AS TO THE ADMISSIBILITY OF
Application No. 25342/94
by Alla RAIDL
against Austria
The European Commission of Human Rights sitting in private on
4 September 1995, the following members being present:
MM. S. TRECHSEL, President
H. DANELIUS
C.L. ROZAKIS
E. BUSUTTIL
G. JÖRUNDSSON
A.S. GÖZÜBÜYÜK
A. WEITZEL
J.-C. SOYER
H.G. SCHERMERS
Mrs. G.H. THUNE
Mr. F. MARTINEZ
Mrs. J. LIDDY
MM. L. LOUCAIDES
J.-C. GEUS
M.P. PELLONPÄÄ
G.B. REFFI
M.A. NOWICKI
I. CABRAL BARRETO
B. CONFORTI
N. BRATZA
I. BÉKÉS
J. MUCHA
E. KONSTANTINOV
D. SVÁBY
G. RESS
A. PERENIC
P. LORENZEN
Mr. H.C. KRÜGER, Secretary to the Commission
Having regard to Article 25 of the Convention for the Protection
of Human Rights and Fundamental Freedoms;
Having regard to the application introduced on 20 September 1994
by Alla RAIDL against Austria and registered on 28 September 1994 under
file No. 25342/94;
Having regard to the report provided for in Rule 47 of the Rules
of Procedure of the Commission;
Having deliberated;
Decides as follows:
THE FACTS
The facts of the case, as submitted by the applicant, may be
summarised as follows.
The applicant, born in 1969, is a Russian national. She was held
in provisional detention at the Wels Regional Court (Landesgericht).
On 27 September 1994 she was extradited to the Russian Federation,
where she is currently detained at Severodvinsk prison. In the
proceedings before the Commission, she is represented by
Dr. J. Lachmann, a lawyer practising in Vienna.
A. The particular circumstances of the case
In December 1991 the applicant came to Austria, where she
requested asylum. Her request was subsequently rejected.
On 5 June 1992 the authorities of the Russian Federation
transmitted an international warrant of arrest of 29 March 1992 to the
Austrian authorities. It had been issued by the Prosecutor General of
Severodvinsk, Russian Federation, and stated that the applicant was
suspected of having, on 7 January 1991, in Severodvinsk, together with
two accomplices, killed the manager of a firm, whose position she
allegedly wanted to acquire.
On 9 June 1992 the applicant was arrested.
On 10 June 1992 the Wels Regional Court ordered the applicant's
provisional detention (Auslieferungshaft). On the same day, she was
heard by the investigating judge (Untersuchungsrichter). She submitted
in particular that she had been in Moscow in January 1991, that she did
not know D. and S., who had allegedly been her accomplices. Nor did she
know P., the victim.
On 24 August 1992 the embassy of the Russian Federation formally
requested the Austrian authorities to extradite the applicant on the
suspicion of having committed murder under SS. 17 and 103 of the Penal
Code of the Russian Federation, together with two accomplices, namely
D. and S.
On 16 September 1992 the applicant was again heard by the
investigating judge at the Wels Regional Court. She stated that she
herself as well as D. and S. and the victim P. had worked at the firm
at issue. She had seen P. for the last time in the morning of
7 January 1991. However, she had nothing to do with the murder, and had
only learned from D. on 16 January 1991 that P. was dead. D. had
threatened her and ordered her to remain silent. In August 1991 she was
heard by the police in connection with the murder. Subsequently, she
left Russia, as she was afraid of D. and S.
On 17 November 1992 the applicant married an Austrian national,
who is a businessman by profession.
On 4 December 1992 the embassy of the Russian Federation
submitted a number of documents in support of the request to extradite
the applicant. They contained in particular a judgment of the People's
Court of Severodvinsk of 9 October 1992, convicting D. and S. of murder
under S. 103 of the Penal Code of the Russian Federation and sentencing
them to nine years' and eight years' imprisonment respectively. The
said court found that they had killed P. on 7 January 1991. The
judgment also mentions the role of the applicant, who according to the
court's findings helped D. and S. in that she asked P. to come to the
office and later assisted them in disfiguring and hiding the corpse.
The documents further contained minutes of the questioning of several
witnesses.
On 29 December 1992 the Linz Court of Appeal (Oberlandesgericht),
declared that the applicant's extradition was permitted under the
Austrian Extradition Act (Auslieferungs- und Rechtshilfegesetz) inter
alia under the condition that the death penalty should not be applied.
The Court referred to the warrant of arrest of 29 March 1992 and
noted that a copy of SS. 17 and 103 of the Penal Code of the Russian
Federation had been attached to it. According to these provisions,
murder was punishable with three to ten years' imprisonment. Therefore,
the applicant's fear of being subjected to the death penalty was
unfounded. The Court noted that the applicant had not made a
confession. However, she had confirmed that she was the person
described in the warrant of arrest. The Court found that there were no
objections against the suspicion as described in the warrant and other
documents submitted by the Procurator General of the Russian Federation
in support of the request for extradition. According to these
documents, two witnesses had made statements incriminating the
applicant.
The Court also considered that the applicant's extradition would
not constitute undue hardship within the meaning of S. 22 of the
Extradition Act. In view of the seriousness of the crime at issue, her
extradition was necessary, notwithstanding the fact that she was
married to an Austrian national. Finally, the Court stated that it had
no reasons to fear that the criminal proceedings in the Russian
Federation would not comply with the requirements of Articles 3 and 6
of the Convention or that a penalty which would fall within the scope
of Article 3 would be imposed or executed.
Prior to this decision the Court of Appeal had held two hearings
on 15 and 29 December 1992 in the presence of the applicant and her
counsel. At the end of the second hearing the above decision was read
out, and the main reasons were given orally. The decision and its
reasons were also translated into Russian.
Also on 29 December 1992, after the Court's decision had been
taken, the applicant attempted suicide.
On 5 January 1993 the Austrian Minister of Justice (Bundes-
minister für Justiz) gave his approval for the applicant's extradition
subject to the condition that the death penalty must not be applied.
Further, should it turn out that the act she was suspected of
constituted another crime than the one she was extradited for, she
could only be tried if extradition would also be admissible with regard
to the latter crime. It appears that the Minister, in accordance with
S. 34 para. 4 of the Extradition Act, informed the Linz Court of Appeal
of his decision. By note of 14 January 1993 this Court in turn informed
the Wels Regional Court of the decision. However, the decision was not
served on the applicant or her counsel.
On 12 January 1993 the Linz District Court (Bezirksgericht),
after having heard the applicant and having regard to a psychiatric
expert opinion, ordered the applicant's detention in the
W.-J. psychiatric hospital in Linz.
The psychiatric expert, Dr. S., in his opinion filed on
9 January 1993, stated that the applicant suffered from a serious
mental disturbance. In the situation of her detention and her imminent
return to Russia, a suicidal tendency had evolved and had resulted in
her attempted suicide, which had to be regarded as genuine. He
concluded that the applicant's disturbance constituted a mental illness
and that there was still a serious risk of further suicide attempts.
The Court, referring to the expert opinion, found that the
applicant suffered from a mental illness and that the continuing
suicide risk warranted her detention in a psychiatric hospital. Her
detention was originally ordered for a month and was later prolonged.
On 5 February 1993 the Wels Regional Court, on the applicant's
request, decided to stay her extradition in accordance with S. 37 of
the Extradition Act. The Court, referring to a further expert opinion,
which had confirmed that the applicant suffered from a depressive
reaction with suicidal tendencies and that she needed psychiatric
treatment for five or six weeks, found that she was not fit for
transport.
On 1 March 1993 the Linz Court of Appeal dismissed the
applicant's request of 15 January 1993 for reopening of the extradition
proceedings, referring to the danger of suicide, her marriage and the
fear that the death penalty would be imposed.
The Court of Appeal had regard to the expert opinion, filed by
Dr. M. on 4 February 1993, according to which the applicant suffered
from a depressive syndrome. He noted that, according to the applicant
and the file of the W.-J. psychiatric hospital, her previous medical
history did not show any particularities. Although her depression also
had a hereditary and a personality-dependent element, the reactive
element was decisive, as the syndrome had been caused by the strain the
current situation put on her. Her suicidal tendencies, which subsisted,
were also caused by this situation. The Court, referring to this expert
opinion, found that the applicant suffered from a depression which had
been intensified by the difficult circumstances. Further, her suicidal
tendency subsisted. The Court noted that the Senior Public Prosecutor's
Office, in view of the applicant's problems of mental health, had
supported her request.
However, a reopening of the extradition proceedings was only
possible in case new facts had arisen. The applicant's attempted
suicide, which was her reaction to the decision to extradite her, did
not constitute a new fact within the meaning of the Extradition Act.
Further, the question whether her extradition would constitute undue
hardship within the meaning of S. 22 of the Extradition Act had already
been examined in the preceding extradition proceedings. The Court
repeated that the applicant was suspected of a capital crime and,
although she was married to an Austrian, had not been resident in
Austria for a long time.
On 2 April 1993 the applicant escaped from the W.-J. psychiatric
hospital. Subsequently, she stayed with her husband in various places,
mainly in Italy and Slovenia. In the summer of 1994 she came back with
her husband to Austria.
On 23 July 1994 the applicant was rearrested and was subsequently
taken into provisional detention at the Wels Regional Court.
On 24 July 1994 the applicant was again admitted to the W.-J.
psychiatric hospital. According to a file note prepared by the
investigating judge at the Wels Regional Court on 26 July 1994, the
following happened on that day: Officers of the Regional Court's prison
tried to take the applicant back to the Court's prison. However, the
applicant resisted and finally had to be given tranquillizers. The
competent doctor, Dr. A., was called. According to her diagnosis, which
she gave on the telephone, the applicant did not suffer from a
psychosis. Rather her conduct was a reaction to the detention and
constituted a learned and deliberate behaviour on her part. Dr. A also
announced that the applicant would be examined by a commission of
doctors. However, her further detention at the psychiatric hospital
would probably not be justified.
By letter of 28 July 1994 the psychiatric hospital informed the
Wels Regional Court that the applicant had been examined by Dr. C. and
that her further detention at the psychiatric hospital was not
justified.
On 3 August 1994 the applicant again requested the Linz Court of
Appeal to reopen the extradition proceedings. She submitted that
meanwhile a much stronger relationship had evolved between her and her
husband. In particular, S. 22 of the Extradition Act had to be
interpreted in the light of Article 8 of the Convention. Her
extradition was not necessary for the prevention of disorder or crime,
as she would have to be put to trial in Austria in accordance with
S. 65 para. 1 of the Penal Code (Strafgesetzbuch). Further, her husband
could hardly be expected to follow her to Siberia.
On the same day, she also requested the Linz Court of Appeal to
serve its decision of 29 December 1992 concerning her extradition on
her.
On 5 September 1994 the Linz Court of Appeal, after having heard
the applicant and her husband, dismissed the applicant's request.
The Court found that the development of a much closer
relationship between her and her husband might be regarded as a new
fact. However, it was not sufficient to raise doubts as to the
correctness of the decision to extradite her. In this context, the
Court noted that the question whether the applicant's extradition would
constitute undue hardship within the meaning of S. 22 of the
Extradition Act. S. 22 of the said Act required weighing the particular
circumstances invoked by the person to be extradited against the
seriousness of the crime. Given that the applicant was suspected of one
of the most serious crimes, i.e. of murder, the decision had to be in
favour of her extradition.
Moreover, the Court considered that only the applicant's
absconding from the psychiatric hospital had given her and her husband
the possibility to live together. However, they had no normal married
life, in particular they had not shared a common household. They had
seen each other frequently, albeit always in fear of being detected.
Their relationship did not constitute family life within the meaning
of Article 8. In any case, given the seriousness of the crime at issue,
an interference would be justified within the meaning of the second
paragraph of this Article.
On 23 September 1994 the authorities of the Russian Federation
informed the Austrian authorities that they were ready to take over the
applicant on 27 September 1994 at the Vienna airport.
On 26 September 1994 the decision of 29 December 1992 by the Linz
Court of Appeal was served on the applicant's counsel. In a letter
accompanying this decision, the Wels Regional Court informed the
applicant that a copy of the decision by the Minister of Justice of
5 January 1993 was not in the file. However, the Court attached a note
of 14 January 1993, in which the Linz Court of Appeal had informed it
of the said decision and briefly summarised its contents.
Also on 26 September 1994 the investigating judge at the Wels
Regional Court made the necessary arrangements for handing the
applicant over to the Russian authorities.
In the evening of 26 September 1994 the applicant made a further
attempt to commit suicide by taking an overdose of tranquillizers. She
was first admitted to a hospital where measures to prevent the
intoxication were taken. Then she was again brought to the W.-J.
psychiatric hospital. According to a file note of 27 September 1994 by
the investigating judge at the Wels Regional Court, the doctor on duty
at the psychiatric hospital informed him in the evening of
26 September 1994 by telephone that the applicant was kept under
surveillance on account of the overdose she had taken but that there
was nothing militating against handing her over to the Russian
authorities.
On 27 September 1994 at 10 a.m. the applicant was transported to
Vienna airport by an ambulance. In view of her resistance at the
departure, she had to be given tranquillizers. She was accompanied by
a doctor and two officers of the Wels Regional Court's prison. She left
Vienna by plane at 1.30 p.m.
On 10 October 1994 the applicant's counsel filed a complaint
(Beschwerde) with the Wels Regional Court. He submitted in particular
that the decision of 5 February 1993 to stay the applicant's
extradition on account of her state of mental health had been taken
without any time-limit and was therefore still valid. No decision to
the contrary had been taken. Moreover, the circumstances of the
applicant's extradition, which had taken place only a few hours after
her attempt to commit suicide and involved her transport to the airport
by an ambulance under the influence of tranquillizers, violated
Article 3 of the Convention.
On 28 October 1994 the Review Chamber (Ratskammer) of the Wels
Regional Court dismissed the applicant's complaint. It considered that
the decision of 5 February 1993 to stay the applicant's expulsion had
relied on an expert opinion, according to which the applicant was not
fit for transport and needed psychiatric treatment for a period of five
to six weeks. Thus, the decision had to be understood as staying the
applicant's expulsion for that period. Moreover, on 2 April 1993 the
applicant had fled from the psychiatric hospital and thus proved fit
for transport. As regards the complaint about the circumstances of her
extradition, the Review Chamber found that they were not in breach of
Article 3. It referred to the opinion of the doctor on duty, as
reflected in the file note of 27 September 1994, namely that there was
nothing militating against handing the applicant over to the Russian
authorities. Moreover, a doctor had accompanied her on the way to the
airport.
On 24 January 1995 the Austrian Consul General visited the
applicant at the prison in Severodvinsk. He reported that she shared
a cell with ten to twelve other persons, that she lived on vegetarian
food, the supply of which was rather modest and that she complained
about rheumatism and kidney trouble. The Consul General had also
invited the Russian authorities to report on the applicant's state of
health.
By letter of 15 March 1995, the Ministry for Foreign Affairs of
the Russian Federation informed the Austrian authorities that the
competent court had twice dismissed the applicant's requests for
release. The applicant had also pointed out that her state of health
was deteriorating and thereupon she had been examined by a specialist,
who found that she did not need to be hospitalised. However, she was
regularly receiving medical treatment.
B. Relevant law and practice
I. Austrian law
If, as in the present case, there is no extradition treaty
between Austria and the requesting State the Austrian Extradition Act,
as amended in 1992 (Auslieferungs- und Rechtshilfegesetz, idF BGBl
1992/756), applies. Its provisions, as in force at the relevant time,
may be summarised as follows.
According to S. 9, the provisions of the Code of Criminal
Procedure (Strafprozeßordnung) apply to the extradition proceedings,
if not stated otherwise.
According to S. 10 extradition is admissible, on the request of
another State, inter alia, if a person shall be prosecuted for a
criminal offence. The criminal offence must be punishable with more
than one year's imprisonment according to the law of the requesting
State (S. 11).
Extradition has to be refused if there are reasons to fear that
the criminal proceedings in the requesting State will not meet the
requirements of Articles 3 and 6 of the Convention or that the penalty
or its execution will be contrary to Article 3 of the Convention
(S. 19).
An extradition for the prosecution of a crime punishable by the
death penalty according to the law of the requesting State, may only
be permitted if it is guaranteed that the death penalty will not be
imposed (S. 20).
According to S. 22, extradition may not be permitted if it would,
taking the seriousness of the crime into account, constitute undue
hardship for the person concerned, on the ground that he or she had
been resident in Austria for a long time or for other personal reasons.
According to S. 33 the court of second instance has to decide
whether the extradition is to be permitted. The court sits in private
unless the Senior Public Prosecutor's Office or the person concerned
requests a public hearing (para. 1). At the hearing, the person to be
extradited has to be represented by counsel (para. 2). The court
decides by a formal decision, which shall be reasoned. It shall be
pronounced orally by the presiding judge. There is no appeal from the
decision (para. 5). The court of second instance has to transmit its
decision as well as the file to the Minister of Justice (para. 6).
According to S. 34, the final decision on a request for
extradition lies with the Minister of Justice. However, he may not
permit an extradition if the court of second instance has found against
it. The Minister has to take the interests of Austria into account, its
obligations under international law, in particular as regards asylum
law, and the protection of human dignity (para. 1). He shall
communicate his decision to the requesting State, and to the court of
second instance, which shall, through the court of first instance,
ensure that the person concerned, and his or her counsel, are informed
of this decision (para. 4).
The investigating judge at the court of first instance has to
make the necessary arrangements for the extradition (S. 36 para. 1).
According to S. 37 para. 1, an extradition has to be stayed,
inter alia, if the person concerned is not fit for transport, or in
case of reopening of the proceedings.
The court of second instance has to quash its decision permitting
an extradition if new facts are submitted, which, alone or in
connection with the documents already submitted in support of the
request for extradition, raise serious doubts as to the correctness of
this decision (S. 39).
S. 65 para. 1 of the Penal Code (Strafgesetzbuch) provides that
the Austrian penal laws apply with regard to crimes which are
punishable under the law of the State where they were committed, if the
offender is a national of another country, has been arrested in Austria
and cannot be extradited for a reason other than the type or quality
of the offence.
II. Law of the Russian Federation
S. 102 of the Penal Code of the Russian Federation provides that
murder, i.e. premeditated killing of a person, committed under
aggravating circumstances, (e.g. for motives of self-interest, or with
particular cruelty) is punishable by eight to fifteen years'
imprisonment, with or without banishment, or by the death penalty.
According to the Amnesty International Report 1994, S. 102 is
still in force; however, there were amendments in April 1993, according
to which women are exempted from the death penalty.
S. 103 provides that murder, committed without aggravating
circumstances within the meaning of S. 102, is punishable by three to
ten years' imprisonment.
According to S. 17 each accomplice shall be punished with regard
to his or her contribution to the crime.
COMPLAINTS
1. The applicant complains under Article 2 of the Convention and
Protocol No. 6 that her extradition puts her at the risk of being
sentenced to death in the Russian Federation. She further submits that
there is no guarantee that capital punishment will not be applied, as
referred to in the decision by the Minister of Justice of
5 January 1993.
2. The applicant complains under Article 3 of the Convention that
her extradition amounts to inhuman and degrading treatment. She refers
to her mental illness, which already caused her to attempt suicide.
Further, she submits that she would not have access to the necessary
medical treatment in a prison in Severodvinsk, Siberia. In her
situation, she would particularly suffer from the permanent fear of
being sentenced to death.
3. The applicant complains under Article 8 of the Convention that
her extradition violates her right to respect for her private and
family life. In particular, she submits that her extradition is likely
to terminate her relationship with her husband, who could not possibly
follow her to Siberia. Moreover, given her state of mental health, her
extradition exposes her to the risk of committing further attempts of
suicide.
4. The applicant complains under Article 6 that the most important
decisions in the extradition proceedings were not served on her or her
counsel, i.e. the decision by the Minister of Justice of 5 January
1993, or only very late, i.e. the decision of the Linz Court of Appeal
of 29 December 1992.
PROCEEDINGS BEFORE THE COMMISSION
The application was introduced on 20 September 1994 and
registered on 28 September 1994.
On 17 October 1994 the Commission decided to communicate the
application to the respondent Government, pursuant to Rule 48 para. 2
(b) of the Rules of Procedure.
The Government's written observations were submitted on
17 February 1995 after an extension of the time-limit fixed for that
purpose. The applicant replied on 6 April 1995.
THE LAW
The applicant complains about various aspects of her extradition
to the Russian Federation. She invokes Article 2 (Art. 2) of the
Convention and Protocol No. 6 (P6), as well as Articles 3, 6 and 8
(Art. 3, 6, 8) of the Convention.
a. Preliminary question under Article 26 (Art. 26) of the
Convention
The Government submit that the applicant failed to introduce her
complaint within the six-months' period laid down in Article 26
(Art. 26) of the Convention. They argue that the decision by the Linz
Court of Appeal of 29 December 1992 has to be regarded as the final
domestic decision within the meaning of this provision. This decision,
including its translation into Russian, was announced orally to the
applicant and her counsel on the day it was taken. According to S. 33
para. 5 of the Austrian Extradition Act, there was no need to serve a
written version of the decision on them, as there were no remedies
available against it. Moreover, in accordance with S. 34 para. 4 of the
said Act, there was no need to serve the decision of 5 January 1993 by
the Minister of Justice on her. Finally, according to the Government,
the applicant's requests for reopening of the proceedings are
irrelevant under Article 26 (Art. 26), as they cannot be considered as
an effective remedy.
The applicant contests the Government's view. She submits in
particular that, contrary to S. 34 para. 4 of the Extradition Act, the
decision of 5 January 1993 by the Ministry of Justice was never served
on her. Furthermore, she points out that her present application
relates mainly to facts which did not even exist when the decision of
the Linz Court of Appeal was taken on 29 December 1992, namely her
state of mental health following her attempt to commit suicide and her
married life. At that time, she would thus not have been able to raise
the complaints she is now bringing before the Commission. She argues
that in the particular circumstances of her case, 5 September 1994,
i.e. the date when her request for reopening of the proceedings was
dismissed, should, therefore, be taken as the starting point for the
calculation of the six-months' period under Article 26 (Art. 26).
The Commission does not have to resolve the question whether the
applicant has complied with the six-months' rule, as her complaints are
in any case inadmissible for the reasons set out below.
b. Article 2 (Art. 2) of the Convention and Protocol No. 6
(P6)
The applicant complains under Article 2 (Art. 2) of the
Convention and under Protocol No. 6 (P6) that her extradition puts her
at the risk of being sentenced to death in the Russian Federation.
The Government submit that the approval of the applicant's
extradition was subject to the condition that the death penalty should
not be applied and that the authorities of the Russian Federation had
not objected to this condition. Moreover, the Government note that
murder is, according to S. 103 of the Penal Code of the Russian
Federation, punishable by three to ten years' imprisonment and that the
applicant's alleged accomplices have actually been sentenced to up to
nine years' imprisonment.
According to the applicant, the fact that the Government of the
Russian Federation have not objected to the conditions attached to her
extradition is not a sufficient guarantee. In particular, there is
nothing to prevent the courts from convicting her of murder with
aggravating circumstances under S. 102 of the Penal Code of the Russian
Federation, which may carry a death sentence.
The Commission recalls that Article 2 (Art. 2) of the Convention
does not prohibit capital punishment. However, Article 1 of Protocol
No. 6 (P6-1) provides that the death penalty shall be abolished and
that no one shall be condemned to such a penalty or executed. Thus, the
question arises whether this provision, like Article 3 (Art. 3) of the
Convention, engages the responsibility of a Contracting State where,
upon extradition, the person concerned faces a real risk of being
subjected to the death penalty in the receiving State. However, the
Commission need not resolve this issue, since the complaint is in any
event manifestly ill-founded.
In the present case the Linz Court of Appeal, in its decision of
29 December 1992, noted that the applicant was suspected of murder
committed together with two accomplices under SS. 17 and 103 of the
Penal Code of the Russian Federation, which provides for three to ten
years' imprisonment. The Commission has also had regard to the fact
that the applicant's co-accused were convicted under S. 103 of the said
Penal Code and sentenced to up to nine years' imprisonment. It is true
that S. 102 of the Penal Code of the Russian Federation, concerning
murder under aggravating circumstances, provides for the death penalty.
However, there are no indications that S. 102 would be applied in the
applicant's case. Moreover, amendments were made to the Penal Code of
the Russian Federation in April 1993, exempting women from the death
penalty.
In these circumstances, the Commission finds that there are no
substantial grounds for believing that the applicant faces a real risk
of being subjected to the death penalty in the Russian Federation.
It follows that this part of the application is manifestly ill-
founded within the meaning of Article 27 para. 2 (Art. 27-2) of the
Convention.
c. Article 3 (Art. 3) of the Convention
The applicant also complains under Article 3 (Art. 3) of the
Convention that her extradition amounts to inhuman and degrading
treatment, in particular on account of her state of mental health.
Article 3 (Art. 3) reads as follows:
"No one shall be subjected to torture or to inhuman or degrading
treatment or punishment."
The Government submit that the applicant, following her rearrest,
was again brought to a psychiatric hospital on 24 July 1994 having
regard to the expert opinion of February 1993. The doctors found that
she was not suffering from a psychosis but that her reaction to her
imprisonment constituted learned and deliberate behaviour to avoid her
extradition. Subsequently, the psychiatric hospital refused to hold
her. Thus, the applicant was no longer suffering from a mental illness
making her extradition inadmissible. Further, her suicide attempt of
26 September 1994 did not represent the symptom of an illness but was
intended to prevent her lawful extradition. Thus, the fact that she
was, after long and complex extradition proceedings, actually handed
over to the Russian authorities on 27 September 1994, cannot be
regarded as a violation of Article 3 (Art. 3). Finally, as regards the
prison conditions in Severodvinsk the Government point out that the
Austrian Consul General visited the applicant in prison on 24 January
1995 and that the Russian authorities were invited to report on her
state of health.
The applicant refers in particular to the expert opinions which
were filed in early 1993 and showed that she suffered from a mental
illness, i.e. a depressive syndrome with suicidal tendencies.
Furthermore, she submits that none of the recent information, on which
the Government rely, supports the conclusion that she no longer suffers
from that mental illness. In her application, which was introduced
before her extradition, the applicant also submitted that she would not
have access to the necessary medical treatment in a prison in
Severodvinsk, Siberia, and that she would particularly suffer from the
permanent fear of being sentenced to death. Finally, she points out
that her state of mental health was such that her transport to the
airport on 27 September 1994, following her further attempt to commit
suicide, had to be carried out by an ambulance and in the presence of
a doctor.
The Commission recalls that an extradition may give rise to an
issue under Article 3 (Art. 3) where substantial grounds have been
shown for believing that the person concerned faces a real risk of
being subjected to torture or to inhuman or degrading treatment or
punishment in the requesting country (Eur. Court H.R., Soering judgment
of 7 July 1989, Series A no. 161, p. 35, para. 91). Further, any ill-
treatment must attain a minimum level of severity to fall within the
scope of Article 3 (Art. 3). In assessing this minimum, regard is to
be had to all the circumstances of the case, including the physical or
mental effects of the treatment or punishment at issue, and in some
instances the sex, age and state of health of the victim (Soering
judgment, loc. cit., p. 39, para. 100, with further references).
In the above-mentioned Soering judgment, the Court found that the
envisaged extradition of Mr. Soering would be in breach of Article 3
(Art. 3) because of the circumstances relating to the death penalty
which he risked to be sentenced to, namely, inter alia, the "death row
phenomenon" (Soering judgment, loc. cit., pp. 36-45, paras. 92-111).
In the present case the Commission refers to its above finding that the
applicant does not face a real risk of being sentenced to death. What
remains to be examined is the applicant's submission that her state of
mental health was such that her extradition amounted to treatment
contrary to Article 3 (Art. 3).
The applicant was arrested in June 1992 with a view to her
extradition. The Commission notes that the applicant did not make any
allegations as regards previous mental problems. Following her attempt
of 29 December 1992 to commit suicide, the Austrian courts requested
two psychiatric experts to file written opinions. They found that the
applicant suffered from a mental illness, namely a depressive syndrome,
which was caused by the strain due to her imminent extradition to
Russia and had resulted in her attempted suicide. The applicant was,
therefore, transferred from prison to a psychiatric hospital, from
which she escaped in April 1993.
Following her rearrest, the applicant was again admitted to the
same psychiatric hospital on 24 July 1994. On this occasion, the
competent doctor, Dr. A., found that she did not suffer from a
psychosis, but that her conduct was a reaction to the detention and
constituted a learned and deliberate behaviour on her part. Only a few
days later the psychiatric hospital informed the competent court that
she had been examined by another doctor, Dr. C., and that her detention
at the psychiatric hospital was no longer justified. When, following
her attempt to commit suicide on 26 September 1994, she was brought to
the psychiatric hospital again, the doctor on duty informed the
investigating judge that there was nothing militating against handing
her over to the Russian authorities. The following day, she was given
tranquillizers in view of her resistance against being brought to
Vienna airport. Finally, her transport was carried out by an ambulance
in the presence of a doctor.
On the basis of the material before it, the Commission finds that
it is not established that the applicant's mental illness persisted in
1994 when she was rearrested and finally extradited. Given these
findings, the Commission further considers that the circumstances under
which her extradition was carried out did not go beyond the inevitable
element of suffering or humiliation connected with the legitimate
execution of the decision to extradite her (see, mutatis mutandis, Eur.
Court H.R. Tyrer judgment of 25 April 1978, Series A no. 26, pp.14-15,
paras. 29-30).
Furthermore, the Commission recalls that the existence of the
risk of ill-treatment 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 expulsion. The Convention organs
are not precluded, however, from having regard to information which
comes to light subsequent to the expulsion. This may be of value in
confirming or refuting the appreciation that has been made by the
Contracting Party or the well-foundedness or otherwise of an
applicant's fears (Eur. Court H.R., Vilvarajah and Others judgment of
30 October 1991, Series A no. 215, p. 36, para. 107). In this context,
the Commission notes the report of the Austrian Consul General, who
visited the applicant in prison in Severodvinsk on 24 January 1995, and
the report of 15 March 1995 by the Russian authorities. There is
nothing in these documents to show that the applicant does not receive
the necessary medical treatment or that the general conditions
pertaining in the prison would be inhuman.
In conclusion, the Commission finds that the treatment complained
of did not go beyond the threshold set by Article 3 (Art. 3) of the
Convention.
It follows that this complaint is manifestly ill-founded within
the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.
d. Article 8 (Art. 8) of the Convention
The applicant complains under Article 8 (Art. 8) that her
extradition violated her right to respect for her private and family
life.
As far as relevant, Article 8 (Art. 8) reads as follows:
"1. Everyone has the right to respect for his private and
family life ...
2. There shall be no interference by a public authority with
the exercise of this right except such as is in accordance with
the law and is necessary in a democratic society ..... for the
prevention of disorder or crime ...."
The Government submit that the relationship between the applicant
and her husband cannot be regarded as "family life" within the meaning
of Article 8 (Art. 8). In this context, they point out that the
marriage was concluded while the applicant was already in prison. Even
after her escape from prison, the spouses did not live together but
have only seen each other occasionally. However, even assuming that
there was family life, the interference was justified under the second
paragraph of Article 8 (Art. 8), as being necessary for the prevention
of crime. The Government submit in particular that there was a
reasonable suspicion against the applicant of having participated in
the crime, namely murder, in connection with which she was extradited.
The interest in the prosecution of this crime outweighed the
applicant's interest in her family life.
The applicant contests the Government's view. She submits that
her extradition constituted an interference with her right to respect
for her family life, as it separated her from her husband, who could
not possibly follow her to Siberia. Further, it was not necessary, as
the criminal proceedings against her could also have been conducted in
Austria, in accordance with S. 65 of the Austrian Penal Code. Moreover,
given her state of mental health, her extradition exposed her to the
risk of committing further attempts of suicide.
The Commission finds that the decision to extradite the applicant
constitutes an interference with her right to respect for her private
and family life.
Such an interference is in breach of Article 8 (Art. 8), unless
it is justified under paragraph 2 of this Article as being "in
accordance with the law" and "necessary in a democratic society" for
one of the aims set out therein.
As regards the lawfulness of the measure complained of, the
Commission finds that the decision to extradite the applicant was based
on the Austrian Extradition Act, which permits extradition if a person
it to be prosecuted for a criminal offence punishable by more than one
year's imprisonment. The Linz Court of Appeal and the Minister of
Justice, when taking their decisions of 29 December 1992 and
5 January 1993 respectively, had extensive material submitted by the
authorities of the Russian Federation before them. According to these
documents, the applicant was suspected of having committed murder
together with two accomplices, an offence which is punishable by three
to ten years' imprisonment under Russian law. Therefore, the decision
to extradite the applicant was in accordance with Austrian law.
Moreover, the Commission finds that the interference served one
of the legitimate aims listed in Article 8 para. 2 (Art. 8-2), namely
the prevention of disorder or crime.
As regards the question whether the interference was necessary,
the Commission recalls that the notion of necessity implies a pressing
social need and requires that the interference at issue be
proportionate to the legitimate aim pursued (Eur. Court H.R., Beldjoudi
judgment of 26 March 1992, Series A no. 234-A, p. 27, para. 74).
Firstly, as regards the applicant's submission that the
interference with her private life was not justified, because her
extradition exposed her to a risk of suicide, the Commission takes into
account that a person's "private life" includes his or her physical
integrity (Eur. Court H.R., X and Y v. the Netherlands judgment of
26 March 1985, Series A no. 91, p. 11, para. 22). However, in view of
its findings under Article 3 (Art. 3), the Commission considers that
the applicant was not in such an impaired state of mental health that
her extradition would appear disproportionate.
Secondly, as regards the interference with the applicant's family
life, the Commission notes that the Linz Court of Appeal, in its
decision of 29 December 1992, had regard to the fact that the applicant
was married to an Austrian national. Having regard to the seriousness
of the crime of which she was suspected, the Court found that her
extradition would not constitute undue hardship within the meaning of
the Austrian Extradition Act. The Court repeated these considerations
in its decisions of 1 March 1993 and 5 September 1994, when dismissing
the applicant's requests for reopening of the extradition proceedings
in which she had also relied on the fact of her marriage to an Austrian
national. The Commission agrees that the interference with the
applicant's family life was proportionate to the legitimate aim
pursued, given the seriousness of the crime, of which the applicant was
suspected even before she contracted marriage in Austria.
It follows that this part of the application is manifestly ill-
founded within the meaning of Article 27 para. 2 (Art. 27-2) of the
Convention.
e. Article 6 (Art. 6) of the Convention
Finally, the applicant complains under Article 6 (Art. 6) that
the most important decisions in the extradition proceedings were not
served on her or her counsel, i.e. the decision by the Minister of
Justice of 5 January 1993, or only very late, i.e. the decision of the
Linz Court of Appeal of 29 December 1992.
The Commission recalls that extradition proceedings do not fall
within the scope of Article 6 (Art. 6) (No. 13930/88, Dec. 11.3.89,
D.R. 60 p. 272).
It follows that this part of the application is incompatible
ratione materiae with the provisions of the Convention, within the
meaning of Article 27 para. 2 (Art. 27-2) .
For these reasons, the Commission, by a majority,
DECLARES THE APPLICATION INADMISSIBLE.
Secretary to the Commission President of the Commission
(H.C. KRÜGER) (S. TRECHSEL)
Full & Egal Universal Law Academy