Government informed the Court of the following: “the Belarusian Prosecutor General´s Office had provided assurances that the request was not aimed at political persecution against the applicant, nor did it relate to his race, religion, nationality or political views ... . The applicant´s allegations about violation of human rights in Belarus had not been substantiated and remained unsubstantiated. He had not submitted any valid proof that he ran a risk of being persecuted on the ground of his race, religion, nationality, social status or political views” (see paragraph 63 of the judgment). On the other hand, it is clear that diplomatic assurances “are not in themselves sufficient to ensure adequate protection against the risk of ill-treatment, and there is an obligation to examine whether they provide, in their practical application, a sufficient guarantee that the applicant will be protected against any such risk” (see K. v. Russia , cited above, § 64).

I would also like to set out some comments on the violation of Article 5 §§ 1, 4, and 5 of the Convention. In this case, the Court has recognised a violation of this article under three aspects. The applicant provided cogent evidence, which the Russian Government also accepted in their observations. In short, the applicant was detained in Russia under the unlawful resolution of 10 August 2009 of the St Petersburg transport prosecutor between 16 August 2009 and 13 November 2009 (90 days), without an appropriate court order in breach of Article 5 § 1 of the Convention (see paragraph 47 of the applicant ’ s observations and paragraphs 147-49 of the judgment). He was not awarded any compensation by the Russian Government, in violation of Article 5 § 5 of the Convention (see paragraphs 150-154 of the Government ’ s observations).

Finally, it is worthwhile repeating some of the applicant ’ s observations which have not been reflected in the judgment, because they are quite eloquent even though there are lumped together under the breach of Article 5 § 1 of the Convention. They concern the conditions of detention in SIZO ‑ 4 from 7 June to 13 November 2009. The applicant “notes to the European Court that he lodged a complaint against his conditions of detention in the St Petersburg pre-trial detention facility, SIZO-4, with the General Prosecutor ’ s Office of Russia on 11 November 2009” (Applicant´s Observations in response to the Observations of the Government, § 58). The applicant complained “of his detention in the cell with prior criminal convicted persons (recidivists), who fought with each other, with blood spilling over the cell, which posed a risk of violence towards the applicant; of the lack of responses to his written applications to the Governor of SIZO ‑ 4; of him being transferred for a day to another cell and back again in order to psychologically suppress and humiliate him; and of his poor medical treatment” (Applicant´s Observations, no. 59). The Russian General Prosecutor ’ s Office ’ s reply no. 17-200/2009 of 29 January 2010 answers the applicant as follows: “in respect of placing you in SIZO ‑ 4 cells, a violation was found of Article 33 of the Federal Law requiring the separate placement of different categories of accused persons in pre-trial detention facilities” (Observations nº 60). According to the applicant, no steps were taken to redress his rights (Observations, no. 61).

As a final conclusion, it could be said that the Court has supported its finding of a violation of Article 5 §§ 1, 2, 4 with appropriate evidence, as well as, conversely, declaring the inadmissibility of a violation of Articles 3 and 6 in the absence of any cogent evidence.