FOURTH SECTION
DECISION
Application no. 35661/11
Hugo Cristian PEREZ LIZASO
against Finland
The European Court of Human Rights (Fourth Section), sitting on 12 May 2015 as a Chamber composed of:
Guido Raimondi, President,
Päivi Hirvelä,
Ledi Bianku,
Nona Tsotsoria,
Paul Mahoney,
Krzysztof Wojtyczek,
Faris Vehabović, judges,
and Fatoş Aracı, Deputy Section Registrar,
Having regard to the above application lodged on 13 June 2011,
Having regard to the partial decision of 4 February 2014,
Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicant,
Having deliberated, decides as follows:
THE FACTS
1. The applicant, Mr Hugo Cristian Perez Lizaso, is a Swedish and Uruguayan national, who was born in 1976 and lives in Solna. He was represented before the Court by Mr Jussi Sarvikivi, a lawyer practising in Helsinki.
2. The Finnish Government (“the Government”) were represented by their Agent, Mr Arto Kosonen of the Ministry for Foreign Affairs.
A. The circumstances of the case
3. The facts of the case, as submitted by the parties, may be summarised as follows.
Background of the case
4. The applicant is a Swedish national who has certain family ties to Uruguay and also has Uruguayan citizenship. The applicant was wanted in Uruguay from at least 2010 as he was suspected of aggravated extortion committed in February 2009. Three other persons, including the applicant’s brother, were convicted in Uruguay on 28 September 2010 for having participated in the same crime of which the applicant was suspected. A prison sentence of 5 years and 8 months was imposed on the brother and a sentence of 5 years and 4 months on the two other perpetrators. The Uruguayan authorities tried to locate the applicant through Interpol, issuing a Red Notice alert about him.
Applicant’s arrest and detention
5. On 11 December 2010 the applicant was arrested in Finland.
6. On 14 December 2010 the Vantaa District Court (käräjäoikeus, tingsrätten) ordered the applicant to be detained with a view to his extradition. The applicant complained about this decision to the Supreme Court (korkein oikeus, högsta domstolen) which rejected his complaint on 14 January 2011.
7. On 8 February 2011 the Vantaa District Court rejected the applicant’s request for release from detention. The applicant complained about this decision to the Supreme Court which, on 5 April 2011, rejected his complaint.
8. On 11 April 2011 the Vantaa District Court rejected the applicant’s second request for release from detention. The applicant did not lodge a complaint against this decision with the Supreme Court.
Extradition proceedings
9. By letter dated 17 January 2011 the Uruguayan authorities filed a request with the Finnish Ministry of Justice, asking them to extradite the applicant to Uruguay.
10. On 15 April 2011 the applicant was interrogated by the Finnish National Bureau of Investigation (keskusrikospoliisi, centralkriminalpolisen). The applicant opposed the extradition.
11. On 2 May 2011, in accordance with the Extradition Act, the Ministry of Justice asked the Supreme Court to give a statement on whether the possible extradition would be in conformity with domestic legislation and the applicable international extradition treaties.
12. By letter dated 19 May 2011 the applicant submitted his comments to the Supreme Court on the possible extradition. He claimed that, as a Swedish citizen, he should be treated as a Finnish citizen because Finnish citizens could not be extradited according to the domestic law. He also claimed that he could not be extradited to Uruguay because the conditions in Uruguayan detention facilities and prisons were contrary to Article 3 of the Convention. He would not have a fair and public trial there within a reasonable time, he would not be presumed innocent and he would be kept in pre-trial detention for a long time.
13. On 3 June 2011 the Supreme Court submitted its statement to the Ministry of Justice. It found that the request for extradition could be granted. The applicant was suspected of aggravated extortion committed together with three other persons. These three persons had been convicted in Uruguay and sentenced to imprisonment on 28 September 2010. The crime of which the applicant was suspected was such that, according to domestic law, the applicant could be extradited. The extradition was based on a detention order issued by a court. The fact that the applicant was a Swedish citizen did not prevent the extradition. No such grounds were thus shown to exist on the basis of which the applicant’s extradition to Uruguay, due to personal circumstances or special humanitarian reasons, could be considered unreasonable.
14. On 7 June 2011 the Ministry of Justice decided that the applicant could be extradited to Uruguay for trial. The decision stated that, after the decision had been served to the Uruguayan authorities, they had 30 days to come and collect the applicant and transfer him to Uruguay.
15. On 13 June 2011 the applicant lodged his application with the Court, requesting also that Rule 39 be applied.
16. On 15 June 2011 the Court refused to apply Rule 39 to prevent the applicant’s extradition from Finland. The applicant was requested to inform the Court whether he wished to maintain his application.
17. On 11 July 2011 the applicant informed the Court that he wished to maintain his application with the Court.
18. On 14 July 2011 the applicant was extradited to Montevideo, Uruguay where he arrived on the following day. He was then taken to Maldonado, brought before a judge and detained on suspicion of attempted extortion. From 16 July 2011 onwards he was detained in isolation in prison for one year. Thereafter he was moved to another prison for half a year, where he shared a cell with five other inmates. In September 2012 the applicant was transferred to an open department and again in February 2013 to a labour facility. In October 2013 the applicant was released by virtue of an amnesty granted by the Uruguayan Supreme Court.
19. After his release, the applicant returned to Sweden.
B. Relevant domestic law
20. Extradition to and from Finland takes place in accordance with the Extradition Act (laki rikoksen johdosta tapahtuvasta luovuttamisesta, lagen om utlämning för brott, Act no. 456/1970, as in force at the relevant time). According to sections 16 and 17 of the Act, the Ministry of Justice decides on extradition. If the person to be extradited opposes it, the Ministry must ask the Supreme Court to give a statement on whether the possible extradition is in conformity with domestic legislation and the applicable international extradition treaties which are binding on Finland. If the Supreme Court finds that there is an obstacle to the extradition, it cannot be carried out.
C. Relevant international materials
21. The US Department of State’s Country Report on Human Rights Practices for 2010 in Uruguay of 8 April 2011 provided the following:
“Principal human rights abuses included severe overcrowding, inhuman conditions, and disrepair in the prison system; violence against women; and trafficking in persons.
...
Prison conditions continued to be poor, as the government did not adequately maintain aging facilities and provided insufficient resources for the prison system.
Overcrowding was a significant problem despite the government’s efforts to build more prison facilities. According to government figures, the total prisoner population as of August 31 exceeded design capacity by 1,976 prisoners, or 29 percent (the prison ombudsman’s 2009 report defined 20 percent overcrowding as "critical"). Additionally, many necessities were lacking and many prisoners depended on visitors for enough food to reach the daily minimum caloric intake.
Prisoner-on-prisoner violence continued to be a daily problem, partially due to the lack of a separate, high-security prison for violent criminals. A high percentage of prisoners reportedly used drugs.
Fire hazards and violence continued to plague the prison system. In 2009 there were 39 deaths due to violence, and fires in prisons were reported. In July a cell fire killed 12 prisoners in Rocha Province. In August 5 prisoners perished in a cell fire in Comcar Prison in Montevideo. The fires started due to handcrafted heaters that set makeshift partitions on fire. Initial investigations revealed that fire extinguishers were not adequately maintained in both facilities.
In general overcrowding and understaffing in some facilities resulted in problems related to sanitation, ventilation, temperature, lighting, access to potable water, and health. Supervision of medical care moved to the Ministry of Public Health, which implemented a pilot system in July to provide basic and emergency medical care to a prison in rural Montevideo that housed 3,000 inmates. An Anti-Tuberculosis Commission report confirmed 81 cases of tuberculosis in the prison population in 2009.”
22. According to the Report of the UN Special Rapporteur Manfred Nowak on torture and other cruel, inhuman or degrading treatment or punishment in Uruguay of 21 December 2009 (A/HRC/13/39/Add.2):
“Although some efforts have been made to improve overall conditions in prisons and prevent overcrowding, the conditions in some detention facilities, particularly Libertad Penitentiary and the Santiago Vázquez Prison Complex (Complejo Carcelario Santiago Vázquez, known as COMCAR), amount to inhuman and degrading treatment. The overcrowding, the non-separation of pre-trial and convicted detainees as well as the limited access to medical services is of concern in practically all of the places visited. A comprehensive reform of the whole administration of justice system, aimed at the rehabilitation and reintegration of offenders, should be a high priority.”
COMPLAINT
23. The applicant complained under Article 3 of the Convention that he could not be extradited to Uruguay because the conditions in Uruguayan detention facilities and prisons were contrary to Article 3 of the Convention. He would not have a fair and public trial within a reasonable time, he would not be presumed innocent and he would be kept in pre-trial detention for a long time.
THE LAW
24. The applicant complained under Article 3 of the Convention that his extradition to Uruguay would subject him to a risk of inhuman and degrading treatment.
25. Article 3 of the Convention reads as follows:
“No one shall be subjected to torture or to inhuman or degrading treatment or punishment.”
26. The Government maintained that, according to the statement of the Supreme Court, no evidence had been presented to warrant concluding, on compassionate grounds, that the requested extradition would be unreasonable considering the applicant’s personal circumstances or his particular conditions. The crime of which the applicant was suspected was such that, according to the Finnish legislation, the applicant could be extradited. The documents submitted to the Supreme Court had included reports on prison conditions in Uruguay. Had the Supreme Court denied the requisition for extradition, that decision would have bound the Ministry of Justice. However, as the Supreme Court found no legal obstacles to the extradition, the Ministry of Justice, when deciding on the extradition, assessed the reports on Uruguayan prison conditions submitted by the applicant’s counsel. According to the reports, the prison conditions in Uruguay could be described as generally poor.
27. The Government stressed that no material, evidence or ground had been presented by the applicant to warrant concluding that he would specifically be subjected to torture or to inhuman or degrading treatment if he were sentenced to imprisonment in Uruguay. Nor had the applicant provided any evidence on the prison conditions of the three other persons, including his brother, who had been convicted of the same crime of which the applicant was accused. He had not even claimed that the prison conditions of these three persons would amount to treatment against Article 3 of the Convention. According to the case-law of the Court, the mere possibility of ill-treatment was not sufficient in itself to give rise to a breach of Article 3 of the Convention.
28. Moreover, the Government noted that the Ministry of Justice had been informed that the applicant had already been charged with extortion in Uruguay. As the charges already existed, the Finnish authorities had no reason to suspect that the applicant would face a risk of prolonged pre‑trial detention in Uruguay, as he claimed, or that his trial would not take place immediately upon his arrival. At the time of taking the extradition decision, and on the basis of the evidence provided by the applicant at the time, the Finnish authorities could not but find that the applicant could not be considered personally to face a real risk of ill-treatment. Accordingly, in the Government’s view, the applicant did not face a risk of being subjected to treatment in breach of Article 3 of the Convention when extradited to Uruguay and, consequently, his application was manifestly ill-founded.
29. The applicant maintained that there was no obligation for a person subjected to an Article 3 violation to be able to provide exact information or to prove exactly to what type of ill-treatment he would be subjected in the requesting country. It was clear from the Court’s case-law that a completely general possibility of ill-treatment could not suffice for finding a potential violation of Article 3 of the Convention. However, in the present case, there had been ample evidence that the applicant’s pre-trial detention would last for a long time and that the prison conditions in Uruguay were generally poor. In these circumstances the risk of ill-treatment should have been considered as being personal enough to trigger the application of Article 3 of the Convention.
30. The applicant argued that the Supreme Court did not address the Article 3 issue at all and the Ministry of Justice’s decision did not suggest that rigorous scrutiny had been given to the applicant’s claim of ill‑treatment. The prison conditions and facilities experienced by the other persons involved in the alleged crime had no relevance to the applicant’s case.
31. The Court reiterates that deportation, extradition or any other measure to remove an alien may give rise to an issue under Article 3, and hence engage the responsibility of the Contracting State under the Convention, where substantial grounds have been shown for believing that the person in question, if removed, would face a real risk of being subjected to treatment contrary to Article 3 in the receiving country. In such circumstances, Article 3 implies an obligation not to remove the individual to that country (see Soering v. the United Kingdom, 7 July 1989, §§ 90-91, Series A no. 161; Vilvarajah and Others v. the United Kingdom, 30 October 1991, § 103, Series A no. 215; Ahmed v. Austria, 17 December 1996, § 39, Reports of Judgments and Decisions 1996‑VI; H.L.R. v. France, 29 April 1997, § 34, Reports 1997-III; Jabari v. Turkey, no. 40035/98, § 38, ECHR 2000‑VIII; Salah Sheekh v. the Netherlands, no. 1948/04, § 135, 11 January 2007; and Hirsi Jamaa and Others v. Italy [GC], no. 27765/09, § 114, ECHR 2012).
32. Since the nature of the Contracting States’ responsibility under Article 3 in cases of this kind lies in the act of exposing an individual to the risk of ill-treatment, the existence of the risk must be assessed primarily with reference to those facts which were known or ought to have been known to the Contracting State at the time of the extradition (see Cruz Varas and Others v. Sweden, 20 March 1991, §§ 75-76, Series A no. 201, and Vilvarajah and Others v. the United Kingdom, cited above, § 107). However, if the applicant has not been extradited or deported when the Court examines the case, the relevant time will be that of the proceedings before the Court (see Chahal v. the United Kingdom, 15 November 1996, §§ 85-86, Reports 1996‑V).
33. In order to determine whether there is a risk of ill-treatment, the Court must examine the foreseeable consequences of the applicant being extradited to the requesting country, bearing in mind the general situation there and his personal circumstances (see Vilvarajah and Others v. the United Kingdom, cited above, § 108 in fine). It is in principle for the applicant to adduce evidence capable of proving that there are substantial grounds for believing that, if the measure complained of were to be implemented, he would be exposed to a real risk of being subjected to treatment contrary to Article 3 (see N. v. Finland, no. 38885/02, § 167, 26 July 2005). Where such evidence is adduced, it is for the Government to dispel any doubts about it (see Ryabikin v. Russia, no. 8320/04, § 112, 19 June 2008).
34. At the same time, the mere possibility of ill-treatment on account of an unsettled situation in the requesting country does not in itself give rise to a breach of Article 3 (see Vilvarajah and Others v. the United Kingdom, cited above, § 111; and Katani and Others v. Germany (dec.), no. 67679/01, 31 May 2001). Reference to a general problem concerning human rights observance in a particular country cannot alone serve as a basis for refusal of extradition (see Dzhaksybergenov v. Ukraine, no. 12343/10, § 37, 10 February 2011). Where the sources available to the Court describe a general situation, an applicant’s specific allegations in a particular case require corroboration by other evidence, with reference to the individual circumstances substantiating his fears of ill-treatment (see Mamatkulov and Askarov v. Turkey [GC], nos. 46827/99 and 46951/99, § 73, ECHR 2005-I, and Dzhaksybergenov v. Ukraine, cited above, § 37). The Court would not require evidence of such individual circumstances only in the most extreme cases where the general situation of violence in the country of destination is of such intensity as to create a real risk that any removal to that country would necessarily violate Article 3 (see N.A. v. the United Kingdom, no. 25904/07, §§ 115-116, 17 July 2008; and Sufi and Elmi v. the United Kingdom, nos. 8319/07 and 11449/07, § 217, 28 June 2011).
35. According to the Court’s settled case-law, ill-treatment must attain a minimum level of severity if it is to fall within the scope of Article 3. The assessment of this minimum level of severity is relative; it depends on all the circumstances of the case, such as the duration of the treatment, its physical and mental effects and, in some cases, the sex, age and state of health of the victim (see, among other authorities, Price v. the United Kingdom, no. 33394/96, § 24, ECHR 2001-VII; Mouisel v. France, no. 67263/01, § 37, ECHR 2002-IX; and Jalloh v. Germany [GC], no. 54810/00, § 67, 11 July 2006).
36. Turning to the present case, the Court observes that as Rule 39 was not applied by the Court in the present case, the applicant was extradited to Uruguay on 14 July 2011. The Court must therefore assess the existence of the risk primarily with reference to those facts which were known or ought to have been known to the Finnish authorities at the time of the applicant’s extradition.
37. The Court notes that the applicant maintains that he presented sufficient evidence to the Supreme Court to prove that, if extradited, his pre‑trial detention would last for a long time in Uruguay and that the prison conditions there are generally poor. He supported his claims by referring to country reports on prison conditions in Uruguay. However, the applicant did not provide to the Supreme Court any evidence on individual circumstances which would substantiate his fears of ill-treatment, such as evidence on the prison conditions of the three other persons, including his brother, who were convicted of the same crime of which the applicant was accused. He did not even claim that the prison conditions of these three persons would amount to treatment contrary to Article 3 of the Convention.
38. The Court further notes that the Government maintain that this evidence was not sufficient to warrant concluding that the applicant would be specifically subjected to torture or to inhuman or degrading treatment if extradited to Uruguay. The Court will therefore examine whether the evidence adduced by the applicant was such that the Government could, on the basis of that evidence, dispel any doubts about any real risk of treatment contrary to Article 3 of the Convention if the applicant were extradited to Uruguay.
39. The Court notes that the mere possibility of ill-treatment in the requesting country does not in itself give rise to a breach of Article 3 of the Convention (see Vilvarajah and Others v. the United Kingdom, cited above, § 111; and Katani and Others v. Germany (dec.), no. 67679/01, 31 May 2001). As found by the Supreme Court, the applicant did not provide to that court any evidence on individual circumstances to substantiate his fears of ill-treatment: all evidence submitted by him only concerned the general situation in Uruguayan prisons. The evidence adduced by the applicant was thus not personal enough to trigger the application of Article 3 of the Convention. Moreover, as the Ministry of Justice had been informed that the applicant was already charged with extortion in Uruguay, the Finnish authorities had no reason to suspect that the applicant would face a risk of prolonged pre-trial detention in Uruguay, or that his trial would not take place immediately upon his arrival.
40. Having regard to all of the above, the Court concludes that the Government had no substantial grounds for believing, at the time of the applicant’s extradition, that the applicant would be exposed to a real risk of being subjected to treatment contrary to Article 3 of the Convention if extradited to Uruguay.
41. Accordingly, the applicant’s complaint under Article 3 of the Convention must be rejected as manifestly ill-founded and declared inadmissible pursuant to Article 35 §§ 3 (a) and 4 of the Convention.
For these reasons, the Court, unanimously,
Declares the remainder of the application inadmissible.
Done in English and notified in writing on 4 June 2015.
Fatoş AracıGuido Raimondi
Deputy RegistrarPresident
Full & Egal Universal Law Academy