They’ve Come For You: Misuse of Extradition Procedures and Interstate Legal Assistance

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The Arrested Lawyers Initiative, The Open Dialogue Foundation, The Italian Federation for Human Rights, Kharkiv Institute for Social Research and The Human Rights Defenders e.V. published a joint report titled ‘They’ve Come For You on misuse of Interpol mechanism, extradition procedures and interstate legal assistance.

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Summary: urgent problems and possible mechanisms for resolving them

On 27 June 2019 the PACE Committee on Legal Affairs and Human Rights has supported a draft report on fighting abuse of Interpol and extradition procedures. The report by rapporteur Aleksander Pociej was initially called “Extradition requests and the abuse of process”. In the final version of the report, published on 15 October 2019, the name was changed to “Interpol reform and extradition proceedings: building trust by fighting abuse”.

Rapporteur Pociej’s report sheds broad light on the problem of abuse of Interpol, but at the same time it presents fewer details and recommendations with respect to the violation of extradition procedures.

The PACE rapporteur once again placed the emphasis on what had been noted in the previous PACE report“Abusive use of the INTERPOL system: the need for more stringent legal safeguards” (April 2017), as well as bringing attention to the report “Misuse of Interpol’s Red Notices and impact on human rights”, prepared at the request of the European Parliament’s Subcommittee on Human Rights (both of these reports make reference to the research and recommendations of the Open Dialogue Foundation, one of the non-governmental organisations that launched an international campaign to support Interpol reform). As of today, thanks to the efforts of the international community, reform is underway at Interpol, as the agency has begun to take steps to fight against politically motivated requests. Rapporteur Pociej examined at what stage the implementation of the recommendations of the previous PACE report is at this time.

But several systemic problems and gross violations of extradition procedures that undermine international agreements on human rights are not indicated in Aleksander Pociej’s report. The report analyses the legislative framework and questions of communication relative to extradition, but at the same time there is are not enough more concrete recommendations for how to resolve the problems that exist.

Likewise, Aleksander Pociej examined several examples from the practice of the ECHR and the cases of the Catalonian leaders. However, we regret to note that many well-known cases that are examples of egregious violations ended up outside the scope of the report, in particular abductions of refugees and corruptional influence on the outcome of extradition cases. There had been a reaction on the part of the ECHR, the UN, and the member states of the Council of Europe with respect to these cases. These described precedents illustrate the ineffectiveness of the existing mechanisms of protection from abuse of extradition procedures and interstate legal assistance.

Of particular concern is the fact that public hearings were not provided for with respect to the PACE report. Some NGO proposals have remained completely without any reaction whatsoever. And even at the final stage, representatives of civil society were factually deprived of the opportunity to introduce supplements and recommendations. As of 31 October 2019, a decision has been adopted that the final vote on the report will take place not at a plenary session, but within the framework of a more closed format of discussion at the Standing Committee.

In the present document, the Open Dialogue Foundation, the Italian Federation for Human Rights, the Arrested Lawyers Initiative, the Human Rights Defenders e.V. and the Kharkiv Institute for Social Research attempt to fill the gaps in the PACE report and propose recommendations with respect to improving cooperation among the member states of the Council of Europe in the sphere of extradition.

We are using our many years of expertise in matters of observance of human rights in the sphere of justice and the activity of law-enforcement agencies. The majority of the cases that are examined or mentioned in the given document are the subject of expert study by our organisations (Human Rights Defenders e.V. focused their contribution on cases of Turkish citizens mentioned in the report).

In connection with the pervasiveness and comprehensiveness of the problem of the abuse of Interpol procedures, extraditions and interstate legal assistance, we are calling for a more detailed public discussion within the framework of the work of the PACE, as well for as our cases and recommendations to be taken account of. Likewise, the given topic must be broadly discussed within the framework of the work of the PACE, the European Parliament, the OSCE, and the UN.

Ignoring of expert conclusions within the framework of extradition procedures

It is noted in the PACE report that the guarantees that a state requesting extradition furnishes must be more reliable and specific. We would like to bring attention to yet another important aspect. In many situations, law-enforcement agencies ignore the objective and substantiated expert conclusions of human rights organisations, the UN, the PACE, and EU bodies relative to the political character of the prosecution and the threat of torture.

Governments or courts often do not want to analyse the essence of the matter, even when there are obvious incidents of fabricating evidence and discriminatory actions by the investigative body. In some cases, extraditions were carried out even contrary to a ban by UN bodies (cases of Farid Yusub, Timur Tumgoyev, Murat Acar, Muhammet Furkan Sökmen).

Recommendations to member states of the Council of Europe:

  • Implement without delay the decisions and recommendations of UN bodies and the ECHR on the inadmissibility or suspension of extradition.
  • As part of the extradition procedure, attach recommendations and conclusions of international organisations as well as documents of the PACE, the European Parliament, and the European Commission about the situation with human rights in the requesting state.
  • Involve independent experts on questions of extradition, international law, and human rights in the process of assessing an extradition case, in particular with respect to its political component.

Systematic abuses of extraditions and interstate legal assistance

Another form of abuse is repeated extradition requests. Interpol lifts the search request and the state is denied extradition; despite this, the state sends repeated similar requests for searches and extradition (cases of William Browder, Tatiana Paraskevich, Muratbek Ketebayev, Victor Țopa, Viorel Țopa, and Vladimir Morari). As a result, individuals face arrests and the threat of extradition every time they cross a border.

Persecutions of political opponents and refugees are implemented not only with the help of violation of extradition procedures, but also by way of abuse of interstate mutual legal assistance in criminal cases. According to international law, the member states of the Council of Europe must safeguard refugees from the actions of the country of origin. But this does not happen (case of Botagoz Jardemalie).

Using mechanisms of international legal assistance, non-democratic states obtain confidential information about persons being persecuted, and manage to get them interrogated and searched. The information obtained may be used for further political persecutions and even torture in relation to the relatives and accomplices of political opponents.

The victim of the political persecution only finds out about such cooperation between states at the stage of interrogation, search, or blocking of accounts, and is often deprived of the opportunity to submit an appeal.

Recommendations to member states of the Council of Europe:

  • If Interpol has recognised a search request to be politically motivated, while the requested state has denied the extradition request with respect to this case for the reason of its political character, all subsequent requests with respect to this case must be denied.
  • When considering requests for extradition and interstate legal assistance, take into account the decisions of other states that have already been adopted with respect to a specific person or other persons named in the same case. As an example, requests for extradition or legal assistance may be denied if persons wanted in connection with the same criminal case have been granted refugee status in various countries or their prosecution has been declared to be politically motivated.
  • Create a registry under the aegis of the Council of Europe into which decisions about denial of extradition along with a brief description of the reasoning section or of the part that is not classified will be entered. Access to the registry may be restricted to participants in the extradition process. This will allow for a database of practices in the sphere of extradition to be created, as well as for statistics on abuses of extradition procedures to be kept track of.
  • When issuing decisions with respect to a request for extradition and/or international legal cooperation, take account of the history of abuses of these mechanisms on the part of the requesting state.
  • Persons with refugee status should not be objects of international legal assistance at the request of the state in relation to which the refugee status has been obtained. Deny the transmitting of confidential information connected with refugees and politically persecuted persons, their relatives and close ones.
  • In accordance with Art. 2 of the European Convention on Mutual Assistance in Criminal Matters, refuse to provide assistance in politically motivated cases. In so doing, the relevant expertise of the agencies of the UN, the EU, and human rights organisations relative to the political character of the case must be taken into account.
  • Persons who are the object of a request for interstate assistance in criminal matters must in all cases be informed of such a request. They should be given the opportunity to avail themselves of the services of a lawyer, as well as to express their position with respect to the case, including arguments concerning its political motivation.
  • In the event of receipt of requests for extradition and interstate legal assistance in relation to lawyers who are being persecuted for their professional activity, the requested state must not only abide by universal guarantees of human rights, but also be guided by the UN’s Basic Principles on the Role of Lawyers and national legislation on the protection of lawyers.
  • Support PACE Recommendation 2121 on drafting a European convention on the profession of lawyer.

Forced expulsions or abductions of victims of political persecutions

When non-democratic states do not succeed in attaining extradition by legitimate methods, extraprocedural forced expulsions (case of the employees of the Turco-Moldovian lyceum Orizont) or abductions (case of Vladimir Yegorov, Aleksandr Frantskevich, Murdali Khalimov) of the wanted persons often take place. Such actions are implemented on the basis of cooperation between the law-enforcement agencies and special services of both states, in secret, without observing lawful procedures, thus depriving persons of the opportunity to defend their interests in court (cases of Abdullah Büyük, Aminat Babayeva, Yusuf İnan, Salih Zeki Yiğit, Alma Shalabayeva, Muratbek Tungishbayev, Zhaksylyk Zharimbetov).

The countries belonging to the Minsk Convention on Legal Assistance often resort to such methods. In so doing, despite military aggression on the part of Russia, Ukrainian law-enforcement agencies and special services continue to actively cooperate with this country in questions of extradition and expulsion.

Recommendations to member states of the Council of Europe:

  • Duly probe all instances of abductions and illegal expulsions of refugees and politically persecuted persons and ensure that the culprits are held liable.
  • Expand the scope of the Global Magnitsky Human Rights Accountability Act in relation to persons involved in instances of abuse of extraditions and interstate legal assistance that have had serious consequences, such as the torture, politically motivated imprisonment, or death of the person being persecuted. Persons responsible for ignoring the demands of the UN, the Council of Europe, and the OSCE in such cases must also fall under personal sanctions.

Insufficient human rights mechanisms in bilateral or regional agreements

The PACE rapporteur’s report indicates in what situations international law prohibits extradition. These include threat of torture, absence of guarantees of a fair trial, and the political character of the prosecution.

It is important to note that in matters of extradition and interstate legal assistance, states often rely primarily on bilateral or regional agreements rather than on international human rights law. These agreements are mostly concerned with legal assistance procedures. Mechanisms for ensuring guarantees of human rights are not clearly spelled out in them.

Such cooperation often goes on at an informal (or a less formal) level. A vivid example is mutual assistance in implementing unlawful extraditions on the part of Azerbaijan, Kazakhstan, Kyrgyzstan, Moldova, Russia, and Ukraine, who are all members of the Minsk Convention on Legal Assistance.

In such a manner, in order to preserve amicable bilateral relations, the states go for unlawful extraditions and the rendering of legal assistance with respect to politically motivated cases. The provisions of the UN Convention Against Torture, the UN Convention Relating to the Status of Refugees, the European Convention on Human Rights, the European Convention on Extradition, and the European Convention on Mutual Assistance in Criminal Matters, as well as the International Covenant on Civil and Political Rights, are thereby grossly violated.

Recommendations to member states of the Council of Europe:

  • The conducting of extradition procedures on the basis of informal or secret understandings is impermissible.
  • Examine the possibility of codifying at the legislative level norms that will allow victims of unlawful extraditions to be returned back from the requesting state to a safe country, incl. under the auspices of the UN OHCHR and the UNHCR.
  • Clearly defined tight time periods must be stipulated within which a requesting state must send a full package of extradition documents. Upon the expiration of these time periods, the arrestee must be released.
  • It is imperative to give preference to other kinds of restrictive measures besides detention. During the time of extradition procedures, violation of reasonable time periods for detention (according to the practice of the ECHR) is impermissible. The time periods for extradition arrest must be clearly restricted.
  • If Interpol has recognised a search request to be politically motivated, but this request has become the basis for an extradition arrest, the victim must have the right to material compensation. For this, it would be worthwhile to create a fund under the aegis of the Council of Europe which must be funded at the expense of violator states. One of the mechanisms for the realisation of the given proposal may be the establishing of a fixed amount of compensation (a certain sum for each month of extradition arrest).

Violation of the rights of refugees and asylum seekers

In abusing Interpol, extradition, and interstate legal assistance mechanisms, states are trampling on the rights of refugees and asylum seekers. Representatives of the authorities of the country of origin are allowed to visit refugees or asylum seekers in their place of detention, which is a gross violation (cases of Yerzhan Kadesov, Alovsat Aliyev). Refugees and asylum-seekers face surveillance and threats from the security services of the state from which they fled (cases of Emin Akhmedbekov, Narzullo Okhunzhonov, Yafez Hasanov, Leyla Yunus, Arif Yunusov).

There are numerous examples of situations when immigration services fully support the position of a state that is carrying out an unlawful prosecution and unreasonably deny the granting of asylum (cases of Pyotr Lyubchenkov, Sergei Anisiforov, Aleksey Vetrov, Sergey Sakharchuk, Zhanara Akhmetova). The attempts by non-democratic states to influence the outcome of extradition cases in a corrupt way or to deprive their opponents of refugee status are flagrant (cases of Mukhtar Ablyazov, Aleksandr Pavlov).

Besides that, instances when non-democratic states carrying out political persecution of citizens of other states who reside in the EU or the US (Marek Zmysłowski, Fikrat Huseynov, Nikolai Koblyakov, Aysen Furhoff, Halis Aydoğan, Hamza Yalçın) are becoming ever more prevalent. These persons cannot be granted asylum or subsidiary protection because formally the country of origin is not the prosecuting party.

Recommendations to member states of the Council of Europe:

  • Adhere with no exceptions to the principle of not handing over refugees and asylum seekers to the country of origin.
  • Do not allow situations when representatives of the authorities of the country of origin are given access to refugees or asylum seekers who are under extradition arrest.
  • Optimise the system of providing asylum or subsidiary protection based on UNHCR recommendations. In particular, it is necessary to involve the office of the ombudsman in resolving the issue of granting asylum or subsidiary protection, and to make use of the expertise of human rights organisations.
  • Investigate the corruption impact of non-democratic states on the process of considering whether to grant asylum or subsidiary protection to persecuted persons.

Persecution with the help of “intermediary states”

Besides that, instances have been documented when a non-democratic country, being the one that had ordered the persecution, manages by way of political understandings to get another partner state to open a criminal case and send a request for extradition or interstate legal assistance. Becoming the victims of such persecutions with the use of “intermediary states” are, inter alia, opposition activists, lawyers, and human rights advocates (case of Lyudmyla Kozlovska).

After the “intermediary state” manages to achieve extradition, it can transfer the person to the beneficiary state that is implementing the political persecution (case of Artur Trofimov).

Recommendations to member states of the Council of Europe:

  • States ought to use the expertise of human rights organisations and agencies of the UN, EU, and PACE relative to corruptional cooperation of states in cases with respect to extradition and/or the political component of a case.
  • When examining a request for extradition or legal assistance with respect to a criminal case, pay attention to facts of consultations between the requesting state and a third state that is the beneficiary of political persecution, and take into account the risk that the person will be transferred to this third state.

Extradition agreements between non-democratic states and members of the Council of Europe

In some situations, authoritarian states which do not have treaties on extradition and legal assistance with members of the Council of Europe attempt to justify their requests by making reference to UN Conventions, for example to the UN Convention Against Transnational Organised Crime, even though these conventions have a sufficiently general character.

Likewise, non-democratic states sign agreements with organisations and member states of the Council of Europe. However, in many situations, for authoritarian states this is merely a tool for increasing their influence and trust in their extradition requests. This leads to new challenges connected with the high risk of abuses of extradition procedures on the territory of the Council of Europe.

Recommendations to member states of the Council of Europe:

  • Relations between states in questions of extradition and international legal assistance must be regulated by agreements in which the procedures for such cooperation and the mechanisms for observance of human rights are detailed.
  • When signing agreements with organisations or members of the Council of Europe, non-democratic states must publicly affirm adherence to the values of the Council of Europe. The Council of Europe must ensure effective monitoring of the carrying out by such states of their obligations and ratified agreements.

Recommendations for the Council of Europe:

  • Establish a dedicated committee within the Council of Europe to monitor the abuse of extradition procedures, the Interpol system and interstate legal assistance.
  • Initiate the creation of a working group to develop practical recommendations regarding the general criteria for assessing the risks to which an individual may be exposed in the event of his or her extradition, as well as mechanisms to protect individuals from politically motivated requests for interstate mutual legal assistance.
  • Establish an international fund to pay compensation to persons who have been victims of abuse of Interpol mechanisms, as well as illegal extradition and interstate mutual legal assistance.
  • Support the participation of civil society in projects aimed at informing law-enforcement and judicial authorities of politically motivated prosecutions and abuse of extradition or interstate legal assistance procedures.
  • Support reforms of law-enforcement and justice sector institutions in Council of Europe member states. Funds for justice reform projects should be allocated in relation to specific improvements in accordance with international standards of fair investigation and trial.

This document is an updated version of an earlier report by the Open Dialogue Foundation on this topic.

Categories: International Advocacy, Reports

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