In an extradition proceeding to Ukraine, there are serious and proven grounds for believing that who is surrendered to Ukraine would be exposed to a real risk of flagrant denial of justice under the provisions relating to pre-trial detention resulting from the martial law in force and the situation of armed conflict prevailing in Ukraine, such as to profoundly disorganize the judicial system and prevent the progress of the proceedings.
(automatic non official translation, original here https://www.legifrance.gouv.fr/juri/id/JURITEXT000048389608?init=true&page=1&query=23-82.220&searchField=ALL&tab_selection=all%202/3)
Court of Cassation Criminal Division
November 7, 2023
Appeal no.: 23-82.220
Decision appealed against: Chambéry Court of Appeal, Chamber of Investigation, March 30, 2023
M. Bonnal (Chairman)
COURT OF CASSATION, CRIMINAL CHAMBER
handed down the following judgment:
N° V 23-82.220 F-D N° 01273
NOVEMBER 7, 2023
M. BONNAL president,
JUDGMENT OF THE COURT OF CASSATION, CRIMINAL DIVISION,
NOVEMBER 7, 2023
The public prosecutor at the Chambéry court of appeal has appealed against the decision of the investigating chamber of the said court of appeal, dated March 30, 2023, which, in the extradition proceedings against Mr. [O] [E] at the request of the Ukrainian government, issued an unfavorable opinion.
Briefs have been submitted in support of the claim and defense.
On the report of Mrs Thomas, Councillor, the observations of SCP Sevaux et Mathonnet, counsel for Mr [O] [E], and the conclusions of Mr Croizier, Advocate General, after debates at the public hearing of October 3, 2023, at which were present Mr Bonnal, President, Mrs Thomas, Councillor-Rapporteur, Mrs Labrousse, Chamber Councillor, and Mrs Sommier, Chamber Clerk,
the Criminal Division of the Court of Cassation, composed in accordance with Article 567-1-1 of the Code of Criminal Procedure, of the aforementioned President and Councilors, having deliberated in accordance with the law, has delivered the present judgment.
Facts and procedure
1. It follows from the judgment under appeal and from the documents in the proceedings that.
2. By request dated December 30, 2022, the Ukrainian authorities sought the extradition of Mr. [O] [E], a Ukrainian national, for the purpose of criminal prosecution on charges of embezzlement of property and aggravated money laundering, committed during 2007 and on June 20, 2013 in Ukraine.
3. The person concerned has not consented to his surrender.
4. By judgment of January 19, 2023, the investigating chamber ordered further information.
Examination of the grounds
The first, second and third grounds of appeal
Pleas in law
5. The first ground of appeal criticizes the judgment under appeal insofar as it ruled against extradition, in breach of the European Convention on Extradition of December 13, 1957, and its 2nd, 3rd and 4th Additional Protocols, the European Convention on Human Rights and articles 696-4, 696-15, 591 and 593 of the Code of Criminal Procedure, whereas, notwithstanding the guarantees given by the Ukrainian judicial authorities concerning respect for Mr. [E]'s right to a fair trial and his rights of defense, and the procedural details given in the judgment under appeal, Mr. [E] was not extradited. [E]'s right to a fair trial and rights of defense, and the procedural details provided, the Investigating Chamber made its decision in abstracto, without investigating concretely whether, in fact, the person concerned would benefit from such guarantees, so that it deprived its decision of the essential conditions for its legal existence.
6. The second ground of appeal criticizes the judgment under appeal insofar as it ruled against extradition, in breach of the Vienna Convention on the Law of Treaties of May 23, 1969, the Vienna Convention on the Law of Treaties between States and International Organizations or between International Organizations of March 21, 1986, the Statute of the Council of Europe of May 5, 1949, the European Convention on Extradition of December 13, 1957, and its 2nd, 3rd and 4th additional protocols, the European Convention on Human Rights and articles 696-4, 696-15, 591 and 593 of the Code of Criminal Procedure, whereas, from the declarations made by Ukraine to the Council of Europe derogating from its obligations under international treaties, the Investigating Chamber inferred by distortion that these restrictions on the right to a fair trial and respect for the rights of the defense were applicable throughout Ukrainian territory and not only in the part occupied by Russian military forces, and that it failed to respond to the plea that the requesting State is irrevocably bound vis-à-vis the requested State and the person claimed by the guarantee of a fair trial given in support of the extradition request, so that it deprived its decision of the essential conditions for its legal existence.
7. The third ground of appeal criticizes the judgment under appeal insofar as it ruled against extradition, in violation of the European Convention on Extradition of December 13, 1957, and its 2nd, 3rd and 4th Additional Protocols, the European Convention on Human Rights, and the Ukrainian Code of Criminal Procedure, in particular articles 193, 197, 201, 211 and 615, and articles 696-4, 696-15, 591 and 593 of the Code of Criminal Procedure, whereas the Investigating Chamber misinterpreted article 615 of the Ukrainian Code of Criminal Procedure in considering that the length of Mr. [E]'s pre-trial detention would not depend on the length of his detention. [E] will not depend on the decision of a judge for the duration of martial law, that Mr. [E] will depend on the judicial authorities in Kiev where the courts function normally, and that it is clear from the evidence provided that only a judge can rule on pre-trial detention following extradition and its extension, so that it deprived its decision of the essential conditions of its legal existence.
The Court's response
8. The grounds are met.
9. In ruling against the extradition, the contested judgment states that, while it is specified by the Ukrainian State Prosecutor's Office that martial law instituted due to the entry of Russian armed forces into the national territory cannot derogate from various constitutionally protected rights and freedoms, none of these constitutional principles protects the right to a fair trial.
10. The judges note that, on the other hand, Ukraine has exercised its right to derogate from the obligations arising from the treaties ratified by it, in particular the obligations under Articles 5, 6, 8 and 13 of the European Convention on Human Rights, and that the Ukrainian State Prosecutor General has drawn up a list of derogations from fundamental rights resulting from martial law.
11. They note that, in particular, the restrictions on the right to a fair trial and the rights of the defence have led to an amendment to article 615 of the Code of Criminal Procedure, that this provision now allows for cases of detention without a decision by the investigating judge or the court, but emanating from an "authorized officer", as well as cases of suspension, until the end of martial law, of the investigation, on the basis of a reasoned decision by the public prosecutor, who is then required to rule on the extension of pre-trial detention, and that it follows that the pre-trial detention of Mr. [E] will depend on an "authorized officer" and its extension on the prosecuting authority depending on the duration of martial law and the war, these restrictions being applicable to the whole of Ukrainian territory and not only to the part occupied by Russian military forces.
12. They further consider that, in view of the recommendations issued by the Council of Judges of Ukraine on the activity of the courts during martial law, advocating the postponement of the consideration of non-urgent cases, the destruction of court buildings and the fact that participants in court proceedings are victims of the hostilities, the holding of a trial within a reasonable time is not guaranteed.
13. They conclude that the requesting State is not in a position to guarantee that Mr. [E] will be tried by a court affording fundamental procedural guarantees and protection of the rights of the defence.
14. In deciding on these grounds alone, the chambre de l'instruction has not disregarded any of the texts referred to in the pleas in law.
15. In fact, it follows from the concrete examination of the foreseeable situation of the person claimed in the event of surrender, carried out by the Examining Chamber after additional information, based on a fair analysis of the information provided, as well as on reasons that are free from insufficiency or contradiction and that respond to the essential articulations of the Public Prosecutor's indictment, that, notwithstanding the guarantees given in support of the request, there are serious and proven grounds for believing that this person would be exposed to a real risk of flagrant denial of justice under the provisions relating to pre-trial detention resulting from the martial law in force and the situation of armed conflict prevailing in Ukraine, such as to profoundly disorganize the judicial system and prevent the progress of the proceedings.
16. The pleas in law must therefore be rejected.
17. It follows that the form of the judgment satisfies the essential conditions for its legal existence.
18. Moreover, it was handed down by a competent investigating chamber composed in accordance with the law, and the procedure is in order.
FOR THESE REASONS, the Court :
DISMISSES the appeal;
Thus made and judged by the Court of Cassation, Criminal Division, and delivered by the President at its public hearing on November 7, two thousand and twenty-three.ECLI:FR:CCASS:2023:CR01273