ECtHR Cases

Published date01 March 2018
AuthorBen Wild
Date01 March 2018
DOI10.1177/2032284418757598
Subject MatterECHR Update
ECHR Update
ECtHR Cases:
October–December 2017
Ben Wild
Article 3: Extradition
D.L. v. Austria (application no. 34999/16)
The applicant, Mr D.L., is a Serbian national who was born in 1973 and has been living in Austria
since 2001. He is currently in detention pending extradition at Vienna-Josefstadt Prison (Austria).
The case concerned the proceedings for his extradition from Austria to Kosovo. Suspected of
aggravated murder, he was arrested and taken into detention pending extradition in Austria in
January 2016 on the basis of an international arrest warrant issued by the Kosovo authorities. He
had allegedly ordered the murder of his former brother-in-law, but one of the latter’s cousins had
been killed by mistake.
There ensued three rounds of proceedings concerning Mr D.L.’s extradition. In those
proceedings, he notably claimed that his life was in danger in Kosovo because of a blood
feud with his brother-in-law’s clan, which the Kosovo authorities were either not willing or
able to protect him from. He also alleged that detention conditions in Kosovo were deplor-
able, and in particular that ill-treatment by the police and prison officers, inter-prisoner
violence and corruption were rife.
After having examined Mr D.L.’s claims, the courts found that his extradition was permis-
sible. They notably found that the brother-in-law’s clan could not be that influential in Kosovo,
as certain of its members were themselves imprisoned in Kosovo; indeed, the brother-in-law had
beenconvictedinKosovoin2008forthreateningMrD.L.Theyalsotookintoaccountasworn
statement by the accused hired murderer who allegedthathehadbeenpressuredbythepolice
into blaming Mr D.L. for ordering the murder. However, they found that this statement did not
dispel the suspicion against Mr D.L. on which the extradition order was based. Mr D.L.’s
extradition has in the meantime been stayed on the basis of an interim measure granted by the
European Court of Human Rights (ECtHR) under Rule 39 of its Rules of Court, which indicated
to the Austrian Government that he should not be extradited for the duration of the proceedings
before it.
Relying on Article 2 (right to life) and Article 3 (prohibition of torture and of inhuman or
degrading treatment) of the European Convention on Human Rights, Mr D.L. alleged that he would
be at great risk if extradited to Kosovo. Relying on international reports in particular, he claimed
that the Kosovo authorities would not protect him from his brother-in-law’s clan or ill-treatment at
Mitrovica prison where he alleged that he would most likely be held.
New Journal of European Criminal Law
2018, Vol. 9(1) 138–160
ªThe Author(s) 2018
Reprints and permissions:
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DOI: 10.1177/2032284418757598
njecl.sagepub.com
NJECL
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Outcome
No violation of Articles 2 and 3 – in the event of Mr D.L.’s extradition to Kosovo.
Interim measure (Rule 39 of the Rules of Court) – not to extradite Mr D.L. – still in force until
judgment becomes final or until further order.
Lo
´pez Elorza v. Spain (no. 30614/15)
The applicant, Andre´s Lo´pez Elorza, is a Venezuelan and Colombian national who was born in
1982 in Venezuela and is currently in detention in Valdemoro Prison (Spain) pending extradition to
the United States, where he will be prosecuted for drug trafficking. The case concerned a complaint
that extradition would put him at risk of being sentenced to life imprisonment without parole,
contrary to Article 3 of the Convention.
Mr Lo´pez Elorza was arrested by the Spanish police in 2013 at the request of the United States,
which had charged him in 2005 with two drugs offences, which each carried a possible sentence of
life imprisonment. In March 2014, the Spanish Public Prosecutor’s Office agreed to his extradition,
which was approved by the domestic court in October on condition that the US authorities provided
a guarantee that any life sentence would not be irreducible. Mr Lo´pez Elorza appealed unsuccess-
fully and in February 2015, the domestic court accepted guarantees provided by the US authorities
that he would be able to seek a review of any life sentence as adequate and authorized his
extradition. Mr Lo´pez Elorza lodged several further appeals, which were all rejected. In June
2015, he appealed to the Constitutional Court, which, however, ruled that his case and an appli-
cation for interim measures to stay the extradition proceedings were inadmissible.
In July 2015, Mr Lo´pez Elorza made a request for interim measures to the Court, asking that it
indicates to the Spanish Government that it should stay the extradition proceedings pending the
outcome of his case before the Court. The request was granted until August the same year and the
Court put questions to the Government about whether he risked a life sentence in the United States
that precluded early release or release on parole and about the concrete mechanisms under US law
to have any sentence reviewed. The Government re plied in July 2015, including a document
prepared by the US Department of Justice. The document explained why the US authorities were
seeking Mr Lo´pez Elorza’s extradition and laid out the sentencing procedures and possible penal-
ties he might face. It concluded by saying that Mr Lo´pez Elorza was unlikely to face the maximum
sentence; however, if such a penalty was imposed, there were a number of ways to have the
sentence quashed, reduced or to obtain early release. On 31 July 2015, the Court extended the
interim measure and requested that the Spanish Government stay Mr Lo´pez Elorza’s extradition
while it considered his case.
Relying on Article 3 (prohibition of inhuman or degrading treatment), Mr Lo´pez Elorza com-
plained that his extradition would expose him to treatment incompatible with the European Con-
vention as it would put him at risk of being sentenced to life imprisonment without parole.
Outcome
No violation of Article 3 – in the event of Mr Lo´pez Elorza’s extradition to the United States.
Interim measure (Rule 39 of the Rules of Court) – not to extradite Mr Lo´pez Elorza – still in
force until the judgment becomes final or until further order.
Wild 139

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