FIFTH SECTION
DECISION
Application no. 33024/19
Dmitry FIRTASH
against Austria
The European Court of Human Rights (Fifth Section), sitting on 9 November 2023 as a Committee composed of:
Stéphanie Mourou-Vikström, President,
Lado Chanturia,
Mattias Guyomar, judges,
and Sophie Piquet, Acting Deputy Section Registrar,
Having regard to:
the application (no. 33024/19) against the Republic of Austria lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) on 21 June 2019 by a Ukrainian national, Mr Dmitry Firtash, who was born in 1965 and lives in Vienna (“the applicant”) and was represented by Mr O. Dietrich, a lawyer practising in Vienna;
Having deliberated, decides as follows:
SUBJECT MATTER OF THE CASE
1. The applicant is a well-known Ukrainian oligarch who describes himself as one of the most influential business leaders in Ukraine and one of its largest employers, with major interests in the gas, titanium and chemical sectors, and a media owner. He alleged that his extradition to the United States of America (“the US”) would violate Articles 3, 5, 6, 8 and 18 of the Convention and Article 1 of Protocol No. 1 to the Convention because it had been made in bad faith, was arbitrary and politically motivated and, if surrendered, there was a real risk of a flagrantly unfair trial and disproportionate sentence.
2. On 12 March 2014 the applicant was arrested in Vienna based on a provisional arrest warrant request from the US Department of Justice of 11 March 2014. On 14 March 2014 he was granted conditional bail and released on 21 March 2014 after having paid 125 million euros as security.
3. On 1 April 2014 the US Department of Justice requested the applicant’s extradition based on an indictment issued on 20 June 2013 on suspicion of alleged extra‑territorial conspiracy to bribe Indian public officials with payments totalling 18.5 million US dollars.
4. On 30 April 2015 the Vienna Regional Court for Criminal Matters (Landesgericht für Strafsachen) declared the applicant’s extradition impermissible for lack of probable cause apparent from the documents provided by the US Department of Justice. The court also considered the extradition request to be politically motivated.
5. On 21 February 2017, upon an appeal by the public prosecutor’s office, the Vienna Higher Regional Court (Oberlandesgericht) declared the applicant’s extradition not impermissible. It considered the additional documents provided by the US authorities sufficient to form a reasonable basis to believe that the applicant had committed the crimes of which he was accused. The court furthermore denied the existence of political motives for his extradition within the meaning of the extradition treaty between Austria and the US which would render the extradition impermissible under the said treaty, as the question of political motives was to be interpreted as relating to the political character of the crime, but not any political interests of the requesting State.
6. On 17 August 2017 the applicant lodged a request for renewal of the criminal proceedings (Erneuerungsantrag) with the Supreme Court (Oberster Gerichtshof) under Article 363a of the Code of Criminal Procedure (Strafprozeβordnung; see ATV Privatfernseh-GmbH v. Austria (dec.), no. 58842/09, §§ 18-21, 6 October 2015).
7. On 12 December 2017 the Supreme Court ordered the suspension of the execution of the applicant’s extradition until its decision on the request for renewal of the proceedings.
8. On 18 February 2019 the Attorney General (Generalprokuratur) lodged a plea of nullity for the observance of the law (Nichtigkeitsbeschwerde zur Wahrung des Gesetzes) with the Supreme Court, claiming that the law had been interpreted incorrectly by the Higher Regional Court in so far as the interpretation of the extradition treaty between Austria and the US was concerned.
9. On 25 June 2019 the Supreme Court declared the Higher Regional Court’s interpretation of the above-mentioned extradition treaty to be unlawful but affirmed the decision to the effect that the evidence did not demonstrate a political motive behind the extradition request. It furthermore rejected the applicant’s request for the renewal of the proceedings (see paragraph 6 above).
10. On the same day the applicant applied for a reopening of the extradition proceedings under section 39 of the Extradition and Mutual Legal Assistance Act (Auslieferungs- und Rechtshilfegesetz) according to which extradition proceedings could be reopened where there were new facts or evidence which appeared likely to give rise to substantial doubts as to the correctness of the decision.
11. On 13 July 2019 the applicant applied for interim measures under Rule 39 of the Rules of Court to prevent his extradition to the US.
12. On 15 July 2019 the Federal Minister of Justice approved the applicant’s extradition to the US, with effect on 22 July 2019, in the framework of the decision of the Higher Regional Court of February 2017 (see paragraph 5 above).
13. On the same day the Regional Court for Criminal Matters granted suspensive effect to the applicant’s request for the reopening of the extradition proceedings (see paragraph 10 above), thereby staying the execution of his extradition until the final decision on the reopening request.
In view of this decision, the applicant withdrew his request for interim measures with the Court under Rule 39 of the Rules of Court on the same day.
14. On 15 March 2022 the Regional Court for Criminal Matters rejected the applicant’s request of 25 June 2019 for the reopening of the extradition proceedings (see paragraph 10 above).
15. The applicant appealed. At the same time, he also applied to the Constitutional Court to challenge the constitutionality of certain provisions of the Extradition and Mutual Legal Assistance Act under Article 140 §1 (1)(d) of the Federal Constitutional Act (Parteienantrag auf Normenkontrolle; see Liebscher v. Austria, no. 5434/17, § 14, 6 April 2021).
16. On 1 July 2022 the Constitutional Court declined to deal with the applicant’s complaint for lack of prospects of success.
17. On 14 June 2023 the Vienna Higher Regional Court granted the applicant’s appeal, quashed the decisions of April 2015 and February 2017 (see paragraphs 4-5 above) and ordered the reopening of the extradition proceedings. The court considered that there had been sufficient circumstantial evidence in the original proceedings before the first court to indicate that the extradition request had (also) been politically motivated. This conclusion was also supported by the newly adduced evidence.
18. Since lodging the present application in 2019, the applicant has kept the Court informed promptly of all developments, including the most recent decision of June 2023.
19. On 18 July 2023 the applicant informed the Registry that he wished to withdraw his application to the Court, in view of the decision of 14 June 2023 of the Vienna Higher Regional Court granting his request to reopen the extradition proceedings (see paragraph 17 above).
THE COURT’S ASSESSMENT
20. The Court notes at the outset that in the light of the applicant’s letter of 18 July 2023 (see paragraph 19 above) the applicant may be regarded as no longer wishing to pursue the application (Article 37 § 1 (a) of the Convention). In accordance with Article 37 § 1 in fine of the Convention, the Court finds no special circumstances regarding respect for human rights as defined in the Convention and the Protocols thereto which require the continued examination of the application. It follows that the case should be struck out of the list.
21. The Court furthermore considers that, in any event, the application would be inadmissible and would have to be rejected in accordance with Article 35 §§ 3 and 4 of the Convention for the following reasons.
22. The Court reiterates that the word “victim” in the context of Article 34 of the Convention denotes the person directly affected by the act or omission at issue. In other words, the person concerned must be directly affected by it or run the risk of being directly affected by it. It is not therefore possible to claim to be a “victim” of an act which is deprived, temporarily or permanently, of any legal effect (see Sisojeva and Others v. Latvia (striking out) [GC], no. 60654/00, §§ 92-93, ECHR 2007‑I, and Nasrulloyev v. Russia, no. 656/06, § 58, 11 October 2007, with further references).
23. In the specific category of deportation cases, the Court has consistently held that an applicant cannot claim to be the “victim” of a deportation measure if it is not enforceable; it has adopted the same stance in cases where execution of the deportation order has been stayed indefinitely or otherwise deprived of legal effect and where any decision by the authorities to proceed with deportation can be appealed against before the relevant courts (Sisojeva and Others, cited above, § 93). The same principles apply to extradition cases (see Nasrulloyev, cited above, § 59).
24. In the instant case the Court notes the decision of the Higher Regional Court of 14 June 2023 ordering the reopening of the extradition proceedings under section 39 of the Extradition and Mutual Legal Assistance Act (see paragraph 17 above), thereby depriving of any legal effect the decision of February 2017 declaring the applicant’s extradition permissible (see paragraph 5 above). In practice, this means that all the steps of the extradition proceedings now need to be repeated, including the obtention of a possible new approval by the Federal Minister of Justice of the applicant’s extradition, should his extradition once again be deemed permissible by the relevant courts.
25. Consequently, as matters now stand, the applicant is no longer subject to an extradition order which can be executed. Thus, it must be concluded that, currently, the factual and legal circumstances which were at the heart of the applicant’s grievances before the Court are no longer operative. It follows that the applicant is currently no longer subject to the risk of extradition to the US and, accordingly, no longer runs the alleged risk of a violation of his Convention rights arising from Articles 3, 5, 6, 8 and 18 of the Convention and Article 1 of Protocol No. 1 to the Convention (compare, mutatis mutandis, Rakhmonov v. Russia, no. 50031/11, §§ 34-35, 16 October 2012, and Nasrulloyev, cited above, §§ 60-61, both in respect of a risk of treatment in breach of Article 3 of the Convention).
26. The above findings do not prevent the applicant from lodging a new application before the Court and from making use of the available procedures, including the one under Rule 39 of the Rules of Court, in respect of any new circumstances, in compliance with the requirements of Articles 34 and 35 of the Convention (see Dobrov v. Ukraine (dec.), no. 42409/09, 14 June 2011).
27. The Court concludes, for the reasons given above (see paragraph 20), that the case should be struck out of the list in accordance with Article 37 of the Convention.
For these reasons, the Court, unanimously,
Decides to strike the application out of its list of cases.
Done in English and notified in writing on 30 November 2023.
Sophie Piquet Stéphanie Mourou-Vikström
Acting Deputy Registrar President
Full & Egal Universal Law Academy