Extradition in Practice: Opportunities and Pitfalls in the ...

Extradition in Practice: Opportunities and Pitfalls in the ...

Extradition in Practice: Opportunities and Pitfalls in the Eastern European Legal Context Bryane Michael, Stockholm School of Economics The material in this presentation is licensed by the author under a Creative Commons licence. Feel free to use as much of this material as you like for teaching or for critique. Graphics used in the presentation may be protected by proprietary copyright (which I use under fair use). I do not indemnify the user of these slides in case the holders of these proprietary copyrights capitalistically assert their property rights. Background Polanski Extradition is a timely issue political issue (until the EAW) exile as way of dealing with political issue Main Issues Rights in Requesting Country (Soering v. UK) Rights in Requested Country (most UA cases) Politics of Asylum vs. technocratic matter of justice (most UA cases to TM, BY) Type of extradition

crime against the community of nations (interpol red notice) vs. crime against one particular people (bilateral extradition request) Diogenes Lone Star State Pinochet de Caprio Illustrative Case: Soldatenko v. Ukraine Facts arrested and tried Holdings violation of HR in UA Soldatenko hits and runs (July 1999) Turkmen orders extradition probable violation of HR in TM Law: ETS 24, ECHR, 1993 CIS Con. on Leg. Assist. and Leg.

Rel. in Civ., Fam. and Crim. Matters (Minsk Con.) Accompanying case: Svetlorusov (same thing but to BY)... Claim every possible offence under Convention and hope something sticks? For GoU, issue is Art 3 (can they come to UA) and 5/6 (do they get out of UA)? Procedural Rights During Arrest/Detention Three Biggies for ECHR cases dealing with extradition inhumane punishment (art 3) tied with being a politically corrupt regime unfair deprivation of liberty (art 5) reasonable time (and fair) hearing (art 6) ECHR takes procedural matters seriously (detention etc.) in Soldatenko, finds violations of procedural rights in Protzenko, no violation Ukrainian legislation...[lacks] a procedure...sufficiently accessible, precise and

foreseeable in its application to avoid the risk of arbitrary detention pending extradition. cf Soldatenko and Novik (BY) increasing strict view of procedural rights (inter alia Khudoyorov, Jeius, Nasrulloyev) Do I go to Ashgabat? Nix on the Minsk Court takes view on outcomes, not laws Illustrative cases Eminbeyli (art. 5 violation) specifically says the result more important than just having a law on detention with a view to extradition anti-arbitrary (inter alia Amuur v. France). No processing delays (Nikolov v. Bulgaria) Not complete disaster many UA cases adjourned repeated notes that procedure prescribed by law should be in keeping with the purpose of Article 5 A primer on legal interpretation letter of the law

spirit of the law Better laws are not the answer GoU repeatedly appeals to rule of law considerations Consistently stricken by Court Court looks at substantive procedural rights in Soldatenko, reliance on Minsk Convention was not good enough in Dubovik, Court damning about GoUs reliance on Constitution, Minsk, Code of Crim Pro and Res. 16 Court unconvinced about processing of agreements with third-parties (CZ, BY) most cases end in adjournment (inter alia Protzenko) Court several times references inadequacies of Criminal

Procedure Code (eg Novik) Court assessed quality of application of law (Eminbeyli v. Russia related to detention). The spirit of UA Code of Criminal Procedure is at issue, not the letter... chap 10-12 in particular How to make a more spirited Code of Criminal Procedure? Quality of Law Measures Freedom House Civil Liberties Index In many cases, Court relies on quality of law measures to decide probable breaches of art 3 (degrading treatment) and 4 (effective remedies) In Soldatenko, Court hears evidence from US State Dept. reports

international rankings Human Rights Watchs World Report 2007 In Puzan, hears evidence from special working groups and UN committees Yet, inconsistently applied in Gordyeyev BY is okay Dealing with Probable Cause GoU can not wash hands of responsibility if extradition request accd. to letter of law ECHRs (later) case law suggests quality of law considerations go for probable cause as well as art 3 of ETS 24 and arts. 5&6 of ECHR K. v. Belgium and Bordovsky v. Russia -little info is enough most Minsk Convention extraditions require hard look at warrant corrupt regime corrupt evidence corrupt extradition request Major Countries involved in ECHR Extradition Cases since 2005 number of times respondent

20 15 10 5 0 Russia Italy Ukraine Turkey Germany Asylum and Probable Cause Three case-law conditions for asylum: corrupt regime (as previous described how to determine if its corrupt), dodgy evidence for arrest (linked to corrupt regime)

defendant claims ignorance or innocence art. 5/6 is toughest (ensuring procedural rights during detention and during trial) spirit of CPC as much as letter Gordyeyev v Poland notable found used asylum as stalling tactic (BY case) Inhumane treatment Humane treatment Probable cause All interesting ECHR cases here extradite No probable cause release Dont extradite Art 3 No Go countries?

Probable art 3 violations in countries like BY and TM Should UA make a black list and save itself the trouble? political issues and inhumane treatment (art 3) lack of effective remedy (art 13 Soldentko) Both GoB and GoT offered assurance of proper treatment GoA can: set preconditions on extradition (its a diplomatic process after all) re-negotiate treaties (like Minsk) with view toward substantive rather than procedural rights ECHRs continued finds serve to encourage reform in countries like BY and TM easier to enforce ex-post and ex-ante Setting the Right Spirit of the Law ECHR repeatedly fines GoU

In Svetlo. and Dubovik, the applicant(s) received damages of roughly 4k-5k GoU should set admin fines much more punitatively to provide incentives for police and LE to follow law eg. France, Italy, and of course the UK as Nice-round countries improved admin sanctions, appearances at ECHR decreased. Internal Ombudsman to ensure no art. 5 violations Methods such as statistical control to ensure art 6 rights monitored Com parison of Case Processing Times and Court Expenditures 2000 expenditure (in thousands) 1500 1000 500 0 0 10 20 30

m onths in processing time 40 And what about Extradition to Ukraine? (same old art 5 and 6!) If ECHR criticises UA for handling of suspects of Requested Party... same articles apply to likelihood of getting suspect as a Requesting Party detention and court procedures in CPC spirit even more important when dealing with other countries perceptions... Shalom Pertzov, Welcome home Pashkov Ukraine is on Maltas art 3 countries?

Would you extradite to Zvarychs court? Conclusions Fiddling with Ukraines CPC and other laws isnt going to get you there need spirit as well as letter of law Art 3 Draft guidelines for proper assurances related to accused extradition art 5 Use mechanisms like fines and disciplinary sanctions to improve compliance with the spirit (as well as letter) of HR law art 6 Court performance management ensures stay out of Strasbourg as well as bring the Pashkovs home its about police and court reform (reform business as usual)

Recently Viewed Presentations

  • PowerPoint 演示文稿 - mcl.usc.edu

    PowerPoint 演示文稿 - mcl.usc.edu

    07/01/03 Tesla Motors Tesla Motors is incorporated July 2003. 03/17/08 Tesla Roadster Tesla Motors Begins Regular . Production of 2008 . Tesla Roadster. 10/15/08 . Elon Musk . assumes leadership of the company as CEO and product architect. ... PowerPoint...
  • Wired Geometric Routing - Imperial College London

    Wired Geometric Routing - Imperial College London

    MRes in Advanced Computing Fariba Sadri Director of Studies (PG) Room 447 Email: [email protected] * MRes in a Nutshell To give interested students a taste of research practice More in-depth individual study May lead into PhD * Course Structure You...
  • Geochemical Models

    Geochemical Models

    Arial Symbol Wingdings Times New Roman Default Design Microsoft Equation 3.0 ACTIVITY Activity Coefficients Slide 3 Debye-Hückel Higher Ionic Strengths Slide 6 Davies Equation Specific Ion Interaction theory Pitzer Model Setchenow Equation Slide 11 Half Reactions ELECTRON ACTIVITY THE pe...
  • How to Spot the Right Development Site ... - Parker Scanlon

    How to Spot the Right Development Site ... - Parker Scanlon

    Parker Scanlon. Founded April 2007. Now employing over 20 staff members. Consultants in Surveying, Town Planning, Bushfire Assessment & Project Management
  • Comberton Village College Priorities 1 Strategies for Speaking

    Comberton Village College Priorities 1 Strategies for Speaking

    sentarse - to sit down. pulsar - to pressdesaparecer - to disappearaparecer - to appearreírse - to laughleer - to readexplotar - to explode(el control remoto, el botón, el periódico) cruzar - to cross. pagar - to pay. decir -...
  • White Text, Rockwell 40pt, Title Case Cap Style

    White Text, Rockwell 40pt, Title Case Cap Style

    Worked as a Risk Manager and a trading analyst for Gas futures and financial derivatives. Practice areas include Liquefied Natural Ga - Marketing and Project Development. Has worked with many of the names in the LNG industry. Well published and...
  • Presenting Adam Hongwang Zhang Bryan David IN Cheese

    Presenting Adam Hongwang Zhang Bryan David IN Cheese

    Presenting David Bryan Adam Hongwang Zhang IN Cheese & Yogurt… Art, Murder, Mayhem The History Possibly Found by Arab Nomad Greeks said Aristaeus found it Romans made their own types Anne Pickett Found 1st U.S. Business in 1841 Types of...
  • 2005 - dps.org.hk

    2005 - dps.org.hk

    Ex officio member Secretary for Financial Services and the Treasury (represented by PSFS) Ex officio member Monetary Authority (represented by DCE(B) / HKMA) Member Mr Nam Lee-yick Member Mr Nicholas Peter Etches Member Dr David Cheung Wai-lok Member Mr Ian...