The wanted applicant did not demonstrate the possibility that he would be sentenced to life imprisonment, in the event of his extradition to the USA. Non-violation of Article 3 of the ECHR
JUDGMENT
Lang v. Ukraine 09.11.2023 (app. no. 49134/20)
SUMMARY
Decision to extradite the applicant to the US following requests from the US Government. The applicant was wanted in the states of Florida, North Carolina, and Arizona for multiple offenses.
Invoking Article 3 of the ECHR, he claimed that his extradition to the US would risk him being sentenced to life in prison without the possibility of parole.
He also requested provisional measures under Article 39 of the Rules of Court. The Court decided to indicate to the Ukrainian Government that the applicant should not be extradited while the proceedings before the Strasbourg Court are pending.
The Court observed that the applicant, a US citizen, although represented, did not present any evidence, either before the Ukrainian authorities and courts or before the ECtHR, to clarify the level of likelihood that he would be sentenced to life imprisonment in the US.
The ECtHR ruled that by extraditing the applicant to the USA, there would be no violation of Article 3 of the Convention.
PROVISION
Article 3
PRINCIPAL FACTS
On 21 August 2019 the applicant was arrested in Ukraine while re-entering the country from the Republic of Moldova. In the course of proceedings which followed, he was eventually released on his own recognisance.
On 25 September 2019 the US requested the extradition of the applicant from Ukraine under the United Nations Convention against Transnational Organized Crime. Subsequently, in February 2020 the US expanded the extradition request, adding additional charges brought against the applicant in the US. According to the amended extradition request, the applicant faced charges of federal offences with their respective potential sentences .
According to the charges brought in the US District Court in Florida, the applicant and his alleged co-conspirator had proposed to sell firearms to another man, thus luring him to attend a meeting and bring cash for the gun deal. They had then shot and killed him and another person who had accompanied him and had taken the money that the victim had brought. According to the charges, the accused had planned to use the acquired funds to go to Venezuela and fight the regime in power there.
In the indictments filed with the US District Courts in Arizona and North Carolina, the applicant was charged with, respectively, unlawfully using a US passport previously cancelled by the authorities and applying for a passport under a false identity.
On 15 October 2019 the US Embassy in Kyiv provided assurances to the General Prosecutor’s Office of Ukraine (“the GPO”) that the death penalty would not be sought or imposed on the applicant and that the applicant would not be prosecuted for any offence committed prior to his extradition other than those for which his extradition was granted.
On 17 October and 4 November 2019 the applicant asked the GPO to request assurances that he would not be sentenced to death for any offences and that he would have an opportunity to request a reduction of any life sentence, if imposed, for any offence. He also pointed out that in Trabelsi v. Belgium (no. 140/10, §§ 121-39, ECHR 2014 (extracts)) the Court had held that the exercise of the power of pardon by a US president did not satisfy the requirements imposed in this field by Article 3 of the Convention.
On 29 October 2019 the GPO responded that assurances in respect of the death penalty had been requested.
On 4 August 2020 the assurances in respect of the death penalty were reiterated by the US Department of Justice.
EXTRADITION DECISION AND OTHER PROCEEDINGS
On 28 August 2020 the GPO granted the extradition request, finding that there were legal grounds for extradition. In noted the assurances given in respect of the death penalty.
The applicant lodged an appeal with the courts against that decision. The applicant mainly relied on his requests for additional assurances in respect of the death penalty and life imprisonment and argued that no adequate assurances had been provided in respect of the reducibility of any life sentence. He relied on Trabelsi (cited above).
On 15 March 2021 the Kyiv City Court of Appeal upheld the extradition decision, finding that there were no grounds to set it aside since the charges against the applicant were for extraditable offences which were not time-barred and his asylum applications had been rejected. Accordingly, the extradition decision became final.
THE DECISION OF THE COURT…
The Court observes that the applicant’s Article 3 complaints are based on two main alleged risks – the risk of death penalty and the risk of an irreducible life imprisonment sentence. With regard to the former, the applicant cast doubt on the validity of the assurances provided by the US authorities to the effect that the death penalty would not be sought or imposed on him. The Court already rejected the applicant’s Article 2 complaint in that respect (see the preamble to this judgment). In similar cases, the Court found that there was no reason to doubt the validity of the assurances given by the US authorities (see Babar Ahmad and Others v. the United Kingdom (dec.), nos. 24027/07, 11949/08 and 36742/08, 6 July 2010; Harkins and Edwards v. the United Kingdom, nos. 9146/07 and 32650/07, §§ 85 and 86, 17 January 2012; and McCallum v. Italy (dec.) [GC], no. 20863/21, § 55, 21 September 2022).
The only question before the Court, therefore, is whether the applicant faces a real risk of the imposition of an irreducible life sentence in the US in the event of his extradition.
The Court formulated the relevant principles in Sanchez-Sanchez.
It follows from the above principles that, as the applicant has not yet been convicted and the offences with which he has been charged do not carry a mandatory sentence of life imprisonment, he must first demonstrate that, in the event of his conviction, there exists a real risk that a sentence of life imprisonment without parole would be imposed without due consideration of all the relevant mitigating and aggravating factors (see Sanchez-Sanchez, cited above, § 100, and Hafeez v. the United Kingdom (dec.), no. 14198/20, § 49, 28 March 2023).
The Court observes that the applicant, a US citizen, despite being represented, failed to present any evidence, either before the Ukrainian authorities and courts or before the Court, to elucidate the level of likelihood that he would be sentenced to life imprisonment in the US. The fact that some of the charges against him may carry a life imprisonment sentence is only a starting element and cannot lead to any conclusion in itself. The applicant has not substantiated any concrete fact or argument to challenge the Government’s submissions in this respect.
In particular, the applicant, like the applicants in Sanchez-Sanchez and Hafeez , has not adduced evidence of any defendants with records similar to his own who were found guilty of similar conduct and were sentenced to life imprisonment in the federal system. As in the above-cited cases, in the present case the Court must likewise take into account that his sentence may be affected by pre-trial factors, such as his agreeing to cooperate with the US government and the fact that he would enjoy procedural safeguards, such as the opportunity available to applicants to offer evidence regarding any mitigating factors relevant to sentencing and to appeal against any sentence imposed.
The applicant has not provided, either before the domestic courts or before the Court, any evidence which would elucidate any of those factors and circumstances.
The Court concludes that the applicant did not adduce evidence capable of showing that his extradition to the US would expose him to a real risk of treatment reaching the Article 3 threshold on account of the risk that he would be sentenced to de jure or de facto irreducible life imprisonment. That being so, it is unnecessary for the Court to proceed to the second limb of the test set out in Sanchez-Sanchez (cited above, § 109; see also Hafeez, cited above, § 55).
The foregoing considerations are sufficient to enable the Court to conclude that there would be no violation of Article 3 of the Convention if the applicant were to be extradited to the United States of America.
