Chamber Judgment Klein v. Russia 01.04.10[1]

8/9/2019 Chamber Judgment Klein v. Russia 01.04.10[1]

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27301.04.2010

Press release issued by the Registrar

Chamber judgment1

Klein v. Russia (application no. 24268/08)

EXTRADITING A CONVICTED ISRAELI MERCENARY FROM RUSSIA TO COLOMBIAWOULDBREACH THE CONVENTION

Violationof Article 3 (prohibition of inhuman and degrading treatment)of the European Convention on Human Rights if the Russian authorities were to extraditethe applicant

Principal facts

The applicant, Gal Yair Klein, is an Israeli national who was born in 1943 and lives in Tel-Aviv. He is currently detained in a remand prison in Moscow.

In 2001, the Colombian criminal courts convicted him of teaching military and terrorist tacticscommitted together with accomplices and sentenced him to ten years and eight monthsimprisonment combined with a fine.

On 27 August 2007, the applicant was arrested at Domodedovo Airport, Moscow on thebasis of an Interpol notice for his arrest with a view to extraditing him to Colombia. TheInterpol notice was issued following an arrest order handed down by the Colombian courts.Mr Klein was then placed in custody until his transfer to Colombia.

In August 2007 the federal newspaper Rossiyskaya Gazeta published an article entitledThe Mafias Teacher Awaits Extradition which reported that, having learned of the arrest ofthe applicant, a wanted mercenary, the Vice-President of Colombia had stated that it shouldbe ensured that this gentleman rot in jail for his participation in the training of armed groups.

Following assurances given in October 2007 by the Colombian Government to the Russianauthorities to the effect that Mr Klein would not be given the death penalty or ill-treated andwould be indicted only in respect of the acts mentioned in the extradition request, theProsecutor General of Russia ordered his extradition to Colombia in January 2008. Mr Kleinappealed before the Russian courts referring, among other things, to the wide-spreadhuman rights violations in Colombia resulting from the decades-long civil war. He alsoalleged that the Colombian Governments guarantees were not sufficient given in particularthe Vice-Presidents statement in his regard. His appeals were dismissed on the basis of the

1Under Article 43 of the Convention, within three months from the date of a Chamber judgment, any party to the case may, inexceptional cases, request that the case be referred to the 17-member Grand Chamber of the Court. In that event, a panel offive judges considers whether the case raises a serious question affecting the interpretation or application of the Convention orits protocols, or a serious issue of general importance, in which case the Grand Chamber will deliver a final judgment. If nosuch question or issue arises, the panel will reject the request, at which point the judgment becomes final. Otherwise Chamber

judgments become final on the expiry of the three-month period or earlier if the parties declare that they do not intend to makea request to refer.


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diplomatic assurances given by the Colombian Government, the fact that the applicant wasnot convicted for political reasons, that the Colombian Vice-president was not a hierarchicalsuperior of the judiciary and that Mr Kleins acts were punishable also under Russian law.

On 26 May 2008 the applicant requested the Court, under Rule 39 of the Rules of Court, toprevent his expulsion to Colombia because of a serious risk that he will be ill-treated there.On 27 May 2008 the Court indicated to the Russian Government under Rule 39 that theapplicant should not be extradited to Colombia until further notice.

Complaints, procedure and composition of the Court

The applicant complained that if extradited to Colombia, he would most probably be ill-treated and would face an unfair trial. He also alleged that he did not have an effectiveremedy under Russian law to complain of the risk of ill-treatment in Colombia. He relied onArticles 3, 6 (right to a fair trial) and 13 (right to an effective remedy).

The application was lodged with the European Court of Human Rights on 26 May 2008.

Judgment was given by a Chamber of seven judges, composed as follows:

Christos Rozakis (Greece),President,Nina Vaji (Croatia),Anatoly Kovler(Russia),Elisabeth Steiner(Austria),KhanlarHajiyev (Azerbaijan),Dean Spielmann (Luxembourg),Sverre Erik Jebens (Norway),Judges,

andAndr Wampach, Deputy Section Registrar.

Decision of the Court

The Court recalled that, as it had found in its earlier case law, in order to determine whetherthere was a risk of ill-treatment in a receiving country, it had to examine the foreseeableconsequences of sending the applicant to it, bearing in mind the general situation there andhis personal circumstances.

Mr Klein feared ill-treatment, on the one hand, because of the poor general human rightssituation in Colombia and, on the other hand, because he thought he personally was at agreater risk as a result of the Colombian Vice-Presidents statement to the media threateningto have the applicant rot in jail.

Considering the general political climate in Colombia, the Court compared the ColombianGovernments submission that human rights were respected there with reports provided bythe United Nations High Commissioner for Human Rights and the United States Departmentof State. Those reports alerted that many human right violations had taken place inColombia in the recent past, such as extrajudicial killings, forced disappearances andarbitrary detentions of which representatives of the State had been suspected. The Courtalso noted the United Nations Committee Against Tortures had expressed concerns thatpeople suspected of terrorism and illegal armed activities risked torture in Colombia.Consequently, in view of the findings of those reliable sources, the overall human rightssituation in Colombia was far from perfect.

As regards the personal situation of Mr Klein, the Court found that the Vice-Presidentsstatement to have him rot in jail could be regarded as an indication that the applicant ran a


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serious risk of being ill-treated while in detention in Colombia. In addition, the ColombianGovernments assurances had been rather vague and in any event insufficient to ensureadequate protection against the risk of Mr Kleins ill-treatment when contrasted with thedifferent reports by international sources.

Finally, the Court noted that the Russian courts had not duly addressed Mr Kleins concernsabout him being ill-treated in Colombia. In fact, they had limited their assessment of thesituation to a mere observation that, notwithstanding the Vice-Presidents statement inrespect of the applicant, the Colombian judiciary were independent from the executivebranch of power and thus could not be affected by the statement in question.

In view of the above, the Court held by five votes to two that implementation of theextradition order against the applicant would breach Article 3.

As the complaint under Article 13 was examined in the context of Article 3, it was notnecessary to examine it separately under Article 13. Likewise, it was not necessary toexamine the hypothetical question whether, in the event of extradition to Colombia, the

applicant would receive a fair trial, given that the Court did not doubt that the RussianGovernment would comply with the present judgment.

The Court also held unanimously that, in the interests of the proper conduct of theproceedings, Russia should not extradite the applicant until such time as the presentjudgment became final or further order.

Under Article 41 (just satisfaction), the Court held that finding of a violation constitutedsufficient just satisfaction for the non-pecuniary damage sustained by the applicant.

Judges Kovler and Hajiyev expressed a joint dissenting opinion the text of which is attachedto the judgment.

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The judgment is available only in English. This press release is a document produced by theRegistry. It does not bind the Court. The judgments are available on its website(http://www.echr.coe.int).

Press contactsKristina Pencheva-Malinowski (telephone : 00 33 (0)3 88 41 35 70)orStefano Piedimonte (telephone : 00 33 (0)3 90 21 42 04)Tracey Turner-Tretz (telephone : 00 33 (0)3 88 41 35 30)Cline Menu-Lange (telephone : 00 33 (0)3 90 21 58 77)Frdric Dolt (telephone : 00 33 (0)3 90 21 53 39)Nina Salomon (telephone: 00 33 (0)3 90 21 49 79)

The European Court of Human Rights was set up in Strasbourg by the Council of EuropeMember States in 1959 to deal with alleged violations of the 1950 European Convention onHuman Rights.
http://www.echr.coe.int/http://www.echr.coe.int/

Documents

Chamber Judgment Klein v. Russia 01.04.10[1]