Постановление Европейского суда по правам человека от 01.04.2010 «Дело Клейн (klein) против России» [англ.]

Город принятия

(Application No. 24268/08)
(Strasbourg, 1.IV.2010)
*This judgment will become final in the circumstances set out in Article 44 § 2 of the Convention. It may be subject to editorial revision.

In the case of Klein v. Russia,

The European Court of Human Rights (First Section), sitting as a Chamber composed of:

Christos Rozakis, President,

Nina {Vajic}*,

*Здесь и далее по тексту слова на национальном языке набраны латинским шрифтом и выделены фигурными скобками.

Anatoly Kovler,

Elisabeth Steiner,

Khanlar Hajiyev,

Dean Spielmann,

Sverre Erik Jebens, judges,

and {Andre} Wampach, Deputy Section Registrar,

Having deliberated in private on 11 March 2010,

Delivers the following judgment, which was adopted on that date:

1. The case originated in an application (No. 24268/08) against the Russian Federation lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms ("the Convention") by an Israeli national, Mr Gal Yair Klein ("the applicant"), on 26 May 2008.

2. The applicant was represented by Mr D. Yampolskiy, a lawyer practicing in Moscow, and by Mr M. Tzivin, Mr M. Levin and Mr N. Tzivin, lawyers practising in Tel-Aviv. The Russian Government ("the Government") were represented by Mr G. Matyushkin, Representative of the Russian Federation at the European Court of Human Rights.

3. On 27 May 2008 the President of the Chamber decided to apply Rule 39 of the Rules of Court, indicating to the Government that the applicant should not be extradited to Colombia until further notice.

4. On 3 July 2008 the Court decided to apply Rule 41 of the Rules of Court and to grant priority treatment to the application.

5. On 4 September 2008 the Court decided to give notice of the application to the Government. It was also decided to examine the merits of the application at the same time as its admissibility (Article 29 § 3).

6. The Government objected to the joint examination of the admissibility and merits of the application. Having considered the Government's objection, the Court dismissed it.

I. The circumstances of the case
7. The applicant was born in 1943 and lives in Tel-Aviv. He is currently detained in remand prison IZ-77/4 in Moscow.

8. On 23 February 2001 the Criminal Court of the Manizales District, Colombia ("Juzgado Penal del Circuito de Manizales") convicted the applicant of a crime provided for by Article 15 of Decree No. 180 (1988), acknowledged as permanent law of Colombia by Extraordinary Decree No. 2266 (1991), ("instruction in and teaching of military and terrorist tactics, techniques and methods, committed with mercenaries and accomplices") and sentenced him to fourteen years' imprisonment.

9. On 22 June 2001 the Superior Court of the Manizales District, Colombia ("Tribunal Superior de Manizales") reduced the applicant's sentence on appeal to ten years and eight months' imprisonment, combined with a fine.

10. On 28 February 2001 the Criminal Court of the Manizales District issued an arrest warrant against the applicant on the basis of his conviction.

11. On 28 March 2007 Interpol issued Red Notice No. A-666/3-2007 for the applicant's provisional arrest with a view to extradition.

12. At 6.40 p.m. on 27 August 2007 a group of servicemen of the Russian Ministry of the Interior, assisted by Interpol officers, arrested the applicant in Domodedovo Airport, Moscow.

13. On 28 August 2007 the Moscow prosecutor's office with responsibility for supervision of the implementation of laws on marine and air-borne transport ordered the applicant's placement in custody, pursuant to Article 466 of the Russian Code of Criminal Procedure ("CCP"), until his transfer to the country which had requested extradition. The decision gave the following reasons for application of a measure of restraint:

"Gal Klein Yair is a national of a third State, has no permanent place of residence and employment on the territory of the Russian Federation, and his extradition for the purpose of serving the sentence imposed by the judgment of the District Special Criminal Court of Manizales would be impossible without ensuring [his] placement in custody".

14. On 31 August 2007 Rossiyskaya Gazeta ("Российская газета"), a federal newspaper, published an article on its website entitled "The Mafia's Teacher Awaits Extradition" ("Учитель мафии ждет экстрадиции"), covering the applicant's story. The article read, in particular:

"Having learned of the wanted mercenary's arrest in Moscow, the Vice-President of Colombia Francisco Santos Calderon, stated that "it should be ensured that this gentleman rots in jail for [his] participation in the training of armed groups".

The article did not contain any reference to the source of the information on the Vice-President's statement.

15. On 28 September 2007 the Ambassador of the Russian Federation in Bogota informed the Colombian Ministry of Foreign Affairs that the Russian Prosecutor General's Office had been examining the possibility of extraditing the applicant, on condition that they be provided with a copy of the judgment against the applicant and with certain guarantees.

16. On 4 October 2007 the Colombian Ministry of Foreign Affairs informed the Russian Minister of Foreign Affairs of the following:

"Henceforth Colombia, acting on the basis of the reciprocity principle, shall transfer persons wanted by Russian law enforcement agencies to Russia for relevant criminal prosecution or execution of sentences against such persons. Mr Yair Gal Klein shall be provided with an opportunity to appeal against his conviction by the Colombian judicial bodies; Mr Yair Gal Klein shall not be subjected to capital punishment or tortures, inhuman or degrading treatment or punishment; Mr Yair Gal Klein shall be indicted only in respect of the acts mentioned in the [extradition] request."
17. On 29 January 2008 the Prosecutor General's Office of Russia ordered the applicant's extradition to Colombia. It was mentioned that the acts for which the applicant had been sentenced were punishable under Russian law and corresponded to the crime provided for by Article 205 § 1 of the Russian Criminal Code ("assistance to terrorist activities"). The sanction established for that crime stipulated imprisonment for a term exceeding one year. The statute of limitations for the execution of sentences established by both Russian and Colombian legislation had not expired. The differences in classification of the crime in the two countries could not be a reason for a refusal to extradite. The applicant had not obtained Russian nationality. The Colombian Government guaranteed that the applicant would not be subjected to ill-treatment.

18. On 6 February 2008 the applicant appealed to the Moscow City Court against the order of 29 January 2008. He contended that, once in Colombia, he might be subjected to ill-treatment. In support of this assertion he stated as follows:

"[A]ccording to the UN General Assembly Resolution of 15 March 2006, the human rights situation in Colombia remains extremely tense. As it is stated during the hearing of the UN Human Rights Committee of 20 October 2005, there is a serious escalation of violence directly linked to actions of members of governmental forces. The report contains allegations of those violations by [the] State prosecutor's office".

He also referred to the unstable internal situation in Colombia, caused by the civil war, and claimed that, as a result, the guarantees given by the Colombian Government were insufficient; that the five-year statute of limitation for the execution of sentences under Colombian law, as well as the ten-year statute of limitations for criminal prosecution established by Russian law, had expired in his case; that the Prosecutor General's Office wrongfully relied on the Russian Criminal Code of 1996, which had not been in force at the time of the crime in question; and that there was no extradition agreement between Russia and Colombia. No copies of the General Assembly's Resolution or minutes of the Human Rights Committee's meeting were enclosed with the appeal submissions.

19. On 11 March 2008 the Moscow City Court dismissed the applicant's complaint and upheld the order of 29 January 2008. The ruling stated that the applicant had not been convicted of political crimes and that the statute of limitation under both Russian and Colombian laws had not expired. It was also stated that the Colombian Government had guaranteed that the applicant would have a right to appeal against his conviction and would not be transferred to a third country without the Russian authorities' consent or subjected to ill-treatment. The in absentia criminal proceedings against the applicant had been carried out respecting the principle of a fair trial. Despite the absence of an extradition agreement between the two States, the applicant could have been transferred to the Colombian authorities on the basis of the reciprocity principle. As to the alleged risk of ill-treatment in Colombia, the ruling stated:

"It follows from the materials submitted by the requesting State that the crime the applicant had been convicted of is not included in the category of political crimes and that he [the applicant] has not been persecuted for political reasons.

Therefore, [the applicant's] allegations that he has been persecuted for political reasons, are unsubstantiated."
20. On 17 March 2008 the applicant appealed to the Supreme Court of Russia against the first-instance ruling, on the grounds that that the statutes of limitations had expired, that the Russian law had been wrongfully interpreted and that there was no extradition agreement between Russia and Colombia. He also referred to a media statement by the Colombian Vice-President in which he had suggested that the sentence against the applicant had been too mild and thus "shameful", and that it had to be ensured that the applicant would rot in jail. The applicant further alleged that the civil war in Colombia had been ongoing since 1948 and that it had caused widespread violations of human rights, including those of prisoners. He did not provide any details of the alleged violations. The applicant also claimed that the purpose of his extradition was to have him rot in jail.

21. On 22 May 2008 the Supreme Court of Russia dismissed the appeal for the following reasons. The Colombian Government had given diplomatic assurances that the applicant would not be ill-treated if extradited. They had also stated that conditions of detention in Colombian penitentiary institutions were decent and that Russian officials would have a right to visit those institutions for regular checks. There were no grounds to suspect that the applicant would be ill-treated if extradited. The applicant had not been persecuted on political grounds. According to the Colombian Embassy, officials' media statements could not affect decisions already taken by the judiciary. The Colombian Vice-President was not a hierarchical superior of the judiciary, the Ministry of Justice or the penitentiary service. The applicant's actions were punishable under Russian law in force in 1989 - 90, which laid down a severer sanction than Article 205 § 1 of the Russian Criminal Code. The appeal ruling read, in particular:

"There are no grounds to believe that in the event of extradition Gal Klein Yair would be subjected to torture in Colombia and that the guarantees established by law, including Article 14 of the ICCPR, would not be respected in respect of him.

It follows from the materials of an extradition inquiry carried out by the Russian Prosecutor General's Office that no facts of application to Gal Klein Yair of cruel, inhuman or degrading treatment in the requesting State have been established. There is no basis to suppose that the person to be extradited would be subjected to such treatment or punishment in Colombia in the future or that he would be subjected to the death penalty.

...The [applicant's] allegations that he was persecuted on political grounds were justifiably considered by [the Moscow City Court] as unsubstantiated."
22. The appeal ruling of 29 January 2008 became final on the same date.

23. On 26 May 2008 the applicant requested the Court, under Rule 39 of the Rules of Court, to prevent his expulsion to Colombia. He alleged that he would face a serious risk of ill-treatment if he were extradited.

24. On 27 May 2008 the Court indicated to the Russian Government under Rule 39 that the applicant should not be extradited to Colombia until further notice.

25. On 5 June 2008 the Reuters news agency reported that "Colombia [had] attacked as insulting and flippant on Thursday a decision by the European Court of Human Rights to block the extradition of an Israeli ex-army officer convicted of training illegal paramilitaries."
II. Relevant domestic law
A. Russian Constitution
26. No one may be subjected to torture, violence or any other inhuman or degrading treatment or punishment (Article 21 § 2). The decisions and actions (or inaction) of State authorities, local self-government, non-governmental associations and public officials may be challenged in a court of law (Article 46 § 2). In conformity with the international treaties of the Russian Federation, everyone has the right to turn to inter-State organs concerned with the protection of human rights and liberties after all domestic remedies have been exhausted (Article 46 § 3).

B. Russian Code of Criminal Procedure
27. The Russian Federation can extradite a foreign national or a stateless person to a foreign State on the basis of either a treaty or the reciprocity principle for standing trial or serving a sentence for a crime punishable under Russian legislation and the laws of the requesting State. An extradition on the basis of the reciprocity principle implies that the requesting State assures the Russian authorities that under similar circumstances they would grant a Russian request for extradition (Article 462 §§ 1 and 2).

28. Extradition can take place where (i) the actions in question are punishable by more than one year's imprisonment or a more severe sentence; (ii) the requested individual has been sentenced to six month' imprisonment or a more severe punishment; and (iii) the requesting State guarantees that the individual in question would be prosecuted only for the crime mentioned in the extradition request, that upon completion