Extradition and ill-treatment: ways of solution The institute of extradition plays a relevant role in consolidation and evolvement of international cooperation between States at present779. Extradition – is an essential international – legal act, meaning of which steps over the bounds of bilateral intergovernmental relations and which should be reviewed in the scope of international legal order strengthening and improvement780. The institute of extradition – is a system of legal rules that regulates relationships of foreign law enforcement and judicial bodies and international judicial agencies in the sphere of surrender for criminal persecution781.
Crime prevention that suggests application of enforcement measures to criminals not only presumes defense of extradite person’s rights principal but emerges from its firmness782.
In this regard, guarantee of optimal balance between crime prevention interests and protection of such vital human rights as right to life, right to security of a person and human dignity which are subjected to absolute defense and cannot be exposed to derogation (non – derogable right)783.
Specific legal status of right not to be ill –treated was confirmed in different fundamental treaties such as the European Convention on Human Rights 1950, the International Covenant on Civil and Political Rights 1966, the United Nations Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (UNCAT) 1984 and the European Convention for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment 1987. Article 3 of The European Convention on Human Rights (further the Convention) says: “No one shall be subjected to torture or to inhuman or degrading treatment or punishment”.
According to the Convention Against Torture 1984, torture – is any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as obtaining from him or a third person information or a confession, punishing him for an act he or a third person has committed or is suspected of having committed …”.
Along with this, numerous judgments of international legal rights organizations on tortures or inhuman or degrading treatment or punishment in the state of execution also contain criteria for estimating content of similar actions for every specific decision. The European Court of Human Rights (further the ECHR) also formulated the list of forms of such actions that include: violence, conditions of the custody, abuse, physical punishment, extradition or deportation that can result torture or forbidden treatment or even threat of torture that must be as extensive as real for causing mental suffering784.
Most of the cases that are tried by the ECHR in connection with violation of the Article of the Convention concern treatment of applicants while being under arrest and also connected with prevention of extradition to the country where there are substantial grounds for being objected to torture or other forms of ill-treatment.
Consequently, if the State assumes the obligation to prohibit tortures or inhuman or degrading treatment or punishment, then it does not have the right to extradite an individual to the country where there are substantial grounds for believing that he or she would run a real risk being subjected to such methods. In addition, international obligations of each State in the sphere of human rights protection presume careful examination of the possibility of violation of extradite person’s rights due to his or her political, religious beliefs, national, race identity persecution and, of course, estimation of possible risks, that this person may be taken into in the state of execution. The decision on the extradition of the government- participant, in case if it covers the Article 3 of the Convention may cause negative consequences for the government such as liability. It happens in case if there are reasonable grounds that the interested person after being extradited will face the risk of torture in the requesting state785.
Existence of such risk must be estimated in accordance with all facts that the government has by the moment of extradition, more specifically conditions concerning protection of human liberties and rights from the view of the international standards and prevalence of flagrant breach of human rights practice in this state. By the practice of the ECHR, while considering on request about criminal extradition and all risks of ill – treatment estimating incase of implementation of extradition decision the Court takes into account: 1) the situation in the state of execution, 2) reports of the international human rights organizations about the level of human rights protection in the state of execution, 3) personal situation of applicants. Similar approach is based on particular decisions of the European Court on Human Rights. One of them is case Soering v. U.K. where German citizen accused of committing a murder punishable by the death penalty whose extradition from Great Britain was demanded by the USA had a risk of being ill-treated (possibility of longtime imprisonment in the “corridor of death”)786. The Judge in his decision ruled that extradition of the complainant to the USA would not only lead to inhuman or degrading treatment but also would mean breach of the fundamental right to life.
Problem of violation of Article 3 of the Convention while conducting the procedure of extradition also takes place in the Russian Federation. According to the data from the whole period of functioning of the ECHR, Russia is on the third place on the number of judgments (1019) in which is stated, at least, one breach of the European Convention on Human Rights 1950 (further – Convention) by the Russian authorities787. Thus, in the cases Ergashev v. Russia from 20.12.11 (application no. 12106/ 09) and Yakubov v. Russia from 8.10.11 (application no. 7265/10), is mentioned that in case of extradition of applicants to Uzbekistan violation of Article 3 of the Convention by Russian authorities will take place, that is based on existing practice of applying tortures and ill-treatment in this country.
In conditions of internatiolization of criminal activities, especially in the sphere of terrorism, drug trafficking, traffic of human beings, success of law enforcement activities mainly depends on effectiveness of international collaboration between the states in the sphere of criminal prosecution. In recent years the General’s Prosecutors Office of the Russian Federation essentially activated its practice as the main organ, providing interaction within the international treaties concerning the questions of extradition for prosecution, or execution of a sentence and legal redress in criminal cases788. Corresponding, while reviewing an extradition request all the criteria, formulated by the ECHR must be taken in the account concerning every particular situation for avoiding possible serious violations of human rights and further liability of the government.
The development of extradition institute toward human rights protection – is a logical tendency, but we can’t discount the other side of the question – interests of crime prevention. In such a manner, there shouldn’t be any barriers on the way of realization unavoidability of punishment principle, but should be maintained a balance between protection of democracy institutes from crimes as the public interest and defense of human rights.